First Nation members have free speech rights on reserves, says B.C. civil liberties group

EDMONTON — Free speech rights protected by the Charter of Rights and Freedoms also apply to First Nation chiefs and council, says an unprecedented letter from the British Columbia Civil Liberties Association, sent to the Kwantlen First Nation.

“The letter is simple and states something assumed as natural by any other citizen of Canada: a government may not punish a citizen for speaking out on a public issue,” writes Robert Jago, a member of the Kwantlen Nation, in a commentary from the Yellowhead Institute, a First Nation-led research centre at Ryerson University.

The application of Charter rights on reserves is an evolving discussion, but the BCCLA letter — which is being called the Kwantlen Statement — details several instances where courts have applied it to band members. Violations of free expression rights, said Jago in an interview Wednesday with the National Post,  are “extremely common on reserve” and take various forms.

“The issue of free speech on reserve is critical. Away from media attention, political repression is a frequent occurrence on many reserves,” says a press release announcing the BCCLA letter and posted on an information site for Kwantlen membership.

Veronica Martisius, a signatory of the BCCLA letter, said in an email that the objective of the letter was to “provide assistance” to those “who are feeling silenced” by the chief and council.

“We believe that First Nations people should be aware that Canadian Courts have ruled that First Nations people are entitled to invoke the protection of the Charter in response to the decisions or actions of Band Councils or Bands who derive their authority from the Indian Act, which is a federal piece of legislation,” Martisius wrote.

Civil liberties organizations have an obligation to defend the free speech rights of people on reserve. Until now they haven't. But that has just changed as I explain here via Yellowhead Inst. The BCCLA is the first civil liberties organization to step up. https://t.co/mFVAijI4TF

— Robert Jago (@rjjago) September 16, 2020

In October 2019, for example, the offices of the Turtle Island News in Six Nations of the Grand River, a reserve near Hamilton, Ont., was set on fire in a targeted attack.

“This was an attack on free speech and a free press in First Nation communities,” said publisher and owner Lynda Powless at the time.

There have been many other forms of free speech attacks, explained Jago, from restrictions on journalists entering reserve land, sometimes enforced by police, to banishments used as retribution, and threats.

“With the willing assistance of Canada’s police forces, chiefs and band councils have trampled over the rights of First Nations people,” says a press release about the BCBLA letter.

The Kwantlen First Nation is located along the Fraser River, but with traditional territory covering much of the greater Vancouver area. There has been a long-established hereditary governance system at Kwantlen, and recent attempts by band members to reform that system.

In March 2019, a group of Kwantlen members wrote to the chief and council saying they were withdrawing support for the hereditary governance system. This was followed by a petition signed by roughly 10 per cent of the reserve’s adult membership, which accounts for some 50 per cent of those on-reserve, asked “the chief and council to work with us in developing a new system.”

But in July, the band council issued a document, called the Safe Spaces Agreement, which asked members participating in the “engagement process” to sign in order to keep the discussions confidential and “creating safe spaces that encourage respectful and meaningful dialogue.”

Specifically, it asks those to affirm they will “not share with anyone who is not a Kwantlen member any comments or information exchanged during Kwantlen’s custom governance code engagement process.”

The BCCLA letter was sent last week to the hereditary leadership of the Kwantlen First Nation, and  lays out some of the case law suggesting that the Charter protects members of First Nations.

The Kwantlen First Nation did not respond to a request for comment by press time.

As it happens, wrote Jago, the band council withdrew the Safe Spaces Agreement shortly after it was issued — and before the BCCLA sent its letter — but “the support of the BCCLA is still important and still needed.”

In its letter, the BCCLA says some members “argue that their Charter-protected freedom of expression rights are being threatened.”

“In consideration of their concerns, we ask that you give this letter due regard,” the letter says.

In his commentary, Jago cites Damien Lee, an Anishinaabeg sociologist at Ryerson, who said the reluctance of civil liberties groups to stand up for Indigenous peoples’ rights is “due to the misguided belief that band councils are traditional forms of Indigenous governance.”

“They’re not,” he said. “Elected or not, Indian Act band councils are as Canadian as the butter tart.”

This means, said Jago, that bands are the creations of colonial law. The long-term goal of Indigenous sovereignty can’t be used to protect or allow chiefs and councils to oppress their band membership.

• Email: tdawson@postmedia.com | Twitter:


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