A Métis lawyer seeking a federal NDP nomination in Vancouver Centre says that Canada's constitution is profoundly racist against Indigenous people.
In an interview with the Georgia Straight, Breen Ouellette described section 91(24) of the British North America Act as "legislated apartheid".
Section 91(24) granted the federal government authority over "Indians, and Lands reserved for the Indians".
"There are multiple remedies and I am currently investigating them," Ouellette said. "And I may be issuing my own letter within the coming month or two."
He ran for the NDP in Vancouver Centre in 2019, losing to Liberal MP Hedy Fry.
The British North America Act took effect on July 1, 1867, uniting Nova Scotia and New Brunswick with Quebec and Ontario in a new Dominion called Canada.
The Constitution Act, 1982, granted Canada the right to amend the consitution, added a Charter of Rights and Freedoms, and recognized and affirmed existing Aboriginal and treaty rights.
The consolidation of these two acts, described as the Constitution Acts 1867 to 1982, comprise Canada's constitution.
According to Ouellette, section 91(24) of the British North America Act is "the basis for every act of genocide that Canada has committed or continues to commit against Indigenous people".
"And it's the basis of authority for every crime against humanity that Canada has committed or continues to commit against Indigenous peoples," Ouellette added.
Section 91 defines Parliament's powers, whereas section 92 defines various powers of the provincial legislatures.
"If you review the list of powers, they deal with classes of property or property relationships—except for subsection 24 of section 91," Ouellette noted. "Subsection 24 lists Indians and lands reserved for the Indians as a class of property under the control of the federal government.
"It’s a racial distinction in the highest law of Canada and it meets the definition of apartheid, which is one of the crimes against humanity listed in the Rome Statute of the International Criminal Court."
Ouellette said it's a "very disgusting idea" that Indigenous people would be treated in the country's foundational document as "property to be controlled".
Yet he said that this is the only way that section 91(24) can be interpreted in the British North America Act, based on the classes of subjects listed in sections 91 and 92.
"It's currency, it's the post office, it's patents, it's copyright," Ouellette explained. "These are items of property or, in the case of marriage, that's a property relationship.
"You know, when you're talking about marriage at law, you're not talking about love and commitment," he continued. "You're talking about recognizing that a marriage constitutes a legal partnership and from that legal partnership there flow legal responsibilities. Once again, it's a property relationship"
Similarly, he argued that the reason naturalization and aliens were listed in section 91 was because Canada "wants to control the property relationship of foreigners within its borders".
"The only way to interpret Indians among everything else is that we constitute a class of pseudo property under the constitution," Ouellette insisted.
ICC only deals with individuals
Fifteen Canadian lawyers recently signed a letter to the International Criminal Court in The Hague asking it to open a preliminary examination into Canada's Indian residential school system.
Ouellette, however, pointed out that the International Criminal Court only prosecutes individuals, not states or departments or organizations or corporations.
"It only is empowered to go after individuals and it’s only empowered to go after people for crimes after the statute was brought into effect in 2002, which means that residential schools are off the table," he said.
Even if the International Criminal Court were to prosecute individuals—based on an argument that Canada's statute against crimes against humanity has no limitation period—that still wouldn't address the fundamental problem of section 91(24), Ouellette said.
"To change things systematically, you need something like the International Court of Justice to come in because they deal with states," he said.
The International Court of Justice was established by the United Nations charter in 1945 and is the principal judicial organ of the United Nations. Like the International Criminal Court, it's based in The Hague.
"Potentially, they could order Canada to repeal section 91(24), to repeal the Indian Act, to repeal the Doctrine of Discovery [justifying the seizure of land not inhabited by Christians] and terra nullius [a Latin expression meaning the land belonged to nobody], to repeal the Royal Proclamation of 1763, and...to overrule all Supreme Court decisions that treat Indigenous peoples as a class—a racial class—subject to different rules and laws than other Canadians," Ouellette said.
The Vancouver lawyer noted that Justin Trudeau "apologizes profusely and regularly for crimes that he recognizes are ongoing in Canada, but he's the leader of the country".
"The buck stops with Mr. Trudeau," he added. "And every time he allows it to continue and doesn't take it seriously, I believe it constitutes an act of apartheid."
To illustrate his point, Ouellette pointed to the lack of clean water in many Indigenous communities. This continues to occur even though Canada has signed an international treaty recognizing that access to safe water is a human right.
The Liberals promised in their 2015 platform to end long-term drinking-water advisories in First Nations communities by 2021. As of May 17, 2021, there were still 53 long-term drinking-water advisories in 34 First Nations communities, according to Indigenous Services Canada.
According to Ouellette, Canada could have provided clean water to all Indigenous communities in the country had it not chosen to spend so much money on armed drones.
"We see acts of apartheid happening just about every month in Canada," Ouellette claimed. "Last month when there was a vote in the House to end punitive litigation against residential school survivors and Indigenous children, 65 MPs from the Liberal party abstained from the vote.
"And I would argue that that was an act of apartheid by omission. It’s a refusal to recognize that seeking punitive damages against a nonprofit that received an order from the Canadian Human Rights Tribunal. That’s a gross abuse of power and it's aimed squarely at the racial group that’s identified in the constitution act."
Prosecuting residential school criminals
Ouellette praised NDP MPs Mumilaaq Qaqqaq and Charlie Angus for their efforts to seek justice for victims of crimes perpetrated in Indian residential schools.
The two MPs have demanded that Attorney General David Lametti appoint a special prosecutor to investigate historic crimes and coverups of abuse committed by clergy against Indigenous people.
In addition, Qaqqaq and Angus urged the government to give such a prosecutor authority to demand access to all relevant documents held by "relevant church istitutions".
"As well, the prosecutor must have the right to access the names and records of every criminal perpetrator that Canada has on file under litigation privilege as well as any relevant documents," an online petition hosted by Qaqqaq says.
Moreover, the petition states that a special prosecutor must have the authority to make public any relevant information and the names of known perpetrators.
Because Lametti votes with the government every time it exercises its "apartheid power" under Section 91(24), Oullette argued that special prosecutors should be appointed who have been nominated by Indigenous nations across Canada.
Ouellette told the Straight that the federal government has the names of perpetrators of crimes in residential schools.
He maintained that the federal government made an agreement not to prosecute them without them having to make any reparations and without them being required to participate in the Truth and Reconcilation Commission hearings.
"All the government did was call them and ask them to participate and that was sufficient to garner an agreement not to prosecute," Ouellette alleged.
He added that he's been told about these agreements by Indigenous leaders. He also alleged that there was an agreement not to describe what happened in Indian residential schools as "genocide".
In its 2015 final report, the TRC described Canada's policy forcing children to attend Indian residential schools can best be described as "cultural genocide'".
The Straight asked Ouellette if all of this was part of a 2006 settlement agreement between the Assembly of First Nations, the government, and the churches that operated residential schools.
"I've reviewed the settlement agreements and I can't find these clauses," Ouellette responded. "So it makes me wonder if these were also record agreements that were made. But it's troubling to me as a lawyer because I think that the reason not to prosecute for the crimes that they've committed has to be incredibly compelling."
In the wake of the 2006 settlement agreement, the prime minister delivered a formal apology in the House of Commons in 2008.
As part of the agreement, there was a "Common Experience Payment" for all eligible former students of these schools, as well as an independent assessment process for claims of sexual or serious physical abuse.
The settlement agreement also included the establishment of a Truth and Reconciliation Commission.