Dear friends, here’s my latest article for the IMI’s Globetrotter project. That Canada has many lawsuits fighting First Nations, but I found the details surprisingly hard to dig up. They are shared here.

Canada is Waging an All-Front Legal War Against Indigenous People

By Justin Podur for Globetrotter. August 3, 2021

Canada is developing a new image: one of burning churches, toppling statues, and mass graves. There are thousands more unmarked graves, thousands more Indigenous children killed at residential schools, remaining to be unearthed. There can be no denying that this is Canada, and it has to change. But can Canada transform itself for the better? If the revelation of the mass killing of Indigenous children is to lead to any actual soul-searching and any meaningful change, the first order of business is for Canada to stop its all-front war against First Nations. Much of that war is taking place through the legal system.

Canadian politicians have said as much, adopting a motion in June calling for the government to stop fighting residential school survivors in court. A long-standing demand, it has been repeated by Indigenous advocates who have expressed amazement in the face of these horrific revelations that the Canadian government would nonetheless continue to fight Indigenous survivors of systematic child abuse by the state.

To get a sense of the scope of Canada’s legal war on First Nations, I looked at a Canadian legal database containing decisions (case law) pertaining to First Nations. I also looked at the hearing lists of the Federal Court of Canada for ongoing cases. My initial goal was to identify where Canada could easily settle or abandon cases, bringing about a harmonious solution to these conflicts. Two things surprised me.

The first was the volume and diversity of lawsuits Canada is fighting. Canada is fighting First Nations everywhere, on an astoundingly wide range of issues.

The second thing: Canada is losing.

The Attack on Indigenous Children and Women

In his 1984 essay “‘Pioneering’ in the Nuclear Age,” political theorist Eqbal Ahmad argued that the “four fundamental elements… without which an indigenous community cannot survive” were “land, water, leaders and culture.” Canada fights Indigenous people over land, water, fishing rights, mining projects, freedom of movement, and more. The assault on Indigenous nations is also a war against Indigenous children and women.

In the high-profile case of First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada, laid out in detail by Cindy Blackstock, “the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint under the Canadian Human Rights Act alleging” in 2007 “that the Government of Canada had a longstanding pattern of providing less government funding for child welfare services to First Nations children on reserves than is provided to non-Aboriginal children.” The Canadian Human Rights Tribunal (CHRT) found in favor of the First Nations complainants in 2016.

Note that this isn’t about the history of residential schools. It’s about discrimination against Indigenous kids in the present day. “In fact, the problem might be getting worse,” writes Blackstock, compared to “the height of residential school operations.” As evidence, she refers to a 2005 study of three sample provinces showing a wide gap between the percent of First Nations children in child welfare care (10.23 percent) compared to a much lower rate for non-First Nations children (0.67 percent). In 2006, following the Canadian government’s repeated failures to act on the inequity described in this report (which also included comprehensive suggested reforms that had both moral and economic appeal), Blackstock writes, “the Caring Society and the Assembly of First Nations agreed that legal action was required.” The CHRT was very clear in its 2019 decision that the federal government should compensate each victim the maximum amount, which addressed the victims as follows:

“No amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination.”

In May 2021, Canada, which has spent millions of dollars fighting this case, tried to overturn the CHRT’s ruling.

Canada’s war on Indigenous children is also a war on Indigenous women. The sterilization of Indigenous women, beginning with Canada’s eugenics program around 1900, is another act of genocide, as scholar Karen Stote has argued. Indigenous women who had tubal ligation without their consent as part of this eugenics program have brought a class-action suit against the provinces of Alberta and British Columbia, both of which had Sexual Sterilization Acts in their provincial laws from the 1920s in Alberta and 1930s in British Columbia until the early 1970s, and Saskatchewan, where sexual sterilization legislation was proposed but failed by one vote in 1930. A Senate committee found a case of forced sterilization of an Indigenous woman as recently as 2019.

The Legal-Financial War on First Nations Organizations

As Bob Joseph outlines in his 2018 book 21 Things You May Not Know About the Indian Act, Canada first gave itself the right to decide Indian status in the Gradual Civilization Act of 1857, which created a process by which Indigenous people could give up their Indian status and so become “enfranchised”—which they would have to do if they wanted to attend higher education or become professionals. The apartheid system was updated through the Indian Act of 1876, from which sprang many evils including both the residential schools and the assertion of Canadian control over the way First Nations govern themselves. In 1927, when Indigenous veterans of World War I began to hold meetings with one another to discuss their situation, Canada passed laws forbidding Indigenous people from political organization and from raising funds to hire legal counsel (and from playing billiards, among other things). The Indian Act—which is still in effect today with amendments, despite multiple attempts to repeal it—outlawed traditional governance structures and gave Canada the power to intervene to remove and install Indigenous governance authorities at will—which Canada did continuously, from Six Nations in 1924 to Barriere Lake in 1995. As a result, at any given moment, many First Nations are still embroiled in lawsuits over control of their own governments.

Canada controls the resources available to First Nations, including drinking water. In another national embarrassment, Canada has found itself able to provision drinking water to diamond mines but not First Nations. This battle too has entered the courts, with a class-action suit by Tataskweyak Cree Nation, Curve Lake First Nation, and Neskantaga First Nation demanding that Canada not only compensate their nations, but also work with them to build the necessary water systems.

Canada dribbles out humiliating application processes by which Indigenous people can try to exercise their human right to housing. When combined with the housing crisis on reserves, these application processes have attracted swindlers like consultant Jerry Paulin, who sued Cat Lake First Nation for $1.2 million, claiming that his efforts were the reason the First Nation received federal funds for urgent housing repairs.

Canada uses the threat of withdrawal of these funds to impose stringent financial “transparency” conditions on First Nations—the subject of legal struggle, in which Cold Lake First Nations has argued that the financial transparency provisions violate their rights. Canada has used financial transparency claims to put First Nations finances under third-party management, withholding and misusing the funds in a not-very-transparent way, as the Algonquins of Barriere Lake charged in another lawsuit. An insistence on transparency is astounding for a country that buried massive numbers of Indigenous children in unmarked graves.

Win or lose, the lawsuits themselves impose high costs on First Nations whose finances are, for the most part, controlled by Canada. The result is situations like the one where the Beaver Lake Cree are suing Canada for costs because they ran out of money suing Canada for their land. When First Nations are winning in court, Canada tries to bankrupt them before they get there.

Land and Resources Are the Core of the Struggle

The core issue between Canada and First Nations is land. Most battles are over the land on which the state of Canada sits, all of which was stolen and much of which was swindled through legal processes that couldn’t hold up to scrutiny and are now unraveling. “[I]n simple acreage,” the late Indigenous leader Arthur Manuel wrote in the 2017 book The Reconciliation Manifesto, this was “the biggest land theft in the history of mankind,” reducing Indigenous people from holding 100 percent of the landmass to 0.2 percent. One of the most economically important pieces of land is the Haldimand tract in southern Ontario, which generates billions of dollars in revenue that belongs, by right, to the Six Nations, as Phil Monture has extensively documented. Six Nations submitted ever-more detailed land claims, until Canada simply stopped accepting them. But in July, their sustained resistance led to the cancellation of a planned suburban development (read: settlement) on Six Nations land.

Many of the First Nations court battles are defensive. Namgis, Ahousaht, Dzawada’enuxw, and Gwa’sala-’Nakwaxda’xw First Nations have tried to defend their wild fisheries against encroachment and pollution by settler fish farms. West Moberly, Long Plain, Peguis, Roseau River Anishinabe, Aroland, Ginoogaming, Squamish, Coldwater, Tsleil-Waututh, Aitchelitz, Skowkale, and Shxwha:y Village First Nations challenged dams and pipelines. Canada has a history of “pouring big money” into these court battles to the tune of tens of millions—small money compared to its tens of billions subsidizing and taking over financially unviable pipelines running through Indigenous lands—including that of the Wet’suwet’en, whose resistance sparked mass protests across Canada in 2020. The duty to consult First Nations on such projects is itself the outcome of a legal struggle, won in the 2004 decision in Haida Nation v. British Columbia.

First Nations who were swindled or coerced out of their lands (or water, as with Iskatewizaagegan No. 39 Independent First Nation’s case against Winnipeg and Ontario for illegally taking their water from Shoal Lake for use by the city of Winnipeg starting in 1913) fight for their land back, for compensation, or both. The Specific Claims Tribunal has 132 ongoing cases. In Saskatchewan in May, the tribunal awarded Mosquito Grizzly Bear’s Head Lean Man First Nation $141 million and recognition that they never surrendered their land as Canada had claimed they had in 1905. In June, Heiltsuk First Nation won a part of their land back.

First Nations also fight for their fishing rights in courts and out on the water, as settler fishers have physically attacked and tried to intimidate Mi’kmaw fishers on Canada’s east coast. In June, on the west coast, after the British Columbia Court of Appeals found against Canada, the federal government announced it wouldn’t appeal, dropping a 15-year litigation that restricted Nuu-chah-nulth First Nations fishing quotas.

Decolonization Just Might Be Inevitable

Why does Canada keep fighting (and losing) even as its legitimacy as a state built on theft and genocide crumbles? It’s not merely the habits of centuries. It’s also the absence of any project besides the displacement of First Nations and the plunder of the land. Canada could take the first step to ending all this by declaring a unilateral ceasefire in the legal war. Too few Canadians understand that this would actually be a very good thing. First Nations lived sustainably for thousands of years in these extraordinary northern ecosystems. Then the European empires arrived, bringing smallpox and tuberculosis among other scourges. Local extinctions of beaver and buffalo quickly followed, as well as the total extinction of the passenger pigeon. Today’s settler state has poisoned pristine lakes with mine tailings, denuded the country’s spectacular forests, and gifted the atmosphere some of the world’s highest per capita carbon emissions (seventh in the world in 2018—more than Saudi Arabia, which was 10th, and the U.S., which was 11th). Indigenous visionaries have better ideas, such as those presented by Leanne Betasamosake Simpson and Arthur Manuel, or for that matter the Red Deal and the People’s Agreement of Cochabamba.

Under Indigenous sovereignty, Canadians could truly be guests of the First Nations, capable of fulfilling their obligations to their hosts and their hosts’ lands, rather than the pawns of the settler state’s war against those from whom the land was stolen.

This article was produced by Globetrotter. Justin Podur is a Toronto-based writer and a writing fellow at Globetrotter. You can find him on his website at podur.org and on Twitter @justinpodur. He teaches at York University in the Faculty of Environmental and Urban Change.

Dear Zachary Kuehner: If you’re not a white supremacist, you sure fooled us

Dear friends: I am sharing a guest post by Dr.Tarek Loubani about a lawsuit against Canadian medical students. I’m sure many of you know who Tarek is. This incident will be playing out in the Canadian medical community for some time, and it will be important for people to understand its context. Take a look at the research on the case presented by Tarek here. Hope you are all well and hope to hear from some of you about how you are coping with the global medical emergency we continue to live under. Best, Justin.

Original article on medium: https://trklou.medium.com/dear-zachary-kuehner-if-youre-not-a-white-supremacist-you-sure-fooled-us-e68bc92db1d5

Dr. Zachary Kuehner, MD, writes, talks and behaves like modern white supremacists —all while wearing the doctor’s white coat to veneer his ideology in respectability. Zach has not apologized or retracted any of his positions or statements. When he faced consequences for them, instead he sued and went with the “it’s just a prank bro” defence.

A brief history

According to his Statement of Claim against the CBC and journalist Ryan Cooke, Zach’s woes began on June 2, 2020, when he posted a series of inflammatory messages downplaying the legitimacy of the Black Lives Matter movement and concerns about systemic racism that was driving it, calling them “pity propaganda” and asserting that it’s based on a “false premise.” This was presumably done under the pretense of not being ‘sheeple’ or maybe to ‘own the libs’ or some similarly faux-enlightened shit. Though Zach was inflammatory, dismissive and degrading, he claims that readers “misunderstood and misconstrued the nature of [his] comments.” Nah bruh. We read you loud and clear.

From there, it was a short stop to his now-deleted Twitter page in which Zach “used the word ‘islamophobe’ [to describe himself] in his bio.” Opinion pieces he previously published were also unearthed (1, 2, 3) and seem like classic dog-whistle racism / white supremacy, complete with White Man’s Burden undertones. In one part, he unironically refers to Indigenous people travelling to Thunder Bay for “entertainment, school, prison, and aimlessness” as its “cross … to bear.”

Since Zach himself invited those who objected to “feel free to talk to Eastern Health, PGME [postgraduate medical education], faculty of medicine [and] whatever suits,” several organizations and a few courageous medical students did.

Medical students at Memorial University push back

Four medical students at Memorial University wrote a strong letter of complaint to the Faculty of Medicine. The letter cited Zach’s writings as examples of how he “interacts with the public in a disrespectful, belittling, and condescending manner.” These brave students and the three other students who supported their letter in writing made a “call to action for [the Undergraduate Medical Education and Postgraduate Medical Education offices] to address such abhorrent behaviour.”

It is heartening that our future doctors came together to push back against behaviour that is unprofessional and unbecoming, just like we advocate in ethics classes. Instead of immediately responding to disgusting behaviour by one of its resident physicians, medical school dean Dr. Margaret Steele elected to throw red tape at the problem, claiming that “the students did not file a proper complaint with their letter.”

I looked for Memorial University’s Faculty of Medicine complaint process using common search terms a student might use. Even though the homepage highlights “Professionalism and mistreatment” in a block on the main page, I had to dig through two more pages to find a six page document with a link at the bottom to an eleven page document of jargon on policies and procedures.

This exact problem was noted in an 85-page 2018 report the school commissioned on intimidation, bullying, harassment and sexual harassment. The report highlighted the “lack of knowledge about what policies and resources exist” for complaints, as well as noting that “confidence in the organization is eroded when incidents are reported but no action is seen to be taken and the offensive behaviour does not change.” That report also found that bullying and harassment were frequent and tolerated at the school.

I could find no evidence that Dr. Margaret Steele or the medical school implemented the report’s findings that they must “develop mechanisms of ‘safe’ reporting that encourages people to come forward without fear of retribution” or that they tried to “develop mechanisms to detect recurrent patterns of behaviour by specific individuals over time, even when victims are unwilling to file a formal complaint that would trigger a formal investigation.”

After trying their best to ignore the issue, the medical school was finally forced to act after pressure from students, faculty and physicians.

Consequences make Zach feel butt-hurt

Zach has not commented publicly on the consequences of the complaints against him. However, looking at the College of Physicians and Surgeons of Newfoundland and Labrador’s (CPSNL) records, and his statement of claim (SOC) against the CBC and Ryan Cooke gives us some hints.

According to the SOC, “MUN temporarily suspended [Zach] pending its investigation into his social media activity. […] As a result of this, [his] license to practice medicine was automatically suspended by the CPSNL.” The suspension “deferred his [Emergency] Fellowship training” and delayed his graduation from residency. This suspension was from June 10, 2020 until November 2, 2020.

According to the CPSNL, Zach was “counselled to comply with s. 32 and s. 33 of the CMA Code of Ethics and Professionalism.” He was also “counselled to participate in the academic remediation program which has been developed for him by the Memorial University Faculty of Medicine, Residential Training Committee.”

In case you wondered, s. 32 and s. 33 of the CMA Code of Ethics and Professionalism are to “engage in respectful communications in all media,” and “take responsibility for promoting civility, and confronting incivility, within and beyond the profession. Avoid impugning the reputation of colleagues for personal motives; however, report to the appropriate authority any unprofessional conduct by colleagues” respectively. I could find no report from the Residential Training Committee about Zach, though confidentiality is the standard for most training committees, so this is usual.

Instead of apologizing for his actions, Zach filed suit against the CBC and the journalist who covered the story, Ryan Cooke.

Plot-twist: supposedly pro-free expression asshole trying to silence journalistic free expression

People like Zach will often defend themselves by claiming the right to free expression, including the right to express bigoted, racist or discredited views. Often they present these ideas as ‘nuance’, ‘asking questions’, or ‘debating in the marketplace of ideas’. In fact, Zach previously donated to PEN Canada, an organization explicitly committed to free expression in the context of journalism and other writing.

So why is “I put my money where my mouth is” pro-free expression Zach suing the CBC and journalist Ryan Cooke for fact-based reporting on him?

What people like this usually mean when they talk about free expression is that they want the freedom to spout off their bullshit, while using any available tools to silence critics and evade consequences.

White supremacists still wear hoods

While we cannot know what’s inside Zach’s heart, his actions, writings and behaviour are classically islamophobic and white supremacist. He literally called himself an islamophobe. In one opinion piece, he called Islam a “racket.” He posted an inflammatory anti-Muslim cartoon saying that “Islam is dangerous and, as such, deserves our virulent disrespect,” though he added a few weasel words there so he could blame the reader for “misconstruing” his post if he were ever confronted on the subject.

Canadian Women in Medicine’s complaint commented on Zach’s impact on indigenous communities and communities of colour too, saying that he “has shown himself to be unsafe to provide health care to Muslim or Indigenous patients.”

If Zach accidentally and innocently veered into this territory, one would expect him to respond to the massive public backlash by human rights organizations and advocates by reflecting, publicly acknowledging and apologizing for his actions. He has not. In my opinion, the only conclusion I can draw is that Zach is a bigot, an islamophobe and a racist.

It is a testament to our work that most bigots feel they cannot directly espouse racist views. A lively anti-racist response creates a deterrent, especially in sectors where people’s lives are in play. However, even when white supremacy was at its peak, its members wore hoods because they were afraid of being linked to their ideas.

In modern times, the ‘hood’ is coded language and the “it’s just a prank bro” defence. They try to redefine white supremacy as a caricature so they can deny their views are racist, while accusing anti-racists of misunderstanding them. Take a look at John Oliver’s takedown of Tucker Carlson and you’ll see lots of themes common to the way Zach operates.

The problems of systemic racism in medicine and society are big. But what scares the bigots and racists out there is this one undeniable fact:

We are so much bigger.