Report on First Nation border crossing issues

Purpose of report

The purpose of this report, consistent with the mandate of the MSR described above, is to examine issues and challenges faced by First Nations in close proximity to the Canada-United States border with respect to their ability to cross that border for a variety of purposes including family and cultural connection, employment, education and trade.

Equally as important, the report lists potential solutions identified by First Nation representatives and which may be available to address these issues and challenges. Again, as per the mandate, it is meant to inform the work of senior government officials in constructing a plan to develop solutions.

All of this is based on views on issues, challenges and potential solutions expressed by First Nation representatives and individuals in engagement sessions listed in Annex B as well as in written submissions received during the course of my mandate.

In this respect I should emphasize that these views, which I have attempted to capture in Part C of this report, should not necessarily be attributed to other First Nations individuals, communities or organizations which did not participate in the engagement sessions.

I hope that I have captured the views expressed accurately, and I apologize to First Nations people that I have had the pleasure to meet with if I have not done so to their satisfaction.

In this regard, I take comfort in the fact that this report is not the last word on the subject, and that it does not foreclose the opportunity for additional input from First Nations as they work in partnership with government to develop the right solutions.

Approach to engagement with First Nations

Supporting me in my engagement activities with First Nations were officials from the national headquarters of Indigenous and Northern Affairs Canada (INAC). They worked closely with INAC regional offices and with regional First Nation organizations across the country to identify concerned First Nations and make arrangements to hold engagement sessions at which I could hear first-hand from First Nation representatives about their communities' border crossing concerns.

In organizational terms, there were a number of challenges presented by a relatively short timeframe and a number of concurrent engagement and consultation exercises underway on which First Nations' input was sought. With thanks to our First Nations partners, however, we were able to hold 20 engagement sessions on border crossing issues in eight provinces and territories across Canada, from New Brunswick to Yukon. We reached out to more than 300 First Nations and, in the end, I was able to meet in person with representatives from more than 100 First Nations as well as from more than a dozen regional and national First Nation organizations. In addition, I received a number of written submissions and communications from individuals as well as from First Nation organizations, outlining their experiences at the border as well as their views on potential solutions.

The complete list of First Nations and First Nation organizations with whom I met can be found in Annex B.

Engagement with the Assembly of First Nations

The Assembly of First Nations (AFN) has mandated a Chiefs' Committee on Border Crossing to examine these issues in order to contribute toward solutions. This committee is to report to the AFN Special Chiefs' Assembly in December 2017. The AFN has also mandated a Special Representative on Border Security and Border Crossing, former Akwesasne Grand Chief Mike Mitchell, to focus on the option of a secure border identity card which might be issued by First Nations to their membership.

With the aim of sharing information on both the MSR and AFN initiatives, I held a number of meetings with AFN representatives including the AFN Executive Committee, the AFN Chiefs' Committee on Border Crossing, and the AFN Special Representative. These meetings are also listed in Annex B.

Approach to report

It is imperative to recognize that the situation of First Nations with respect to border crossing issues is not uniform. There are very important distinctions based, among other things, on their unique histories, cultures, traditions, geographic locations, economies and demographics, as well as their relationships with governments based on treaties, alliances and other legal arrangements.

Having said this, I found, in my engagement sessions, that the issues and challenges identified by First Nations, as well as the solutions proposed, could be grouped under a series of themes which are set out in Part C.

I therefore concluded that examining these issues under these themes would be a more useful approach at this stage in supporting future work on solutions than would a verbatim report on the various engagement sessions. As work on solutions proceeds, however, the individual circumstances of First Nations referred to above will need to be taken into account.

General observations

The participation of First Nations in these engagement sessions reflected their depth of feeling about these issues as well as their desire to achieve solutions in the near term. It was obvious to me that the First Nation representatives that I met with had given serious thought to these matters based on years of experience, and came forward readily with what they considered to be viable solutions. In this respect, frustration was frequently expressed that these issues had been raised with government on many occasions over a number of decades without, in their view, much progress having been realized. This led some participants in the engagement sessions to express concerns that this would be another report that would "sit on the shelf" without proper consideration by government and appropriate follow-up action, and hence increase, rather than reduce, current tensions. There is, therefore, an expectation on the part of First Nations that this most recent initiative of the federal government will result in meaningful progress in the short term, based on measures that First Nations will help design in partnership with government.

From the outset, the First Nations with whom I met wanted it known that they share the concern of government with respect to the protection of national security. They have the same objectives as the national government in ensuring that individuals who pose a threat to national security, or dangerous goods, do not enter their territories. They firmly believe that the types of measures that they are seeking to have put in place are fully compatible with national security objectives, and believe that increased cooperation between governments and First Nations on these border crossing issues will result in greater cooperation on national security issues.

Consistent with their different geographical, historical, cultural and other circumstances, the degree of interaction of First Nations with the Canada–US border varies across the country. It can range from situations like that of the Akwesasne First Nation, where the interaction is daily for a large percentage of their population, to the situation of First Nations who are a greater distance from the border, where that interaction may only average 2-3 times per year per individual. Not surprisingly, this degree of interaction appears to be directly related to proximity of the First Nation to the border and to the strength of family and cultural ties to US Tribes. It should also be borne in mind that there is a large and growing population of First Nations people who now live in cities close to the border, which may afford them greater opportunities to cross the border for cultural and other purposes than if they had remained in their home First Nations communities.

In the discussions of many of the individual concerns set out in Part C below, there was a fairly common sentiment expressed by First Nations people I met with that First Nations' status was an advantage in entering the United States, but a disadvantage when re-entering Canada. Overall, the views expressed were that the border crossing experience was friendlier when entering the US and that, as a result of US recognition of the mobility provision of the Jay Treaty^{Footnote 1}, First Nations people from Canada were not treated as immigrants for the purposes of work, school and some federal public benefits. This contrasts with the case of their Native American brothers and sisters who do not have registered Indian status in Canada and who are treated, for the purposes of admission to Canada and stays within the country, as foreign nationals (and therefore as immigrants) under Canadian immigration law.^{Footnote 2} Many of the First Nations people I met with consider their treatment by the US in this regard to be more consistent with their understanding of their inherent rights as First Nations.

Finally, I would note that the presence of regional Canada Border Service Agency (CBSA) supervisors at most of these sessions was helpful. They were able to provide answers to technical questions posed to them, but more importantly they were able to hear concerns directly from First Nations in a relaxed, collegial atmosphere rather than through disputes at a Port of Entry. In many cases, the sessions identified concrete follow-up actions for the CBSA to address with First Nations in attendance. I would strongly recommend that this type of informal outreach by the CBSA continue.

1. Lack of recognition of inherent rights

The fundamental belief of First Nations is that their rights with respect to circulation within the territory of North America, referred to by many as Turtle Island, derive from their inherent rights as nations which existed prior to the arrival of Europeans and the imposition of today's international borders. This, in their view, included rights to circulate for a variety of purposes including trade, cultural and subsistence directly related to the types of activities conducted for centuries prior to the assertion of sovereignty by non-Indigenous governments. It is this history that distinguishes their rights respecting border crossing from those of non-Indigenous Canadians. First Nations therefore view the imposition of the Canada-US border, which in some cases literally divided their existing nations in two, as an unjustified and unlawful abridgement of their inherent rights which have a direct relation to their cultural survival.

The First Nations' characterization of these rights as inherent is at the root of their position respecting Canadian laws and policies relating to border crossing, with the understanding that inherent rights involve considerations of both domestic and international law.

While, for example, First Nations consider the relevant provisions of the Jay Treaty of 1794^{Footnote 3}, the United Nations Declaration on the Rights of Indigenous Peoples^{Footnote 4} and domestic treaties as an acknowledgement of these inherent rights, they do not see these instruments, which could be removed or repealed by non-Indigenous governments, as the source of their rights.

Thus, while there was a belief on the part of some of the First Nation representatives I met with that the current issues would not exist had Canada implemented the Jay Treaty, there was also a view that, in order to set the path forward, what is required is a mechanism to recognize inherent and Jay Treaty rights in a modern context. All who expressed themselves on the subject were of the view that recognition of these rights should be an integral part of the federal government's commitment to reconciliation and the recognition of a nation-to-nation relationship. Such recognition, in their view, would honour and respect their identity as North American Indians having long-standing historical relationships with Canada and the US based on historical alliances and treaties.

2. Adverse impact on family and cultural connections

The imposition of the Canada-US border has been, in the eyes of First Nations, destructive of family, cultural, governance and other connections with US Tribes which are of great importance to their identity as well as to their cultural survival. In some cases (for example, the Mohawks of Akwesasne in Central Canada, the Passamaquoddy in New Brunswick, and the White River First Nation in Yukon), existing communities have been literally divided in two.

For other First Nations, the normal flow of family and cultural practices as well as of governmental and membership alliances has been disrupted by current immigration rules.

The most common instances cited were:

• The difficulties experienced with respect to Native American spouses who are not registered as Indians under the Indian Act and who wish to reside with their First Nation spouse in Canada. Whereas historic practices of First Nations recognized this right in accordance with their own membership rules, in the Canadian situation these individuals are treated under the immigration rules as foreign nationals without an automatic right of entry or residence in Canada.
• Native Americans having a criminal offence on their record may be refused entry to Canada even where the offence took place in the distant past and no re-offending has occurred.
• Situations of divorce or separation involving spouses or former spouses residing on different sides of the Canada-US border where family visits respecting children may become complicated for a variety of reasons, in particular, cases where the spouse is a Native American not having a legal right of entry into Canada.
• Medicine men and healers face challenges entering Canada based on the nature of the medicines in their possession, notably where they are unable to provide a scientific justification for the effectiveness of the medicine acceptable to the CBSA officer. Thus exchanges of medicines which have been used for many years may be blocked, as a result denying an ancient cultural practice. In other cases cited to me, medicine men from the US seeking admission to attend to individuals in Canada were questioned at the border to determine whether they were in possession of a permit in order to work in the country.

This is all further complicated by the sentiment expressed by many of the First Nations representatives, and referred to in section 4 below, that First Nations people as well as Native Americans are negatively profiled or singled out for questioning by CBSA officers at the border, such that the atmosphere at the Ports of Entry is an active discouragement for Native Americans to enter Canada and, in some cases, for First Nations members to cross into the US, knowing the issues that they could face upon their return.

3. Acceptability of identity documents at ports of entry

There was a general feeling expressed at the engagement sessions that the types of documents currently accepted as proof of identity at ports of entry (for example, passports, Nexus cards, enhanced drivers licences) do not take into account the desire of individuals to identify primarily or exclusively as members of First Nations, of Treaty groups, as North American Indians or by another Indigenous identity. This preference was identified as an important aspect to cultural preservation.

With respect to the Certificates of Indian Status (CIS) issued by INAC (both the laminate card and the more recent Secure Certificate of Indian Status or SCIS), there was considerable dissatisfaction expressed about having to rely on these as proof of identity.

In the case of the SCIS, the primary concerns related to:

• the length of time involved in applying for and obtaining the card (in some cases cited to me, almost a year)
• the fact that communities could no longer produce these locally as they could with the laminate card
• the expiry (or renewal) date feature to the card

In addition, neither the CIS or SCIS has a machine readable zone which would permit speedier processing at Ports of Entry, as the current cards require CBSA officers to type in the information on the card. The frustration felt by both CBSA officers and First Nations people with the delays caused by the lack of a machine readable zone feature cannot be overstated, as it is a significant factor in wait times, which in turn increases the possibility of confrontation between CBSA officers and First Nations people.

In the case of the laminate CIS card, it was felt by many that this was increasingly questioned by border agents in both Canada and the US, possibly because it may appear easier to forge or otherwise falsify.

4. Issues with treatment by CBSA officers

It was the opinion of most participants in the engagement sessions that, while not all treatment of First Nations people by CBSA officers is problematic, the following instances of what was considered inappropriate, or disrespectful treatment of First Nations people occur with a degree of frequency requiring them to be addressed at both a national and local level:

• Profiling: There was definitely a feeling among many that Indigenous peoples are singled out because of the colour of their skin, and hence subject to more questioning and searches than would apply in the case of a non-Indigenous person. The impression being left by such questioning and searches is that CBSA officers operate under the presumption that Indigenous people are more likely to be engaging in illegal activity than other people crossing the border. In addition, First Nations people of lighter skin colour report that some CBSA officers are skeptical when they present their Indian status card, questioning whether they are truly of First Nations heritage.
• Disrespectful, inappropriate or racist comments: There were also serious discussions regarding the appropriateness of some of the type of questions asked by CBSA officers at the border. Some participants asked whether there were guidelines governing the type of questions which officers are permitted to pose. Questions as to the individual's heritage in particular were thought to be inappropriate and disrespectful. Similar concerns were expressed over the treatment of elders and those who were not able to communicate effectively with the CBSA officer in either English or French. In some cases the alleged comments or questions attributed to CBSA officers were thought to be racist in nature.
• Improper handling or treatment of cultural or spiritual goods and medicines: Lack of knowledge and understanding by CBSA officers as to the proper handling of these types of goods in accordance with the relevant First Nation custom was identified as an important concern. This is particularly the case where searches of vehicles are conducted where the First Nation individual is not present while the search takes place. In the case of medicines, instances were mentioned where the medicine was not admitted when the individual was not able to explain its scientific healing properties to the satisfaction of the CBSA officer. In the view of the First Nations people with whom I met, this does not give proper accommodation to healing practices which have been successful over the course of centuries, practices that are rooted in First Nations' cultures and traditions.

5. Restrictions on trade and personal goods

Again with reference to their historic practices, as well as the Jay Treaty, First Nations regard the imposition of customs duties on their personal use goods and items of historic trade as being inconsistent with their inherent rights.

First Nation representatives pointed to the regular traffic across the US border for purchases of personal use goods by First Nations communities where US stores are in closer proximity than those in Canada. They also noted historic trade practices involving both Indigenous and non-Indigenous communities. Proposed, for example, was a potential relaxation of import and export duties on items for trade as an opportunity to stimulate First Nation economies. In addition, First Nation representatives I met with underlined how customs and importation rules interfered with cultural practices such as the exchange of game meat and fish for ceremonial purposes as well as the exchange of medicines.

As the announcement by the federal government of its intention to seek the inclusion of provisions respecting Indigenous peoples in a revised North American Free Trade Agreement (NAFTA) was not made until the vast majority of the engagement sessions were concluded, no discussion of this initiative took place.

6. Location of Ports of Entry

In two cases, Akwesasne (discussed below in section 7) and the White River First Nation in Yukon, the location of the local Port of Entry was identified as a significant issue. In the case of White River, the location of the Port of Entry at a distance of 37 kilometres from the actual border line meant that members exercising traditional pursuits beyond the Port of Entry location but still within Canada have to cross through the Port of Entry at Beaver Creek, Yukon and be questioned, for example, on the possession of wild game and fish even though they have not left Canadian soil. In both cases, in addition to other solutions mentioned in the above paragraphs, First Nations recommended relocation of the Port of Entry.

7. Akwesasne

While many of the issues and solutions mentioned above are relevant to the situation of the Akwesasne First Nation, it is nonetheless my view that the community is worthy of special mention in this report. This is not to downplay the concerns of other First Nations, but only to highlight the extraordinary nature of the border crossing issues faced by the community.

Akwesasne is the only First Nation where land travel from one part of their reserve territory in Canada to another requires travel into the US and, in the case of travel to that part of its territory located on Cornwall Island, travel to the CBSA Port of Entry in Cornwall before going to a destination on the Island.

This trajectory also requires passage through a toll booth, in some cases twice depending on the final destination of the individual. Whenever First Nations border crossing issues have been brought to the fore in the past, and most recently in the June 2016 report of the Standing Senate Committee on Aboriginal Peoples, Akwesasne has been front and centre with respect to illustrating the nature of the border crossing challenges faced by First Nations. This in itself demonstrates the pressing need for a solution.

The best way to illustrate the particular situation of Akwesasne is to compare it with that of non-Indigenous Canadians. For most non-Indigenous Canadians border crossing is infrequent. In the case of members of the Akwesasne First Nation, it could be five to six times per week. Non-Indigenous Canadians, for the most part, are not required to leave Canada to travel to another part of their home community for work, school or social events on a regular basis. They are also, for the most part, not required to pass through Ports of Entry and tolls should they wish to purchase food for supper. In the case of residents of the Snye and St. Regis districts of the Akwesasne reserve, however, grocery purchases can involve food inspections by US border agents.

Moreover, non-Indigenous Canadians are not faced with situations where tradesmen, repair technicians and delivery personnel may refuse to provide service based on a reluctance to pass through toll booths and Ports of Entry. A simple decision to take a child to a sporting event on another part of the Akwesasne reserve, for example, may require the parent or guardian to factor in the time necessary to cross through the toll booth and the Port of Entry, as well as ensuring that they bring with them the identification documents which may be required at the border crossing.

There are many more examples that could be given, but the above should serve to demonstrate that, while border crossings for most non-Indigenous Canadians may be a tolerable inconvenience, it is a daily factor of life for many Akwesasne members. There is therefore a cumulative frustration for Akwesasne residents which can and does increase the possibility of confrontational experiences at Ports of Entry.

Annex A: Summary of First Nation border crossing issues and potential solutions proposed by participants in the engagement sessions

Annex B: Engagement activities (January to August 2017)

Description of the map of Engagement activities from January to August 2017: First Nations participation

Map of engagement activities by the Minister's Special Representative on First Nation border crossing issues between January and August 2017. Indicated on the map are First Nations which attended meetings or provided written submissions, other Indigenous groups which attended meetings or provided written submissions and First Nations invited to meetings but which did not attend.

• In the Yukon Territory, five 5 communities participated out of 17 invited.
• In British Columbia, 40 communities participated out of 203 invited.
• In Alberta, 7 communities participated.
• In Saskatchewan, 11 communities and organizations participated out of 14 invited.
• In Manitoba, 9 communities participated out of 34 invited.
• In Ontario, 21 communities and organizations participated out of 42 invited.
• In Quebec, 6 communities and organizations participated out of 10 invited.
• In New Brunswick, 12 communities and organizations participated out of 19 invited.

None of the communities are named on the map. More details about the locations of the meetings and the participants can be found in the text of the report at Annex B.