Report on First Nation border crossing issues

From: Fred Caron CD, QC, Minister’s Special Representative
Submitted: August 31, 2017

The opinions and views set out in this independent report are those of Fred Caron, the Minister's Special Representative on border crossing issues. They are not necessarily the opinions or views of the Government of Canada.

Table of contents

Overview of mandate

In response to a recommendation from the Standing Senate Committee on Aboriginal Peoples, the Government of Canada made a commitment in November 2016 to gain a better understanding of the unique perspectives of First Nations in border communities and to explore possible solutions to the challenges that they face.

The government's commitment – made by the Minister of Indigenous and Northern Affairs, the Minister of Public Safety, and the Minister of Immigration, Citizenship and Refugees – came in response to the Standing Senate Committee's June 2016 report entitled Border Crossing Issues and the Jay Treaty (PDF only).

Appointed by the Minister of Indigenous and Northern Affairs in December 2016, my mandate as the Minister's Special Representative (MSR) on First Nation border crossing issues has been to engage with First Nations in border communities and with national First Nation organizations to:

I was given until June 1, 2017 to present the Minister with a fact-finding report on the outcome of my engagement activities with First Nations. To allow time and opportunity for additional engagement, the Minister extended the deadline for the presentation of my report to August 31, 2017.

As the government outlined in its response to the Standing Senate Committee in November 2016, my findings are to inform the work of an interdepartmental steering committee, comprised of senior officials from concerned federal departments who are responsible for developing a plan to arrive at potential solutions.

Part A: Purpose and engagement structure

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.

Part B: Approach and general observations

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 TreatyFootnote 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.

Part C: Issues and potential solutions

In this part of the report, I will attempt to set out the principal concerns which were raised with me during the engagement sessions, as well as the potential solutions which were proposed by First Nation representatives in each type of situation.

It must be recognized, as mentioned above, that the situation of First Nations across the country is not uniform, such that the issues and potential solutions listed represent a broad range of views and circumstances. The degree of concern respecting the issues identified and the viability of the solutions proposed may vary significantly from one First Nation to another. Nonetheless, it is my view that a consideration of these issues and solutions at a general level is a crucial first step toward an overall resolution.

While First Nations people are certainly not prohibited from crossing the border and re-entering Canada, their position is that the current array of federal laws, regulations and policies constitute a significant abrogation of their historic rights, and an obstacle to the survival of their unique cultures, the principal manifestations of which are as follows:

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 1794Footnote 3, the United Nations Declaration on the Rights of Indigenous PeoplesFootnote 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.

Potential solutions proposed

1.1 Ratification by Canada of the Jay Treaty
While it is not considered the source of their inherent rights, the Jay Treaty has nonetheless become a powerful symbol of the recognition of these rights for many First Nations. There is therefore a belief held by many that a Canadian recognition and implementation of the provisions of the Jay Treaty relating to First Nations will resolve most, if not all, of the issues explored in the following paragraphs.

1.2 Legislative or other framework for recognition of rights
While the importance of the Jay Treaty should not be overlooked, another solution proposed was that a legislative or other framework be developed which would serve a framework for the recognition of historic and inherent rights in a modern context. While this suggestion was not accompanied by a detailed proposal, my impression of the intent was that this proposed framework would set out a context through which government laws, regulations and policies respecting border crossing by First Nations would be measured. It was suggested in one of the engagement sessions that First Nations scholars who are well versed in historic treaties and alliances should be engaged in any efforts to develop such a framework.

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.

Potential solutions proposed

2.1 Relaxation of Canadian restrictions on entry for those Native Americans having a criminal offence on their record
This would apply, in particular, where the offence is dated and there is minimal risk of re-offending. While provisions in the current Immigration and Refugee Protection Act (IRPA) permit a review of these situations, it was felt by many First Nations people I met with that this recourse is too cumbersome and leaves too much discretion in the hands of CBSA officers.

2.2 Amendment of Section 19 of the Immigration and Refugee Protection Act:
To permit anyone who is a member of a Canadian First Nation, or a member of a federally-recognized U.S. Tribe (which tribes would be set out in a schedule under the IRPA regulations), a right to enter and remain in Canada, identical to that of an Indian registered under the Indian Act.

2.3 Review of import restrictions as they relate to traditional medicines, and recognition of the not-for-profit nature of Indigenous healers practice

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.

Potential solutions proposed

3.1 Creation of a separate page in the Canadian passport allowing primary identification of an individual to be that of a First Nations person, North American Indian, Treaty Indian, or other Indigenous identity

3.2 Creation of secure identity cards issued by First Nations for their members, compliant, for example, with the requirements of the US Western Hemisphere Travel Initiative for land border crossings
The model most often referred to is that of the Enhanced Tribal Card (ETC) which is currently issued by five US tribes pursuant to agreements with US Customs and Border Protection.Footnote 5 The objective would be for the acceptance of such cards as identity documents for land travel at both Canadian and US ports of entry. As mentioned above, the AFN has undertaken exploratory work in this area.

3.3 Improvement of service standards for the issuance of the SCIS to make the time delay equivalent to that for obtaining a passport
It was also highly recommended that the expiry date feature be removed, with some other process being put in place to update the information on the cards. In order to facilitate more efficient processing at ports of entry, it was recommended that a machine readable zone be added to the SCIS. This addition of an machine readable zone was also highly recommended by the CBSA officers who attended the engagement sessions.

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.

Potential solutions proposed

4.1 Mandatory cultural awareness training for CBSA officers
The general feeling expressed at the engagement sessions was that many of the issues listed above were a result of a lack of training of CBSA officers in First Nations history, culture and rights. This contributed also to what was perceived as a lack of consistency in treatment by CBSA officers and a "luck of the draw" at the border as to whether an understanding CBSA officer was present. The overwhelming opinion of those attending the engagement sessions was that the mandatory training of CBSA officers in the history, culture, and rights of First Nations people should be instituted. In particular, it was thought that this training should be tailored around the First Nations in close proximity to the Port of Entry where the CBSA officer is posted and that these First Nations should participate in the design and implementation of the training.

4.2 Increased hiring of First Nations people as CBSA officers
While it would appear that both the CBSA and First Nations consider this to be a desirable objective, First Nations people expressed a concern that the CBSA culture is not friendly to increased hiring and retention of First Nations CBSA officers. It was therefore thought that CBSA and First Nations should explore methods of increasing First Nations presence in the ranks of the CBSA.

4.3 Creation of an independent complaints mechanism
There appears to be a significant lack of confidence in the existing CBSA complaints mechanism structure, which is managed internally by the agency. Some First Nations believe that using these mechanisms will result in retaliatory measures by the CBSA and that, in any event, they will not likely be treated fairly as the CBSA is the "judge and jury" on all complaints. It was therefore proposed that a complaints body independent of the CBSA be created in order to ensure impartiality and fairness.

4.4 Outreach, education, and use of existing tools to support increased cooperation
In the exchanges with CBSA officers which took place during the engagement sessions, it became apparent that further outreach by the agency into the surrounding First Nations communities would be beneficial not only to increase awareness of issues on both sides, but also to take advantage of preventive measures and existing tools to help prevent issues from arising during border crossings. Examples given were possible increased outreach by First Nations to the CBSA in advance of significant cultural gatherings in order to facilitate border crossings, and prior notice by individuals crossing into Canada as to the presence of cultural goods requiring special handling. Existing tools which were thought to be potentially helpful included memoranda of understanding between the CBSA and First Nations (such as that between the CBSA and the Ktunaxa Nation Council in British ColumbiaFootnote 6) and the appointment by the CBSA of community liaison officers.

4.5 Separate lanes for First Nations travellers at certain Ports of Entry
There are, in effect, two schools of thought on this option, which would involve designation of a separate traffic lane at certain land Ports of Entry where the volume of First Nations travellers is significant. The Blackfoot Confederacy in Alberta, for example, believes that implementation of this measure would both reduce time delays for their members as well as facilitate border crossing in that these Ports of entry would be staffed with CBSA officers who have received cultural awareness training. Certain other First Nation representatives were not inclined toward this option, fearing that it might increase the chances of negative profiling.

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.

Potential solutions proposed

5.1 Relaxation of import duty rules for personal use goods for communities in close proximity to the US border
A number of representatives of First Nations communities that are located in very close proximity to, or along, the Canada-US border spoke of a long history of purchase of goods for personal use at locations which are now on the US side of the border, both for economic reasons as well as for convenience of access to merchants. As a result, they advocate for a relaxation of customs and import duties for such personal use items. This could be done on a permanent basis, such as in the case of the remission order for Akwesasne residents first introduced in 1991, or on a semi-regular basis. In the case of certain First Nation communities in Southern Ontario, mention was made of a practice in years past of an annual "Border Day" where Canadian border services officers would allow duty free passage of First Nations travellers' purchases of personal use goods.

5.2 Greater recognition of First Nations' trading rights and consequent modification of import and export rules
Not much detail was provided on this possible solution, which would likely differ from one First Nation to the next. It was, however, seen as a means of achieving the dual objectives of rights recognition and economic stimulation.

5.3 Review of import and export rules respecting goods used for cultural purposes including medicines
The views expressed by many participants in the engagement sessions were that general rules for importation of animal and fish products, plants, food, and herbs as well as medicines should be amended consistent with the cultural practices of First Nations. Once again, these practices may differ significantly among First Nations.

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.

Potential solutions proposed

As previously mentioned, many of the solutions discussed above are relevant to Akwesasne. In my meetings with the Mohawk Council of Akwesasne and members of the community, the following solutions would appear to be high on the list for immediate action:

  • It goes without saying that the need for recognition of inherent and treaty rights is at the top of that list.
  • As for some of the more operational solutions, there was a strong view that there is a pressing need to reduce wait times which are created by the need to pass through tolls and the local Port of Entry.

7.1 While there is support for a border identity card which could be issued by the Akwesasne First Nation, it is also believed that the creation of a machine readable zone on the Secure Certificate of Indian Status (SCIS), as at least an interim measure, could significantly reduce wait times.

7.2 Further, the creation of a CBSA remote reporting kiosk on Cornwall Island could significantly reduce Port of Entry and toll traffic.

7.3 Akwesasne members also believe that the elimination of the bridge toll booths would significantly reduce wait times and frustration. Given that approximately 70% of the traffic through these tolls consists of Akwesasne residents who are exempt from payment of the fees, they seriously question the necessity and utility of these tolls.

  • Moreover, Akwesasne representatives suggest that the relocation of the Cornwall Port of Entry to the South Channel portion of the Seaway International Bridge on the US side should be considered (referenced under section 6).
    • Family and cultural considerations were also top of mind for Akwesasne members and the type of solutions discussed under section 2 above were endorsed by the Akwesasne representatives with whom I met.
    • While progress has been made in developing a positive relationship between the Akwesasne First Nation and the CBSA (for example, CBSA officers receive cultural awareness training developed in collaboration with the community, and a community liaison officer is in place), the community feels strongly that an independent claims mechanism should be created. The rationale for this is discussed in section 4 above.

7.4 Finally, Akwesasne points to the increased governance costs incurred as a result of the community being divided by the border as well as located in three sub-national jurisdictions (Quebec, Ontario and New York State). This may involve, for example, differing licence requirements for teachers, nurses and other professionals serving the community's population. In their view, such increased governance costs are not adequately covered by the current INAC band funding models. Akwesasne representatives therefore recommend the creation by INAC of an international community funding model to help address this situation.

Part D: Process and next steps

When I explained during the engagement sessions that this report would be submitted to senior government officials for consideration of next steps, the strong and unanimous view of people I met with was that First Nations would need to be involved in partnership with government in designing solutions to border crossing issues. Some suggested that First Nations should be represented on the committee of senior government officials responsible for developing a plan to arrive at solutions.

Although my mandate did not include examination of issues faced by First Nations when crossing into the US, these issues did come up in the engagement sessions. As a result, it was the view of many participants that a real solution to First Nation border crossing issues could only be achieved by a working partnership of the Canadian and US governments, First Nations and Native American Tribes working together to design a holistic approach.

All of the above is respectfully submitted in the hope that it will help achieve long awaited progress. In addition to once again thanking First Nations members who provided such valuable input, I would like to acknowledge the valuable support provided by Canadian government officials, in particular Marc Wills, Kevin Nixon and Julie Gaudreau-Cormier of INAC.

Annexes

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

Issue Potential solution proposed
1. Lack of recognition of inherent rights 1.1 Ratification by Canada of the Jay Treaty

1.2 Legislative or other framework for the recognition of rights
2. Adverse impact on family and cultural connections 2.1 Relaxation of Canadian restrictions on entry for those Native Americans having a criminal offence on their record

2.2 Amendment of Section 19 of the Immigration and Refugee Protection Act (IRPA)

2.3 Review of import restrictions as they relate to traditional medicines, and recognition of the not-for-profit nature of Indigenous healers practice
3. Acceptability of identity documents at Ports of Entry 3.1 Creation of a separate page in the Canadian passport allowing primary identification of an individual to be that of a First Nations person, North American Indian, Treaty Indian, or other Indigenous identity

3.2 Creation of secure identity cards issued by First Nations for their members, compliant, for example, with the requirements of the US Western Hemisphere Travel Initiative for land border crossings

3.3 Improvement of service standards for the issuance of the Secure Certificate of Indian Status (SCIS), to make the time delay equivalent to that for obtaining a passport
4. Issues with treatment by officers of the Canada Border Services Agency (CBSA) 4.1 Mandatory cultural awareness training for CBSA officers

4.2 Increased hiring of First Nations people as CBSA officers

4.3 Creation of an independent mechanism to review complaints regarding treatment by CBSA officers

4.4 Outreach, education, and use of existing tools to support increased cooperation

4.5 Separate lanes for First Nations travellers at certain Ports of Entry
5. Restrictions on trade and personal goods 5.1 Relaxation of import duty rules for personal use goods for communities in close proximity to the US border

5.2 Greater recognition of First Nations trading rights and consequent modification of import and export rules

5.3 Review of import and export rules respecting goods used for cultural purposes including medicines
6. Location of Ports of Entry 6.1 Relocation of the CBSA Ports of Entry at Cornwall, Ontario, and Beaver Creek, Yukon
7. Akwesasne Adoption of proposed solutions 1.1, 2.1, 2.2, 4.3 and 6.1 plus:

7.1 Introduction of a machine readable zone on the Secure Certificate of Indian Status (SCIS)

7.2 Creation of a CBSA remote reporting kiosk on Cornwall Island

7.3 Elimination of the toll booths on the Seaway International Bridge

7.4 Creation by Indigenous and Northern Affairs Canada (INAC) of an international First Nation community funding model

Annex B: Engagement activities (January to August 2017)

Engagement session Meeting with representatives of Also invited but unable to attend
January 17, 2017
Ottawa, ON
The Assembly of First Nations – Special Representative on Border Security and Border Crossing, Mike Mitchell  
January 25, 2017
Akwesasne
The Mohawk Council of Akwesasne  
February 22, 2017
Ottawa, ON
The Assembly of First Nations (AFN) Executive Committee  
April 19, 2017
Montreal, QC
The Assembly of the First Nations of Quebec and Labrador
Listuguj First Nation
Nation Huronne Wendat
Odanak First Nation
Mohawks of Kahnawake
Mohawks of Kanesatake
Gesgapegiag First Nation
Gespeg First Nation
Wôlinak First Nation
Viger First Nation
April 20, 2017
Kahnawake, QC
Mohawks of Kahnawake
Mohawks of Akwesasne
Mohawks of the Bay of Quinte
Six Nations of the Grand River
Oneida Nation of the Thames
Mohawks of Kanesatake
Wahta Mohawk
May 24, 2017
Kitselas First Nation,
Terrace, BC
Kispiox First Nation
Nisga'a Village of Laxgalt'sap
Nisga'a Village of Gingolx
Haisla First Nation
Gitxaala Nation
Lax-Kw'alaams First Nation
Kitselas First Nation
All 201 British Columbia were invited to attend one of the three sessions held in the province on May 24-26, 2017.
May 25, 2017
Osoyoos First Nation,
Oliver, BC
Whispering Pines/Clinton First Nation
Little Shuswap Lake First Nation
Adams Lake First Nation
Tk'emlúps te Secwépemc (Kamloops) First Nation
Okanagan First Nation
Coldwater First Nation
Westbank First Nation
Penticton First Nation
Osoyoos First Nation
Lower Similkameen First Nation
Okanagan Nation Alliance
All 201 British Columbia were invited to attend one of the three sessions held in the province on May 24-26, 2017.
May 26, 2017
Musqueam First Nation, Vancouver, BC
Squamish Nation
Tsawwassen First Nation
Aitchelitz First Nation
Sts'ailes First Nation
Chawathil First Nation
Spuzzum First Nation
Boothroyd First Nation
Lytton First Nation
Cayoose Creek First Nation
Ts'kw'aylaxw First Nation
Hesquiaht First Nation
Huu-ay-aht First Nation
Ditidaht First Nation
Pacheedaht First Nation
Penelakut First Nation
Halalt First Nation
Cowichan First Nation
ʔa'qam First Nation
Neskonlith First Nation
Nak'azdli Whut'en First Nation
Takla Lake First Nation
BC First Nations Health Authority
All 201 British Columbia were invited to attend one of the three sessions held in the province on May 24-26, 2017.
May 30, 2017
Couchiching First Nation, Fort Frances, ON
Couchiching First Nation
Anishinabe of Wauzhushk Onigum
Lac La Croix First Nation
Mitaanjigamiing First Nation
Naicatchewenin First Nation
Grand Council Treaty #3
Animakee Wa Zhing #27
Anishinabe of Naongashiing
Big Grassy First Nation
Buffalo Point First Nation
Eagle Lake First Nation
Grassy Narrows First Nation
Iskatewizaagegan # 39
Lac Des Mille Lacs First Nation
Lac Seul First Nation
NigIgoonsiminikaaning
North West Angle # 33
Obashkaadagaang
Ochiichagwe'babigo'ining
Ojibway of Onegaming
Rainy River First Nation
Seine River First Nation
Shoal Lake # 40
Wabaseemoong Independent First Nation
Wabauskang First Nation
Wabigoon Lake Ojibway Nation
June 6, 2017
Walpole Island First Nation, ON
Walpole Island First Nation
Munsee-Delaware Nation
Chippewas of the Thames
Delaware Nation (Moravian of the Thames)
Caldwell First Nation
Chippewas of Kettle and Stony Point
Mississaugas of the New Credit
Aamjiwnaang
 
June 14, 2017
Regina, SK
Wood Mountain First Nation
Pheasant Rump Nakota First Nation
White Bear First Nation
Ocean Man First Nation
Nekaneet First Nation
Carry the Kettle Nakoda First Nation
Standing Buffalo First Nation
Wahpeton Dakota Nation
Pasqua First Nation
Sakimay First Nations
File Hills Qu'Appelle Tribal Council
Whitecap Dakota First Nation
Mosquito, Grizzly Bear's
Head, Lean Man First
Nation
Red Pheasant First Nation
June 15, 2017
Swan Lake First Nation, Headingley, MB
Canupawakpa First Nation
Gambler First Nation
Lake Manitoba First Nation
Long Plain First Nation
Pinaymootang First Nation
Pine Creek First Nation
Sandy Bay First Nation
Waywayseecappo First Nation
Southern Chiefs' Organization
Berens River First Nation
Birdtail Sioux First Nation
Black River First Nation
Bloodvein First Nation
Brokenhead First Nation
Buffalo Point First Nation
Dakota Tipi First Nation
Dauphin River First Nation
Ebb and Flow First Nation
Hollow Water First Nation
Keeseekoowenin First Nation
Kinonjeoshtegon First Nation
Lake St. Martin First Nation
Little Grand Rapids First Nation
Little Saskatchewan First Nation
O-Chi-Chak-Ko-Sipi First Nation
Pauingassi First Nation
Peguis First Nation
Poplar River First Nation
Rolling River First Nation
Roseau River First Nation
Sagkeeng First Nation
Skownan First Nation
Swan Lake First Nation
Tootinaowaziibeeng First Nation
July 6, 2017
Niagara Falls, ON
Assembly of First Nations (AFN)
Six Nations of the Grand River
Mohawk Council of Akwesasne
Batchewana First Nation
Mohawks of Kahnawake
Nation Huronne-Wendat
Documentation Committee of the Grand Council of the Haudenosaunee
Association of Iroquois and Allied Nations
Seneca Nation of New York State
United States Customs and Border Protection
 
July 10, 2017
Miramichi, NB
Eel River Bar First Nation
Pabineau First Nation
Eel Ground First Nation
Esgenoôpetitj First Nation
Indian Island First Nation
Fort Folly First Nation
Buctouche First Nation
Mi'gmaw'el Tplu'tagnn Inc. (MTI)
MAWIW Tribal Council
Metepenagiag Mi'kmaq Nation
Elsipogtog First Nation
July 11, 2017
Fredericton, NB
Passamaquoddy Recognition Group  
July 11, 2017
Fredericton, NB
The Maliseet Nation in New Brunswick
Tobique First Nation
Woodstock First Nation
Kingsclear First Nation
St. Mary's First Nation
Madawaska First Nation
Oromocto First Nation
July 17, 2017
Ohsweken, ON
Elected Council, Six Nations of the Grand River  
July 26, 2017
Whitehorse, YT
Teslin Tlingit Council
Little Salmon/Carmacks First Nation
Tr'ondëk Hwëch'in First Nation
White River First Nation
Daylu Dena Council
Carcross/Tagish First Nations
Champagne & Aishihik First
Nations
Selkirk First Nation
Nacho Nyäk Dun First Nation
Kluane First Nation
Kwanlin Dün First Nation
Ta'an Kwach'an Council
Ross River Dena Council
Liard River First Nation
Dease River First Nation
Taku River Tlingit First Nation
Council of Yukon First Nations
August 14, 2017
Gatineau, QC
Haudenosaunee External Relations Committee  
August 16, 2017
Calgary, AB
The Stoney Nakoda/Tsuut'ina Tribal Council:
Bearspaw First Nation
Chiniki First Nation
Wesley First Nation
Tsuut'ina Nation
 
August 16, 2017
Calgary, AB
The Blackfoot Confederacy:
Blood Tribe - Kainai First Nation
Piikani Nation
Siksika Nation
 
Engagement activities from January to August 2017: First Nations participation
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.

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