Akwesasne eager to see independent border services watchdog established, grand chief says

A dedicated, independent watchdog for the Canada Border Services Agency (CBSA) can't come quick enough for residents of the Mohawk community of Akwesasne, the community's grand chief says.

Abram Benedict estimates his council gets about three to four calls a month from Akwesasne members complaining about CBSA conduct — but under the current system, the only place he can direct them is back to the border guards themselves.

"It's a perceived conflict," Benedict told CBC News.

"CBSA is reviewing their own complaints, and really that's a public confidence matter."

Federal Liberal legislation tabled in May proposes to change that. Bill C-20 would dissolve the current civilian review agency for the RCMP and create a replacement that would also be the first arms-length watchdog devoted to complaints against the CBSA.

Akwesasne straddles the Canada-U.S. border and occupies territory in Ontario, Quebec and New York state. It governs itself through three separate bodies: Benedict's elected Mohawk council in Canada, the St. Regis Mohawk Tribe in the U.S., and the Mohawk Nation Council of Chiefs representing the nation's historic, pre-colonial political system.

Because of that unique geographic and jurisdictional situation, community members deal with Canada's border agents daily, and relations have sometimes been strained.

In 2009, hundreds of Akwesasne residents protested the Canadian government's plan to equip border guards with 9-mm handguns, prompting the CBSA to abandon its post on the territory and relocate to Cornwall, Ont.

In 2019, community members filed a proposed class-action lawsuit against Canada, alleging systemic discrimination and human rights violations by the CBSA. Its allegations have not been tested in court.

Two years later, the CBSA ordered a third-party review of border crossings near Akwesasne, which exposed a litany of problems.

CBSA staff reported instances of harassment, racism, homophobia and fear of reprisal compounded by questionable decision-making and a lack of trust, accountability, transparency. Staff also reported a need for improved training, mental health supports and a safer complaints process, the review says.

Since the 2009 protests, relations have improved slightly, according to the grand chief, but he said the lack of an independent body keeping an eye on these now-armed guards remains a concern.

"Every other agency that carries a firearm has an external oversight body," Benedict said.

"The CBSA should be no different."

Liberals open to amending legislation

Public Safety Minister Marco Mendicino, Bill C-20's sponsor, was pressed in the House of Commons last week on whether Indigenous people will be included in this proposed oversight body, but he didn't answer directly.

His department also didn't answer directly when asked by CBC News if it consulted with Indigenous groups before writing the proposed legislation.

The bill "was built on findings and recommendations" stemming from past consultations, such as a 2016 Senate study into border issues reported by First Nations, a spokesperson said in an email.

In a separate statement, however, Mendicino's office told CBC News they are open to enshrining Indigenous inclusion into the bill.

"We're always open to working with MPs from all sides of the houses, advocates and other stakeholders to improve the legislation — and ensure that we're fully considering and reflecting the views, perspectives and experiences of Indigenous peoples," wrote Alex Cohen, Mendicino's director of communications.

Benedict said he'll urge members to register complaints with the new agency if and when it's established, and agrees it should have some form of Indigenous representation.

"I definitely think a seat should be occupied by an Indigenous person," he said.

"Seems like a no-brainer. But sometimes what we think is a no-brainer isn't what translates into government."

Jay Treaty rights

The Senate's 2016 study cited by Public Safety examined the issue of Jay Treaty rights.

First Nations people have a right to move freely across the international boundary under that treaty, a 1794 pact between Britain and the U.S., which the U.S. recognizes today but which Canada does not.

In response to the upper chamber report, Canada hired lawyer and negotiator Fred Caron to probe the issue further. Caron's report identified Ottawa's refusal to recognize First Nations rights as problem number one. As solution number one, Caron recommended Canada ratify the Jay Treaty or confirm it through legislation.

Participants described instances of racial profiling and mistreatment by border agents "with a degree of frequency requiring them to be addressed at both a national and local level," says Caron's report.

Canada responded to those findings with new measures aimed at easing conflict between First Nations and the CBSA, such as hiring more Indigenous border guards and improving outreach, but the new initiatives didn't include addressing outstanding treaty rights issues.

Today, Indigenous Services Canada says the department "is working in partnership with First Nations communities to address long-standing Canada−U.S. border-crossing issues," according to its website.

CBSA has implemented recent anti-racism initiatives and ensures all complaints "are taken seriously" and promptly investigated under its current internal system, the agency told CBC News in a statement.

"Complaints alleging employee misconduct are reviewed and, where the possibility of employee misconduct is confirmed, are investigated. Appropriate corrective measures follow when allegations are determined to be founded."