Rewriting Canada’s Citizenship Oath to “Recognize Indigenous Peoples” is Wrong and Harmful
On October 23rd, 2020 Immigration Minister Marco Mendicino announced that the government will introduce a bill to alter the Oath of Citizenship to make it “more inclusive” and that this will serve as “one more vital bill step towards reconciliation.”
The present oath states: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty the Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.”
The proposed new oath would repeat the above but would conclude with the words “I will faithfully observe the laws of Canada including the Constitution, which recognizes and affirms the Aboriginal and treaty rights of First Nations, Inuit and Metis peoples, and fulfill my duties as a Canadian citizen.” (the italicized words are hereinafter referred to as the “Indigenous addition.”
It is a bad idea to do this.
Our present citizenship oath is by its very nature a symbol and affirmation of complete, politically neutral, objectively legal, civic inclusion in the citizenry of Canada. It cannot be made legally “more inclusive” by the addition of one particular example of Canada’s laws which the newcomer is swearing to “faithfully observe.” A person is either fully included within the citizenry of Canada or he is not. Just as it is impossible to be “more pregnant”, there cannot be and there are no degrees of inclusivity in relation to the legal state of being a citizen. One is either a citizen or he or she is not. Period.
The Indigenous addition is inherently political, and as such has no place in the citizenship oath, which should contain no political overtones. Its legal meaning is unclear and contentious, the subject of numerous ongoing lawsuits, disagreements and incidents of civil strife, all with attendant rising emotion. Our elites view of it is that it means “decolonizing” the country and developing “nation to nation” relationships with a separate race of Canadians, “aboriginal peoples.” A substantial percentage of Canadians resent and disagree with this. They (including me) think that all Canadians should live under one set of laws. The Indigenous addition in effect wrongly compels new Canadians to legally involve themselves on one side- the elites’ side- of an ongoing, contentious, political, philosophical and legal issue.
In fact, some Canadians newcomers, if the Indigenous addition were ever extensively explained to them, would likely object to it. “Aboriginal rights” as promulgated by our elites are based on the acquisition of exclusive, hereditary rights and privileges by one particular race of Canadians solely by virtue of the accident of their birth. A newcomer from South Asia would liken this to the caste system, one of the debilitating realities back home that they emigrated to Canada to get away from.
The drafting of the Indigenous addition is flawed and will lead to legal uncertainty, the holy grail of lawyers. Section 35 (1) of the Constitution Act, 1982 states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) states that “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.” (emphasis added)
The Indigenous addition refers to the rights of “First Nations” rather than, as it should, the rights of the “Indian”, which is the precise legal word. “First Nations” is a legally meaningless term. It is not in the Constitution or the Indian Act. It is based neither in history nor in law. It is merely a recent trendy, political term invented to assuage the modern, “progressive”, guilty sensitivity about the word “Indian”, which sounds so…racist. (Because, in fact, it denoting a separate legal category of Canadian citizens with special, inherited legal rights based solely on their race, it is inherently benignly and unintentionally racist. The legally dishonest “First Nations” romantically glosses over this fundamental reality.)
The Indigenous addition should repeat the exact legal words used in the Constitution. It’s a fundamental rule of legal drafting that once a concept is legally defined one particular way then for the sake of consistency and clarity that definition must always be used thereafter. The logic and discipline of the law must be followed. New Canadians should not be required to swear an oath that contains a legal mistake or a wilfull misrepresentation, as this does. The drafters of the Indigenous addition, by knowingly making this improper, politically based legal substitution/alteration, are slighting the very Constitution that they are requiring the oath swearers to follow.
The Indigenous addition improperly singles out and gives special emphasis and thus implied preference to the Constitution’s guarantee of aboriginal rights over all the other equally important rights guaranteed in the Constitution, such as equality under the law, freedom of thought and opinion, freedom of the press, freedom of religion and freedom of assembly, leaving the false impression in the minds of new Canadian oath swearers that aboriginal rights are more important than and are to be preferred over those other rights. A citizenship oath should necessarily be general, not appear to favour any one law over any others, and should focus on the obligation to obey equally all laws duly enacted, whatever they may be.
The typical new Canadian oath swearer will obviously be from a foreign country, usually with a completely different history and culture than Canada. Most will have little knowledge of the nuances and complexities of Canadian history, especially that relating to our Indigenous peoples. The Indigenous addition presumes an unrealistic level of specialized knowledge in this regard. Most people who would swear this new oath would have no idea whatsoever what the Indigenous addition was about. It is not right to have new Canadians swear an oath that they wouldn’t and couldn’t fully and easily comprehend. That would be legally insincere and phony and would debase the profound significance of the oath. Oath swearers should understand everything they are swearing to.
The Indigenous addition will do nothing to promote “reconciliation”, a domestic political goal a newcomer to Canada would know nothing about and who should not in effect be made to take sides on. If one aspect of the Constitution had to be singled out in the oath, better that it be a value and right that is of universal significance and understanding, such as gender equality, (something many male Canadian newcomers need to have hammered into their heads), freedom of religion, equality under the law or freedom of speech.
In fact, regarding the latter, as it is playing out our elites’ interpretation of “aboriginal rights” has become something of an orthodoxy. “The nation to nation” interpretation referred to above and the unique, preferential mention of “aboriginal rights” in the proposed citizenship oath which strengthens that orthodoxy suggest that our elites think that history has hardened in this regard and that no further public discussion of it need be had and in fact, if engaged in, would be “politically incorrect”. This wrongly fetters freedom of speech about and the imagining of beneficial alternatives to this orthodoxy, both on the part of Canadian newcomers and Canadians already here. History can never harden. There can never be an End of History. It remains forever plastic and changeable. “The unripe grape, the ripe, and the dried. All things are changes, not into nothing, but into that which is not at present.” (Marcus Aurelius, Meditations, quoted in George Eliot’s Daniel Deronda.) The proposed Indigenous addition to the citizenship oath, which has a hardening, entrenching effect, wrongly goes against the grain of this fundamental historical truth.
Finally, there are numerous Indigenous compensation and land claims cases against the federal Crown- meaning in effect against the Canadian taxpaying citizenry- working their way through the Canadian courts. The specific reference to “aboriginal rights” in the new, proposed citizenship oath, the only particular substantive Canadian law specifically referred to in it, can be reasonably interpreted as an endorsement by the federal government of this “nation to nation” interpretation of aboriginal rights. This could well be taken notice of and used by a court as an interpretation aid in favour of the Indigenous claimants and against the Crown in any of these particular cases- in practise meaning against the financial and legal interests of the Canadian taxpayer. In the highly volatile Indigenous-non-Indigenous legal environment that exists in Canada today it is legally imprudent to include the Indigenous addition in our citizenship oath.
Our citizenship oath should be left in the neutral, apolitical state in which it currently exists.
Peter Best
October 30th, 2020
