The Boushie family was greeted and feted by assorted and sundry Ministers of the Liberal government in the days following the jury acquittal of Gerald Stanley.
Clearly blatant political opportunism, captured for posterity by an eager media, while opposition parties duelled it out to see who could prove to be the most empathetic. No one taking heed of those on the outside of the Ottawa matrix, where lawyers groups one after another raised alarms about the politicians interfering with a judicial process.
Although this was enough to give one pause, what followed within a day or two of the visits, and more concerning was the “coincidental” major announcement by Prime Minister Justin Trudeau in the House of Commons.
In practised dramatic fashion he stated that he now intends to draw up new legislation to deal with Indigenous rights. All coincidental of course to the Boushie verdict. He outlined his vision of a “government wide shift”, one that will affect Canada, somewhat ominously, for the next “150 years”.
“Recognition” and “implementation” were the oft quoted nouns, as he proposed a new legal “framework” and “new rights legislation” that will allow indigenous groups to “control their own destiny”. It would allow all indigenous to make ” their own decisions” furthering the “Nation to Nation” that “all Canadians” according to Mr Trudeau were seeking.
They would enshrine the rights of the Indigenous, under the legal umbrella of Section 35 of the Canadian constitution and they would do so before the next election in 2019. The coverage of this announcement lasted about a day, but the implications of it could change this country.
Is it another grandstand moment, just another furthering of the effort of appeasement to the indigenous? Is it more of the “reconciliation” mantra with little substance, or is it going to be a legitimate effort to change Canada, and the role of the indigenous in this country?
After the announcement in the House by Trudeau, Justice Minister Wilson-Raybould, who speaks to all indigenous issues embraced Trudeau in a way which should have sent a shiver through the #MeToo movement. Clearly, the Justice Minister was happy.
As one watched this orchestration, the political senses were in full twitch mode.
Suspicions as to the true intentions weren’t calmed when out trotted the usual three Liberal amigos in front of the microphone; Wilson-Raybould, Philpott, and Bennett who tried to explain what was actually meant by this generalized announcement, even though they insisted and continually described it as being “historic”.
They had an unenviable task to be sure, of announcing a policy commitment without clearly understanding which rights were being or about to be changed, or even how that would come about. Listening in earnest to Bennett for a full five or ten minute explanation left one more confused. Her often spastic manner of speech compounded by a clear lack of detail, was frustrating exercise even for the attending usually docile media. A few reporters asked the question more than once, “what does this mean?” only to be met with the usual parliamentary blurred double speak . While each one took centre stage in the scrum, the others bobbed their heads and nodded vigorously and approvingly, however there was no answer to the scope or expectations of an exercise that they were about to undertake.
It seems that they are going to fill in the blanks left by the the very generalist Section 35 of our Constitution Act, which speeks in broad terms on the rights of the indigenous.
No longer would there be a need for the Indigenous to go to Court, they were simply going to provide those rights, in some sort of legal framework, after a year of going “coast-to-coast-to coast” for consultations. Their upcoming road show would set about asking the Indigenous leaders as to what rights they would like to have enshrined, and then, with a wave of the political wand they were going to be granted, all in time of course for bragging rights going into an election.
Wilson-Raybould said that it was going to be a “box full of rights to be filled up by First Nations, Metis and Inuit across the country”. She wants them to be able to “control their own lives”, so they can “draw down jurisdiction” from other levels of government. This of course translates to mean that they will be devolving government jurisdictions in other areas, so that they can provide such things as health services, child welfare, education, health, and make their own laws on everything from elections to fisheries.
This is not a small promise, nor a small undertaking. It is also unlikely that the average Canadian spends a lot of time doing deep dives into the Constitution of Canada, or has been following the history of the relations between the Federal government and the Indigenous, but it is obvious that the Federal government needs to give a better explanation as to their intentions.
There is a level of arrogance being demonstrated by this fiscally reckless inexperienced Liberal group, and one should not be confident that any proposed changes will be fully outlined. It is a complicated messy state of affairs, deep in historical conflict and full of legal context.
The current state of indigenous “rights” and the definitions of those rights, that the Liberals are going to put up some “structure” around, is a vast political stew of laws, proclamations, and court cases over the last 100 years. It is a melange of sometimes non-sensical rulings and acts, but all seemingly motivated by a general agreement to right the wrongs, or fix the issues, whilst also maintaining a judicial and political balance.
To examine the threads, to understand the pros and cons of all the actions and inactions is often frustrating, and often finds the same people and groups arguing both sides of the argument, depending on the times. Acts, White Papers, and Declarations all being pushed into a crucible which has left a confused landscape, where people on the left and on the right can cherry pick which historical documents further their political agenda.
What one must also remember is that this road of action and inaction has for the most part been paved with good intentions. Many very intelligent individuals have studied the indigenous issues from all sides, and some have proposed courses of action which have been tried with only limited success, if any. However, Mr Trudeau seems to feel he has found the solution and he has entrusted a biased cabinet group to find what no one else has found in 150 years, and for that reason alone, people need to pay attention.
There are four broad developments which we need to understand where we stand currently in this country. The Royal Proclamation of 1763; Section 35 of the Canadian Constitution Act of 1982; the Indian Act of 1876 which has been amended over twenty times; the United Nations Declaration of Rights of Indigenous Peoples; and the significant court cases and Acts which flowed from these core sources. The process has been on one long historical continuum, going back over 200 years.
The Royal Proclamation of 1763, issued by King George III, was after the British acquisition of French lands in North America and at the end of the French/Indian war. It in effect drew a geographical line along the Appalachian Mountains and forbid any settlement west of that line, without the permission of the Brits. It angered the American colonists, who wanted to continue westward into new lands for farming and wanted to keep control over their already settled lands. It was partly designed according to historians as one of appeasement to the Indigenous. Some Native Americans who had a long and close relationship with the French were unhappy, finding themselves now under British rule.
Pontiacs Rebellion in 1763 was an attempt by a group of Native Americans to push out the new ruling British. This hastened the passage of this Proclamation as the British hoped that it would somehow alleviate the tensions between the Native Americans and themselves.
Some in the Indigenous rights movement see and view this Proclamation as the fundamental building block for First Nations land claims and self-government. They feel that this Act established the important principal of the indigenous peoples having certain rights to the lands that they occupied.
Other scholars disagree on the interpretation and the intent of the proclamation, that this act by the British was only something that the British did to appease the Native Americans, as they needed their cooperation for further British colonial settlement. This Act and the discussions that flowed from it led to the many land treaties between the British and the Native Americans.
With the founding of Canada in 1867, the new government of Canada, in 1876 passed the Indian Act, designed to address the Indigenous issues. This Act would over the next 100 years go through a series of over 20 changes, and it is this Act which currently the Trudeau Liberals and the Indigenous groups now want to do away with, after all these years and revisions. This Act has become the icon of wrong-doing, the emblem of “colonialism” by the current Indigenous movement.
Of course during its initial passage it was not seen as an instrument of evil.
What the Act did do was establish and try to address two areas of concern: how Reserves and Bands would operate and the powers of those Band Counsels; it also defined who would be recognized as an “Indian”, who had “status” and what would be the inherited legal arrangements.
This Act dealt with the registering of “Indians”, the formation of their Bands, and the system of Reserves. It should be noted that this Act did not cover the *Metis, or the Inuit at the time. (*This changed in 2013 with an Amendment to the Act which made both the Metis and the Inuit the responsibility of the Federal Government)
It further established that all Native issues were the responsibility of the Federal government, and it was also Canada’s legal response to the already existing Treaties.
It should be noted that in 1867 under the British North America Act (now the Constitution Act) Section 91(24) stated that the Federal Government has power over the subject matter of “Indians, and Lands Reserved for Indians”, so the Indian Act further codified this earlier Constitution Act provision.
What is interesting about the Indian Act as it was drafted, was its intent. It was supposed to lead to “enfranchisement” that the indigenous would eventually renounce their Indian “status”, and join in Canadian civilization as full members of Canadian society, no different than anyone else.
It was during this same time period that in 1884 further to this thought of enjoining the indigenous society with the rest of Canadian society, that the now infamous Residential Schools Act was passed. If the Indian Act is now considered evil incarnate in 2018, the residential school issue is the current flash point, the schools were where the devil resided. If one hears the term “reconciliation” not far behind as justification will be the residential schools.
However, historically from a political perspective it was just another extension of the belief in the need to enfranchise the indigenous people. The intent of this Act as stated then, was parallel to the Indian Act itself. They wished to mandate education for indigenous children, in particular the ability to read and write English.
Todays translation and viewing of this Act of course is much different; the Indigenous say that it was a heinous attempt to forcefully remove children from their lands, diminish their culture, and sever family ties. That the political masters were conducting a form of “genocide” on their cultures.
Just as one can legitimately argue that this may have been the result, you could also argue with some validity when one considers the political debates of that era, that this was not the actual intended purpose. For example, Duncan Scott, the Indian Affairs Minister stated at the time that the indigenous “only hope is eventual assimilation into the white race”. Assimilation not genocide. Indigenous leaders now argue that they are one and the same.
In our present times, it was in 1969 that the ruling Liberal Party of Canada and its leader Pierre Trudeau began an effort to “finally” address the Indigenous issues once and for all, producing the White Paper as part of his “just society”.
The White Paper proposed to eliminate “Indian status” as a distinct legal status for the Indigenous. The Federal government felt that it was a needed step to achieve equality among all Canadians. This “just society’ was one where all discriminatory legislation would be repealed and it would enable “the Indian people to be free to develop Indian cultures in an environment of legal, social, and economic equality with other Canadians”.
Other key provisions proposed in the Paper included abolishing the Department of Indian Affairs, abolishing the Reserve system, and converting Reserve land into private, sellable property owned by the Band or Aboriginal landholders. A $50 million fund would have been established to compensate for the termination of the Treaties and the Indian Act. Also interesting was the fact that they would be transferring the jurisdiction for Aboriginal affairs to the provinces and thereby gradually integrating their services with the services provided to other Canadians.
In the end, this was a failed attempt by Justin’s father to assimilate the Indigenous into Canada. Somewhat surprisingly, the aboriginal leaders and elders of the time became the opposition. They argued in a counter paper (often called the Red Paper) that this proposal eliminated “distinct legal status” and there was no recognition of “special rights”.
Harold Cardinal a leading voice for Indigenous rights at the time called it a “programme of extermination through assimilation”, and wrote a book entitled “The Unjust Society”. (On February 23, 2014 the Liberal party led by Justin Trudeau renounced the White Paper authored by his father, as part of his push to “Reconciliation”)
The next significant development was in 1982, and probably the most significant Act in Canada’s recent history, was the repatriation of the constitution, also under Pierre Trudeau.
The Canadian government during the lead up to this event, and in the drafts, made no mention of aboriginal rights. Indigenous protests began over this oversight and in a last minute effort Section 35 was added and became part of the re-patriated Constitution Act.
Section 35 was a broad and brief statement that stated “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. (Section 35 recognized aboriginal rights- but did not create them and it is under this brief general wording that the current Liberal government wants to fill in the blanks- however they are saying they can do this without a change in the Constitution)
Section 25 of the Charter of Rights, which was part of the larger Constitution Act also recognized aboriginal rights, but did not go any further and did not create or constitutionalize those rights.
As mentioned earlier, during all these years, running in the background were several amendments made to the Indian Act too numerous to mention, or list here. Some significant, others not so much. They dealt with a variety of issues, from the role of an Indian agent, to gender equality, to voting protocols.
In addition to these multiple re-drawings of the Indian Act cases were now being referenced and gaining new grounds through the courts.
In 1973 in Calder v. B.C. the Supreme Court of Canada found that indeed there was an aboriginal right to land that existed at the time of the Royal Proclamation of 1763. However it split 3-3 on whether the claim to land was valid.
In 1990, there was an landmark case, Regina vs Sparrow, where the SCC stated that there was a “right to land, as well as to fish, to hunt, to practise one’s culture and to establish treaties” as had been outlined under Section 35. It “recognized” and “affirmed” the governments fiduciary duty to the Aboriginal people and that their duty should be exercised with restraint. However, it also suggested that aboriginal rights were not absolute, and can be encroached if given sufficient reason.
There were other Acts passed which allowed Indigenous people to opt out of the Indian Act for certain benefits. For instance, the First Nations Land Management Act passed in 1999 allowed First Nations to opt out of the land related sections of the Indian Act, and allows Bands to create their own codes on land use. In 2005 the First Nations Oil and Gas and Moneys Management Act allowed them to take over management of monies held in trust for them by the Federal government or to assume management of their oil and gas reserves on their reserves.
As the courts struggled away with back and forth arguments over rights, the Federal government was also struggling to find some definition.
In 1991 the Federal Government formed the Royal Commission on Aboriginal Peoples, in response to the Oka crisis which had turned into a fatal stand off between Mohawk and the government.
The Commission was chaired by George Erasmus, and Justice Rene Dussault of the Quebec Court of Appeal, which resulted in a report of some 4000 pages over a 5 year period. Among its recommendations was the establishment of an Aboriginal Parliament; the takeover of education and health needs; training of 10,000 health care professionals; and the establishment of an Aboriginal university. The significant changes would have meant a change to the Constitution, and the recommendations by the panel of 7 (4 aboriginals and 3 non-aboriginals) went further than any previous Royal Commissions. There were over 2000 briefs and 350 research studies.
In June 2008, the government felt that there was now a need for another commission and thus began the Truth and Reconciliation Commission, formed in response to the examination of the Residential School harmful legacy. Justice Laforme of the Ontario Court of Appeal was the chair, but almost immediately got into disputes with two others on the commission, and quickly resigned. He was replaced by Murray Sinclair, an aboriginal and the first Associate Chief Justice of Manitoba. They concluded with 92 action items aimed primarily at restitution for those that had suffered as a result of the residential schools.
The government apologized and in a civil action agreed to the largest settlement in Canadian history in 2006. (As of 2012 $1.6 billion had been paid to 78,000 former students)
There were a few criticisms from both sides, some saying that the Commission had shown “indifference to robust evidence gathering, comparative or contextual data, and cause-effect relationships”, which resulted in a “skewed and partial story”. For instance the Commission did not compare rates and causes of mortality among Aboriginal and non-Aboriginal children in public schools.
Which finally leads us back to the United Nations Proclamation of 2007 which is described as an international “instrument”, which was adopted by the United Nations to “enshrine” the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous people…”
It is a non-binding legal declaration that aspires to demonstrate how indigenous peoples should be treated. It passed 144 to 4. Interestingly, the four who voted against it were, New Zealand, the United States, Australia and Canada. (In 2016 under Justin Trudeau, Canada removed its objector status)
Justin Trudeau has stated that he wishes to incorporate this declaration as part of its “legal framework” so it is worth noting some of the Articles which are contained in it.
Article 3 “Indigenous People have the right to self-determination”
Article 4 “Self-government in matters relating to their internal and local affairs”
Article 5 “right to maintain and strengthen their distinct political, legal…while retaining their to right to participate fully, if they so choose, in the State”
Article 7 States that their children can “not be removed to another group”
Article 14 Right to “establish and control their educational systems..in their own language and culture”
Article 16 States that the State run media needs to “reflect” the aboriginal culture
Article 19 The need to consult to obtain their “free, prior and informed consent before adopting” anything that may “affect them”
Article 28 States that they should have the right to redress
Article 39 That they “have the right to have access to financial and technical assistance from the State”
So where does all this leave us. Over 150 years of trying to deal with the indigenous issues in this country. Proclamations, Acts, Inquiries and Royal Commissions all circling never landing it seems. The demand of time and attention has been at times overwhelming.
In 2011 there were 851,560 First Nations, 451,795 Metis, and 59,445 Inuit. In total 1.3 million representing 4% of the Canadian population of 36.29 million. To show the relevancy of the numbers, in 2016, there were more Canadians who identified themselves as “Italian” (4.6%).
It is clear that the First Nations feel that they are now in the driver’s seat, that they have reached the apex of their potential power. It is Xmas in terms of fiscal spending. Their claims in the courts and in the economic practises of Canada are growing at exponential rates in an effort to enforce their “special status”. Their arguments are for self-government, and ridding themselves of the Indian Act, but only on the condition that they continue to enjoy that “special status”. They argue against its paternalism, but are unwilling or reluctant to give up things like the tax exemptions or their reserves.
There are 634 First Nations Bands who speak 60 different languages spread throughout the country and 60 % of those Bands have a population of 600 or less. Unity in this diverse group is not a given. There are Bands that support the Trans Mountain pipeline and others against it.
Of course, one wonders how such a diverse group of Bands spread throughout the country would operate or function, especially when Bands are diverse in terms of economic viability or in terms of levels of modern assimilation and political sophistication. Some bands have a foot in the old world, the traditional hunting and fishing in remote areas of this country, while others are building multi-million dollar housing developments in the heart of the cities. Some are buying refineries while others are in abject poverty dealing with horrendous drug and suicide issues. Are the Inuit goals the same as the Metis or the First Nations? And how far does the Federal government plan to go in terms of being the “State” and the supplier of financial support.
Further complicating the issues of course are historic and modern treaties and land claims. For instance in British Columbia 60% of the First Nations are involved in the treaty process, but only 20% are said to be making progress, and 40% of the First Nations are not even participating. Recent Supreme Court decisions have extended aboriginal title well beyond the Reserves and now First Nations only need to show some connection to the land through hunting and fishing to potentially allow them effective veto power on resource development.
Like many political debates this one seems to be about power and money. There should be no mistake, “Reconciliation” translates into more power and more money, whether it be for education, health and welfare or infrastructure. Assimilation as imagined by Pierre Trudeau is off the table. Special status is the goal. And Justin Trudeau seems willing to give everything up to further his support, regardless of the eventual cost, regardless of the history that has gone before.
The outcome of this “coast-to-coast-to coast” extravaganza is already decided. Jody Wilson-Raybould your Justice Minister is also the former Regional Chief for the Assembly of First Nations. Her bias can not be more obvious.
Carolyn Bennett a second of the triumvirate just negotiated a land claim in Ontario on behalf of the Federal government which gives the Algonquins of Eastern Ontario $300 million in capital funding and 47,000 hectares of land. She is calling this “historic” as well. Her bias is equally on display.
The Canadian cultural mosaic which Canada has always held as a high principle, it is where all sects are equal and supported, allowed to practise their various cultures and languages, but all bound as equals under one Canada. Now it is changing, and there is one group that wish to be special, wanting to write their own laws, claiming economic priority and advantage, and wanting a political voice that weighs greater than the others. For the ill-defined “reconciliation”?
There is little doubt that racism existed and still exists, and there is no doubt that there were ill considered policies passed and enforced. The Indigenous give great weight to the fact that they were here “first”, but how does one balance this with colonial advancement and the other ethnic immigrant contributions to Canada as we know it.
The Indigenous have been consistent in their claims of wanting “special status” and are not against resorting to and advocating violence to further those demands. They have been aided by Liberal filled courts in the last 20 years, but they have not won each and every fight. Any loss in the courts is followed by protests. But they now have a Trudeau in power who is acquiescing, there will be no place for a counter argument.
Is it possible that this effort is going to end as fruitless as the MMWIG? Yes, of course. And for the first time Mr Trudeau is falling behind in the polls and this group may not survive another election.
But there needs to be a solution to the Indigenous issues which haunt this country. It will require the Federal government and the Provincial governments, it will require introspection on the part of the Indigenous, it will require compromise, like minds that are interested in a “just society” where everyone is equal. George Orwell wrote in 1945 “Animal Farm”, a satirical tale against Stalin. In this allegorical novel he described a world where “some animals are more equal than others” the implication being that totalitarianism would soon follow.
Pierre Trudeau borrowed his “just society” echoed Liberal philosophers such as John Stuart Mill, and in a speech to the Liberal convention in 1968 said that a just society, “will be one in which Inuit and Indian populations will be encouraged to assume the full rights of citizenship through policies which will give them both greater responsibility for their own future and more meaningful equality of opportunity”.
William “Bill” Wuttunee, was the first First Nations lawyer in Western Canada, a graduate in 1954 from the University of Saskatchewan. He was the author of “Ruffled Feathers”. Coincidentally, he was from the same Reserve as Colten Boushie, the Red Pheasant First Nation.
He argued for assimilation, and believed in integration. He was ostracized by the Indigenous for his stand.
Their arguments were for equality not special status. It seems inarguable.
It seems that reasonable voices must prevail, we can not afford any other way, politically or fiscally.
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William “Bill” Wuttunee, author of “Ruffled Feathers” and coincidentally was from the same Reserve as Colten Boushie, the Red Pheasant First Nation. He argued for the assimilation, and believed in integration. He was the first status indian lawyer in Western Canada graduating in 1954 from the University of Saskatchewan. He was ostracized by the indigenous for his stand.
The courts are a forum where both sides are heard, where Canadian rights are measured against the rights of others including the indigenous. It endeavours to find what is fair and fundamental to a democracy..Trudeau doesn’t want to deal with the courts anymore, he wants to make a fundamental and altering change, where we just give up those rights without any argument, and avoiding the need for examination. It plays well on twitter, but not so much
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Photo courtesy of Canadian Press photographer Justin Tang as shown by CBC
Behind the Yellow Tape 