11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 August 24th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) 7 Rebecca Cutler ) (np) 8 Nye Thomas ) 9 10 Murray Klippenstein ) The Estate of Dudley 11 Vilko Zbogar ) George and George 12 Andrew Orkin ) (np) Family Group 13 Basil Alexander ) 14 15 Peter Rosenthal ) Aazhoodena and George 16 Jackie Esmonde ) Family Group 17 Amanda Rogers ) (np) Student-at-law 18 19 Anthony Ross ) Residents of 20 Cameron Neil ) Aazhoodena (Army Camp) 21 Kevin Scullion ) 22 23 William Henderson ) Kettle Point & Stony 24 Jonathon George ) (np) Point First Nation 25 Colleen Johnson )
31 APPEARANCES (cont'd) 2 Kim Twohig ) Government of Ontario 3 Walter Myrka ) (np) 4 Susan Freeborn ) 5 Sheri Hebdon ) (np) Student-at-law 6 7 Janet Clermont ) Municipality of 8 David Nash ) (np) Lambton Shores 9 Nora Simpson ) (np) Student-at-law 10 11 Peter Downard ) The Honourable Michael 12 Bill Hourigan ) (np) Harris 13 Jennifer McAleer ) 14 15 Ian Smith ) (np) Robert Runciman 16 Alice Mrozek ) (np) 17 18 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 19 Jacqueline Horvat ) (np) 20 21 22 23 24 25
41 APPEARANCES (cont'd) 2 Douglas Sulman, Q.C. ) Marcel Beaubien 3 Mary Jane Moynahan) (np) 4 Dave Jacklin ) (np) 5 Trevor Hinnegan ) 6 7 Mark Sandler ) Ontario Provincial 8 Leslie Kaufman ) Police 9 10 Ian Roland ) Ontario Provincial 11 Karen Jones ) (np) Police Association & 12 Debra Newell ) K. Deane 13 Ian McGilp ) (np) 14 Annie Leeks ) (np) 15 Jennifer Gleitman ) (np) 16 Robyn Trask ) 17 Caroline Swerdlyk ) (np) 18 19 20 21 22 23 24 25
51 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Linda Chen ) (np) 8 Chris Darnay ) (np) 9 Sunil Mathai ) (np) 10 Adriel Weaver ) (np) Student-at-Law 11 12 Al J.C. O'Marra ) (np) Office of the Chief 13 ) Coroner 14 William Horton ) (np) Chiefs of Ontario 15 Matthew Horner ) (np) 16 Kathleen Lickers ) (np) 17 18 Mark Fredrick ) (np) Christopher Hodgson 19 Craig Mills ) (np) 20 Megan Mackey ) (np) 21 Peter Lauwers ) (np) 22 Erin Tully ) (np) 23 Michelle Fernando ) 24 Maanit Zemel ) (np) 25 Patrick Greco ) (np)
61 APPEARANCES (cont'd) 2 3 David Roebuck ) (np) Debbie Hutton 4 Anna Perschy ) 5 Melissa Panjer ) 6 Adam Goodman ) (np) 7 Gary Penner ) (np) Allan Percy Howse 8 9 Rick Cober Bauman ) Mennonite Central Committee 10 ) Ontario 11 12 Craig Benjamin ) Amnesty International 13 Anna Pollock ) 14 15 Chief Mike Metat ) Nishnawbe-Aski Police 16 Wally McKay ) Services Board 17 18 Chief R. Paul Nadjiwan ) Chippewas Of Nawash 19 Ralph Akiwenzie ) 20 David McLaren ) 21 22 Fred Bellefeuille ) Union Of Ontario Indians 23 24 Alan Borovoy ) Canadian Civil Liberties 25 Joshua Paterson ) Association
71 TABLE OF CONTENTS 2 PAGE NO. 3 Opening Comments 8 4 5 FINAL SUBMISSIONS BY MENNONITE CENTRAL 6 COMMITTEE ONTARIO 10 7 FINAL SUBMISSIONS BY AMNESTY INTERNATIONAL 23 8 FINAL SUBMISSIONS BY THE AFRICAN CANADIAN 9 LEGAL CLINIC 41 10 FINAL SUBMISSIONS BY NISHNAWBE-ASKI POLICE 11 SERVICES BOARD 55 12 FINAL SUBMISSIONS BY THE CHIPPEWAS OF NAWASH 83 13 FINAL SUBMISSIONS BY THE UNION OF ONTARIO INDIANS 116 14 FINAL SUBMISSIONS BY THE CANADIAN CIVIL 15 LIBERTIES ASSOCIATION 133 16 17 CLOSING CEREMONIES 144 18 19 20 Certificate of Transcript 159 21 22 23 24 25
81 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Good morning, 10 everybody. We're now moving to submissions of parties 11 with standing exclusively in Part 2 of the Inquiry. 12 These parties have not participated in the 13 factual or evidential phase of the Inquiry. They have 14 participated solely on policy issues designed to prevent 15 violence in similar circumstances in the future. 16 As a result I want to remind the 17 presenters and the public that these presentations are 18 not submissions on the evidence surrounding the death of 19 Dudley George. These submissions should be focussed on 20 policy or systemic issues that may assist me in my Part 2 21 mandate. 22 Now, just as there have been considerable 23 comments on the quality and ability of Commission Counsel 24 I would also like to introduce my Counsel who has 25 spearheaded the Part 2 part of this process, who has been
91 excellent as well. Mr. Nye Thomas, I would be grateful 2 if you would stand up. 3 Mr. Nye Thomas. Many of you know him and 4 have worked with him. And of course his able assistant 5 Noelle Spotton who's here as well. 6 There are seven (7) parties who had Part 2 7 exclusive standing and each of them has been assigned a 8 maximum of a half hour. They may not need all of it, but 9 they can't use more than a half hour. 10 Mr. Millar...? 11 MR. DERRY MILLAR: Thank you, 12 Commissioner. Just a couple of administrative matters. 13 Unfortunately we don't have enough tables for all of the 14 parties, but we've got space here. So when someone comes 15 up if there are two (2) people or three (3) people we've 16 go space in the second row when each party comes up so 17 that others can sit with them. 18 And in terms of the timing we have three 19 (3) pieces of paper, a green one, a yellow one, and a red 20 one but I'm not going to use the green one. The green 21 one is ten (10) minutes left in the presentation, but the 22 yellow and white one which I -- I will use is to give 23 everyone notice at five (5) minutes and the red one would 24 be when time is up. And that's all I have to say, sir. 25 COMMISSIONER SIDNEY LINDEN: Okay. I'm
101 now going to call on the first party which is the 2 Mennonite Central Committee of Ontario and Mr. Rick Cober 3 Bauman. 4 COMMISSIONER SIDNEY LINDEN: Good 5 morning. 6 MR. RICK COBER BAUMAN: Good morning. 7 It's good to be back again. 8 COMMISSIONER SIDNEY LINDEN: Nice to see 9 you. 10 11 FINAL SUBMISSIONS BY MENNONITE CENTRAL COMMITTEE ONTARIO: 12 MR. RICK COBER BAUMAN: Thank you for 13 this opportunity, Justice Linden. I've appreciated 14 seeing you here and in a few places in between. I do 15 have some family and friends with me this morning but a 16 few more than would fit at the tables so I think they're 17 going to stay back in the -- in the gallery there. 18 I'm going to begin. I had submitted 19 something near the end of July and I am essentially going 20 to present from -- from that submission. 21 I work as the program director for 22 Mennonite Central Committee here in Ontario. And there 23 are two (2) appendices to the report which I will not 24 read, but one of them is the introductory remarks from a 25 consultation that we held which both Justice Linden as
111 well as the two (2) staff that he's already introduced, 2 Mr. Nye Thomas and Noelle Spotton were part of -- back in 3 January of '05 at the Zurich Mennonite Church. 4 That was Appendix A and Appendix B is a 5 draft job description, actually, for a piece of work that 6 we want to do in the Grand River Valley that begins to 7 work at some relationship building between the Six 8 Nations of the Grand River and at least our Churches, 9 twenty-five (25) Mennonite Churches that exist within the 10 six (6) miles of either side of the river. 11 So those are appendices that I will not 12 read this morning. 13 There is a hymn, popular in many Mennonite 14 churches entitled, O Healing River. It's a powerful 15 expression of the deeply held hope that violence and 16 injustice will not reign in this world but that a healing 17 river of life will instead bring soothing relief to a 18 pain parched land. 19 Every time we sing it, I cannot help 20 thinking of the most memorable time ever being part of 21 singing this hymn, the time it was sung on the sands of 22 the Ipperwash Beach. 23 One of the lines asks that the healing 24 river wash the blood from off of the sand. And what sand 25 is there in our recent history that is more blood soaked
121 than the sands where Dudley George lost his life in a 2 tragic night of deadly violence? 3 But the afternoon we sang on that beach, 4 the sand was already blood soaked. We were there to 5 explore possible violence reduction work with a partner 6 agency called the Christian Peacemaker Teams. 7 But we were there because the violence had 8 already happened and the blood had already been spilled 9 by an OPP bullet. 10 And since that fatal shot was fired by 11 Officer Deane, enormous amounts of energy and scrutiny 12 have been focussed on the actions of the police that led 13 to Dudley George's death. 14 Today, over ten (10) years later, I read 15 through the dozens of pages of material generated by the 16 OPP through this Inquiry to illustrate how they have 17 changed over this past decade; how they have developed 18 ART's and MELT's and Regional Aboriginal Liaison Councils 19 and how they employ GAF's and Native Awareness Training 20 and have even been given the responsibility for a drum 21 placed in their care. 22 Also today I watch the accusations and 23 counter accusations about OPP actions and inaction during 24 the Six Nations occupation of lands of the recently named 25 Douglas Creek Estates of Caledonia.
131 One could conclude from the OPP actions at 2 Caledonia and their list of changes and learnings since 3 Ipperwash that they had learned and that they had 4 changed. How else would we explain their restraint in 5 the now infamous incidents of fights and alleged assaults 6 on Friday nights in Caledonia? 7 On the other hand, one could conclude very 8 little at all has changed, based on the many accounts 9 I've heard of the early morning raid on April 20th, that 10 included pepper spray and physical violence. 11 I'm suggesting that for the purposes of 12 this submission, it doesn't really matter. Of course, I 13 want to know that my province has the very finest police 14 services in the land and I would be proud to describe our 15 police as the best anywhere in dealing with issues that 16 involve First Nations. 17 But this should never have been a policing 18 matter. The fact that it was suggests a failure in us, 19 as communities, that we were gathered on the beach to 20 sing O' Healing River after the blood had soaked the sand 21 made it all the clearer that for this most important of 22 engagements, we who wanted to be peacemakers were 23 tragically late. 24 And, of course, it would also be easy to 25 shift our sights from the police to another locus of
141 power in our society, to say that if it is not a failure 2 in how we police this land, it is a failure in how it is 3 governed. 4 And again, of course, we would want our 5 Federal Government to swiftly and justly bring settlement 6 to the many outstanding claims on lands and resources 7 that so often, as they did here, lead to conflict, 8 confrontation and violence. 9 But again, we would say it's too easy to 10 simply expect national leaders to act to resolve these 11 longstanding vestiges of unresolved relationships between 12 newcomers and the first peoples who welcomed us here. 13 So can I honestly blame the community for 14 what happened on September 6th and is it really up to 15 them to change in order to avoid future tragedies like 16 this one. There were some very wise and worthwhile 17 recommendations that recently came directly out of the 18 very community where this shooting occurred from a public 19 meeting held earlier this summer at the Thedford area a 20 few miles from here. 21 This, by the way, is the very same arena 22 that saw over eight hundred (800) local community members 23 gathered in the days just after the shooting displaying a 24 decidedly different face. 25 In the fall of '95 fear and anger created
151 a very hostile and tense setting as the community 2 discussed how it would move on with its life in the 3 aftermath of such upset. Now, eleven (11) years later, 4 there emerged from these community people some calm and 5 thoughtful suggestions. 6 It's worth noting that six (6) of their 7 eight (8) recommendations made to the Inquiry that 8 evening had to do with actions and policies of the 9 police. Many of them, I'm happy to say, are already or 10 in the process of being implement -- implemented by the 11 OPP. 12 Requests for things like the mandatory 13 preservation of officers' notes, far stronger use of 14 Aboriginal officers to police Aboriginal communities and 15 the need to communicate effectively with the whole 16 community during a critical incident. 17 A seventh recommendation directed to our 18 Federal Government was the often repeated and still true 19 need for timely settlement of outstanding claims. But 20 the last had to do with all of us, the ununiformed, 21 civilian population of Ontario. It was simply entitled, 22 Education. Not very new. Not very startling. 23 In it they make a fairly standard call for 24 all of us to be educated about the historical basis for 25 land claims in this Country. But it's in the general
161 notes of the meeting following the recommendations that I 2 think we could look for direction. 3 We were told that at that meeting others 4 stepped forward to note that they and their families had 5 always enjoyed good relations with local First Nations 6 people. One (1) man described his family having lived 7 peacefully adjacent to Stoney Point for six (6) 8 generations. 9 This is not to say that if all the folks 10 near Ipperwash had been more friendly the shooting would 11 never have happened. I realize that's far too 12 simplistic. Nor can we blame the incident on even the 13 more virulent of attitudes held by others of the Stoney 14 Point community's neighbours. 15 The key that I think is being identified 16 here is the simple truth that our governments and even 17 our police are, in fact, reflections of us and of our 18 attitudes towards First People. Until we, as a newcomer 19 community, make two (2) fundamental changes relations 20 with First Peoples will remain strained, volatile and at 21 times violent. 22 The first change, as suggested by the good 23 people at the Thedford arena, is the essential relearning 24 of the history of our being welcomed to this land. What 25 are the principles of understanding land and of people
171 belonging to land rather than land to people? What is 2 the meaning of Treaty, in Hebrew the same word as 3 covenant, when land is not a commodity that can be sold 4 or owned? What does it mean to be side by side on the 5 same land when our understandings of sharing land versus 6 exclusive use of it are so widely different? 7 But education is not, by itself, adequate. 8 I think the people at Thedford who stepped forward to 9 describe their good relations with people at Stoney Point 10 are very close to the second change we need to achieve. 11 Education without relationships is not enough. Though 12 neither is it adequate to be in friendly relationships 13 without bothering to gain a realistic understanding of 14 Aboriginal social and political history. 15 What we are proposing is a thoroughgoing 16 effort to rebuild or, in many cases, build for the first 17 time strong, honest, informed relationships with First 18 People who are our neighbours. For us in the Christian 19 Faith community this grows heavily out of our commitment 20 to justice, but it has many roots throughout our whole 21 community. 22 Newcomers to Turtle Island this is our 23 work. It's not good enough to wait and hope that First 24 Nation people will seek us out, speak to us, educate us 25 and ask to be our friends. There's been too much broken
181 trust for that. We will need to own this work. 2 Let me give you an example of what I mean. 3 Earlier I mentioned Caledonia, now a nationally 4 recognized place name only less infamous than Ipperwash 5 and Oka because there was no loss of life on this 40 acre 6 parcel on the edge of Six Nations. 7 This parcel is one (1) tiny sliver of a 8 huge tract of land stretching for 6 miles on either side 9 of the Grand River that was granted to the Six Nations by 10 the British -- British Crown in 1784. Essentially it was 11 compensation for their major land losses in what is now 12 Upstate New York, lost after they and the British were 13 defeated by the Americans in the War of Independence. 14 Let me read an excerpt from a statement to 15 our Mennonite constituency we prepared a few weeks ago. 16 "For many Mennonites in Ontario, those 17 of the Swiss/German immigration via 18 Pennsylvania, their arrival here in 19 Ontario closely followed the Crown 20 commitment to the Haldimand Grant to 21 Six Nations." 22 In fact there's at least one (1) case of 23 early Mennonite settlers raising extra money to settle an 24 outstanding debt to Six Nations that they became aware of 25 after assuming they had purchased mortgage-free land in
191 the Grand River Valley near present day Waterloo. 2 We would like to think there continues to 3 be in our communities a strong commitment to being good 4 neighbours with those who welcomed us here. 5 There are approximately twenty-five 6 congregations from the Mennonite and Brethren of Christ 7 Church, all part of MCC, Mennonite Central Committee 8 Ontario, whose church meeting houses are locating -- 9 located in the historic Haldimand Tract. 10 This does not mean all these churches are 11 on land claimed by Six Nations, but we believe it does 12 create for us as a peace church a call to better 13 understand Grand River Valley settlement history, 14 particularly as it creates a strong case for Six Nations 15 legitimate claim to land and/or compensation. 16 As people who want to live as good 17 neighbours we believe it's important to understand and 18 respect the efforts of the Six Nations community to 19 achieve a settlement that is just and timely and that 20 contributes to the long-term health and viability of 21 their community. 22 So in order to act on this intention MCC 23 Ontario intends to hire a staff person whose work will be 24 encouraging, nurturing, and building of relationships 25 between those twenty-five (25) churches -- our churches -
201 - and the Six Nations neighbour -- neighbours who 2 welcomed them to the valley. We hope to work with non- 3 Mennonite churches too as others -- as well as others who 4 are not part of the faith community but who share a 5 commitment to creating informed, fair, open 6 relationships. 7 This will not easy, nor automatic. 8 There's a lot on the line, with municipalities wanting to 9 build bridges across the river, private developers 10 wanting to build houses and industry in the river valley; 11 all of this while Six Nations attempts to assert 12 themselves in the creation of a solid land and economic 13 base for their future. 14 Tough chequebook decisions need to be made 15 which will require discussion and negotiation that are 16 built on strong working relationships. 17 We believe it is in part our 18 responsibility to help develop those strong relationships 19 and we're prepared to invest some time; not just months, 20 maybe years. We hope others will join us. We're slow 21 starting. There's no recipe to follow and more 22 importantly no guarantee of success but the alternatives 23 to the building of good relationships seem clear; more 24 misunderstanding, more confrontation, more violence. 25 I'm hopeful we can do better than that.
211 We believe that only when local community-to-community 2 relationships are healthy will policing relationships 3 move to where we need them to be, and will land claims be 4 settled in ways that all parties can accept and even 5 celebrate. Building these local communities of 6 understanding is vital to the large-scale structural 7 changes we require. 8 And I don't want to suggest that there are 9 not already good, respectful relations in the Grand 10 Valley or of course here in the communities of Stoney 11 Point, Kettle Point, Thedford, Forest, Sarnia. There 12 are. I've observed some of them, but clearly we need to 13 do more. 14 When communities know, understand, and 15 trust each other they will not need to so quickly depend 16 on the professionals from police departments and Federal 17 ministries to step in to resolve local issues. Of course 18 this is not to say these groups can abdicate their -- 19 their duties, especially the settlement of outstanding 20 claims, but rather that communities with confidence in 21 their relationships can take back the responsibilities to 22 work out many of their issues and concerns locally and 23 successfully. 24 As communities we will only be ready for 25 this when we commit to the building of genuine
221 relationships even when the barriers to these 2 relationships look daunting. It is precisely then that 3 we need to act. 4 Thank you, Justice Linden. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. 7 MR. RICK COBER BAUMAN: Now I don't know 8 enough about protocol, if there is likely to be questions 9 here or if there -- 10 COMMISSIONER SIDNEY LINDEN: No, I think 11 it -- 12 MR. RICK COBER BAUMAN: -- move on. 13 COMMISSIONER SIDNEY LINDEN: -- would be 14 too difficult to manage that so we're just going to have 15 the presentations and move from one to the next. Thank 16 you very much. 17 MR. RICK COBER BAUMAN: Thank you for 18 your time. 19 COMMISSIONER SIDNEY LINDEN: All right. 20 The next party that I'm going to call upon is Amnesty 21 International, Mr. Craig Benjamin and Anna Pollock. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: Good
231 morning. 2 3 FINAL SUBMISSIONS BY AMNESTY INTERNATIONAL: 4 MR. CRAIG BENJAMIN: Good morning, 5 Commissioner, good morning. 6 Like many of the organizations in this 7 room, Amnesty International welcomed the establishment of 8 a public inquiry into the killing of Dudley George. 9 This Inquiry is important because Dudley 10 George's family and community deserve justice. It is 11 also important, because the killing of Dudley George was 12 the tragic culmination of a series of failures by 13 Canadian officials to respect and uphold the rights of 14 indigenous peoples at Ipperwash. 15 It is important because many of these same 16 failures continue to jeopardise the fundamental human 17 rights of indigenous peoples across Canada. 18 In my remarks I will not be strictly 19 following our written submission. Instead, I want to 20 highlight some of the key principles that we have raised 21 and so the pre -- key concerns that are highlighted in 22 our submission. 23 The first of these is the urgent need to 24 ensure fair and timely resolution of the numerous 25 outstanding disputes over lands, territories and
241 resources, vital to indigenous peoples' enjoyment of 2 their basic human rights. 3 The second concern is the potential for 4 conflict created by the tendency of all levels of 5 government to allow non-indigenous interests to exploit 6 and profit from disputed lands while criminalizing 7 indigenous persons who assert their rights in respect of 8 these same lands and resources. 9 Our final concern is the pressing need to 10 ensure that even when public officials fail in their duty 11 to uphold the human rights of all, police officers do 12 not. 13 I will preface these concerns with a few 14 comments on the international context of this Inquiry, on 15 the relevance of international human rights law and 16 standards to these proceedings, and the importance of 17 this Inquiry to the promotion of human rights 18 internationally. 19 Many of the circumstances surrounding the 20 killing of Dudley George are not unique to Ontario and 21 they're not unique to Canada. In every region of the 22 world, indigenous peoples are amongst the most 23 marginalised members of society and the most frequently 24 victimized. 25 Denied adequate legal protection of their
251 traditional lands and resources, they are often uprooted 2 so that others can benefit from the wealth of their 3 territories. 4 Cut off from resources and lands vital to 5 their welfare and survival, they are unable to fully 6 enjoy such human rights as the right to food, the right 7 to health, the right to housing or cultural identity. 8 Instead, the face poverty, disease and social strife and 9 in some instances, extinction as a people. 10 Sadly, the opportunity for a fair and 11 balanced examination of the issues provided by this 12 Inquiry is not available to most indigenous peoples 13 around the world. Amnesty International would like to 14 underline that the conclusions and recommendations of 15 this Inquiry may prove important, not only in Canada, but 16 also in many other countries where disputes over land 17 rights are the heart of conflict and human suffering. 18 Throughout our submission we relate our 19 observations and our recommendations to international 20 human rights law and standards. 21 We draw the Inquiry's attention to these 22 laws and standards in part because they transcend 23 boundaries and borders. They establish a common ground 24 that connects the proceedings of this Inquiry to the 25 pressing concerns of indigenous peoples worldwide.
261 We also note the importance of 2 international human rights law in interpreting and 3 clarifying the legal obligations of Canadian officials. 4 The relevance of international human 5 rights standards to the Canadian justice system has been 6 underlined repeatedly by the Supreme Court of Canada. 7 As former Chief Justice Dixon observed, 8 international human rights instruments were part of the 9 context in which the Canadian Charter of Rights and 10 Freedoms was drafted and adopted and should be viewed as 11 a relevant and persuasive source for Charter 12 interpretation. Furthermore, the Court has emphasized 13 that the Charter should generally be presumed to provide 14 protection at least as great as that afforded by similar 15 provisions in international human rights documents. 16 It is the Federal executive that ratifies 17 international human rights treaties. The Federal 18 Government also has a specific obligation to safeguard 19 the rights and welfare of indigenous peoples under the 20 Canadian constitution. But it is often a Provincial 21 Government that asserts jurisdiction over disputed lands 22 and territories. All too often, both levels of 23 government have hidden behind the division of powers to 24 avoid addressing the rights of indigenous people. 25 In 1999, the UN Human Rights Committee
271 called for an Inquiry into the killing of Dudley George. 2 The recommendation was directed to the Federal 3 Government. However, the Federal Government claimed it 4 was powerless to comply because the concerns were outside 5 its jurisdiction. 6 For its part, the Government of Ontario at 7 the time argued that it -- it didn't need to act on the 8 recommendation because compliance with international 9 human rights treaties was a Federal affair. 10 Lost on both the Federal and Provincial 11 Governments was the clear international legal standard 12 that the division of powers is no defence to a failure to 13 comply with international obligations. International law 14 applies to and must be upheld by all parts of the Federal 15 state. 16 In recent years human rights experts 17 within the United Nations system have articulated a clear 18 and consistent framework of state obligations to protect 19 the human rights of indigenous peoples in the context of 20 their unique circumstances, needs and aspirations. 21 This framework of international human 22 rights standards is based on recognizing the cultural 23 distinctiveness of indigenous peoples, the history of 24 discrimination, dispossession that they have endured, and 25 the central importance of indigenous peoples'
281 relationship to the land. 2 In fact, secure access to land and natural 3 resources is a critical precondition for indigenous 4 peoples to enjoy their fundamental human rights, 5 including rights to livelihood, health, human dignity and 6 cultural identity. Accordingly, international human 7 rights bodies have consistently emphasized the gravity of 8 states' failure to recognize and uphold the land and 9 resource rights of indigenous peoples. 10 In fact, much of this framework of 11 international law has been developed specifically in 12 relation to the obligations of the Canadian state because 13 indigenous peoples in Canada have taken their concerns to 14 UN bodies. 15 For example, the UN Human Rights Committee 16 found that Canada was in violation of its obligation to 17 uphold the cultural rights of the Lubicon Cree because it 18 failed to protect the land base that was essential for 19 the enjoyment of those rights. 20 UN treaty bodies, such as the Human Rights 21 Committee, were established under binding international 22 human rights treaties and they are charged with their 23 interpretation. Their recommendations should thus be 24 considered authoritative interpretations of state 25 obligations.
291 In our submission we draw the attention of 2 the Inquiry to General Recommendation 23 of the UN 3 Committee on the Elimination of Racial Discrimination. 4 In this recommendation the Committee has interpreted the 5 binding obligation of states under the international 6 convention on the elimination of all forms of racial 7 discrimination, as including a duty to recognize and 8 protect the rights of indigenous peoples to own, develop, 9 control and use their communal lands, territories and 10 resources and, where they have been deprived of their 11 lands and territories without their free and informed 12 consent, to take steps to return those lands and 13 territories. 14 Other UN treaty bodies have also condemned 15 the removal of indigenous peoples from their lands and 16 urged the restitution of lands taken without their free, 17 prior informed consent. 18 We acknowledge that implementation of 19 these obligations represents a significant challenge for 20 governments in Canada. But it is a challenge from which 21 Canada shouldn't and mustn't shrink. This is the kind of 22 challenge envisioned by The Royal Commission on 23 Aboriginal Peoples. 24 We stated ten (10) years ago that Canada's 25 claim to be a just and enlightened state would depend on
301 working out fair and lasting terms of co-existence with 2 First Nations, Inuit and Metis peoples. 3 The Royal Commission, RCAP, acknowledged 4 that indigenous peoples in Canada have been unfairly 5 deprived of more than two-thirds (2/3's) of their land 6 base that they held at the time of Confederation. RCAP 7 urged immediate government action to ensure fair and 8 timely resolution of the hundreds of outstanding disputes 9 over indigenous lands and resources, warning that without 10 -- without adequate land and resources Aboriginal nations 11 would be unable to build their communities and structure 12 the employment opportunities necessary to achieve self- 13 sufficiency. Currently on the margins of Canadian 14 society they will be pushed to the edge of economic, 15 cultural and political extinction. 16 Unfortunately, the opportunities available 17 to indigenous peoples to seek remedy for violations of 18 their land rights are unfairly biassed and inadequate to 19 the cause of justice. This has been highlighted in other 20 submissions to the Inquiry. 21 I would like to highlight just a couple of 22 points of this systemic bias. Unless otherwise 23 established lands in Canada are presumed to be under 24 Crown title. Indigenous peoples must establish their 25 claims before rights will be recognized. And even when
311 indigenous title is recognized it is commonly assumed to 2 be of lesser legal status than other forms of land title 3 and more easily overridden in the name of the common 4 good. 5 Federal and provincial officials typically 6 plan an adversarial role in the negotiation of treaties 7 and the resolution of land and treaty disputes seeking to 8 limit the recognition of indigenous rights and siding 9 with other interests and sectors of society that benefit 10 from access to indigenous lands and resources. 11 The process of treaty negotiations or 12 claim resolution drags on for years during which the 13 rights of the concerned communities are left unprotected. 14 Resource extraction projects and other forms of 15 development are often authorized against the wishes of 16 the affected community even while title to the land 17 remains in dispute. Protective measures to ensure that 18 the rights of the community are not compromised are 19 rarely granted. 20 The combined effect of these systemic 21 biases against the recognition and protection of 22 indigenous people's land rights often leads to situations 23 which indigenous communities feel they have no other 24 choice but to occupy land or harvest resources in 25 defiance of the Government or competing claims to these
321 lands and resources. 2 As a consequence indigenous peoples may 3 find themselves in situations of potential conflict with 4 police or other law enforcement officials that could have 5 been avoided if their rights had been fairly and 6 effectively addressed in the first place. 7 As we all know the right of free 8 expression, the right of political participation and the 9 right of peaceful assembly are fundamental and widely 10 recognized human rights. Participation in peaceful 11 protest is a legitimate and protected exercise of these 12 basic rights. States have a clear duty not to our 13 arbitrarily infringe upon the right of peaceful and 14 protest. 15 The same duty applies to all law 16 enforcement officials. The United Nations Code of 17 Conduct for law enforcement officials emphasizes that law 18 enforcement officials must at all times respect and 19 protect human dignity and maintain and uphold the human 20 rights of all persons. 21 As the Ontario Provincial Police rightly 22 acknowledge in their submissions the specific 23 circumstances of indigenous peoples necessarily mean that 24 additional rights come into play in indigenous land 25 protests.
331 When the underlying rights of the land 2 have not been fully or adequately resolved the door is 3 open to conflicting interpretations of the law. 4 Indigenous communities may sincerely believe they're 5 acting within their rights and legal entitlement when 6 they occupy disputed land or harvest its resources and in 7 fact they may eventually be proven right. 8 Even while the rights remain unresolved, 9 the Colour of Right argument has in some instances been 10 used successfully to defend indigenous activists accused 11 of crimes such as trespass. In this context carrying out 12 an enforcement action to end a protest risks turning 13 police and the justice system into instruments of 14 arbitrary and even discriminatory limitation of the 15 rights of indigenous peoples. 16 Unfortunately there is a clear and 17 dangerous tendency to treat indigenous protestors as 18 criminals even when the underlying rights issues remain 19 unresolved. 20 In 2004 the UN Special Arbiter on the 21 situation of the human rights and fundamental freedoms of 22 indigenous peoples noted with concern numerous cases 23 where the enforcement actions and prosecution of 24 indigenous protestors have been carried out without due 25 regard for the social and cultural context of the
341 protest. 2 Amnesty International has also commented 3 on specific incidents in Canada where actions carried out 4 by indigenous communities potentially well within their 5 legal rights were summarily denounced by public officials 6 as criminal and large numbers of law enforcement officers 7 were deployed in response without clear evidence of any 8 threat to public safety. 9 Amnesty International believes that a 10 fundamental conceptual shift is required of government, 11 police, the court, and the public to recognize that 12 efforts by indigenous peoples to assert land and resource 13 rights should be approached and understood first and 14 foremost from the goal of upholding human rights. 15 We have all seen and heard comments to the 16 effect that failing to act against presumed crimes such 17 as trespass risks putting indigenous activists above and 18 beyond the law, but in fact what is required is respect 19 for the entirety of law including obligations to uphold 20 the human rights of indigenous peoples protected in the 21 Canadian Constitution and in international law. 22 None of this is to suggest that there is 23 no role for law enforcement officials. Clearly police 24 must act when there's clear and compelling evidence of 25 impending or actual violence or other threats to public
351 order and safety, whoever the perpetrators of victims of 2 that violence may be, but this should not overshadow the 3 need to ensure appropriate response when no such threat 4 exists. 5 Amnesty International fully agrees with 6 the submissions of the OPP where it emphasizes that in 7 addition to the enforcement of the law, police officers 8 have a duty to support the peaceful resolution of 9 conflicts, a role which may require the exercise of 10 restraint and discretion. 11 It is encouraging that the OPP framework 12 for police preparedness for Aboriginal critical incidents 13 calls for strategies that minimize the use of force to 14 the fullest extent possible and include a number of 15 significant structural reforms toward this end including 16 establishment of an Aboriginal Relations Team. 17 Amnesty International is encouraged by 18 statements from the OPP that the force is already working 19 with or is prepared to work with indigenous peoples' 20 organizations in evaluation aspects of the implementation 21 of this framework. 22 Given that confrontations continue to take 23 place over land and resources it is clearly of vital 24 importance that there be a thorough and independent 25 assessment of how well the positive new directions
361 indicated to this Inquiry have been institutionalized and 2 acculturated within the OPP, its many structures and its 3 large force of officers. 4 We would like to reiterate as well that 5 international standards are absolutely clear that any use 6 of force must be undertaken only as a last resort and 7 when strictly necessary to ensure public safety. 8 A decision to use force should not be 9 taken because it is a reasonable option but because it is 10 the only option. We acknowledge that any use of force by 11 a police officer involves decisions made in a context of 12 tense, often rapidly unfolding and sometimes confusing or 13 frightening situations. 14 The decision will also be informed by the 15 officer's own assumptions about the situation, any 16 briefings given by superiors, and the implicit message 17 sent by the numbers and functions of officers that have 18 been deployed. 19 Safeguarding against excessive use of 20 force requires training of individual officers in the 21 appropriate use of force as well as broader systemic 22 safeguards within the police service and its governing 23 institutions. 24 Necessary safeguards include protocols to 25 ensure that the number and function of any officers
371 deployed to police protests corresponds to an accurate 2 and unbiased assessment of any threat posed to public 3 order and safety. 4 Effective, transparent and accessible 5 measures to ensure that officers who break codes of 6 conduct are held to account, and meaningful efforts to 7 develop cross cultural competency among officers and weed 8 out those whose judgment is warped by racist assumptions. 9 One of the key issues examined in the 10 course of this Inquiry is the appropriate relationship 11 between the Government and the police. 12 We have noted that when it comes to 13 indigenous land rights, Canadian officials have all too 14 often failed in their duty to uphold the human rights of 15 all without discrimination and have, instead, taken sides 16 against indigenous peoples, seeking to dismiss or 17 diminish their rights in favour of other sectors of 18 society. 19 Amnesty International is concerned that 20 the direct involvement of public officials in operational 21 decisions of police during a land protest would have the 22 potential to subvert the role and duty of police officers 23 by turning them into agents of discriminatory political 24 policies. 25 Clearly it is entirely inappropriate and
381 generally illegal for an elected official to in any way 2 interfere with police operations, to directly or 3 indirectly encourage actions that violate human rights. 4 That would include, for instance, a direct order or 5 indirect suggestion that force should be used as anything 6 other than the option of last resort. 7 At the same time, however, it is entirely 8 appropriate and an obligation that government assert 9 leadership in ensuring that police operations will be 10 conducted in full conformity with international human 11 rights standards. This is not inappropriate interference 12 with police independence, but responsible compliance with 13 the duties of government. 14 A critical dimension of the appropriate 15 role of government officials is ensuring effective 16 oversight and accountability of police. 17 To the best of our knowledge, the OPP is 18 unique among police forces in Canada in that the use of 19 lethal force by its officers is subject to mandatory 20 investigation by the Civilian Special Investigations 21 Unit. The existence of such a unit is an indication of 22 the feasibility of robust and impartial civilian 23 oversight of police operations. 24 Amnesty international believes that if a 25 civilian body is capable of investigating the most
391 serious allegations of police wrongdoing, other public 2 concerns, such as allegations of racism can and should be 3 subject to independent civilian investigation. 4 Internal investigations of such concerns 5 too often fail to meet the objectives of justice, either 6 because they are biassed or because they are perceived to 7 be biassed by the affected community. 8 I'd like to conclude by highlighting a 9 number of specific recommendations made in our 10 submission. 11 Amnesty International urges the 12 Commissioner to press the Federal and Provincial 13 Governments to develop a more coordinated approach to 14 ensuring the protection of the rights of indigenous 15 peoples in Canada: 16 To call upon both levels of Government to 17 collaborate with indigenous peoples in developing 18 impartial, expert mechanisms to resolve land and treaty 19 disputes in an integrated and streamlined manner taking 20 full account of all rights protected in national and 21 international law. 22 To stress that when legal uncertainty 23 exists over the exercise of indigenous rights, government 24 officials have an obligation to seek a peaceful and just 25 resolution of the dispute through an appropriate process
401 in which the rights of indigenous peoples can be given 2 full consideration. 3 To call on the Government of Ontario to 4 collaborate with indigenous peoples in carrying out an 5 independent evaluation to determine the effectiveness of 6 the OPP framework for police preparedness for Aboriginal 7 critical incidents. 8 To encourage expansion of civilian 9 oversight in Ontario, including independent investigation 10 of all allegations of police wrongdoing. Particular 11 attention should be paid to ensuring that such 12 accountability mechanisms are well known and accessible 13 to indigenous communities. 14 And call upon all levels of Government to 15 enact policies consistent with international human rights 16 standards which require that activities that could 17 jeopardize the rights of indigenous peoples are not 18 permitted on disputed lands until the title is fairly 19 resolved. 20 Finally, we urge the Commissioner to 21 incorporate into the Inquiry's recommendations the 22 principle of international law articulated in General 23 Recommendation 23 of the Committee for the Elimination of 24 Racial Discrimination that lands appropriated without 25 free, prior and informed consent, must be restored.
411 Subject to any further questions, those 2 are our submissions. Thank you. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, sir. 5 I'll now call on the African Canadian 6 Legal Clinic and Marie Chen and Gerry McNeilly. Good 7 morning, Mr. McNeilly. 8 9 FINAL SUBMISSIONS BY THE AFRICAN CANADIAN LEGAL CLINIC: 10 MR. GERRY MCNEILLY: Good morning, 11 Mr. Commissioner. Mr. Commissioner, we appreciate and 12 thank you for the opportunity to contribute to this very 13 important Inquiry dealing with the death of Mr. Dudley 14 George. 15 We provided Mr. Thomas yesterday with our 16 preliminary report of Professor Wortley and our 17 supplemental recommendations. I'm advised that the 18 Commissioner will distribute our Part 2 project to all 19 parties next week. 20 Our submissions will speak to the report 21 and expand on our written submissions and 22 recommendations. Our submissions, Mr. Commissioner, will 23 focus on the use of force against racialised communities 24 and, in particular, Aboriginals and the African Canadian 25 communities.
421 Police used of force has been a critical, 2 longstanding issue for racialised people in Ontario. In 3 particular, for African Canadians and Aboriginal 4 communities who share a common disadvantaged status and 5 continue to be over-policed and over-represented in the 6 criminal justice system. 7 This over-representation is systemic and 8 is primarily rooted in the stereotyping of Aboriginals 9 and African Canadians. I will not go into detail on the 10 context, save to say that this Inquiry embodies the use - 11 - the issue of -- for police use of force and is already 12 provided in our written submissions. 13 But rather, I will focus today on the 14 research report and the proposed recommendations. The 15 research, Mr. Commissioner, commissioned by the African 16 Canadian Legal Clinic is the first Canadian study of this 17 type and it's been -- its results today, in part, are 18 being presented for the very first time. 19 First, because it involves an analysis of 20 data kept by the SIU on its investigations completed over 21 a five and a half (5 1/2) year period between 2000 and 22 2006, where a total of seven hundred (700) -- over seven 23 hundred (700) cases were reviewed. 24 We also wish to thank at this time the SIU 25 Director for his cooperation in providing access to the
431 SIU records for this purpose. 2 Sir, when seen the results of the data 3 analysis will tell you that it is truly groundbreaking. 4 It clearly establishes the shocking disparity of police 5 use of force experienced by Aboriginals and African- 6 Canadians. It confirms the long-held concerns of these 7 communities of the disproportionate use of force against 8 them. 9 It provides a stark illustration of 10 systemic racism in policing and the criminal justice 11 system which has been time and time again recognized by 12 various studies and commissions, most notably the 13 Commission on Systemic Racism in our Courts. 14 Whichever way you cut the data, 15 Aboriginals and African-Canadians are grossly over- 16 represented in the SIU investigations of police use of 17 force and shootings. And the more serious the case the 18 more the over-representation. 19 I'm going to refer to Professor Wortley's 20 report. In looking at the analysis I will be relying on 21 the case rates calculated per one hundred thousand 22 (100,000) persons of the population and I will be 23 comparing it to whites in the population. 24 I do not intend to review every finding 25 but rather will be highlighting the specific issues of
441 police use of force and with respect to shootings. 2 I'll be reviewing the -- reviewing the 3 tables by numbers for your ease of reference -- ease of 4 reference at this time; I'm sorry, for ease of reference 5 at a later date. 6 Table 1 deals with all SIU cases 7 investigated. The rate there for whites is five (5) 8 persons per one hundred thousand (100,000) involving SIU 9 investigations while the rate for Aboriginals is thirty 10 (30) and the rate for African Canadians is twenty-three 11 (23). That is to say as an example that while 12 Aboriginals make up only 1.7 percent of Ontario's 13 population they represent 7.1 percent of all SIU cases. 14 Similarly, while blacks are only 3.6 percent of Ontario's 15 population, they represent 12 percent of the SIU cases. 16 On Table 3 the rates are more pronounced 17 when you look at SIU investigations involving civilian 18 deaths or injuries caused by police use of force and we 19 have excluded in this table vehicular pursuits. In that 20 the rate for whites is 2.5 per one hundred thousand 21 (100,000) involved, the rates for blacks is thirteen (13) 22 per one hundred thousand (100,000). That is 23 approximately five (5) times greater than the rate for 24 whites. And the rate for Aboriginal is fifteen (15) per 25 one hundred thousand (100,0000); that is six (6) times
451 the wait -- the rate for whites. 2 In Table 4 the numbers are even more 3 alarming when it comes to injuries and deaths caused by 4 police shootings the over-representation of African 5 Canadians become even more dramatic. While blacks are 6 three point six (3.6) of the Ontario population, they 7 represent 27 percent of these cases. Aboriginal 8 represents one point seven (1.7) of the Ontario 9 population, yet they represents or constitute 6.8 percent 10 of these cases. 11 To put it another way, Mr. Commissioner, 12 the rate per one hundred thousand (100,000) for African 13 Canadian is five (5) as compared to the rate for whites 14 at zero point four eight (0.48). This suggests that 15 African Canadians are ten (10) times more likely to 16 become involved in police shootings causing death or 17 injury than their white counterparts. 18 As stated in Professor Wortley's report on 19 page 22 this means that over five (5) -- over the five 20 and a half (5 1/2) year study period police shot one (1) 21 white person for every two hundred and eight (208) -- 22 police shot one (1) black person for every two (2) -- one 23 (1) white for every two hundred and eight (208) white 24 persons. 25 By contrast the police shot one (1)
461 African Canadian for every two hundred (200) -- two 2 thousand (2,000) -- twenty thousand five hundred (20,500) 3 blacks; people in the general population. 4 The numbers for police shootings involving 5 Aboriginals are equally troubling; the rate is four (4) 6 times greater than the white rate. And over the same 7 period, five and a half (5 1/2) years investigated, the 8 police shot one (1) Aboriginal civilian for every thirty- 9 seven thousand five hundred (37,500) Aboriginal persons. 10 When it comes to deaths caused by police 11 shootings the results are to put it mildly, shocking. 12 African Canadians account for 35 percent of shooting 13 deaths when they are only 3.6 percent of the Ontario 14 population. This is a whopping sixteen (16) times 15 greater than the rate for white people. In other words 16 the police shot and killed one (1) black person for every 17 fifty-one thousand (51,000) black persons. By contrast 18 the police shot and killed one (1) white person for every 19 eight hundred and thirty-three (833,000) white persons. 20 The disparity is also evident for 21 Aboriginal persons in that the police shot and killed one 22 (1) Aboriginal person for every one hundred thousand 23 (100,000) persons. 24 Sir, in Metropolitan Toronto the over- 25 representation of African Canadian involvement in police
471 shooting is also glaring. In Table 11 police shooting 2 rates for black people is seven and a half (7 1/2) times 3 higher than the overall rate for Metropolitan Toronto. 4 Compared to their white counterpart blacks are twelve and 5 a half (12 1/2) times more likely to become involved in a 6 police shooting. 7 In other words, the police in Metropolitan 8 Toronto shot a white person for every -- one (1) white 9 person for every three hundred and forty-four thousand 10 (344,000) white people, and one (1) black person for 11 every nineteen thousand four hundred (19,400) black 12 people. 13 When it comes to deaths caused by police 14 shooting, the rate for African Canadians increased 15 dramatically yet again. 16 In table 14 the results indicate that 17 eight (8) out of twelve (12) shooting deaths involve 18 African Canadians. This represents two-thirds (2/3's) of 19 all deaths caused by police shootings. Blacks are 20 therefore thirty-seven (37) times more likely to be 21 killed by police than white people. This means that 22 police shot and killed one (1) black person for every 23 thirty-eight thousand seven hundred (38,700) black 24 people. 25 By contrast, the police shot and killed
481 one white person for every 1.4 million white people in 2 Ontario. 3 To conclude this section, Mr. 4 Commissioner, it is of note that unlike whites, African 5 Canadians civilians involved in SIU investigations of 6 police use of force were less likely to have a criminal 7 record at the time of the incident, less likely to 8 exhibit signs of being high or intoxicated, and less 9 likely to be exhibiting signs of mental illness. 10 For example, with respect to the 11 investigations involving injury or death caused by 12 police, 55 percent of black citizens did not have a 13 criminal record, table 21, 90 percent did not exhibit 14 signs of intoxication, table 24, and 78 percent did not 15 exhibit signs of mental illness, table 26. 16 These figures, in our view, illustrate the 17 particular and profound vulnerability of African 18 Canadians to police shootings and violent confrontation. 19 Mr. Commissioner, we acknowledge that 20 there will be debates over whether this over- 21 representation of African Canadians and Aboriginal 22 peoples is a consequence of systemic racism. 23 However, governments must take 24 responsibility and acknowledge that such over- 25 representation can be -- can only be as a result of
491 systemic racism. 2 In a fair and equitable society, there is 3 an obligation and a necessity to reduce such 4 discrepancies, particularly when it involves the use of 5 force -- the state use of force that deprives the lives 6 of citizens. Indeed, it is the very essence of human 7 rights protection of the right of equality to look to 8 desperate impact and go forward to remedy them. 9 This is what we're asking this Commission 10 to do. We ask you to acknowledge the context of gross 11 over- representation of Aboriginals and African Canadians 12 in police use of force and to recommend that as a 13 consequence there is a great and urgent need to develop 14 policies to address these issues and problems. Indeed, 15 this is where our proposed recommendations are rooted in 16 this systemic arena. 17 Here at Ipperwash, Mr. Commissioner, 18 something went very wrong. An unarmed Aboriginal man was 19 shot to death by the police while claiming his Aboriginal 20 burial grounds. Similarly, something has gone wrong in 21 our society when both Aboriginals and African Canadians 22 are in vastly disproportionate numbers victims of police 23 use of force and shootings. 24 Our recommendations are not focussed on 25 attributing personal blame. But we are a community
501 looking for positive solutions for African Canadians and 2 Aboriginals in dealing with the police. 3 We have proposed a range of 4 recommendations to reduce racially biassed policing in 5 general, to deal with the problem of systemic racism in 6 policing and the criminal justice system and a specific 7 manifestation in police use of force. 8 You will note that our proposed 9 recommendations are organized around overall themes of 10 ensuring bias free policing, police accountability, 11 measuring, monitoring and effecting organisational 12 change. Our proposals will assist in effecting positive 13 changes in the police sub culture through change in 14 attitudes and behaviours through regulation, guidelines, 15 training and recruitment. 16 As a research report notes, police use of 17 force is influenced by a subculture. This subculture 18 needs to be eradicated. 19 In this regard, sir, we make the following 20 recommendations: That in order to monitor the impact of 21 police use of force with the purpose of ameliorating any 22 adverse or discriminatory impact that such use of force 23 may have on racialised communities, that the Province of 24 Ontario take steps to require that the collection of this 25 aggregated, race-based data on use of force by the police
511 be conducted on a permanent basis by the SIU of all 2 investigations into police use of force, by the civilian 3 oversight body through the public complaints process for 4 incidents or complaints involving police use of force not 5 falling within the mandate of the SIU, and by police 6 chiefs of all use of force incident reports which are 7 required to be completed under the Police Services Act 8 Regulation. 9 In this respect the Province of Ontario 10 should amend the Police Service Act Regulation 926 to 11 require that use of force incidents reports submitted to 12 police chief be retained for at least two (2) years. 13 And b), these institutions will be 14 required to report the results of the data collection to 15 any government, police boards and the Attorney General on 16 an annual basis and make the results available to the 17 public. 18 And c), that data collection will include 19 a large number of variables, such as the age, the gender 20 and race of the civilian; the cause of injury or death; 21 criminal history of the civilian; mental health of the 22 civilian; police service involved; the age, the gender 23 and the race of the subject officers; the rank and years 24 of experience of subject officers; the description of the 25 incident, and the final outcome of the case.
521 An example of an appropriate data 2 collection instrument to be used to collect such 3 information is provided as Appendix A of the preliminary 4 report of Professor Scott Wortley. 5 In this respect, Mr. Commissioner, we want 6 to say that we support the submissions of the Aazhoodena 7 Group, specifically Recommendations 38 to 44. 8 Our next recommendation is that police 9 recruits be screened for prejudicial and racially 10 discriminatory attitudes, similar to screening already 11 being done for personality attributes, criminal record 12 and family background. 13 Next, that police forces be encouraged to 14 retain independent employment equity experts to develop 15 concrete, measurable and obtainable goals to increase the 16 number of racialised people, particularly African- 17 Canadians and Aboriginals, especially in positions of 18 responsibility in order to achieve a critical mass of 19 representation and diversity to promote cultural and 20 organizational change. 21 Next, that police -- police forces review 22 existing use of force policies and procedures with 23 respect to their impact on racialised groups and amend or 24 develop clear policies and procedures strictly governing 25 when and how force can be used to ensure that any use of
531 force by the officers are a last resort and do not result 2 in discriminatory or adverse impacts on those groups. 3 Next, that the use of force by the police 4 should be free from political influence and public 5 pressure. In situations of public fear and tension 6 political leaders, politicians, police management and 7 police associations should exercise restraint and aim to 8 defuse and refrain from escalating and reinforcing public 9 fear and tension. 10 Arm's length mediation and negotiation by 11 an independent party such as the Chief Commissioner of 12 the Human Rights Commission or the Ombudsman must be 13 first and -- must be the first and preferred course of 14 action. 15 And, finally, Mr. Commissioner, in 16 conclusion, the African-Canadian Legal Clinic looks 17 forward to receiving your report and recommendations, 18 Commissioner Linden, especially in regard to racialised 19 community and addressing the issues of systemic racism, 20 bias in police use of force. 21 We hope that you will take this 22 opportunity to address these very serious issues raised 23 today. We thank you for the opportunity to participate 24 and to provide you and this Commission with our views, 25 our research and our recommendations on this very
541 important matter for all Ontarians. Thank you. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much, Mr. McNeilly. Just before you leave, Mr. 4 McNeilly, Ms. Twohig pointed out, and I think I should 5 mention it for the record, that it wasn't the SIU 6 provided you with information from their files. It 7 wasn't the private information of individuals in their 8 files or their files that you were given access to; is 9 that not the situation? 10 There was a researcher that was retained 11 by African Canadian and SIU who had access to some of 12 this information in a generic non-identifying way? 13 MR. GERRY MCNEILLY: That's correct. 14 COMMISSIONER SIDNEY LINDEN: That's 15 correct. That's fine. 16 MR. GERRY MCNEILLY: Yes. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 MR. GERRY MCNEILLY: Thank you. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 It's ten o'clock. I think we have time 23 for one (1) more presentation before we take a break. 24 I'm going to ask the Nishnawbe-Aski Police Services Board 25 to please come forward, Chief Mike Metat.
551 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Good 4 morning, Chief. 5 CHIEF MIKE METAT: Good morning. 6 COMMISSIONER SIDNEY LINDEN: I see Mr. 7 Wally McKay with you. Good morning, Mr. McKay. 8 9 FINAL SUBMISSIONS BY NISHNAWBE-ASKI POLICE SERVICES 10 BOARD: 11 CHIEF MIKE METAT: All right. Thank you 12 and Good morning, Mr. Commissioner, respected members 13 with standing to the Inquiry, ladies and gentlemen. 14 First of all it is only fitting to 15 acknowledge the Anishnaabeg of Kettle and Stony Point for 16 their continued welcome to their territories. Secondly 17 and most importantly we want to acknowledge the family of 18 our fallen brave. We want to express our condolences for 19 the tragedy that fell upon them a decade ago. 20 This Commission has been convened to seek 21 the truth and offer recommendations so similar tragedies 22 can be prevented. The task is monumental. We pray that 23 the Commission will have the wisdom and the courage to 24 forge new and challenging solutions. 25 I want to thank the Commission for
561 granting Nishnawbe-Aski Police Services with standing on 2 Part 2 of its mandate. 3 Nishnawbe-Aski Police Services undertook 4 the task of addressing confrontations, protests, and road 5 blockage over resource development. 6 In order for one to understand or 7 appreciate the reasons why First Nations have felt 8 compelled to resort to such drastic measures then it is 9 vitally important for one to look at our history. Who 10 are we? Where do we come from? We ask that our life's 11 journey pathway be accommodated and respected. 12 In 1905/1906 the grandfathers of the 13 Ojibway and Cree nations and -- and the northern regions 14 of Ontario signed Treaty Number 9, a treaty of peace and 15 co-existence with Canada on behalf of the Queen of 16 England, which Ontario is a signatory. An adhesion to 17 Treaty Number 9 was signed in 1929 and 1930. 18 Grand Council Treaty Number 9, a political 19 territorial organization was established in 1973 to 20 pursue the rights of the First Nations in northern 21 Ontario. In 1977 the Chiefs issued the Declaration of 22 Nishnawbe-Aski outlining their rights and claims to their 23 homelands, to Canada and Ontario. 24 In 1981 Grand Council Treaty Number 9 25 Organization was replaced by Nishnawbe-Aski Nation,
571 representing forty-nine (49) First Nations. Thirty (30) 2 of those First Nations are completely remote and are 3 dependent upon some form of air transportation for access 4 to markets. Nishnawbe-Aski Nation translated means, 5 'People and the Land.' 6 The very lives of the people are 7 intertwined with the land. Truly they are one (1) 8 together. Nishnawbe-Aski Nation covers about two-thirds 9 (2/3's) of the Province of Ontario. The territory 10 stretches across the north about 700 miles in length, 400 11 miles in width, from the Manitoba border on the west and 12 to the Quebec border on the east and roughly the Canadian 13 National Railway line to the south. The land -- the land 14 mass is equal to the size of France. Our people have 15 occupied these lands for centuries. 16 Historically, First Nations communities 17 had governing structures that responded to the needs of 18 the total community. 19 To an outsider, these structures may not 20 have been elaborate but the actual workings were complex, 21 requiring total community involvement. These structures 22 met the demands of the day and ensured the continued 23 survival of First Nations societies. 24 Although the First Nation communities were 25 small and scattered throughout the vast territories, the
581 Nation devised methods and system to maintain social 2 order that ensured growth and maintenance of their 3 society. The clan systems were the central funde -- 4 fundamental pillars of our governing structures. 5 As with any organized entities, the Cree 6 and Ojibway Cree of Northern Ontario have land tenure 7 systems predating the arrival of settlers. All 8 territories were occupied. There was no overlapping. It 9 is important that we understand what constitutes 10 traditional or customary lands. 11 First Nations land tenure was based upon a 12 system of land occupation wherein the clan system 13 determined the size and location of the territories. 14 The First Nations' land tenure required 15 clans and families to live in the defined territories 16 year round. This was the practice. The clans would 17 refer to these clan territories as Nee-Tha-Kee-Nan, the 18 translation is in the possessive context meaning, our 19 lands, our territories, denoting ownership and custodial 20 responsibility. 21 The clans established their family 22 designations for the occupation of the territories. 23 During the summer months, clans from the various -- 24 various territories would converge at their summer 25 gathering places for social, ceremonial, spiritual,
591 political and for celebration purposes. The nation had 2 their system of commerce, trading and bartering. 3 The other key function of a nation was to 4 maintain integrity and security of the traditional 5 territories through means of defence. 6 Today, First Nations traditional land 7 occupiers have re-emerged and revitalized their rights to 8 their traditional lands. 9 The elected chiefs and councils are 10 elected to govern within the established reserves but the 11 owners of custodial responsibility and traditional 12 territory ownership lies with the traditional land 13 practitioners. 14 During the treaty undertaken with the 15 Crown, the treaty commissioners representing the Queen 16 make numerous promises. In order to fill this commitment 17 under the treaty, the foreign sovereign's parliament 18 enacted the Section 91, paragraph 25 of the British North 19 American Act stating Indians and lands reserved for 20 Indians, the setting aside of lands for the specific use 21 by the First Nations initiated the process of 22 establishing the reservation systems. 23 In some cases, the Federal Government 24 established reserves at the traditional gathering sites 25 of the people. In other cases where First Nations may
601 have had their summer camps, the settlers and competing 2 interests would infringe upon these -- the sites because 3 they were ideally located. In such cases, the Indian 4 Agent would arbitrarily designate lands for Indians 5 elsewhere. 6 The settlers would have taken the prime 7 lands and First Nations in most cases found themselves 8 establishing a community that was not conducive to 9 healthy surroundings. 10 One of the most consisting -- complaints of First Nations 11 had been that most of the land set aside by Government 12 were mostly swamp lands. 13 It would be remiss on our part if we did 14 not address the treaties entered with the Crown on nation 15 to nation basis. 16 What has been so obviously absent from 17 this relationship is the lack of acknowledgement by the 18 public that they too are treaty people represented by the 19 Crown Governments. The most glaring tragedy of this 20 relationship has been the failure of the Crown 21 Governments to live up to the original intent and spirit 22 of the treaties. Instead, by its actions towards the 23 original peoples one would think they had conquered the 24 original nations of Turtle Island. There was no 25 conquest.
611 The honour of the Crown is at stake. To 2 this date, the laws and associated policies and 3 regulations of governments have detrimental consequences 4 to First Nations, especially the laws and regulations 5 dealing with natural resources enacted by Ontario 6 continue to marginalise First Nations. At times it 7 appears to First Nations that Ontario is taunting them to 8 take more aggressive actions. 9 Ontario must come to grips with reality. 10 Ontario has to come to accept obligations related and 11 attached to signing a treaty with First Nations and 12 Nishnawabe Aski Nation. The honour of the Crown is at 13 the crossroads. 14 Nishnawabe-Aski police services examined 15 three (3) road blockage erected by First Nations in 16 Northern Ontario. 17 Kashechewan First Nation initiated the 18 winter road blockage in the James Bay region. Due to 19 unfortunate -- due to the unfortunate evacuation of the 20 community, we were not able to conduct the examination. 21 Instead, we have included certain parts of 22 Kitchinumaykosib Inninuwug protest. 23 Ontario and resource developers are the 24 two (2) main proponents consistently targeted in the 25 direct actions. Ontario government has been consistently
621 negligent through its policies and regulations to 2 accommodate First Nations and their interests in the 3 planning of natural resources. 4 This has led to complete marginalization 5 of the First Nations resulting in abject poverty, anger 6 and frustration, that developer interests have been 7 targeted because of continual negligence to comply or 8 meet undertakings according to negotiated terms and 9 conditions of agreement. Direct action has been a means 10 to force the developer to the table. 11 Most of these road blockades have been 12 conducted during the winter season. What drives the 13 youth, women, Elders and leaders to weather such 14 unbearable inclement conditions and man road blockades 15 every morning and into the wee hours of the night? The 16 people have no choice. This is the only option. 17 All direct actions have a number of common 18 factors why such action is warranted as a last resort and 19 they are as follows. 20 1. Poverty. Third world conditions exist 21 in the land of plenty. Economic participation in 22 meaningful terms denied through government polices and 23 regulations. 24 2. Unemployment. That developers fail to 25 meet employment commitments by establishing criteria
631 after the fact. Underemployment of First Nations at 2 every location is a reality. 3 3. Threat of further disenfranchisement 4 of traditional lands. The Government policies, both 5 Federal and provincial continue to erode and infringe 6 upon First Nation traditional lands. Present development 7 strategies have dramatic negative consequences on 8 traditional economic means. First Nations are defending 9 their traditional territory. 10 4. Disempowerment. The Government 11 policies and regulations, devastating tragic development 12 consequences, such as the mercury poisoning of the 13 English River system and enforcement tactics of 14 intimidation by police or conservation officers alike 15 continue to disempower the people. Now, many First 16 Nations have drawn a line on the sand. 17 5. Infringement of Treaty and Aboriginal 18 rights. Every protest group cited infringement of Treaty 19 and Aboriginal rights to their lands and resources. 20 Canada, the official trustee, continues to place both 21 hands in their pockets, stumbling around in circles 22 blaming the Province who is responsible as they have 23 jurisdiction on lands and resources development. Talk 24 about not knowing what the right hand and left hand are 25 doing.
641 Ontario has taken more of a dictoral 2 approach wherein their consultative mechanisms have 3 totally ignored First Nations' fundamental issues dealing 4 with their Treaty and Aboriginal rights. 5 Many times First Nations have been 6 considered on as an afterthought basis. Ontario has 7 intentionally ignored Supreme Court of Canada rulings on 8 First Nation rights. Ontario needs to be compelled. 9 6. Resource extraction. All communities 10 involved in the direct actions expressed their 11 exasperation and resentment of their -- of their 12 exclusion in any more -- in any form of meaningful 13 participation in the development of their natural 14 resources. 15 The people have to and have had to co- 16 exist with logging truck -- truckers travelling 17 constantly through their communities. In one (1) case 18 the safety of the children was a key factor as the 19 truckers and school buses had to share the same secondary 20 road system. 21 The traditional land practitioners would 22 notice the change in wildlife habits due to encroaching 23 clear cutting of forestry companies. These people would 24 have their traps and hunting grounds totally decimated. 25 No action to change the conditions is to
651 accept defeat and lose all self-respect. The people have 2 no choice. Joe Fobister is right when he stated: 3 "There is no dignity there to become a 4 beggar in your homeland especially when 5 you homelands have untold wealth and 6 prosperity." 7 Direct actions will continue to be 8 launched as the only option for asserting the rights and 9 jurisdiction of First Nations in Northern Ontario. But 10 direct actions can be circumvented through a meaningful 11 dialogue and consultation on all lands and resources. 12 Meaningful participation, sharing of 13 revenues, benefiting from resource wealth and protection 14 and preservation of Treaty and Aboriginal rights as the 15 enabling conditions will facilitate and restore the 16 honour of the Crown. 17 As stated previously without drastic 18 changes in laws and policies to accommodate First 19 Nations, direct actions in various forms will continue 20 and escalate. Thus NAPS have the capacity to respond to 21 such challenges. Before addressing the key issue of 22 NAPS' capacity is important to probe the present police 23 and Aboriginal relations. 24 The first contact between First Nations 25 and police occurred with the signing of treaties between
661 First Nations and the British Sovereign. The treaty 2 commissioners representing the Crown were accompanied by 3 the RCMP which became the symbol of the seriousness of 4 the Crown's honour. Furthermore, it understood that the 5 RCMP would provide protection from any encroachment by 6 settlers; the Queen's children would be protected. 7 The history between police and First 8 Nations is one (1) of tragedy, disgrace, and dismal 9 failure. Policing of First Nations people turned into 10 suppression of their cultures and traditions. Police 11 became an arm of Canada's assimilation policies through 12 enforcement of laws prohibiting and outlawing the 13 original peoples' customs, culture, and practices. 14 It is true that suspicion, distrust, and 15 outright indignation against police prevails in the 16 Aboriginal communities. It is an unfortunate irony for 17 First Nations people to have concluded that the one 18 understood to have been their protectors have become 19 their tormenters. Policing was a totally foreign concept 20 to First Nations as introduced and implemented by the 21 then settler governments. 22 First Nations had their own forms of 23 maintaining community social order through peacekeeping 24 measures. First Nations do not dispute or even question 25 the rule of law. First Nations had their own systems of
671 laws and applications of such laws. Application of law 2 is not foreign or strange. 3 Aside from the tragic history between 4 police and First Nations we need to address why policing 5 has failed so miserably with the -- the original peoples 6 of Canada. 7 First Nations have an oral history that is 8 being increase -- increasingly recognized by the Supreme 9 Court of Canada. Language determines and defines who -- 10 who we are. It is vitally crucial for the Commission to 11 grasp, appreciate, and accept our languages as a base for 12 determining our facts. 13 In the language of the Oji-Cree there is 14 no word for police. The Ojibway Cree word for -- for 15 description of police is Shee-Mah-Kan-ish, that being 16 literally translated as, "The one who holds the weapon"; 17 the one who holds the weapon over you. 18 When the Plains Cree were engaged in 19 defending their territories the late warrior would carry 20 the lance or some other weapon. The warrior was 21 recognized and referred to as Shee-Mah-Kan-ish denoting 22 that he would use his lance or weapon to defend and kill 23 if necessary. The same word, Shee-Mah-Kan-ish, is used 24 in Oji-Cree to describe a person who is in the Armed 25 Forces denoting that this person can use the weapons to
681 kill. 2 In the language of the Moosonee along the 3 James and Hudson Bay the Cree used the term, Ooh-Kee-Boo- 4 Way-Zeah, and the literal translation being, "the one who 5 locks you up or the one who binds you." 6 In the Ojibway language, Tak-Koh-N-Way- 7 Win-Nee-Nee, for police is translated as, "the one who 8 apprehends you" or "the one who takes you away." 9 Euro-Canadian enforcement practices were 10 different; very intrusive, outright threatening, and 11 intimidating. The high rates of incarceration of 12 Aboriginals at every penal institution in Canada affirms 13 possibly the nature of policing practice among the First 14 Nations may warrant new strategic examination. 15 All First Nations practice peacekeeping as 16 one (1) of key governance instruments to maintain 17 security and harmony of their communities. Peacekeeping 18 was and is a positive approach responding to levels of 19 inappropriate behaviour or actions. Peacekeeping was 20 about searching for answers, supporting families. It 21 involved requiring peacekeeping and helping the 22 individual creating infractions. 23 The direct intervention measures were not 24 intrusive. The intervention was a -- intervention was 25 about healing and restoration.
691 Our First Nation societies had two (2) 2 main functions under peacekeeping. 3 Onh-Naa-Naa-Kah-Chee-Chee-Cake, the 4 literal translation is, "the watcher or observer." His or 5 her responsibility would be to keep an eye on the 6 potential problem and monitor the situation. 7 The person who is being monitored would be 8 informed of the responsibility of the watcher. He would 9 be given the responsibility to assess and counsel the 10 person creating the infractions or disturbances. The 11 individual would be encouraged to request assistance from 12 the watcher. 13 Ooh-Kaa-Naw-Wen-Jih-Cake. Whenever there 14 was a more serious incident or some form of altercation 15 that required direct intervention the Ooh-Kaa-Naw-Wen- 16 Jih-Cake would have the responsibility of providing 17 direct intervention. 18 The selection of the Ooh-Kaa-Naw-Wen-Jih- 19 Cake, the literal translation being "the keepers", was 20 not assigned to one particular family had -- but this 21 form of intervention required the greater community 22 involvement and response. 23 In Canada, community policing among First 24 Nation communities is non-existent and where efforts have 25 been launched, the effectiveness is minimal. It is not
701 possible to launch successful community policing efforts 2 under the status quo. 3 Community policing would be more supported 4 and effective if traditional peacekeeping was recognized 5 in place of policing. The recognition of traditional 6 peace keeping systems can and will narrow the glaring 7 relation gap between police and Aboriginals. 8 Peace keeping is about healing and 9 reconciliation. 10 Mr. Commissioner, we say give peace 11 keeping a chance. 12 Nishnawbe-Aski police services. In the 13 mid 1980's the Federal Government announced the new First 14 Nations policing policy. The Chiefs of Ontario 15 negotiated the Ontario First Nations policing agreement 16 enriching the existing First Nations police program. 17 Furthermore the policing program would be jointly funded 18 52 to 48 percent between Canada and Ontario. 19 In 1990 the Chiefs of Nishnawbe-Aski 20 Nation passed a resolution to create an autonomous 21 Nishnawbe-Aski controlled police commission and police 22 service. Nishnawbe-Aski nation proposed a stand alone 23 police service with jurisdiction on and off the reserve. 24 One of the key issues that NAN representatives grabbled 25 to -- with was traditional peacekeeping.
711 The vision for First Nations policing 2 included a more customary, traditional peacekeeping 3 police service enforcing Nishnawbe-Aski nation laws 4 within specified jurisdictional regions. 5 The intent of the first agreement was to 6 establish an Aboriginal police service to provide 7 effective, efficient, culturally appropriate policing to 8 the people of Nishnawbe-Aski nation. The agreement was 9 signed in the fall of 1993 and Nishnawbe Aski police 10 services became operational as of April 1994. 11 The parties agreed as part of the 12 agreement that certain legi -- legislative changes are 13 required to fully implement all of the terms of the 14 agreement. 15 It was agreed that the parties would 16 commence and actively pursue these legislative changes of 17 which would be chaired and monitored by the then Indian 18 Commission of Ontario. 19 Presently Nishnawbe-Aski police service is 20 the largest First Nation policing service in Ontario and 21 for that matter, in Canada. Nishnawbe-Aski police 22 services has been operational as a full standing police 23 service for more than a decade yet it continues to 24 struggle an uphill battle for recognition and 25 accommodation as a police service.
721 Following are a number of issues that need 2 to be addressed. 3 1. Federal policing policy. The Federal 4 police on Aboriginal policing is limited to provision of 5 frontline policing. First Nation policing services and 6 their leadership are frustrated by such a policy that is 7 so limited and narrow in scope and nature. 8 A policy to promote improved policing at 9 First Nations is now the very policy hindering and 10 impeding further promotion and sophistication of the same 11 police services. The Federal policy on police -- 12 policing does not and has not provided resources to 13 address real capital needs of the police service. 14 The first years of the Nishnawbe-Aski 15 police services operation, the officers had to apprehend 16 offenders which they detained in holding cells that were 17 unacceptable and dangerous. The recent Kashechewan 18 tragedy where two (2) detainees died in a fire has been 19 an accident waiting to happen in most of the communities. 20 Federal government has not accepted the 21 reality that capital is required to operate a police 22 service. The Ontario Government took the position that 23 they did not have the responsibility to provide any kind 24 of capital on First Nations communities as it was the 25 responsibility of the Federal Government.
731 The political football game became the 2 order of the day. Nishnawbe-Aski police services became 3 caught in an untenable situation. The detention of 4 offenders under deplorable condition is to compromise 5 civil rights of the detained persons. 6 2. Training. First Nations constables 7 were trained at the Ontario Police College under the same 8 training criteria as the OPP. Many of the original 9 constables hired under NAPS did not have -- successfully 10 complete the Ontario Police College, nevertheless were 11 hired because of the cost of -- cost of recruitment. At 12 one time Nishnawbe-Aski Police Services had in excess of 13 40 percent of their officers who had not successfully 14 completed the required training. 15 The Board of Directors adopted Police 16 Service standards that were equal or parallel to OPP and 17 municipal policing. Now recruited Constables have to be 18 -- successfully complete the OPC training in order to 19 secure employment with Nishnawbe-Aski Police Services. 20 Training costs became a major expenditure 21 for the police service. The attrition rate was extremely 22 high. The low wages and postings in isolated regions 23 contributed to a high turnover. Basically, people would 24 apply and receive training then move to other police 25 services where policing locations would be more ideal.
741 3. Jurisdictional dilemma. In absence of 2 legislative framework for First Nations policing, NAPS 3 and Ontario Provincial Police have a protocol and 4 arrangement to deal with jurisdictional issues impacting 5 on both services. 6 The protocol arrangements meet and comply 7 with the legal requirements and serves as a transitory 8 mechanism until such time as the over -- overall 9 jurisdictional issues have been negotiated and concluded 10 between Nishnawbe-Aski Nation and Ontario. 11 The jurisdictional issues are many and 12 complex but not insurmountable. One of the key 13 jurisdictional issues is the policing responsibility of 14 First Nations Constables. Canada, as their 52 percent 15 contribution to policing costs, insist that First Nations 16 Constable duties are restricted to within reserve land 17 proper. Any policing outside the reserve boundaries 18 falls within the purview of the Ontario Provincial 19 Police. This position is not practical and certainly 20 does not promote the policing aspired by First Nations. 21 The appointment of -- for officers is 22 performed by the Commissioner of the Ontario Provincial 23 Police. Nishnawbe-Aski Nation or Nishnawbe-Aski Police 24 Services do not have the recognized capacity to appoint 25 their own police officers.
751 One of the key jurisdictional issues 2 requiring attention has to do with territorial 3 designation. Territorial designation is the 4 responsibility of NAN leadership and the Ontario 5 Government. Territorial designation will have numerous 6 implications, including the costing of services. 7 NAN is to provide total policing coverage 8 for all -- for all remote communities with certain 9 specific exceptions such as Pickle Lake, Moosonee, 10 Highway and Railway Point. 11 Policing for First Nations adjacent to 12 municipalities would be done by First Nations with 13 negotiated protocols for surrounding areas. Territorial 14 designation is not a new concept with NAN. Nishnawbe- 15 Aski Nation negotiated a major child and family services 16 undertaking with Ontario that it included territorial 17 designation. 18 Mr. Commissioner, I will now move on to -- 19 with our recommendations as timing is short. 20 Recommendations. It is -- number 1, it is 21 recommended that Ontario and Canada provide financial 22 resources for Nishnawbe-Aski Police Services to further 23 develop into a fully functional police service. The 24 present financial base that is negotiated on a continual 25 interim basis restricts and stifles growth and
761 development. 2 Nishnawbe-Aski Police Service must have 3 adequate resources to respond to policing needs of the 4 communities including, not only frontline services but 5 other policing services such as drug enforcement and 6 special investigation capability. 7 2. It is recommended that Canada renew 8 its Aboriginal policing policy to support progressive 9 development of Aboriginal police services to fully 10 functioning police service units. The pressing -- the 11 present policing policy as outlined has or is lagging 12 behind Aboriginal policing growth and development. 13 3. It is recommended that Ontario take 14 measures to provide the resources for Nishnawbe-Aski 15 Police Services to further its capacity for policing 16 development as a fully functioned police service. These 17 measures may include exceptional resources arrangements 18 independently or with the Ontario Provincial Police. 19 These arrangements must be viewed and 20 recognized as investments wherein such development will 21 advance the unique capabilities that Nishnawbe-Aski 22 Police Service may provide in the event of direct action 23 undertakings. 24 4. It is recommended that Canada and 25 Ontario provide the required capital resources for
771 Nishnawbe-Aski Police Service to have the required up-to- 2 date capital infrastructure at all sites. Nishnawbe-Aski 3 Police Services should have the capital infrastructure 4 parallel to what is available to the RCMP and the Ontario 5 Provincial Police. 6 Ontario and Canada must approach financing 7 for Nishnawbe-Aski Police Services under a new fiscal 8 transfer mechanism that will be consistent and 9 dependable. 10 5. It is recommended that Nishnawbe-Aski 11 Police Services develop -- develop internal operational 12 policing capacity to not only adequate -- adequately 13 respond to confrontation, road blockades, and protest but 14 implement unique systems of managing and resolving future 15 direct action undertakings without collateral damage. 16 The recommendation recognizes that 17 additional financial resources will need to be secured 18 and designated strictly for this capability. In light of 19 increased direct action undertakings by First Nation, not 20 only in Northern Ontario, but throughout Ontario and 21 elsewhere, Nishnawbe-Aski Police Services would be in a 22 position to deploy such expertise when responding to such 23 incidents. 24 6. It is recommended that Nishnawbe-Aski 25 Police Services be provided with financial and human
781 resources to engage full-time additional positions for 2 communications and public liaison, specifically specialty 3 functions. These individuals would be fully trained and 4 have the expertise to design negotiation format and 5 processes. 6 These individuals would be engaged as 7 frontline functionaries assisting the protestors with 8 negotiation processes and in turn will restore confidence 9 and calm in occupations. This will be key proactive 10 policing measure. 11 7. It is recommended that Nishnawbe-Aski 12 Police Services have the resources to employ coach 13 officers on a full-time basis. The newly recruits who 14 find themselves as the only police officer because of 15 time-off medical leave and other policing demands 16 exposing new officers to potential personal safety risks 17 and crisis. 18 8. It is recommended that Nishnawbe-Aski 19 Police Services be provided with resources to implement a 20 full auxiliary policing program that will not only 21 provide non-direct policing for Nishnawbe-Aski Police 22 Services officers but the program can be designed to 23 promote constable development at ground level. 24 9. It is recommended that Nishnawbe-Aski 25 Police Services be provided resources to design, develop,
791 and implement programs to support officers that have 2 encountered traumatic situations. Nishnawbe-Aski Police 3 Services should have access to expert -- access expertise 4 to provide professional counselling and support at its 5 disposal. 6 10. It is recommended that Nishnawbe-Aski 7 Police Services be recognized as a legitimate police 8 service under appropriate legislative base as with other 9 police services. Nishnawbe-Aski Police Services present 10 status as a police program, is a disservice and at best 11 viewed as a secondary policing institution. 12 Under this recommendation the following 13 must include territorial designation, police appointment 14 powers, powers and responsibilities of the Board, powers 15 and responsibilities of the Citizens Review Board, and 16 contracting police services. 17 11. It is recommended that the Ontario 18 Commission and -- do an undertaking to fully explore, 19 design, and recognize the judicial peacekeeping practices 20 of First Nation communities. Once a designed for 21 peacekeeping should not be considered as an option at 22 First Nations but a cornerstone for providing public safe 23 -- security and protection for all. 24 12. It is recommended for Ontario to 25 begin discussions and negotiations with Nishnawbe-Aski
801 Nation on the spirit and intent of Treaty Number 9. 2 Ontario is a signatory to Treaty Number 9 3 and it's adhesion, that the discussion should include the 4 traditional or customary land tenure systems of First 5 Nations and how such systems will be recognized by 6 Ontario. 7 13. It is recommended for Ontario to 8 undertake negotiations with First Nations to determine 9 and implement real and meaningful resources sharing 10 opportunities with First Nations in Nishnawbe-Aski Nation 11 territory. Revenue sharing opportunities that will have 12 real and meaningful impact on the present quality and 13 standard of lives of -- for First Nations must be 14 developed and pursued. 15 14. It is recommended that Ontario review 16 existing legislation, policies, and regulations on land 17 management affecting First Nations and to amend insuring 18 consistent -- consistency with the Supreme Court of 19 Canada consult -- consultation parameters. 20 The present regimes and -- and actions of 21 Ontario undermine the Aboriginal land and resource 22 interests, specifically the Mining Act, Ontario's Mineral 23 Strategy, Ontario Best Pol -- Best Pol -- Practices 24 Manual, Ontario -- Ontario's Forest Management process, 25 terms and conditions Number 77, now referred to as terms
811 and conditions number 34, and Ontario's Timber Class 2 Environmental Assessment. 3 Lastly, it is recommended that Ontario and 4 First Nations jointly design and implement Aboriginal and 5 treaty rights impact assessment processes. The 6 assessment process should review all potential issues 7 affecting Aboriginal, public, and private sector 8 interests. A design and implementation process must have 9 -- must involve the impacted First Nations. 10 Mr. Commissioner, I thank you very much 11 for giving us the time. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Chief Metat. Thank you. 14 I think we'll take a morning recess or 15 break now. Thank you. 16 THE REGISTRAR: This Inquiry will recess 17 for fifteen (10) minutes. 18 19 --- Upon recessing at 10:35 a.m. 20 --- Upon resuming at 10:50 a.m. 21 22 THE REGISTRAR: This Inquiry is now 23 resumed. Please be seated. 24 25 (BRIEF PAUSE)
821 COMMISSIONER SIDNEY LINDEN: Just before 2 calling on the next party, I just wanted to say that the 3 report of the African Canadian Legal Clinic will be put 4 on our website next week and available in the normal way. 5 I'm now going to call on the Chippewas of 6 Nawash and Chief Paul Nadjiwan, Mr. Ralph Akiwanzie and 7 David McLaren. 8 MR. DAVID MCLAREN: Good morning, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. 12 MR. DAVID MCLAREN: I'm going to 13 introduce -- there's Chief Ralph, or former Chief Ralph 14 Akiwanzie is here and he was the chief of the Chippewas 15 of Nawash during the troubled times in the 1990's, and 16 the current chief, Paul Nadjiwan is here as well. 17 I'm just going to introduce former Chief 18 Akiwanzie to start off and I'll come back. I want to go 19 through some of the things that we say in this package. 20 I'm not going to read it all but you'll find if you want, 21 copies at the very back and they contain our 22 recommendations to the Inquiry plus Appendix H which is 23 best practices, a list of best practices, plus the 24 written submission to -- to the Inquiry today. 25 It also includes a map of the traditional
831 territories of the Saugeen Ojibway Nations which takes up 2 quite a chunk of southwestern Ontario. And I think it's 3 important to realize the territory it goes along with 4 folks because in my experience you can't separate First 5 Nations from their land. 6 Ralph...? 7 8 (BRIEF PAUSE) 9 10 MR. RALPH AKIWANZIE: Bonjour. 11 COMMISSIONER SIDNEY LINDEN: Good 12 morning. 13 14 FINAL SUBMISSIONS BY THE CHIPPEWAS OF NAWASH: 15 MR. RALPH AKIWANZIE: 16 17 (OJIBWAY SPOKEN) 18 19 MR. RALPH AKIWANZIE: My name is Chief 20 Ralph Akiwanzie from the Chippewas of Nawash Unceded 21 First Nation and I just wish to express how honoured I am 22 to be present to speak on this very important topic of 23 the Ipperwash Inquiry. 24 I would also like to acknowledge our 25 brothers and sisters from Kettle and Stony Point in whose
841 territory we are and protocol in a case that we have to 2 follow through with a welcome on their part and a mutual 3 understanding that we have with our fellow First Nations 4 and our brothers and sisters of this -- of this world. 5 I have a prepared outline and I will be 6 digressing from that from time to time to give either 7 points of clarification or other comments, but I have a - 8 - a gist of a presentation that I would want to make 9 because there's two (2) other speakers that are coming up 10 after me, so I don't want to hog the time. 11 In writing up this presentation on my 12 summary ideas and recommendations, I speak on my 13 experience as former Chief of the Chippewas of Nawash 14 Unceded First Nation from 1989 to 2005. 15 And dealing with three (3) major events 16 during that period, namely the blockade of Highway 6 in 17 the summer of 1990 and the occupation of our treaty 18 burial ground lands on 6th Avenue West in Owen Sound on 19 December 3rd to 9th, 1992, and the Jones/Nadjiwan 20 (phonetic) Court decision of which many people have heard 21 about, including the trial and involving our fishing 22 rights rendered on April 26th, 1993. 23 There are many lessons to be drawn from 24 these events whose outcome prove very successful for both 25 the Chippewas of Nawash Unceded First Nation and the
851 Saugeen First Nation. 2 One of the things that governments, be 3 they provincial or Federal, have failed to see is to deal 4 with First Nation grievances such as Treaty and 5 Aboriginal Rights, land claims, and the list goes on. 6 This has led to frustration by Aboriginal 7 peoples who see no alternative but to go to Court or to 8 confront the governments. It appears that only when a 9 crisis occurs does government react. 10 It has been said that negotiations is the 11 always the preferred option but policy, legislation, 12 bureaucratic red tape, are huge barriers to this. It is 13 my contention that the Royal Commission on Aboriginal 14 Peoples Report of 1996 contained sound recommendations to 15 address outstanding Aboriginal grievances across Canada. 16 However, it's sad to say that despite many 17 -- much fanfare the report still lies sitting on the 18 shelf with the recommendations largely unimplemented. 19 Ten (10) years have gone by but -- rather 20 eleven (11) years have gone by really, and the same 21 problems exist, but the hopes and the expectations remain 22 the same on the part of Aboriginal peoples for a real and 23 positive change. 24 And I cannot emphasize the importance of 25 change, how that's going to happen, because change means
861 a changing attitude as I heard another speaker say here. 2 Change means a changing policy. Change means a complete 3 change of process that's currently in place to deal with 4 these problems because it's not meeting the need. 5 I wish to point out that if the RCAP 6 report had been taken seriously by the governments, 7 today's climate, in 2006, the real world which we have to 8 face today, would be one of optimism and progress. 9 However, there is a light at the end of the tunnel which 10 offers a potential solution depending on how the 11 government's handle this matter. What I'm referring to 12 is the Haida Taku Supreme Court Decision of 2005 on the 13 matter of the Crown's duty to consult. 14 In order to fully address, I feel that the 15 relationship between the Crown and First Nations needs to 16 be opened up. It -- it's fine to have this take place 17 but how do you get around the obstacles that there are? 18 The central question to be answered is 19 what does consultation mean to us at the First Nation 20 level? Never mind about what consultation means under 21 the Supreme Court definition, but what does consultation 22 mean to us as First Nation people who are in the -- in 23 the -- in the field, so to speak, in our communities? 24 Historians and treaty makers have always 25 described the Crown relationship in treaty making with
871 First Nations as fiduciary in nature. And I've heard 2 that word so many times. What does that mean, fiduciary? 3 Well, the word fiduciary is derived from 4 the Latin word fides, because I took Latin one time in 5 school. I never thought I'd get to use it but now I'm 6 using it. It's not a spoken language but, believe me, it 7 has helped. This word, fides, means trust, in quotation 8 marks. 9 Now, what does 'trust' mean? How does 10 that work? Well, taken one step further, what kind of 11 trust relationship can be established if the governments 12 have not consulted you in the past and proceed to 13 unilaterally act on your behalf thus resulting in 14 negative consequences? 15 Miscommunication can arise. 16 Misunderstanding can arise. So switch that around and 17 take the mis's off and make -- take it into the positive. 18 The concrete example issue that I wish to use in this 19 regard is making reference to our occupation of our 20 treaty burial grounds at 6th Avenue West in Owen Sound in 21 December of 1992. 22 In 1981, prior to 1992, you add, so many 23 years before, there was an important meeting held of the 24 parties on the purchase and building permits for two (2) 25 lots on 6th Avenue West in Owen Sound. All the parties,
881 except the Chippewas of Nawash, were present. 2 Now, wasn't that dumb. The main people 3 that should be there who had an interest, who needed to 4 be consulted, were not. So without our knowledge and our 5 consent two (2) homes were built on the remains of our 6 ancestors which is absolutely unconscionable. And that's 7 the extent that it went. 8 Well, needless to say, when we found out 9 in the fall of 1992, naturally we were more than upset, 10 we were absolutely abhorred at what had taken place. We 11 set about for a coordinated plan to address this with the 12 Federal Government and the City of Owen Sound, because 13 those are the parties that we were dealing with. 14 So without further adieu we subsequently 15 occupied the property and we occupied the property 16 without any semblance of violence whatsoever. And we had 17 the full cooperation of the police authorities of the 18 time. 19 Now, the police authorities at the time 20 included the following police authorities. And there's 21 so many police authorities, there's too many. 22 First of all, there was the RCMP, the 23 Royal Canadian Mounted Police, who still had an office in 24 Owen Sound at that time. There was the Owen Sound City 25 Police and I still get the -- in consultation with the
891 OPP and then we also had the First Nation Police. And we 2 had the full cooperation of the First Nations Police of 3 the Saugeen First Nations and Chippewas of Nawash Unceded 4 First Nation. 5 So this is saying that our police force 6 have no business being off our territories is hogwash. 7 We had First Nation police within our treaty lands in 8 Owen Sound. Therefore they had every right to be there 9 whether it's off reserve or not off reserve. 10 Negotiations were conducted with the help 11 of a mediator. Now, this mediators name was Ross Reed. 12 And perhaps he was enlightened, I don't know, but it was 13 very, very fortunate that this individual was able to 14 work with us successfully. 15 And the end result was this, the home 16 owners were bought out, their houses were dismantled, and 17 I dare say the burial of the individuals that were built 18 on top were not removed, they were left there, because 19 that's where they were meant to be to be buried there, 20 undisturbed. 21 And those houses were moved and the area 22 was restored to a proper burial site the way that it 23 should be with the proper ceremonies. And our people 24 visit there on a regular basis to keep that site the way 25 -- appropriate the way it should be.
901 There is still a quarter of an acre yet to 2 be resolved and I would think that that would be done in 3 a negotiated concerted effort also. 4 In our post analysis of the successful 5 outcome of this issue we felt that justice was satisfied, 6 and I cannot over emphasise justice. In other words, 7 where there was a wrong there was a right and there was 8 real change to fix -- to amend that and fix that up. 9 And the only reason why it was like that, 10 was because of our -- our involvement every step of the 11 way towards resolution. We were directly involved. We 12 took direct action and we followed through with a 13 concerted effort plan. 14 So that's one (1) example. The other 15 example is the Jones-Nodjiwon decision. On the matter of 16 the Jones- Nodjiwon Fisheries decision, we felt that the 17 Courts were the only way to resolve the long outstanding 18 issue of our rights to fish commercially, because we met 19 all kinds of obstacles, and I could site those. So very, 20 very frustrating and very -- really, really hard on us. 21 But, I guess you learn by the hard ways, as well. 22 We knew that our treaty gave us the right 23 to trade and barter, however the Ministry of Natural 24 Resources Ontario, failed to negotiate in good faith and 25 lacked the political will to do so.
911 When we did win our case as per the 2 judgment of David Fairgrieve and it's not ironical that 3 this Judge's name was Fairgrieve because we had a 4 grievance and we ended up with a fair resolution. So 5 it's ironical that this name should be in that context, 6 but, I have to express that. 7 It was also known as the Jones-Nodjiwon 8 Decision and it was known as the Jones-Nodjiwon Decision 9 because the chief of the day at the time was Chief Howard 10 Jones and the individual concerned was Francis Nodjiwon 11 from our First -- First Nation. 12 We entered a very difficult several years 13 after that. There was backlash, there was racism and 14 there was quite a bit of involvement on a negative basis 15 with the area sports fishermen and anglers. 16 So it -- it wasn't smooth sailing I guess 17 one would say, or smooth fishing as the saying would go. 18 It wasn't until June 22nd, 2000 that a fishing agreement 19 was signed after -- after seven (7) years. 20 The agreement ushered in a period of 21 collaboration and working relationship with the Ministry 22 of Natural Resources and there was a co-management 23 agreement of sorts signed and I won't go into that, but 24 it just tells you that there was an accommodation made 25 and there was negotiation engaged there successfully.
921 In essence, it took us several years to 2 build our fisheries biologist fishery data program and we 3 provided our input and our critique of the Ministry of 4 Natural Resources database. So we were on an equal basis 5 because this fisheries data that determines how much is 6 to be caught, when it's to be caught, what is in the 7 system and so forth, we went ahead and put our view on 8 that because there was a precedent set under the Sparrow 9 Decision which says that it's about time that First 10 Nation people were consulted on matters of natural 11 resource. And that was way back in 1990, the Sparrow 12 Decision which is still being hard to implement. 13 But it was an important Supreme Court 14 ruling. Again, we achieved success by maintaining the 15 high road, sheer determination and perseverance involving 16 our fishermen and our community every step of the way, 17 because consultation is a multifaceted process. 18 You -- we have to consult our people at 19 home. We just don't go ahead and do what we jolly well 20 please. We have a responsibility as elected officials or 21 people in leadership to involve our people in matters 22 that affect them and what better matters than their 23 rights, their collective rights, their individual rights 24 whatever the case may be? 25 Moreover, we willingly shared our
931 achievement and our best practices with our fellow First 2 Nations and now the turning -- turning to the final 3 matter of successful negotiations, perhaps we can give a 4 few tips here and I can tell you I'm going to be wrapping 5 up my talk very shortly. 6 So to hit the nail on the head, 7 negotiations, and to a certain extent, consultation, it 8 has been our experience that unless the right atmosphere 9 or what one would call political climate exists, real 10 progress as far as negotiations cannot occur. There has 11 to be the right timing in the political climate or you'll 12 get nowhere. 13 This includes the Government 14 representatives that are sitting at the negotiating 15 table. Those are the people that are entrusted to carry 16 out the Government's mandate and therefore they, as 17 individuals, whoever they are, whoever the lead 18 negotiators are, have to have that -- that notion that 19 they're going to accomplish something, that they're 20 really there to negotiate. 21 There has to be open-mindedness, 22 flexibility, willingness to compromise and other such 23 qualities. And how many times have we heard that? 24 What do you mean by an open mind? Well, a 25 closed mind is certainly not going to accomplish
941 anything. 2 And what do you mean about flexibility? 3 If you're inflexible, you're not going to achieve one (1) 4 iota. 5 And willingness to compromise? If you're 6 not willing to compromise, and that doesn't mean that you 7 have to give everything that you -- that you believe in, 8 you know, throw it out the window, but real compromise at 9 the table. 10 There must also be a genuine commitment 11 and political will with no hidden agendas with other 12 things that you're thinking that you're going to 13 accomplish at the table other than what the main matters 14 are at hand. In other words, no excess baggage, whatever 15 it may be, and no false pretence either, because the day 16 of falsehood is gone. 17 If promises were made under treaty then 18 those promises must be kept, because they were solemn 19 agreements. There were treaties. There were wampums. 20 There were ceremonies that involved the understanding 21 that our people had about these things. 22 There is need for legal advice but 23 especially among First Nation people the guidance and 24 wisdom of our esteemed Elders. 25 There was time when I needed guidance.
951 And as you well know, your legal people, you know, the 2 lawyers have certain answers to certain things, and 3 you're looking at the text of the law books and you say, 4 That's what it says there. 5 It's your job to interpret what's there. 6 Well, the same thing for the treaties. The treaties were 7 meant to be interpreted in a liberal context at the time 8 and they were to be honoured, et cetera, et cetera. 9 I could go on here and harp but I'm not. 10 There are times where I have had to go to 11 the esteemed Elders, and the esteemed Elders whom I speak 12 to in the Native language to -- to get guidance, because 13 they're very valuable people. Those that have come 14 before me, those that are knowledgeable. They're not 15 lawyers but they have certain experiences that they have 16 to share and especially the culture, especially the 17 history and the beliefs, et cetera. 18 In conclusion on a personal note, I would 19 like to reiterate with you the satisfaction of successful 20 negotiations as the Chippewas of Nawash Unceded First 21 Nation and our fellow First Nation whom we share our 22 treaties with, the Saugeen First Nation, has achieved in 23 recent years. 24 It is our hope, and I say this to you, 25 Judge Linden and your counterparts, it is our hope that
961 we have willingly and honestly shared with you, and we're 2 still going to do that with the other two (2) speakers 3 and you're saying, well, when is this guy going to shut 4 up, it is our hope that what we have willingly and 5 honestly shared with you will assist in your 6 deliberations as you begin your final report of 7 recommendations which are due, I believe, in 2007. 8 And, finally, it is my sincere hope that 9 the collective input of all who have participated in this 10 two (2) year Ipperwash Inquiry will result in a finished 11 product that will be implemented and acted on so that the 12 needless death of the late Dudley George will not have 13 been in vain because this is what it is all about. 14 We have to return to our dear counterpart 15 and we all know what that is about. Chi miiqwetch. 16 Thank you very much for listening. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 Mr. McLaren...? 20 MR. DAVID MCLAREN: Thank you. Thank 21 you, Ralph. My name is David McLaren and I've worked for 22 the Chippewas of Nawash and Saugeen for almost twenty 23 (20) years now. And because I'm the Shaganosh of the 24 group, I guess, they've given me the words to be in 25 charge of or at least to write down.
971 And I really have to even -- I have come 2 know that words written down are not always to be 3 trusted. And so what I want to do is to quickly go 4 through the report that we've included. It's a written 5 report -- a written -- some stapled pages inside this -- 6 this booklet. 7 The picture in the booklet is, of course, 8 the burning of one of the First Nation's tugs on Labour 9 Day Weekend in 1995. And I want to read some excerpts 10 from the final submission to the Ipperwash Inquiry. I 11 don't want these written words to swamp the oral 12 presentation that comes next. So if somebody could let 13 me know when I reach ten (10) minutes I'd appreciate it. 14 In this written brief -- that was awfully 15 quick -- in this written brief we have answered some of 16 the questions that the Inquiry poses in its recent 17 discussion papers on Aboriginal police relations and 18 rights. 19 Our answers will suit the Chippewas of 20 Nawash. They cannot be assumed to be suitable for all 21 First Nations. We think that the Crown should stop 22 looking for generic one-size fits all solutions to First 23 Nations because they don't work and because each First 24 Nation has a pretty good idea of what it needs. 25 However, a common process can be found
981 and, indeed, it already has been identified by the 2 Supreme Court of Canada in its various rulings on the 3 duty to consult. But, and this is a large but, there are 4 180 degrees of separation between First Nations' ways and 5 Euro-Canadian ways, so much so that the full expression 6 of Turtle Island culture is only available outside the 7 cultural and legal framework of Canada. It is not until 8 we re-occupied our burial grounds in Owen Sound that we 9 were able to express our beliefs and our determination to 10 protect our ancestors. 11 It was only by continuing to fish in the 12 face of charges by the Ontario MNR that we were able to 13 give full expression to our rights. The editorials that 14 you see today in the papers about the rule of law and how 15 it needs to be adhered to beg the questions, whose law 16 and whose rule? 17 And by not recognizing the fact of Canada 18 and the fact of Ontario that there are two (2) parallel 19 cultures existing now; Anishnawbe, Haudesaunee, Turtle 20 Island cultures alongside Euro-Canadian culture. By not 21 recognizing that fact we are creating outlaws. 22 Recent decisions by the Supreme Court of 23 Canada regarding the Crown's duty to consult should be 24 embraced by Ontario, Canada, and First Nations alike as a 25 way out of the current toxic relationship. But here we
991 must insert a strong caution. Based on our experience, 2 the Saugeen and Ojibway Nations have good reason to 3 suspect the Crown might use consultation as a licence to 4 do what it wants. 5 As Under Siege documents, we have had -- 6 we have not had good relationships or good experiences 7 with either Ontario or the Federal Crown. We fear that 8 the Crown will give only the appearance of consultation. 9 Even if consultation is done in good faith with intent to 10 accommodate there is no guarantee the resolution will be 11 in our best interests. 12 It took seven (7) years for the Crown to 13 reach a fishing agreement with the Chippewas of Nawash 14 and Chippewas of Saugeen after a court decision directed 15 them to do so. 16 In negotiations over the return of unsold 17 lands in the Bruce Peninsula, Ontario refused to put 18 Crown lands on the table. Neither Crown offered 19 compensation for loss of use of the unsold lands being 20 claimed. The refusal to accommodate Saugeen and Ojibways 21 Nation's views or losses led inevitably as they had done 22 in so many other cases to the courts. 23 More recently the Ontario Crown, during 24 intergovernmental relation -- relationship discussions 25 refused to divulge the guidelines for consultation that
1001 it was developing. The Crown's guidelines were revealed 2 to First Nations only after they had been made public in 3 June of 2006. 4 And there are several problems with these 5 guidelines. They leave too much discretion for 6 consultation up to bureaucrats within Ministries. There 7 is virtually no room for open discussion directly with 8 First Nations to discover whether a Ministry has a duty 9 to consult on a matter it is contemplating. 10 Significantly the list on page 13 of their 11 guidelines of sources of information to help Ministries 12 decide if they have a duty to consult a First Nation does 13 not include that very same First Nation. 14 There is plenty of room in the guidelines 15 for a Ministry to say to First Nations as they've said to 16 us, We do not believe the matter we are contemplating 17 will impact on your rights or claims, therefore we owe 18 you no duty to consult. These failings will be very real 19 sources of frustration and anger for First Nations in the 20 next few years. 21 Again, another example, a recent example, 22 on August the 22nd at public hearings on the Clean Water 23 Act Liberal MPP Wilkinson on the Standing Committee of 24 Social Policy told Denise Stonefish, the Grand Chief of 25 the AIAI, the Association of Iroquois and Allied Indians,
1011 that First Nations have already been consulted on source 2 water protection. They cited numerous meetings with the 3 Chiefs of Ontario as evidence of consultation. 4 We know because I was there that at these 5 meetings the Chiefs of Ontario representatives were 6 careful to tell the Crown that they were information 7 exchanges only. The Chiefs of Ontario could not consult 8 on behalf of First Nations that hold rights and claims 9 and yet the MPP was using those same discussions as proof 10 of consultation. 11 How different is this approach from the 12 way -- to the way that the Ministries have -- treat their 13 clients? Quote/unquote. 14 The Client Services Section of the same 15 Ministry of the Environment that is in charge of the -- 16 of the Clean Water Act has been besieging us with phone 17 calls and e-mails asking for meetings because we flagged 18 our concerns about two (2) large wind farm projects being 19 proposed in our traditional territories by their private 20 sector clients. 21 We know they are not meeting with us 22 because they want to consult, the Crown is asking for 23 meetings because they want us out of the way so their 24 clients can get on with business. 25 COMMISSIONER SIDNEY LINDEN: Mr. McLaren--
1021 MR. DAVID MCLAREN: All this leaves -- 2 COMMISSIONER SIDNEY LINDEN: Mr. McLaren-- 3 MR. DAVID MCLAREN: Yes? 4 COMMISSIONER SIDNEY LINDEN: Mr. McLaren, 5 could I ask you to highlight the recommendations 6 contained in your report? We've allocated an amount of 7 time; you've exceeded that. I'm not going to shut you 8 down. 9 MR. DAVID MCLAREN: Okay. 10 COMMISSIONER SIDNEY LINDEN: I would just 11 like to hear the, you know, if you would please 12 concentrate on highlighting your recommendations. No, 13 you haven't exceeded your time yet but -- 14 MR. DAVID MCLAREN: Hmm hmm. 15 COMMISSIONER SIDNEY LINDEN: -- I'm 16 concerned that you have an opportunity to highlight the 17 recommendations contained in your report. 18 19 CONTINUED BY MR. DAVID MCLAREN: 20 MR. DAVID MCLAREN: Okay. Well, I'm 21 going to have to leave the report itself, this report 22 itself, to do that. There were some things that were 23 happening recently that I wanted to bring to the 24 Commission's attention and so I'm going to have to leave 25 the written version that you have there to highlight
1031 those -- to highlight those recommendations. 2 The only one that -- the only ones that I 3 might -- there are -- there are perhaps three (3) that I 4 might want to -- want to highlight. 5 One of the things that we talked about in 6 our report, Under Siege, was the difficulty or the 7 problem that racism posed for -- for the people in the 8 Bruce Peninsula and I think for all First Nations. In 9 fact I believe given my own experience up there that if 10 you added up all of the incidents of hate against First 11 Nations people they would probably exceed the incidents 12 of hate against any other group. 13 So we made a couple of recommendations 14 about that and it's rather pertinent because we had tried 15 to get some e-mails that had been circulated by the OPP 16 and MNR officers that were clearly racist. They were 17 circulated in 2000 and the Commissioner, the Privacy 18 Commissioner, would not release them to us, but in his 19 judgment he said: 20 "In my opinion racist actions and 21 comments such as the ones revealed in 22 the record at issue are matters of 23 grave concern for all citizens of 24 Ontario." 25 So our recommendations -- we find that
1041 there are two (2) sides to this racism coin; one that 2 should be legislated against and another one that should 3 be educated to eradicate it. And one (1) of two (2) 4 recommendations that fit into this are Recommendation 38 5 that the Crown should implement a policy of zero 6 tolerance for hateful remarks, actions and correspondence 7 at all levels of its organization. 8 Proven cases of racist attitudes should 9 result in immediate and irrevocable dismissal of the 10 staff who promote or communicate them. 11 And the -- on the other side of the coin 12 is education and a full year -- a full course -- a full 13 year course in the traditional practices of Aboriginal 14 peoples and in Aboriginal and treaty rights as they are 15 expressed in the constitution in being defined by the 16 Courts should be mandatory for all students seeking 17 employment in law enforcement, especially those who would 18 be conservation officers. 19 The other recommendation that I would skip 20 forward to deals with Recommendation 6 in the document 21 that's back there and it deals with an independent office 22 of the legislature. 23 And we agree with the question that's 24 included in the Commission's discussion paper on rights 25 that, yes, an independent office of the legislature
1051 should be created as soon as possible. This office needs 2 to be funded well enough to provide the scrutiny we 3 suggest in our recommendation, to carry out a public 4 education mandate and to fund the direct access by First 5 Nations through its resources and services. 6 We foresee that an independent Aboriginal 7 affairs commissioner will be a major path of access to 8 government for first Nations. In general, the Crown 9 should remove as many barriers and buffers as possible 10 between First Nations and its elected officials and we 11 refer you to Recommendations 8, 9 and 10 of our report. 12 In addition, a separate Ministry for 13 Aboriginal Affairs should be established to, among other 14 things, coordinate the Government's consultation efforts 15 and to assist First Nations gain the capacity to consult 16 as equals. The Ministry should be well resourced and 17 powerful enough to drag other Ministries to the table to 18 resolve issues of contention. 19 I wanted to take you into the -- inside 20 the IGR process, but I think the time is running short, 21 so you'll have to read it. Sorry for the written words 22 on that one. But I think that, in general, the first -- 23 the Chippewas of Nawash made some recommendations that 24 are wide ranging in nature and address some of the 25 systemic problems that we have encountered.
1061 And I hope that the Commission will take a 2 look at those kinds of wide ranging recommendations, 3 because without addressing some of the systemic issues in 4 Ontario, I think you may find us all back here in a few 5 years time. 6 Thank you. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much, Mr. McLaren. 9 MR. DAVID MCLAREN: I'd like to ask Chief 10 Nadjiwan to come to -- 11 COMMISSIONER SIDNEY LINDEN: Chief 12 Nadjiwan do you want to say something as well, please? 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: I had the 17 pleasure of spending a day with the Chippewas of Nawash, 18 an opportunity to meet Chief Nadjiwan and, of course, Mr. 19 Akiwanzie. 20 21 (BRIEF PAUSE) 22 23 CHIEF PAUL NADJIWAN: Yes, before I get 24 started I'd like to explain that when the Commissioner 25 came up to the Chippewas Nawash up in September of 2005
1071 we -- we did an old traditional ceremony there. 2 And we had indicated to the Commissioner 3 and his staff that we felt that it would be a useful 4 exercise and process to open up communication between the 5 Crown and the First Nation and to do so and to do it 6 within traditional means that have been established 7 through centuries of -- of interlude, I guess. 8 The Commission was asked to provide 9 tobacco and gifts and to bring those forward to present 10 to the community. So the Commissioner and his staff they 11 honoured that request and when we started our -- our 12 gathering, we had a big ceremony there and a big giveaway 13 and I know the Commissioner was up there dancing when we 14 had the drum going and most his staff were up there. 15 So, I guess he remembers me from that. 16 COMMISSIONER SIDNEY LINDEN: I certainly 17 do. 18 CHIEF PAUL NADJIWAN: So, Chi miiqwetch. 19 20 (OJIBWAY SPOKEN) 21 22 CHIEF PAUL NADJIWAN: I just want to say 23 that -- I want to extend greetings to everybody who is 24 here today and also that before I start I want to say a 25 little bit of a prayer and it's something my Elders have
1081 provided for me in my own community. So I'm exercising 2 that direction. 3 But also one of the things that I 4 explained to the Commissioner and his staff was that 5 there were various components in that ceremony that we 6 did, one of them was using cedar. And when we have a 7 ceremony or a gathering that we consider to be 8 significant or important we go to one (1) cedar tree out 9 in the forest somewhere, we make an offering, we say some 10 prayers and we gather some of the branches of that one 11 (1) tree. 12 And then to all of the people that are 13 participatory within -- within that ceremony or within 14 that gathering we offer a small piece of cedar. 15 Now, what I have here is a piece of old 16 dry cedar that is reflective of that time when we 17 gathered. 18 And so before I start I want to refreshen 19 our trail, Mr. Commissioner, and I want to offer you a 20 piece of cedar. 21 22 (BRIEF PAUSE) 23 24 CHIEF PAUL NADJIWAN: So from that time 25 when we met until now our -- our trail has now been
1091 freshened. So -- so I can proceed in our traditional way 2 also to -- to start with a -- with a prayer. 3 4 (PRAYER IN OJIBWAY) 5 6 CHIEF PAUL NADJIWAN: We thanked the 7 Great Mystery for having given us everything that is good 8 that exists upon the earth that we use while on the trail 9 of life. We acknowledge the Great Spirit to be in one 10 mind and hope with us, to guide us and show us the way, 11 guide us to stay on the true path. 12 So that we make the right decisions 13 according to our abilities. With our fellow Anishnaabek 14 we strive to keep our Aboriginal rights. 15 I say thank you for allowing me the 16 opportunity to do that, Mr. Commissioner. 17 I know there's been a lot of technical 18 information, there's been a lot of research that's been 19 compiled. I know many of the First Nation communities 20 and the -- the treaty organizations and their 21 representatives have advocated strongly on wanting to see 22 changes in the relationship between the Crown and First 23 Nations in this Province and there's probably no reason 24 why that -- why that can't happen. 25 We have a fairly wealthy province and we
1101 have a province that still has room to -- to accommodate 2 a lot of different aspect of socialization and economic 3 development and all different aspects of -- of community 4 -- community development. 5 I guess for myself, along with our 6 traditions, I looked at seven (7) different things that I 7 want to speak of. The first one, of course, was -- was 8 the opening with the traditional prayer in our Ojibway 9 language. 10 Secondly, as it's -- as been - as has 11 happened this morning, to acknowledge Kettle and Stoney 12 Point First Nation and their traditional territory as 13 well as Sam George here, a friend of mine, and I know who 14 has persevered, many, many meetings and discussions and 15 interviews and all different kinds of things that have 16 happened. So he's a very strong man and -- and I respect 17 him for his due diligence. 18 I guess one of the reasons why, if I look 19 at my second item of seven (7), what I think people are 20 expressing here is a recognition of the rights of the 21 Anishinabek, the Haudesaunee, Mashketowak (phonetic) and 22 Delaware Nations in Ontario. 23 When treaties were signed and I can refer 24 to the treaties of the Saugeen and Ojibway Nation, which 25 is treaty 45 1/2 of 1836, Treaty 67 of 1851, Treaty 72 of
1111 1854, Treaty 82 of 1857 and Treaty 93 of 1861. 2 There still remains many unresolved issues 3 outstanding from those treaties. And for that reason as 4 former Chief Ralph Akiwenzie had mentioned we are -- we 5 have a lodged a -- a lakebed claim and a land claim in 6 the Courts. 7 So that is an issue which has also been 8 reiterated by others in reference to the consultation and 9 accommodation aspect and relationship. 10 The next issue that hits home in our 11 territory is an area that we refer to as Nodjimwany 12 (phonetic). In that are we have a traditional burial 13 ground which pre-dates European occupation in the 14 Americas. We have a land speculator who purchased the 15 land in the 60's when he was a young man. 16 And in the opinion of our community, he's 17 using whatever legal mechanisms are there within the 18 Province of Ontario to try and sell this land and -- 19 which we see as trying to sell a cemetery so they can 20 build houses. And we've experienced that in the Owen 21 Sound area. So Ralph has spoken to that particular 22 issue. 23 And so that ties in with the Ontario 24 Chiefs Conference last -- early in the year there up in 25 Big Trout Lake. And at that time the burial issues
1121 effects all First Nations people because of their -- the 2 timeframe of occupation within these territories and the 3 land basis. 4 And for that reason we established 5 Resolution Number 72 which was -- can be provided for, 6 for information. It becomes a serious matter when all 7 the Chiefs in Ontario have to put a resolution to issues 8 that everybody faces and everybody is concerned with. 9 So we're in a situation now at Nawash 10 where we are in discussions, we are in negotiations, and 11 we're looking for a positive outcome. We're looking for 12 a positive resolve. 13 But, our community is already prepared 14 that if that resolve does not come to the satisfaction of 15 our Elders, the keepers of traditional knowledge, then 16 they will have to take the issues into their own hands, 17 because they're uncertain as whether the Crown will do 18 its due diligence on that matter. 19 So it's a very hot issue in our community. 20 That sort of takes me down to another 21 issue which I will refer to as number 5, inter-treaty 22 relationships, inter-treaty harvesting, another issue 23 that once again has been practiced throughout Ontario and 24 beyond for centuries. 25 And at our conference again we passed
1131 Resolution 0645 which deals with formalizing that 2 relationship, so the Ministry of Natural Resources will 3 get their noses out of that business. 4 We have people that are still being 5 charged even up to a couple of days before the Ontario 6 Chief's Conference and perhaps may have been charged 7 since then. And when the Minister of Natural Resources 8 came to -- came to the All Ontario Chiefs Conference we 9 were happy to have him there. Happy for him to show 10 himself and speak to issues. 11 But, we've indicated to him, I know I 12 indicated to him that we're looking at -- we'd like to 13 see several hundred million dollars put on the table so 14 we can start resolving some issues and get some serious 15 consultations done. 16 So the inter-treaty harvesting and inter- 17 treaty relationship is something that already exists and 18 we're looking for the Crown to recognize that. 19 The next issue which is related to some of 20 the effects that happened in Ipperwash and have happened 21 in other locations regarding the use and direction that 22 the Police forces get from the Federal Government. 23 And we're looking to see movement and 24 commitment by the Crown to establish and fund and 25 resource a self-directed regional policing model and also
1141 that was done by resolution by the Ontario Caucus of 2 Chiefs. 3 So we have a hundred and thirty-five (135) 4 communities, roughly, who are kind of saying the same 5 thing. And you've heard a number of presentations over 6 your time period and, you know, I don't think I have to 7 go into any further detail on those -- on those matters, 8 Mr. Commissioner. 9 And lastly, my brother here, who's sitting 10 here, Sam, I asked him for permission because I'm coming 11 into his territory and that to -- to conclude with item 12 number 7 with one of our traditional songs. 13 And so because we have freshened up our 14 road and our trail, and at least two (2) particular times 15 when we shared time together, Mr. Commissioner, I've 16 asked him if I can -- if I can indulge this -- this group 17 here with this and this will only take a couple of 18 minutes. 19 COMMISSIONER SIDNEY LINDEN: Well, in 20 this hearing room, I'm kind of like the chief, but I'm 21 happy to allow it, so carry on. 22 23 (BRIEF PAUSE) 24 25 CHIEF PAUL NADJIWAN: This song that I'm
1151 going to sing is a drum song that was passed down to me 2 by a family and it's come down from many, many 3 generations. We don't know how old this song is, but 4 this is the way that we keep our culture alive and it's a 5 culture that has to be practised and has to be -- you 6 have to live it and you have to share it to make it work. 7 So that's what -- what I try to do. I try 8 to do that not only with my community and my Elders and - 9 - and the youth and various other people, but with other 10 members in society as well, because I believe there's 11 always an opportunity to learn and there's always an 12 opportunity to benefit. 13 So this song here in our language, Ojibway 14 language, it says: 15 16 (OJIBWAY SPOKEN) 17 18 CHIEF PAUL NADJIWAN: And that means, I 19 am the one that the spirits will listen to. 20 So I sing this song to respect my brother 21 and the people of his territory as well as some of our 22 visiting Anishnaabe people and other First Nations people 23 that are here as well as yourself and everybody that's -- 24 that's here today. 25
1161 (SONG SUNG IN OJIBWAY) 2 3 CHIEF PAUL NADJIWAN: Chi miiqwetch. 4 Thank you for listening. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much, Chief. 7 8 (BRIEF PAUSE) 9 10 COMMISSIONER SIDNEY LINDEN: We now call 11 on the Union of Ontario Indians and Mr. Fred 12 Bellefeuille. Nice to see you. 13 MR. FRED BELLEFEUILLE: Thank you. Good 14 morning, Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Good 16 morning. 17 18 FINAL SUBMISSIONS BY THE UNION OF ONTARIO INDIANS: 19 MR. FRED BELLEFEUILLE: My name is Fred 20 Bellefeuille and I'm from Nipising First Nation. I'm 21 legal counsel to the Union of Ontario Indians. 22 Just a little background on the Union of 23 Ontario Indians. The Union of Ontario Indians is a non- 24 profit corporation incorporated in 1949 by the First 25 Nations that are part of the Anishnabek here in Ontario.
1171 Our membership comprises forty-one (41) First Nations. 2 Geographically that encompasses an area 3 stretching from Fort William First Nation which is near 4 Thunder Bay, along through the North Shore of Lake 5 Superior, Lake Nipigon, the North Shore of Lake Huron, 6 Manitoulin Island, east towards Ottawa to the Algonquins 7 of Pikwakanagan and through the south central part of 8 Ontario known as Aamjiwnaag First Nation which is near 9 here, Chippewas of Sarnia. 10 There's approximately forty-two thousand 11 (42,000) First Nation people in this area and that is our 12 membership as a non-profit corporation. 13 The submissions that I'm making here today 14 are based largely on some community consultations that we 15 undertook in 2005. The consultations were with community 16 members who were briefed on -- on the purpose of our -- 17 our consultations and they took place in Fort William 18 First Nation, up near Thunder Bay, Ojibways of Garden 19 River which is near Saulte St. Marie and also Chippewas 20 of Mnjikaning which is known as Rama. We also had a 21 session -- consultation session at the Counsel of -- 22 Counsel of Fire Native Cultural Centre in Toronto. 23 All these sessions were open to community 24 members and they were invited to give their views and 25 their thoughts around the relationships of Provincial
1181 Government, First Nations and police. 2 The written submissions that we have are - 3 - comprised basically of the report around those 4 sessions. We also have three (3) papers that we 5 conducted and presented to the Inquiry. 6 Our goal in the community consultation was 7 to provide and develop grass roots, community-based 8 recommendations that will lead to help building help -- 9 help building healthy relationships between Anishnabek 10 First Nations, the Government and police services. 11 To reach this goal we gathered firsthand 12 accounts, perspectives and recommendations from those 13 community members. The community members that 14 participated were from pretty well all walks of life. 15 They included community leaders, fishermen, workers in 16 the community, workers outside of the community. 17 In my presentation this morning I'm going 18 to be touching on some of the recommendations from the 19 written report and, in particular, ten (10) of them and 20 I'll give them -- augment those recommendations what -- 21 what people were saying with respect to those 22 recommendations. 23 The first one is that the Ontario 24 Government must increase police officer and Ministry of 25 National Resources conservation officer understanding of
1191 local Aboriginal history, cultural rights and 2 contemporary issues. 3 Participants in the community sessions 4 indicated that a greater understanding of Aboriginal 5 treaty rights must begin by increasing Aboriginal 6 specific historical, cultural and contemporary issues 7 content in Ontario's elementary and secondary education 8 system. 9 First Nation participants indicated that 10 there's a need to increase police officer training and 11 awareness of history, traditions and cultures of First 12 Nations so that the community healing process can occur 13 soon after an incident. 14 Participants at the sessions describes 15 situations where their traditional practices were not 16 allowed to occur upon a death or other incident in a 17 community. Participants acknowledge that there are valid 18 reasons for police practices that would prevent those 19 practices but there must be a means to meet the interests 20 of both police and First Nation members. 21 Participants indicated that the Ontario 22 Government Line Ministries, Ontario Provincial Police 23 should be mandated to ensure First Nation participation 24 and cultural -- cross cultural training at local and 25 regional levels.
1201 First Nation communities across Ontario 2 are unique in their cultures as we know. A mistake was 3 made with the Indian Act in assuming that all First 4 Nations were identical but the differences exist even at 5 the local level. 6 For that reason local content on history, 7 cultural issues and historical relationship issues have 8 to be addressed through training processes. 9 Participants in community consultations 10 indicated that various enforcement agencies including the 11 OPP, Ministry of Natural Resources and even our own 12 Anishinabek Police Services have and espoused exposed 13 inconsistent interpretations and understandings of 14 Aboriginal treaty rights. 15 This had led to both First Nation and non- 16 First Nation misunderstandings on the scope of Aboriginal 17 treaty rights. While this may seem obvious, these grey - 18 - grey areas are certainly inherent in developing an area 19 of law such as Aboriginal treaty rights. 20 But there must be consideration given to 21 the existence of these grey -- grey areas and they must 22 be factored in the Government decision making process as 23 part -- or part of the overall fiduciary duty. 24 While the recommendation for cross 25 cultural training and that -- that sort of training to
1211 police and Ministry of Natural Resources may be trite, 2 what I haven't seen in my -- my research and as well as 3 the community consultations, is an in-depth consideration 4 of the issue. 5 Is there systems for evaluation? No. The 6 effectiveness of cross cultural training programs have to 7 be tied to indicators and targets for police and Ministry 8 of Natural Resources. 9 Management as well and these police 10 services and enforcement agencies should be evaluated 11 based on effectiveness in meeting the indicators and 12 targets that are tied to cross cultural training and 13 awareness. 14 A second recommendation that came out of 15 the community consultations was that the Ontario 16 Government must improve communications between OPP and 17 First Nation communities. 18 Participants in the community 19 consultations indicated that a lot of the good 20 relationships and there are a lot of good relationships 21 that exist, happened by chance. 22 A lot depends on personalities and there 23 needs to be a formal process or protocol for law 24 enforcement agencies when entering into communities and 25 to basically institute a professional accountable
1221 relationship between First Nation communities, the local 2 governments and police. 3 A simple example that community 4 participants discussed was that the police should have a 5 main contact within a community so that -- so that if 6 community members have questions concerning activities of 7 the police, they knew -- they know who to contact amongst 8 their own community members who will have an 9 understanding of what's going on. 10 This would also assist a lot of 11 communities who have high turnaround in police officers. 12 Participants in the community sessions want to use 13 greater use of policing committees that are existing in 14 First Nation communities. 15 Some of them have them, some of them 16 don't. Once again it's another inconsistent system based 17 largely on personalities. Although participants felt 18 that policing committees should be separate from the 19 Chief and Council of a First Nation, they saw the need to 20 have a councillor as a link between the committee and the 21 Chief and Council so a councillor would sit on committee. 22 Participants also indicated this would 23 help to reduce the power and control issues between 24 polices and -- police officers and communities. Further, 25 this would help to develop the relationship building in
1231 light of the high turnover of police officers. 2 Participants indicated that discussions 3 between police, protestors, and First Nations must begin 4 at the earliest stages before the situation -- situation 5 escalates. 6 Participants also indicated that the 7 support programs such as the Ontario Provincial Police 8 Bound Program and they recommended that that should be 9 further developed and strengthened because those assist - 10 - those programs assist in relationship building and 11 communications between police and First Nations youth in 12 particular. 13 A third recommendation the First Nations 14 participants in our consultations indicated was that the 15 Ontario Government must support First Nation training and 16 resources to develop our own Anishinabek Emergency 17 Response Team to address First Nation emergency issues. 18 Participants in community consultations indicated that 19 Anishinabek police officers are most aware of their 20 communities and the community members feel most 21 comfortable with Anishinabek people as police officers. 22 As a result situations are less likely to escalate. 23 Community members describe situations 24 where tactical units would come into their communities 25 and the children, not knowing exactly what's going on,
1241 would play along with them and roll in the grass with the 2 -- with the police officers who are doing their emergency 3 manoeuvres. 4 Community part-- community participants 5 wanted their own Anishinabek emergency response team so 6 that conflicts are approached in a way that also would 7 not prevent their cultural activities. 8 A fourth recommendation was the Ontario 9 Government needs to include what they refer to as a First 10 Nation Council in the process of policy, regulation, and 11 law development where those policies, regulations, law 12 directly affect First Nations. 13 Participants -- participants indicated 14 that a First Nations council or panel would be -- could 15 be Elders or experts that assist the Ontario Government 16 in policy regulation and law development. Participants 17 felt First Nations are under-represented in legislative 18 bodies and a council of this nature would assist in 19 ensuring policy and regulation reflects or at least takes 20 into account First Nation issues. 21 In addition, First Nation consultation 22 guidelines principles, if they are developed in Ontario 23 should be jointly developed between First Nations and 24 Ontario Government. This would alleviate some of the 25 delays of course in First Nation consultation and enhance
1251 the planning process. 2 An example that community members 3 presented was in the area of hunting and fishing where 4 there's a continuous tension between the Ontario 5 Government and First Nations. Ontario Government must 6 consult and seek consent from First Nations in any new 7 enforcement policy related to hunting an fishing by 8 Aboriginal people. 9 Ontario must honour its 1991 obligation to 10 develop a proper agreement with First Nations on 11 harvesting issues as outlined in Ontario's interim 12 enforcement policy of 1991. 13 To assist in a more strategic approach to 14 ongoing larger and more complicated issues there must be 15 a movement towards incorporating First Nation government 16 -- First Nation and government discussion forums into 17 strategic planning processes. 18 Currently, as we heard this morning from 19 some of the presenters, as a result of the recent Haida 20 Nation Taku River Supreme Court of Canada cases sometimes 21 First Nations are contacted by the Crown to consult prior 22 to some government action. Unfortunately First Nations 23 as you heard are grossly unable to -- to address these 24 issues in a meaningful way because of lack of resources. 25 First Nations must be provided with
1261 resources to respond to these calls by government for 2 consultation before government action interferes with 3 existing, actual, or potential Aboriginal and treaty 4 rights. 5 Some of the community participants talked 6 about this fifth recommendation which deals with a code 7 of ethics for police and Ministry of Natural Resource 8 conservation officers. Currently there is no inclusion 9 of stated respect for constitutionally-protected 10 Aboriginal treaty rights. 11 Community members in all the consultations 12 discussed examples of alleged harassment by conservation 13 officers and others concerning exercising their 14 Aboriginal Treaty and Rights. 15 Police and conservation officers do not 16 have any reference to Aboriginal treaty rights in their 17 code of ethics and a code of ethics must respect all 18 constitutionally protected rights. 19 A sixth recommendation that arose out of 20 the consultations is that the Ontario government, in 21 consultation -- in coordination and consultation with 22 First Nations must carry out a critical examination of 23 treaty obligations and initiate a treaty implementation 24 process. The critical examination must be carried out in 25 coordination with First Nations and must include the
1271 sharing of land and resources. 2 Most importantly the process must not be 3 looked at as a -- simply a process of resolving historic 4 grievances but it must be seen as facilitating a First 5 Nations' rightful participation in the economy of 6 Ontario. 7 Further, the Ontario Government should 8 acknowledge that First Nations, by virtue of their rights 9 and treaties, must be recognized as partners in the 10 management of the natural resources. 11 The situation often is that First Nations 12 are simply sent information and licenses to do different 13 things which they're -- they are not asked for and they 14 don't consent to but they simply get sent them and the 15 Government will tend to proceed. 16 The critical examination of treaty -- 17 treaty obligations must include a review of relevant 18 natural resource legislation and policies and identify 19 areas where policies and legislation does not meet or 20 account or respect treaty rights. 21 Land claims settlement processes should be 22 strengthened and supported to provide certainty to all 23 parties involved. Ontario must begin to view the 24 settlement of land claims as investments in the future 25 development of those communities, First Nation
1281 communities, and their local economies and particularly 2 in Northern Ontario. 3 Mechanisms to address longstanding issues 4 like the implementation of Condition 77 and Condition 34 5 of the Timber Class Environment Assessment which involved 6 the sharing of economic benefits of timber harvesting and 7 management should be immediately instituted by the 8 Ministry of Natural Resources. The focus must be on 9 measurable targets that bring meaningful benefit to First 10 Nations within their traditional territories. 11 The seventh recommendation was that First 12 Nations must be provided access to natural resources and 13 be -- be involved in all natural resource management in 14 their traditional territories. First Nations must be 15 provided access to natural resources in their traditional 16 territories to build their economies and participate in 17 the overall economy of Ontario. 18 Wherever possible, access to natural 19 resources should be provided in suitable amounts for 20 First Nations to plan and build their economies. At a 21 minimum First Nations should be -- First Nations should 22 provided the opportunity to participate in all matters of 23 resource management at a level that is greater than third 24 parties. Often that's not the case. Often private 25 industry is put in a higher level than First Nations in
1291 terms of activities in resource management and 2 development and extraction. 3 Ontario's new approach to Aboriginal 4 Affairs which was greatly touted must be interpreted 5 liberally by policy staff within the Ministry of Natural 6 Resources and be implemented at the field level by 7 enforcement and technical staff. 8 First Nation resource management 9 activities should be facilitated and supported by the 10 Ministry of Natural Resources at the field level. There 11 must be recognition for First Nation traditional 12 knowledge in these areas. 13 Both the Federal and Provincial 14 Governments should support First Nations that want to 15 increase their capacity to manage natural resources in 16 their traditional territories. 17 This may include measures such as 18 development of a First Nation conservation officer 19 program in Ontario. This program should be developed 20 jointly with First Nations and treaty organizations. 21 This may be viewed as an interim step until First Nations 22 develop the capacity to fully manage the exercise of 23 their Aboriginal and treaty rights. 24 At our community consultations people 25 expressed a view that this eighth recommendation that
1301 police enforcement and natural resource conservation 2 enforcement must be accountable to First Nation public. 3 Following an enforcement action by the OPP, First Nation 4 leadership that were involved in the consultations 5 indicated that leadership were not provided with any kind 6 of awareness or briefing on the actions and the outcomes 7 in the situation. 8 A First Nation law enforcement oversight 9 process must be developed that can review the activities 10 of a police service working in First Nation communities 11 and in the large urban centres around First Nations. 12 I know that there are complaints 13 processes. Many of the participants weren't aware of it 14 and weren't aware of how to access complaints processes. 15 So even though they may exist, there has to be a better 16 system to communicate and promote those systems. 17 Existing law enforcement oversight 18 processes do not adequately address the needs of First 19 Nations. The process can build on past successes. 20 Through a joint process or review of 21 effectiveness of past natural resources management or a 22 Ministry of Natural Resource enforcement operations 23 involving First Nations. This review should include the 24 cost, the number of investigators involved, the rationale 25 for investigation and if the investigations actually met
1311 their goals. 2 There is a lasting impact on First Nations 3 when a Minister of Natural Resources initiates 4 enforcement activities and this has to be reviewed and 5 determined whether it benefits the overall relationship 6 in that process, and also the overall managing of the 7 resources. 8 The Ministry of Natural Resources should 9 be compelled to make readily available upon request, on a 10 district by district basis, the amount of resources 11 expended on enforcement activities relating to natural 12 resource management. 13 Further, these reports should outline how 14 the Ministry of Natural Resources spends revenues on 15 investigations, enforcement activities and prosecution of 16 First Nation harvesters. 17 This transparency provides a level of 18 information for First Nations and the Ministry of Natural 19 Resources to begin to dialogue on specific issues and 20 management activities. It also holds the Ministry of 21 Natural Resources accountable for expenditure of public 22 funds. 23 The ninth, and there's ten (10) of them, 24 recommendation from the community consultations was that 25 the Ontario Government must provide more resources for
1321 First Nation police services. Both the Federal and 2 Provincial Government must commit additional resources to 3 policing and clarify negotiation mandates to their 4 negotiators involved in developing First Nation police 5 service agreements. 6 The Ontario Government must develop an 7 Aboriginal policing policy. An exceptional opportunity 8 exists to develop this policy in partnership with First 9 Nations and treaty organizations. 10 The tenth and final recommendation is a 11 joint public education program about treaties, First 12 Nation history and contemporary issues must be developed 13 and implemented. 14 As I stated earlier in recommendation 1, 15 the public education process must begin at elementary and 16 secondary school with improved and augmented curriculum 17 and accurate curriculum. Teacher associations, First 18 Nation organizations are well positioned to provide 19 guidelines and teaching tools for the development of this 20 curriculum. 21 A joint education program must be relevant 22 to the local communities and the treaty areas it is 23 developed for. First Nation organizations should be 24 provided with a level of resources to carry out this 25 activity and work within treaty areas which are key to
1331 First Nation communities. This is particularly important 2 in areas where there are contentious and complicated 3 issues. 4 Finally support should be provided for 5 existing processes that promote media awareness and 6 opportunities for First Nations to tell their stories. 7 In closing, I'd like to thank Commissioner 8 Linden for his assistance and help throughout this 9 process and for his hard work. 10 I'd also like to thank him for giving our 11 community members that were involved in the consultation 12 process a voice today here, because this is what they -- 13 the submission was based, on and also to the staff. 14 Thank you and Chi miiqwetch. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much. 17 Now, I'll call on the final presenter, the 18 Canadian Civil Liberties Association and Mr. Alan 19 Borovoy. 20 21 (BRIEF PAUSE) 22 23 FINAL SUBMISSIONS BY THE CANADIAN CIVIL LIBERTIES 24 ASSOCIATION: 25 MR. ALAN BOROVOY: Thank you very much.
1341 I have with me Josh Patterson, our Acting Director, the 2 Acting Director of our equality and dignity project. 3 When I heard you say that this was the 4 final presentation, I had the uncomfortable feeling that 5 after all this time and all these exhaustive and probably 6 exhausting processes, it is now that I stand before you 7 as the grand anti-climax of the process. 8 For the Canadian Civil Liberties 9 Association, one of the key issues that emerged in all of 10 these proceedings is the pivotal relationship between the 11 Government and the police, or between any of the civilian 12 masters and the police. 13 And from this standpoint one of the most 14 significant events occurred in the aftermath of the 15 tragedy at Ipperwash. In the Ontario Legislature members 16 of the opposition parties were jumping all over the 17 Government pummelling the Government with questions as to 18 -- and they were trying to determine how far, if at all, 19 the Government had a role in the way the OPP handled the 20 occupation at Ipperwash. 21 And there was a solid response from the 22 Government, of course, as you well know, that the 23 Government had nothing to do with it. The Attorney 24 General of the day was quoted as saying that, there was 25 no political interference and indeed political
1351 interference would have been, I think his words were, 2 highly inappropriate. 3 And the Premier of the day Mike Harris 4 said, We know nothing of the OPP build up, it was not our 5 business. And of course, as you well know, this has 6 generated suspicions, accusations and allegations that 7 the Government was not telling the truth. And of course 8 that, I'm sure is one (1) of the issues you are going to 9 have to determine. 10 One (1) thing we can say is, if the 11 Government indeed was not telling the truth that would be 12 a very bad thing. But, we have long thought that if the 13 Government was telling the truth, it would be even worse. 14 How in the world is there supposed to be political 15 responsibility and accountability for the police, if the 16 Government cannot be involved in or even know about an 17 operation of that magnitude and importance? 18 Suppose, if you will, there was a question 19 of whether our Country should send troops in order to 20 deal with some contemplated conflict abroad. And even if 21 the numbers were small there would be no question, I 22 would think, in anyone's mind that that decision would 23 have to be made by the Government and no one else. 24 Why, we have been asking, should it be so 25 different if the contemplated conflict is with our own
1361 citizens? In our view, this is a distinction that does 2 not make sense. 3 We appreciate the rationale behind this. 4 We don't want the police to become instruments of 5 partisan or political influence. This is a perfectly 6 commendable objective. 7 But, the question then arises how do we 8 have accountability? Our Country in the main has 9 purported to resolve this conflict, this dilemma by 10 saying the Government could issue broad policy directives 11 but, not become involved in specific operations. In our 12 view, this distinction is not all that helpful in order 13 to have the requisite accountability. 14 Suppose or if I can cast your mind back, 15 you may be too young to remember this, but I'm not. 16 COMMISSIONER SIDNEY LINDEN: That's very 17 kind of you. 18 19 CONTINUED BY MR. ALAN BOROVOY: 20 MR. ALAN BOROVOY: I thought it was also 21 very politic of me. If we could cast your mind back to 22 some of the major controversies we've had regarding the 23 police; the Fort Erie search and strip drug raid, the 24 bathhouse raids and there have been others. 25 If the Government were to learn in advance
1371 that the police were about to embark on such an exercise, 2 at the time these exercises might well have been lawful 3 in the pre-Charter days, but they could nevertheless be 4 seen, at least as arguably awful; lawful but awful. 5 And why, I ask, would it be highly 6 inappropriate for the Government if it learned about this 7 to instruct the police to desist from embarking on such 8 an operation? 9 For these purposes I've brought with me 10 this. I could not commit to memory. I just hope I can 11 see it. From the Arar Inquiry, we have counsel for the 12 Inquiry examining Bill Graham for his role -- his 13 exercise of his role at the time of being Foreign 14 Minister for Canada. 15 And he was asking him about why the 16 Minister could not have been more adequately briefed in 17 order that he could sit down with the Secretary of State 18 for the United States on a more level playing field. 19 And he says: 20 "Do you not agree with me that 21 information from the RCMP or CSIS about 22 what they know about Mr. Arar could 23 have been given to you in confidence so 24 that you could sit down with Mr. Powell 25 on a level playing field?"
1381 That's a quote from the transcript. Mr. 2 Graham replied: 3 "That would require my personal 4 engagement in operational details in a 5 way that I think that as a Minister of 6 the Crown I think we would have to be 7 very careful of. I would have to think 8 about that a lot." 9 The Inquiry Counsel then pressed him: 10 "If a rookie RCMP officer who happened 11 to be working on the file had access to 12 that information it would seem to me 13 that a Minister of the Crown can also 14 be given that information in confidence 15 so that you can fulfil your cabinet 16 responsibilities?" 17 Answer: 18 "We were very limited in having 19 operational details and there are 20 strong public policy reasons for that 21 and they were respected in this case." 22 So as a result of this doctrine you had 23 our Government unable to provide adequate protection to 24 one of our citizens who haplessly fell in to the custody 25 of foreign powers. Another example of what is wrong with
1391 this whole concept. 2 As between -- the -- the question that a 3 lot of this raises is why should anyone believe that the 4 Government has a monopoly of questionable political 5 motives? Police and police leaders have also been known 6 to have political biases. 7 And, indeed, it is often suspected that 8 they have biases of other kinds; the allegations, the 9 suggestions, that some police operations have been 10 influenced by racism or homophobia. 11 As between the elected government and the 12 appointed police why should it be the appointed police 13 that have the right to make the last mistake. We suggest 14 that these doctrines don't make sense and as a result, we 15 recommend that you recommend much more government power 16 to direct the operations of the police. 17 I note, for example, that even the 18 McDonald Commission on RC -- on RCMP wrongdoing, as 19 solicitous as it was of the -- what it called the quasi- 20 judic -- quasi-judicial powers of the police to 21 investigate, arrest and prosecute, said that all the 22 other operations should be subject to direct government - 23 - to government direction; the full government direction 24 I think was the -- was the word -- were the words that 25 the McDonald Commission used at the time.
1401 Our view is that would make more sense. 2 Now, one might then ask the question, Well, what about 3 what happened at Ipperwash or the suspicions and 4 allegations about what happened? Wasn't the very problem 5 that you -- that you had the suspected government 6 involvement in the police operations? 7 We submit that there are some safeguards 8 that could help to make this a more viable system. In 9 the first place if there are, to whatever extent, 10 Government wants to issue directives about specific 11 operation it should be required to do so in writing; that 12 has a way of creating an aura around what is taking 13 place. 14 But, secondly, we submit that there -- 15 that this relation -- relationship should be subject to 16 independent auditing; that an agency should be put in 17 place with ongoing access to police records, police 18 facilities, police personnel and with a mandate to 19 conduct self-generated audits of what is going on of the 20 police/government relationship and of police practices 21 and policies in general. 22 And that this agency would issue public 23 reports on what it finds. It should have no decision 24 making power. It's role should be to disclose and 25 propose but then the decision makers should make their
1411 decisions under the impact of the publicity generated by 2 an independent audit. 3 And I suggest to you that if we then 4 consider the events at Ipperwash, the Government role, 5 the police role, that if we had in place a requirement 6 that Government issue it's instructions in writing and 7 that all this be subject to independent audit, you would 8 have had a much better chance to avoid such tragedies in 9 the first place, or at least be more able to detect and 10 discern responsibility for it thereafter. 11 Some special lessons that probably also 12 emerge from these tragic experiences and consistent with 13 the theme of what I've already said, that in so far as 14 such occupations and protests are concerned there should 15 be no question, even as the police continue in their 16 mandate to provide -- to protect the safety of all 17 parties, there should be no question that the Government 18 is in charge and has the commanding authority. 19 And the mandate should be to avoid force 20 it at all possible and if there has to be recourse to 21 force that should be the Government's decision, apart 22 from emergencies and frontline occurrences that should be 23 the government's decision. 24 And the Government should remind the 25 police leaders and the police leaders should be required
1421 to remind their troops that no more force than is 2 reasonably necessary in the circumstances. Though that 3 is the law, it is our sense that that is often ignored, 4 at least as far as the ongoing instructions and 5 supervision are concerned. 6 And that to whatever extent there is 7 private litigation that concerns any land in which people 8 such as the Aboriginal people have a colour of right and 9 if there are ongoing negotiations between Government and 10 Aboriginal people, that the Court be required to defer to 11 those processes and that the private litigation ought not 12 to be able to trump the processes that had been in -- put 13 in place to resolve these issues. 14 And, finally, if the -- if it comes up 15 that the Court is being requested to issue any orders 16 that would authorize some alteration in the land that is 17 contested that the Attorney General be required to 18 intervene and alert the Court about any such Aboriginal 19 interests that could be affected by any court order to 20 whatever extent those interests are not otherwise 21 represented in the case. 22 So I take you back to it all and suggest 23 to you that we need to have a lot of fresh thinking about 24 the way we do things. We see situation after situation 25 arise where the Government of the day keeps disclaiming
1431 responsibility for activity that for which they ought to 2 be first and foremost responsible and there should be no 3 question about it. 4 And in order to achieve that, to just 5 reiterate that key recommendation, the Government should 6 have a full power to direct such police operations, 7 subject to having generally to put it in writing and 8 subject to independent audit. 9 All of which as is always respectfully 10 submitted and we also extend our best wishes and good 11 luck for your deliberations to come. Thank you very 12 much. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much, Mr. Borovoy. Thank you very much. 15 MR. DERRY MILLAR: Commissioner, that 16 brings us to the end of this portion. This afternoon at 17 two o'clock we will have the closing. I wanted to thank 18 the counsel for their -- on behalf of Susan Vella, Don 19 Worme and all of the staff for their kind comments 20 yesterday. 21 I thanked everyone on June 28th and I'm 22 not going to repeat it again today. But this process has 23 worked and has worked well because of the cooperation of 24 the parties, the counsel, the witnesses and, above all, 25 it's worked because of you, sir. And with those words
1441 I'd like to say thank you and I have nothing further to 2 add. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. Millar. We will adjourn now and reconvene 5 at two o'clock this afternoon. I invite everybody to 6 stay and be part of the closing. Thank you very much. 7 THE REGISTRAR: This Inquiry stands 8 adjourned until 2:00 p.m. 9 10 --- Upon recessing at 12:24 p.m. 11 --- Upon commencing at 2:14 p.m. 12 13 THE REGISTRAR: This Inquiry has now 14 resumed. 15 COMMISSIONER SIDNEY LINDEN: I want to 16 say first of all good afternoon and welcome to everyone. 17 Today marks the conclusion of the evidentiary hearing 18 phase of our Inquiry. 19 I know that there are a lot of people here 20 who came especially for this closing and I'm very 21 grateful and I want to thank you. It shows the 22 seriousness with which we've all taken these proceeding. 23 I thank you all very, very much for coming and for being 24 here with us to mark this closing. 25 Just before I say a very few remarks and
1451 introduce our Elder and the drummers, I hope you'll allow 2 me one moment of levity. During the last couple of days 3 when the submissions were being made by all the counsel 4 they said some very nice things. 5 In addition to their submissions, they 6 said some very nice things about the Commission staff, 7 they said some nice things about the Commission counsel, 8 and they even said some nice things about the process. 9 Well what I've decided to do is collect 10 all those nice sayings and put them on a CD. And what 11 I'm going to do with it is just before I release the 12 report, I'm going to send it to everybody. 13 The main reason for these Hearings we all 14 know has been to investigate the events surrounding the 15 death of Dudley George. It's always been my view that a 16 public inquiry may serve the purposes beyond those 17 explicitly set out in its Order in Counsel. 18 A public inquiry contributes to public 19 debate and public education. It provides a forum for 20 citizens and groups to participate in the resolution of 21 issues and the development of future policies and 22 strategies concerning matters in which they have a stake 23 or interest. 24 Perhaps most importantly a public inquiry 25 may serve as a catalyst for moving forward by individuals
1461 or communities affected by the events in question. 2 You may recall at the very outset of these 3 proceedings I stated that one of my broader goals was to 4 contribute to restoring good relations among the people 5 affected and to restoring their faith in the institutions 6 of government and of democracy. 7 And it's with this goal in mind that I 8 decided to invite all parties and their counsel to come 9 together one (1) final time today to close this chapter 10 of events in a spirit of goodwill and hope for the 11 future. 12 I'm happy to welcome Lillian Pitawanakwat, 13 also known by her spiritual name, Thunderbird Eagle 14 Woman, an Elder from Whitewash River, First Nation. She 15 offered a traditional prayer when these proceedings 16 began. 17 At that time she presented me with a 18 talking stick that has been on my desk throughout the 19 Inquiry. When I asked her she told me that if any of the 20 lawyers got out of line I could use it to smack them but 21 it wasn't necessary. I intend to keep it along with the 22 eagle feather, an Aboriginal symbol of truth that was 23 given to me at the Chiefs of Ontario forum. And it's now 24 kept in this very beautiful traditional case that was 25 made by Veronica George, Sam's wife.
1471 I'm pleased that the drummers representing 2 three (3) of the main parties to this Inquiry, the 3 Chippewas of Kettle and Stony Point, the Stoney Pointers, 4 and the OPP are present this morning. 5 These three (3) drum groups participated 6 in the Indigenous Knowledge Forum that was organized by 7 the Inquiry. At that time I viewed their participation 8 as a very positive development and I'm delighted that 9 they are again today. 10 I've been encouraged by the response to 11 this Inquiry from parties as well as from the public. I 12 believe we've made some progress towards fostering open 13 dialogue and better relations and understanding. My hope 14 is that the impact of these improved relationships will 15 be deep and long lasting. There's still much to do. But 16 the task will be a lot easier if those involved undertake 17 it in a spirit of goodwill, mutual respect and 18 understanding. 19 Before I call on Ms. Pitawanakwat I want 20 to reiterate my appreciation to everyone who has been 21 involved with this process. I have learned a tremendous 22 amount and I hope everyone has. It's been an honour and 23 a privilege to serve as Commissioner. 24 I sincerely thank the community and I 25 particular want to thank all parties and their counsel
1481 for their diligence, their professionalism, and their 2 constructive contribution to the work of this Inquiry. 3 Thank you very much. 4 Ms. Pitawanakwat...? I can't see exactly 5 where she is. Can I call upon you to please come up? 6 7 (BRIEF PAUSE) 8 9 ELDER LILLIAN PITAWANAKWAT: I'll say 10 bonjour to everyone. I thank the Commissioner for 11 allowing me to be part of this building a bridge. 12 I hold this candle in my hand and remember 13 the Great Teacher and Dudley George. I asked -- I asked 14 his spirit and I said, what is it that you need from me 15 to tell all our relations? 16 And he said, Tell them to be childlike to 17 one another. Not to be childish, but childlike. I see 18 beyond things now. I've experienced beyond things. The 19 sacrifice that I made was to awaken each and every one of 20 you; the fire from within each and every one of you; the 21 spirit of, the essence of creation. 22 So he calls us together once more and he 23 says to you, he says to me, What will you do to build 24 that bridge? Will you tear it down before it even begins 25 or will you help bridge the gap?
1491 I have come back because I believe in what 2 the Commissioner has set out to do, to bring an awareness 3 to that circle of life, that we're all entitled to sit in 4 the circle of life, the yellow people, the red people, 5 the black people and the white people. 6 And up to this point, the red people have 7 been ignored. It's as if that quadrant wasn't there. 8 Allow us -- allow us to be part of that circle. We have 9 a voice. We have feelings. We are human beings. 10 And so help us to put that quadrant into 11 place so that sacred hoop, that sacred circle will be 12 rebuilt. 13 And then when truth has spoken, it will be 14 truth, not half truth but full truth. 15 16 (BRIEF PAUSE) 17 18 ELDER LILLIAN PITAWANAKWAT: Today Dudley 19 celebrates life to the fullest, all understanding, all 20 awareness, all respect, everything the Creator gave him 21 that we also have but we haven't used. He asks us to 22 step beyond ourselves and to bring that truth together. 23 At this time I'd like to ask the drummers 24 to sing a song that they all know together, it's not, I 25 can't or I don't know, they do know, to honour the
1501 Teacher and Dudley. 2 I ask them as I present tobacco, tobacco 3 to the drums please. Tobacco is given in our culture to 4 create a link between people, the spirit of people. 5 The spirit of that tobacco is my 911 6 connection to the Creator. I have yet to see it fail. 7 The most -- the most difficult things I've been involved 8 with once I asked, I put that tobacco in my hand, I ask 9 and the answer comes. 10 Like a child. Dad always told me: 11 12 (OJIBWAY SPOKEN) 13 14 ELDER LILLIAN PITAWANAKWAT: When you 15 take that tobacco in your left hand, the hand closest to 16 the heart, whatever it is that you ask for, know that 17 they will be granted. 18 So I would like to ask the drummers now to 19 -- to honour us, to honour Dudley along with us the 20 celebration of life. 21 22 (DRUM CIRCLE) 23 24 Aazhoodena/Stoney Point Drum "NDN Time" 25 Dale Plain (lead), Don Kewageshig, John Jacobs,
1511 Dave George, Patricia Shawno 2 3 (DRUM CIRCLE CONCLUDES) 4 5 ELDER LILLIAN PITAWANAKWAT: Please be 6 seated, those of you who have seats to sit on. I thank 7 the Creator for the drummers, for the beautiful song, 8 honour song they sang for our Teacher. 9 At this time I'd like to share a teaching 10 story to take home with you to -- to reflect on, to 11 mediate on, whatever you choose to do with it. 12 It's a story about a little mouse sister 13 and the great white wolf. 14 Little mouse was on her journey. She had 15 lost something that was given to her. She had lost sight 16 of the sacred lake, a place of nurturance. 17 And as she's reflecting she heard the 18 cries of the wolf and went and saw the wolf and said, Why 19 are you crying, my brother, why are you crying? 20 Because I've lost my eyes the wolf said 21 because I have been foolish. Little mouse sister said, 22 Let me give you my eyes; my eyes so that you can see 23 because you're much greater that what I am. 24 So she took out her eyes and she gave them 25 to her brother. And her brother saw again, had vision
1521 again and he danced and was really grateful for his 2 sight. And he said to his little mouse sister, If 3 there's anything I can do for you in the future, please 4 let me know. 5 And she said, I'd like somebody now that 6 I'm blind, I'd like somebody to take me to the great 7 sacred lake. I don't know exactly where it is but it's 8 in the mountains somewhere. 9 And great white wolf said, I will take 10 you. Jump on my back and I will take you there. We will 11 hunt it down. We will find it. 12 So on their journey, they met up with the 13 coyote. The coyote is a trickster in our stories and 14 trips you up and -- and it's really is a pain sometimes 15 when you get clear cut direction. 16 But anyway, they met up with the coyote 17 and they tried -- they tried to ask him, Do you know 18 where the sacred lake is? 19 He says, I think it's that way. Maybe 20 it's over there. I can't remember. So anyway they 21 thanked the coyote and they moved on. And they came 22 across a family of otters and they said, Little 23 relatives, can you tell me where the sacred lake is? 24 The little otters said, We've swam in 25 these waters for a long, long time, we've never seen the
1531 sacred lake. Because all they do is play, there's no 2 time for anything else. And so they thanked the otters 3 and they went on their way. 4 The next animal creature that they 5 encountered was the owl. Owl is suppose to be wise. So 6 they asked the owl, Who knows among your family where the 7 sacred lake is? Who me? Who me? he says. 8 I don't know anything about the sacred 9 lake. I've flown over these mountains, valleys, for 10 years, I've never seen the sacred lake. And so they left 11 the owl and they travelled. 12 Finally, one day came when the wolf 13 bounded over the crest of a hill and there he saw the 14 sacred lake, as blue and as true as could be. And he 15 said, Little mouse sister, I have found it, I have found 16 it. It is so beautiful, it is so gorgeous. Little mouse 17 said, Put me down and lead me to it. Even though I can't 18 see with my physical eyes because I have none, I can see 19 with my heart. 20 And so she led him -- or he led her to the 21 waters and he pick up -- she picked up her tobacco and 22 said a prayer to the east and prayed for the coyote and 23 his trickster ways that he may have balance and respect 24 for all those that are searching for life. 25 He turned to the south -- she turned to
1541 the south and thanked the relatives of the south for the 2 playfulness of the otters, that they may play, they learn 3 to play at the right time and still get their work done. 4 And he faced the west and he said I ask for prayers for 5 my brother the owl so that his knowledge will be balanced 6 out, his book knowledge will be balanced out with his 7 heart knowledge. 8 And he thanked the Creator for the 9 special, special relatives he had to remind him about the 10 sacredness of life. 11 And last but not least, he said thank you 12 Creator for my big brother the great white wolf. Now, 13 that he has eyes to see, not only physical eyes but eyes 14 of the heart. Grant him guidance and protection on his 15 journey. 16 And so ends the story, teaching story. 17 Take whatever you need from it. We used that to awaken 18 one another because animals are the first teachers for 19 man. But, we've turned that around/ We think we're the 20 teachers and we train them how to sit, how to roll, you 21 know, but they don't do that. We've reversed that -- 22 that cycle. 23 So when we learn from them, then we're 24 going for that balance and harmony, peace and chaos, 25 respect, honour, all of those things.
1551 So on behalf -- to end my -- my five and a 2 half minute speech, talk, I'd like to do a special 3 presentation on behalf of the Committee -- the Committee 4 -- Council. 5 6 (BRIEF PAUSE) 7 8 ELDER LILLIAN PITAWANAKWAT: And here's a 9 painting I had commissioned for -- for the Commissioner. 10 In his deliberations may he go to that ultimate truth. 11 May the great judge, the ultimate judge guide him, 12 protect him on his journey. 13 The job that he had was not an easy task. 14 It takes guts to speak out, You're going in the wrong 15 direction, come this way. And so I had this -- this 16 painting done and here's the mouse. At the very end of 17 that story the mouse was told, Jump granddaughter, jump. 18 She jumped. 19 Again a voice came, Granddaughter, jump a 20 little bit higher and she jumped again. Third time the 21 voice came and said, Granddaughter jump as high as you 22 can. And with no eyes, she jumped, trusting in the faith 23 of the Creator. 24 When she opened her eyes she had become 25 the great white eagle -- the great eagle that still flies
1561 over our heads, bringing us clarity of mind, body, heart 2 and spirit. 3 And so the transformation that's taking 4 place, you saw it, you felt it already, hold onto it, 5 nurture it by your tobacco offering, like the mouse did. 6 They're ready for her transformation to fly, high in the 7 skies and to remind us, we too can fly. 8 So on behalf of the Committee I'd like to 9 present this to our Commissioner. 10 11 (BRIEF PAUSE) 12 13 ELDER LILLIAN PITAWANAKWAT: We had a 14 ceremony just before we reconvened and the spirits told 15 me that the Commissioner's spirit name was to be honoured 16 today and his spirit name is Eagle Eyes -- 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 ELDER LILLIAN PITAWANAKWAT: -- of the 20 Crane Clan. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. Thank you very much. 23 ELDER LILLIAN PITAWANAKWAT: I think 24 that's seven and a half (7 1/2) minutes, eh? 25
1571 (BRIEF PAUSE) 2 3 ELDER LILLIAN PITAWANAKWAT: To end -- to 4 end my delivery, I hope that -- I hope and pray that the 5 lives of people will change from this day forward, to 6 honour creation with all its essence. 7 I loaded my pipe before -- before I came 8 up here. My pipe is polar bear thunder pipe. The 9 grandmother -- the grandmother polar bear came to me in 10 my dream time and she was dancing and she had this bundle 11 and she was dancing. 12 She said, I have a gift for you 13 granddaughter, and she gave me the pipe. And I was to 14 find out that the pipe was already done when I called 15 about it. And she came to me again in a dream and she 16 says, Will you tell the two- legged that we too belong in 17 the sacred circle of life. 18 Many of my children are drowning, she 19 said, because of the global warming in the north. I too 20 have respect for the two-legged. Have respect for us, we 21 are part of the environment, we are part of the healing 22 of mother earth. 23 So as I -- as I close with my delivery, I 24 will smoke the pipe on behalf of this assembly to say, 25 Yes, yes, I have told my story on your behalf grandmother
1581 and I know they have heard. Chi miiqwetch. 2 3 (BRIEF PAUSE) 4 5 ELDER LILLIAN PITAWANAKWAT: Chi 6 miiqwetch to everyone. I wish you well on your journeys. 7 8 (DRUM CIRCLE) 9 10 Animkii Ozaasawin 11 Kyle George, Doug George, Jerad Storr, 12 Sam George, Paul Nadjiwan 13 14 Zhowske Miingun 15 Constable Don Lickers, Constable Todd Showan, 16 Constable Luke George, Robert Henry, 17 Elder Dick Bressette, Tim Kunkel 18 19 (DRUM CIRCLE CONCLUDED) 20 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. These proceedings are now over and I wish 23 everyone a safe journey home. 24 Thank you. Thank you all very much. 25 THE REGISTRAR: The Hearings of this
1591 Public Inquiry are now concluded. 2 3 --- Upon adjourning at 3:19 p.m. 4 5 6 7 8 Certified Correct, 9 10 11 12 _________________ 13 Carol Geehan, Ms. 14 15 16 17 18 19 20 21 22 23 24 25