Retired Judge and journalist Brian Giesbrecht’s January 14th, 2019 article in the Calgary-based c2cjournal, https:www.c2cjournal.ca, A Plea to End Canadian Apartheid, his review of There Is No Difference.
A Plea to End Canadian Apartheid
“Look at these children that are sitting around here and also at the tents, who are just the image of my kindness. There are different kinds of grass growing here that is just like those sitting around here. There is no difference. Even from the American land they are here, but we love them all the same, and when the white skin comes from far away I love him all the same. I am telling you what our love and kindness is.”
– Saulteaux leader O-ta-ha-o-man, speaking during the Treaty 4 negotiations at Fort Qu’Appelle (in the future province of Saskatchewan), September 12, 1874
Those of us who fondly remember The Beatles know Peter Best as “the fifth Beatle”. He was the soon-forgotten drummer who played for the “Fab Four” in the group’s earliest days. Unfortunately for Best, he was replaced by the now legendary Ringo Starr before the group made it big.
But there’s another Peter Best. I don’t know if he’s musical, but I do know he’s written a new book. It’s a flawed book, but an important one. Like the other Peter Best, this one is unknown – but that ought to change. Best joins a small but select group of authors who take issue with the prevailing wisdom that the system of racial segregation Canada has created for the tiny fraction of Canadians who are of Indigenous descent should not only be preserved but expanded. The best known of these authors is Tom Flanagan. His First Nations? Second Thoughts remains the most important book on the topic. Others such as Gordon Gibson, the late Mel Smith, C2C Journal contributor Robert MacBain, and Frances Widdowson, with her Disrobing the Aboriginal Industry, have also taken on the segregationist canon. (As an occasional writer on the subject, I count myself a minor member of that group as well.)
From our standpoint, the most important book by an Indigenous leader on this issue is William Wuttunee’s Ruffled Feathers. Best spills a lot of ink discussing Wuttunee – for good reason. For, if the modern Indigenous grievance, entitlement, and segregation movement began with Harold Cardinal’s The Unjust Society (a rejoinder to Prime Minister Pierre Trudeau’s 1969 White Paper on Indian Policy, which had called for phasing out raced-based native rights in favour of integration with society at large), the modern resistance to it began with Bill Wuttunee’s book, published in 1971. Best’s There is No Difference is in that tradition, but Best is publishing in an environment in which such views are more marginalized than ever before. That’s because of the undeniable success of the legions of activists, academics, lawyers, native politicians and other denizens of the so-called “Indian Industry”, who over many decades have worked diligently through the courts and political theatrics like the Berger Inquiry, the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission (TRC), the Murdered and Missing Indigenous Women and Girls Inquiry (MMIW), and countless lesser exercises (such as the 60s’ Scoop) to distort history, stoke guilt and gain power.
Wuttunee’s importance cannot be overstated and Best, 71, who grew up in Espanola, Ontario and for decades has practised law in nearby Sudbury, details why this is so. A Cree from the Red Pheasant reserve near North Battleford, Saskatchewan, Wuttunee was the first status Indian lawyer in Western Canada and he played a central role in establishing key Indigenous organizations. Unlike Cardinal and many contemporaries, however, Wuttunee firmly believed in integration. He was convinced Indigenous people could hold onto their cultural identities while succeeding in the Canadian mainstream. He fiercely denounced the many chiefs who insisted that expanded and rewritten treaties were the answer to Indigenous people’s problems. Wuttunee boldly stated the truth as he saw it – that treaties were essentially one-time land surrenders with modest compensation. As he put it: “Apart from the $5 a year, money for ammunition and twine and the schools, there really isn’t much to the treaties.” It’s not hard to see why most of the chiefs wanted nothing to do with Wuttunee and worked hard to isolate and discredit him as an “apple” – red on the outside, white inside. They won, and Ruffled Feathers was largely forgotten.
The late William Wuttunee, the first Native lawyer in Western Canada and author of Ruffled Feathers.
Best and others who criticize the “nation-to-nation” path Canada has been following for decades believe that Wuttunee, who died in 2015 at 87, had it right. One can speculate about what Canada would look like today if the White Paper and Wuttunee’s ideas had been followed. It is a massive and bitter irony that since they met their demise, and federal policy started transferring ever-more money and power to the chiefs in the name of self-government, many reserves have only become more dependent and dysfunctional. Too often today, reserves represent the worst of all worlds: opaque and unaccountable government, chronic economic dependency, terrible public services, and high levels of crime, addiction, and suicide. They are places, as Best quotes 19th century novelist George Eliot, where “the morning brings no hope…seeing only future scenes of home sorrow.”
In a further irony, Wuttunee came from the same reserve as Colten Boushie – the young man who was shot and killed in August 2016 by farmer Gerald Stanley. Stanley’s trial on murder charges (he was acquitted by a jury) revealed the Red Pheasant Reserve to be blighted by poverty, crime and corruption. The fact that three generations earlier this reserve produced a man like Bill Wuttunee illustrates the deterioration of many rural Indigenous communities since then.
The egalitarian dream we had, and lost
Had they met, Best and Wuttunee would have had much to talk about. Best opens his book by invoking the words and ideas of Martin Luther King, Nelson Mandela, Mahatma Gandhi and the 19th century Canadian prairie Saulteaux chief O-ta-ha-o-man (whose lyrical words provided the book’s title) to advance the proposition that what unites people in their common humanity is far more important than what divides us by nation, culture or race. Best harkens back to his small-town baby boomer childhood, describing a time when Canadians from countless nations were coming together and defining themselves not by ethnicity, tribe or religion – which had been thoroughly discredited by the horrors of two world wars – but through their common citizenship in a country that was collectively striving for greater equality under the law.
Best remembers a clear separation between the Indigenous and non-Indigenous people of his northern Ontario youth. Still, he and most of those he knew believed that, “Notwithstanding that old bigotries and prejudices were still very much evident in society then, they were slowly but steadily lessening in effect and melting away. Our better angels were winning and would triumph in this puzzling area of relations between Indian and non-Indian Canadians. Then Indians too, we assumed, would end up being equal members of the Canadian family. It was only a matter of time and of staying the course…. But our assumptions have turned out to be wrong.”
Best lays much of the blame for today’s divisions on the bane of identity politics and the legal and political institutionalization of the “nation-to-nation” approach. It is based on the belief that each of Canada’s more than 600 reserve-based Indian bands is, in fact, a “nation” equal to the nation of Canada and, as such, is entitled to deal with Canada as an equal nation.
As noted by journalist and historian MacBain in his book Their Home and Native Land, the term “First Nation” was coined around 1980 by Sol Sanderson, former president of the Federation of Saskatchewan Indians. Sanderson intended the term to refer to the major Indigenous linguistic groupings, such as the Iroquois, Cree, Ojibway, Blackfoot and Algonquin, not to each and every reserve. But the chiefs and their enablers appropriated the term, and it soon became part of Indigenous orthodoxy, providing justification and momentum for demanding ever-greater entitlements, funding and political powers.
Today, as Best points out, the fact that chiefs representing most Indians in Canada voluntarily surrendered the lands they once occupied to the Crown a century or more ago in return for reserves and modest ongoing compensation is either forgotten or outright denied. The Indigenous rights movement has effectively resurrected the treaty process and turned it into negotiations without end. Best argues, through a careful reading of the 1850-1876 period of treaty-making, that this is a complete reversal of the intent and understanding of the signatories – on both sides. “The historical record shows that the overall theme of the treaties,” he writes, “was extinguishment of Indians’ rights and control over the lands surrendered, with no residual obligation on the Crown to continue to ‘share’ the surrendered lands and resources on them.”
The distortion of the purpose and meaning of the treaties is a critical piece of the puzzle, for this was central to burying the dream of integration and advancing the nation-to-nation agenda. The historical record strongly suggests that everyone involved in the original treaty signings expected that Indians would merge with the mainstream once they mastered farming and other social, economic and technological characteristics of the colonizing culture. Accordingly, Best argues, “the reserve system would only be temporary, would only be in place until the schools and the agricultural allotments and implements did their work, resulting eventually in Indian-Canadians becoming assimilated, integrated and self-sustaining.” Over time, however, the race-based entitlements originally granted to reserve residents have effectively been cemented into place, the major bonding agents being segregation advocates, craven politicians, and especially the activist judicial interpreters of Section 35 of the 1982 Constitution Act.
Only about 750,000 Canadians of aboriginal descent have full Indigenous “status”, and fewer than half of them live on reserves. But the reserves sustain the rationale for racial segregation and entitlement. They provide unremitting evidence of poverty, exclusion and human tragedy, and thus endless justification for seeking more power, control and money from Ottawa. Despite the chronic failure of this policy approach, it is impervious to reform. Best quotes a candid admission from a federal civil servant he met at an aboriginal law conference: “For the past 40 years we have been plowing money into programs. We have no evidence that it’s working.”
The “nation-to-nation” dogma received a huge boost in the 1982 Constitution Act. Although the premiers who reluctantly agreed to Section 35 hoped the courts would be restrained in interpreting its commitment to upholding existing aboriginal rights, they have instead been radically expansive, with the Supreme Court of Canada leading the way. The 2004 Haida Nation v. British Columbia decision was among the most consequential. It created a duty to “consult and accommodate” which has had enormous impacts on industrial and resource development.
Even more damaging, in my view, was the Court’s 2014 ruling in Tsilhcot’in Nation v. British Columbia. It exposed all of British Columbia and any other part of Canada not covered by a formal treaty to claims to “aboriginal title”. This undermined the legal certainty of ownership and control of all privately-owned real estate as well as Crown leases throughout these vast areas of Canada. Pipelines, mining, forestry, oil and gas, tourism, fishing and agriculture are now subject to a “duty to consult and accommodate” virtually everywhere, or risk litigation by Indigenous groups, often in alliance with environmental obstructionists. Much of There is No Difference examines – often in excruciating detail – evidence of the devastating impacts these and other rulings have had on investment and development throughout the country.
Best is also very critical of the way the doctrine of “the honour of the Crown” is being interpreted in the modern era. He explains how this fundamental principle governing relations between the governments of Canada and Indigenous peoples arose out of the relationship of inequality, vulnerability and dependency prevailing when the treaties were signed and for a long time afterwards, and how it rested on perpetual trust reposed in the Crowns. In the anachronistic language of the treaties, the “Great Mother” (Queen Victoria) was obliged to care for her “children” (the Indians).
As the relationship evolved, governments sometimes betrayed the trust they were given. Best believes the doctrine should be re-interpreted in that light – but within reasonable limits. Indian bands have grown far less vulnerable, having gained constitutional status virtually equivalent to that of the federal and provincial governments. They have legal power to control developments within and beyond their immediate jurisdictions and to demand lucrative benefits as a condition of approving them. They simply no longer need the Crown’s protection, Best contends, and Canada should now meet its “honour of the Crown” obligations by treating Indigenous people not like children but like all other citizens. His logic seems irrefutable.
I want to be clear that neither Best nor I impute impure motives to the justices of the Supreme Court. Formulating the duty-to-consult doctrine, for instance, was a good-faith attempt to reasonably accommodate Indigenous communities. But in practice it has become a de facto weapon of extortion. Best describes how reserves have used bogus claims to “sacred ground” and “traditional territories” to extract what he calls “Danegeld” (i.e., payments made under duress to purchase temporary peace) from private and public developers of natural resources and other projects. He slams the craven response of governments, such as Ontario under former premier Kathleen Wynne, who refused to defend legally granted mining leases, and thus Crown sovereignty itself, in several instances. The chapters detailing these Indigenous- and government-sabotaged projects make chilling reading for anyone who believes the first responsibility of the state is to uphold the rule of law.
No single aspect of the history of Canadian aboriginal policy has been more damaging to Indigenous communities than the Indian residential schools system. But it is equally true that no single aspect of that history has been turned into such a one-sided and divisive narrative. Best takes particular exception to Chief Justice Beverley McLachlin publicly denouncing residential schools as “cultural genocide”. He insists that as damaging as the effects of the bungled education policy were for thousands of native children, they are incomparable with the willful extermination of millions of victims in actual genocides, such as the Holocaust and the Holodomor.
The Supreme Court on bloodlines.
Best is most scathing in his discussion of the 2016 Daniels v. Canada case, wherein the Supreme Court ruled that Canada’s nearly 600,000 Metis and 232,000 non-status Indians were henceforth officially “Indians” under federal jurisdiction. (Both groups were already recognized in the Constitution, as are the 65,000 Canadian Inuit.) In his view the decision was a reckless and unjustifiable abomination that vastly increased the number of potential claimants to the same race-based rights and entitlements as status Indians. “The Daniels decision highlights one of the great contradictions of our age,” Best writes with passion and dismay. “The author of the decision, Justice Rosalie Abella, is a Holocaust descendant. That event was the horrific but logical end-result of the irrational, perverse and racist blood/race myths that permeated Europe at the time, epitomized by the Nuremburg Laws. Similarly, but with the best of intentions, Daniels defines legal rights based on considerations of ‘mixed ancestry’ and ‘Native hereditary basis’…There’s even an uncritical reference to ‘Indian blood,’ as if it was a biological fact, when in fact it is scientifically nonsensical.”
Best counters another myth propagated by the Indian Industry (a term he attributes to noted Indigenous writer and businessman Calvin Helin in his book Dances With Dependency), the rhetorical fiction that Indigenous peoples have been in Canada since “time immemorial.” Best uses author John McPhee’s analogy from his great meditation on geologic time, Basin and Range, wherein the Earth’s entire 4.5-billion-year physical history is represented by the distance from a man’s shoulder to the end of his fingertips. Best notes that humanity’s entire history, dating back 200,000-300,000 years, would be represented by the man’s fingertips, and the 12,000-year-old Neolithic era of modern civilization would be represented by the fingertips’ outside epithelial cells. Best’s point is that no one has been in Canada since “time immemorial” and the distance between the time Indigenous and non-Indigenous peoples arrived in North America from Asia and Europe amounts to a historical blink of an eye.
As strong as Best’s policy, legal and scientific arguments are, his strongest ground is moral, where he insists with intensity, sincerity and eloquence that Canada should strive for the ideal that the great humanists of history like Nelson Mandela worked so hard to achieve – true equality for everyone.
In apartheid South Africa, citizens carried “status cards” denoting them as “white”, “black” or “coloured”. Mandela campaigned for many years from inside his jail cell against this loathsome practice along with the other racist constructs of apartheid. Recognizing the truth in what he was saying, the world responded. Status cards and the entire rotten regime surrounding them eventually came tumbling down.
Government of Canada Status Indian Card.
Mandela was in honourable, indeed exalted company, among visionaries who devoted much of their lives and staked their political careers on the proposition that all people must be recognized and treated as equal. Abraham Lincoln, Mahatma Gandhi and Martin Luther King, three examples cited by Best, believed that a nation composed of citizens with different sets of rights based on race (or religion or culture) was a recipe for division and civil unrest. And yet we not only still have status cards in Canada, our entrenched political, legal and intellectual elites, including Indigenous leaders, insist we should keep them forever.
Who benefits from apartheid
Best believes Canadian apartheid persists because it delivers power and money to its protectors. Certainly it provides those rewards to a privileged Indigenous ruling class, a small and often nepotistic minority on many reserves, but it extends to the much larger group that Widdowson, echoing Calvin Helin, calls “the Aboriginal Industry”. Lawyers, consultants, activists, bureaucrats and entire university departments are addicted to its riches. Many, perhaps most of the people with a vested interest in the Industry are not Aboriginal. But they prosper at the pleasure of the chiefs, and are the principal targets of Best’s sometimes excessive anger: “They profess to be good leaders. But good leaders put the interests of their people ahead of their own and encourage truthful talk. These leaders…put their own interests first, the desperate needs of their people a distant second, and disgracefully charge that people who disagree with their selfish and failed solutions and views are racist or indifferent to the situation.”
Best’s diagnosis is true as far as it goes, but I think the causes are broader. Identity politics, quasi-tribal self-segregation and the politics of claimed oppression and victimization are powerful and, sadly, growing trends in the U.S., Canada and other Western countries. Could Canada’s Indigenous relations have escaped these currents unscathed, even with perfect decision-making back in the late 1960s?
It didn’t take long for Best to incur the wrath of the Aboriginal Industry for speaking his truth. An essay he published in 2015 provoked a complaint to the Law Society of Upper Canada that branded Best a racist for daring to question Indigenous orthodoxy. Nothing in There Is No Difference or any of his writing that I’ve seen merits this charge. His emotion sometimes overwhelms his reason, but his core arguments are essentially the same as those of Bill Wuttunee, Pierre Trudeau and his then-Indian Affairs Minister Jean Chrétien in the 1969 White Paper. In 2015, however, Best’s career was threatened and his life thrown into turmoil. The Law Society complaint was dismissed only after hanging over his head for 15 months. The fact that a heartfelt argument for one set of laws for everyone could unleash such an Orwellian nightmare demonstrates how deeply entrenched Canada’s cult of identity politics has become – and how difficult it will be to escape it.
There Is No Difference is a flawed book but an incredibly brave one. It is long and exhaustively researched, but at times undisciplined and inaccurate. The book is certainly too passionate in places – even to the point of ranting. MacBain, among other sympathizers, has lamented that the book would have benefitted from a thorough, professional edit, but he concurs with Best’s two main assertions, that race-based policies are always wrong and a series of court rulings including Haida Nation have triggered a potentially disastrous diminution of Crown sovereignty.
Some readers will question or be uncomfortable with Best’s exclusive use of “Indian” instead of the more politically correct “native”, “Aboriginal” or “Indigenous”. He explains, however, that “Indian” is more precise, being defined in Section 35 of the Constitution Act, the Indian Act and in Supreme Court rulings, some of which have been referred to above. Some Indigenous authors, including Harold Johnson in Firewater, also use the term, as do uncounted numbers of ordinary Indigenous Canadians (and Americans). Also, as Best says, using the term “Indian” instead of today’s politically-charged substitutes brightly illuminates the fundamentally – albeit unintentionally – racist status quo we have in Canada, wherein one group of citizens is treated differently from the rest because of the accident of their birth.
I am tempted to criticize Best for glossing over the massive damage wrought by alcohol abuse in First Nations communities. Though it has complicated historical causes, it is unquestionably a major problem that predates reserves – let alone residential schools. It manifests itself today in intractable issues like the chronic Indigenous child welfare problem (which the Aboriginal Industry and its media apologists typically blame on government underfunding and/or white oppression). Alcohol and drug abuse complicate any approach to resolving chronic Indigenous problems. This issue requires one or more book-length treatments of its own, so perhaps Best shouldn’t be faulted for omitting it.
On its main points, There is No Difference is eminently sound. No author has so fully explored the harm and unfairness resulting from Haida Nation and subsequent cases, and provincial and federal governments’ compounding of the Supreme Court’s single greatest mistake. The court simply made up the “duty to consult and accommodate” and, as vividly demonstrated in the Trans Mountain pipeline imbroglio, this concocted legal doctrine is severely damaging Canada’s economy and dividing our people. We are growing ever farther away from reconciliation – and truth.
The integrity of land and resource ownership and the Crown’s very sovereignty – everywhere throughout the country and not merely on reserves – are under threat. As Best points out, if Haida Nation had been in force in 1867, the Canadian Pacific Railway could not have been built, and most of the subsequent resource development infrastructure that elevated this country to among the world’s most prosperous nations would have been impossible. Instead, Canada’s history would be that of a poor nation crippled by never-ending conflict and litigation. As Best says about the Tsilhcot’in decision, “If the Crown never had title to the lands it grants patents for, then the whole chain of title to those lands, down to the present owners, comes under serious question.”
Best’s prescription is ambitious, possibly to the point of being politically unattainable. Achieving complete legal equality, he writes, will require amending the Constitution, repealing the Indian Act, privatizing land ownership on the reserves and ending most other race-based rights and entitlements. The mere listing of these minimally necessary steps illustrates the enormity of the task. That Best thinks it’s still worth trying illustrates the depth of his commitment. His short-term goal of making this whole topic an acceptable part of our national conversation is, one hopes, more immediately attainable, and There Is No Difference is an important step in that direction.
For, as toughly worded as much of There is No Difference may be, Best is at heart an old-fashioned moralist/idealist if not a romantic. His long-term goal is “for us all to overcome our history and for our first peoples to join our increasingly racially indifferent 21st century Canadian family on the basis of full equality of rights and responsibilities.” Far from being a bigot or hater, Best evinces great compassion for native people as members of the Canadian family. His book is a cry from the heart for a better future in which Canada is governed by one set of laws for everyone. I truly believe that millions of Canadians believe this is a future worth pursuing, however much the current public atmosphere may have marginalized our voices.
January 14th, 2019
Brian Giesbrecht is a retired Manitoba provincial court judge (appointed in 1976, Associate Chief Judge from 1991 and Acting Chief Judge in 1993), a Senior Fellow with the Frontier Center for Public Policy, and a freelance writer for various publications.
————————————————————————————————————————————————————————————————————————–Link to a February 2nd, 2019 Sudbury Star Guest Column by Peter Best- Sudbury Accent: Decision further erodes Crown sovereignty– being a brief summary of the recent Ontario Superior Court of Justice revolutionary Restoule decision. This decision will perpetuate and strengthen the reserve system, the fundamental cause of Indigenous social dysfunction, and so will cause further serious, long-term harm to Indigenous Canadians. The Government of Canada’s failure to appeal this decision, for which former Justice Minister Jody Wilson-Raybould was materially responsible, shows that she was one of the most over-rated and underqualified Ministers of Justice Canada has ever had. She was totally partisan in favour of Assembly of First Nations interests, who (the AFN) are celebrating Restoule and planning to build on it in Western Canada. In that office she was a threat to Crown sovereignty, Canadian unity and the public purse. Our federal government should be trying to lessen the country -weakening effects of tribalism. Her policies were increasing tribalism and fragmenting the country. Canadians are fortunate she is out of that office and unable to inflict further damage to the long term interests of Indigenous Canadians and to the public interest generally. (For some of my reasons for saying this, including, as I write in There Is No Difference, that she was an Assembly of First Nations fox in the henhouse of Canadian Crown sovereignty, see The Trudeau Crown Sovereignty Surrender Directive, below.)
Link (click here) to a much longer and more detailed, critical analysis by Peter Best of the December 21st, 2018 Ontario Superior Court Restoule decision, which was based on a re-interpretation of the 1850 Northern Ontario Robinson Treaties, ordering Ontario and Canadian taxpayers to compensate 21 Treaties bands for approximately 150 years of unintentionally deficient Treaties payments. Ontario has appealed the decision, while Ottawa, to the harm of Crown sovereignty, Canadian social unity and the Canadian taxpayer, has not. Canada’s reasons for its disgraceful passivity and acquiescence most likely arise from The Trudeau Crown Sovereignty Surrender Directive, the subject of a rather lenghty article below. –1850 Treaties decision article
Link, Click immediately below, to read former Supreme Court Justice Stephen O’Neill’s Sudbury Star rebuttal to my Star Restoule article. Notice how he basically just repeats the wording of the Restoule judgment, as if it were self-evidently infallible and in need of no further argument or persuasion. Note how he neglects to deal with virtually all of my arguments, or merely sidesteps them, especially my “double recovery” argument. Very sadly, also note also how he insults me as a person who, merely because I disagree with Restoule on fundamental human rights grounds, (I believe that the reserve system is a mild, benignly racist form of apartheid, which Restoule will perpetuate and strengthen), that I want to “condemn First Nations peoples to a lifetime of poverty.” (No! want to liberate them from the tyranny of Canadian apartheid!) I refer in chapter 5 of There Is No Difference, An Issue of Freedom of Speech, to this kind of misrepresenting, ad hominem, intimidating method of pseudo-argument used by the Indian Industry and Indigenous elites generally to suppress freedom of speech and free and open debate on this profound Canadian social issue which all Canadians have a stake in and should be encouraged to speak freely on. For the sake of the bests interests of the vast majority of fundamentally disadvantaged, marginalized, dispossessed, powerless Indigenous Canadians, especially the young ones, all of whom are being so harmed by the status quo, and I believe, will be further harmed by Restoule and all it represents, we must not allow ourselves to be intimidated and silenced like this. (Although Chapters bookstore in Sudbury was intimidated by it. As a result of the publication of Mr. O’Neill’s article, (Mr. O’Neill, a passionately-committed good man who now works part-time for a native-rights law firm, was identified in the article as a “former Superior Court Justice”, which, in borrowing on his status as a former Judge, lends the credence of the Supreme Court to his partisan position, giving rise to the serious public policy issue of the appropriateness of former Judges engaging in partisan advocacy on behalf of private clients after they retire), they cancelled a previously-approved There Is No Difference book-signing event scheduled at their Sudbury store for Saturday, February 23rd, saying that it would “compromise” the “joyful and positive experience” Chapters wants their staff and customers to have in their stores. Chapters needs to read An Issue of Freedom of Speech as well.)
—————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————-In Chapter Criticism of Tanya Talaga’s Seven Fallen Feathers
In chapter 12 of There Is No Difference, entitled The Essential Humanity of the Migrators to Canada, I defend our Canadian ancestors, and decry the modern literary and cultural bien pensants’ tendency to casually and offensively stereotype present-day non-Indigenous Canadians and our non-Indigenous ancestors as “colonialist”, land-stealing, (and worse) racists. I review four books by prominent, modern-day Canadians whose books epitomize this Euro-Canadian culturally self-denigrating-self-castigating trend to falsely portray modern and ancestral non-Indigenous Canadians in such shallow, cartoonish, offensive and racially stereotypical ways. These basically anti-Euro-Canadian-culture books, all lauded but vastly over-rated, are Thomas King’s The Inconvenient Indian, the late Richard Wagamese’s Indian Horse, John Ralston Saul’s The Comeback, and Bob Rae’s What Happened to Politics. Since my book was published Tanya Talaga’s Seven Fallen Feathers came out, continuing this dreadful trend on the part of our cultural elites to completely abandon their critical faculties and fall all over themselves, mainly because of the Indigenous subject matter, to celebrate and extol harmful, victimhood-obsessive, racially-stereotyping, high-on-sanctimony but low-on-mature-intellectual-quotient works . Ms. Talaga, a fly-in Indigenous supporter who lives and works in Toronto, lets the reader know early on that all the heart-breaking Thunder Bay tragedies suffered by the subjects of her book are all the fault of “the whiteface, who wears button-down shirts, eats at the Keg, and lives in a cookie-cutter house in a brand new subdivision with a Kia parked in the driveway.” (What a dehumanizing, racist stereotype! The exact thing she decries in her book!) The book continues at this juvenile, racially insulting, cartoonish and divisive level to its reality-avoiding conclusion, which is boiled down to… “Just send us more money so we can organize more “programs”!” (Not one mention throughout the book that it’s the very existence of the reserve system, that is not amenable to improvement by means of more money and programs, that is the fundamental cause of the tragedies so well-described in her book.)
Link (click here) to a counter-narrative book review by Peter Best of Tanya Talaga’s 2017 award-winning book about the tragic death of seven Indigenous teenagers in Thunder Bay, Seven Fallen Feathers.
———————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————– As stated above, here is my article on Canada’s crisis of weakened Crown sovereignty- The Trudeau Crown Sovereignty Surrender Directive, essentially arguing that the Trudeau government-( with Assembly of First Nations- biased, former Minister of Justice Judy Wilson-Raybould, when she held that office, in the enthusiastic lead)- is recklessly, and with little or no legal basis, handing over too much Crown sovereignty and power- and too much of Canadian taxpayer monies- to Indigenous groups and interests with only weak legal claims against Canada at best, to the long-term harm of us all, including our Indigenous peoples, AS DEMONSTRATED BY THE RESTOULE DECISON. On March 6th, 2019, at the conclusion of his remarks to the Justice Committee regarding the Wilson-Raybould resignation “affair” (https://www.c2cjournal.ca/2019/03/who-pressured-whom/) Privy Council Clerk Michael Wernick suggested that the Committee hold hearings on it, and said ominously that it “marks a profound change in Canada’s legal landscape” and that “all parties need to be clear with Canadians on the future of this Directive.”
(Brian Giesbrecht’s July 13th, 2019 article, The Battle for the Bruce, immediately below, as the Restoule case does, describes the disastrous practical operation, in the Courtroom, and in relation to public policy, of The Trudeau Crown Sovereignty Surrender Directive. The Battle for the Bruce focusses on the ongoing Saugeen First Nations land claim lawsuit against Ontario, Ottawa and the relevant municipalities, for ownership of most of the Bruce Peninsula and adjacent waterways. First Nations counsel will be relying on the Directive and on Restoule throughout the case. -PB)
After she was let go as Attorney General of Canada Judy Wilson Raybould issued a statement saying “it is a pillar of democracy that our system of justice be free from even the perception of political interference.” That’s true. Yet during her disastrous (for Canada) tenure as Attorney General that’s exactly what she and her boss Justin Trudeau did , and Trudeau continues to do, as a matter of government policy- politically interfere with our system of justice– in relation of all “Indigenous peoples” legal matters, greatly exacerbating our already pre-existing Supreme Court of Canada-caused crisis of weakened Crown sovereignty.
Historian Simon Schama writes that “a government’s most basic function is the protection of its sovereignty.” Historian Timothy Snyder warns that “when States are absent, rights- by any definition- are impossible to sustain. States are not structures to be taken for granted, exploited or discarded, but are the fruits of long and quiet effort. It is tempting but dangerous to fragment the State.” The political philosopher Edmund Burke warns us to exercise “infinite caution” in weakening the sovereignty of the State where it “has answered in any tolerable degree the common purposes of society”, which the Canadian State has, overall, done brilliantly for the past 150 years. Canadian writer Ivor Tossel reminds us that “the State puts a wedge between us and instincts like tribalism and personal vengeance…it exists for a reason, and reason benefits from the State.”
The State is the foundation and fount of the rule of law. It’s the grantor and protector of citizens’ rights. It’s the root and guarantor of title to all real property owned by its citizens. It’s the guarantor of the proper workings of the marketplace, and thus the economy. The State, with a fulsome, secure and unchallenged tax revenue stream, is the provider of what we call the Welfare State- all the programs and services that decency towards our fellow citizens compels us all to provide to one another, especially those of us in need. The Canadian State, collectively our federal, territorial and provincial governments, is the ultimate backstop that we lonely, isolated, vulnerable, individual Canadians have against the effects in Canada of vast and indifferent global economic forces.
So it is especially demoralizing to witness the wilful, recklessly irresponsible, incompetent, profligate and civically catastrophic fragmenting, weakening and diminishment of the sovereignty and powers of the Canadian State by the Justin Trudeau federal Liberal government in favour of “Indigenous peoples”, as generally (but, confusingly, not necessarily), represented by First Nations bands- to witness the virtual handing over of Crown sovereignty to these so-called “self-governing nations”-to witness the wholesale rejection of these aforementioned most basic and timeless precepts of good and stable government. Most of our provincial governments are engaging in some lesser degree of the same harmful conduct, but the federal government’s malfeasance in this regards is so head and shoulders above that of most provinces, (B.C. and, until recently, Ontario, excepted), and so much more nationally significant, that this short essay will focus on the latter.
Most of the ideas in this essay are argued and explored at greater length in my book, There Is No Difference- an Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians. See thereisnodifference.ca.
The surrender of sovereignty to “Indigenous peoples” by the Trudeau government has been essentially a legal process, characterized by sovereignty-eroding and fragmenting legal decisions and actions taken and not taken. The basic policy document governing their shameful conduct in this regard is The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples, issued by Trudeau’s then Attorney General, Jody Wilson-Raybould, former Assembly of First Nations Regional Chief for B.C, on January 11th, 2019, (clearly with the selfish and improper intention of fettering the discretion of her successor in Indigenous matters) as one of her last “indecent haste” acts in that office before being shuffled out of it on January 14th. I will call this Directive quite seriously, the Trudeau Crown Sovereignty Surrender Directive, or TCSSD for short. And indeed, it reads as if she wrote it while she was AFN Regional Chief, and then brought it along to Ottawa after she was elected as an M.P, as an AFN mole- fellow traveller’s policy manual, rather than written when she was Attorney General for Canada and under oath to protect and defend the Queen’s sovereignty, rights and privileges. Taken as a whole it’s a near-deranged, near-treasonous sellout document in favour of the AFN, Indigenous elites and the Indian Industry generally.
Notwithstanding that this Directive was only formally issued on January 11th of this year, it, in various draft forms, was the de facto basis for all Wilson Raybould-Justice Department decisions and policies relating to Indigenous legal claims against Canada for at least the two years before that.
The TCSSD falsely decrees that Indigenous peoples are, legally, “partners” in Confederation with the federal government- that these approximately 635 relatively tiny, totally dependent Indian bands, and other unnamed, nebulous- also completely dependent– Indigenous groups, associations and interests, are, legally, “distinct orders of government”- distinct “nations” or “governments”- and are thus virtual constitutional co-equals with the federal government, the territories and the provinces. This constitutes a radical, irresponsible, incompetent, State-weakening and fragmenting, de facto transfer of powers from the federal government to “Indigenous peoples”, based on an unprecedented, ahistorical and legally baseless re-interpretation, solely by Ministerial decree, with no parliamentary or public input, of our Constitution.
The TCSSD heralds the federal government’s shift to “the recognition and implementation of Indigenous rights as the basis for relations with Indigenous peoples,” with the goal of advancing “reconciliation”, “respecting and advancing Indigenous self-determination and self-governance” and “fostering strong, healthy, and sustainable Indigenous nations.”
If a First Nation band or any other Indigenous group or organization advances a legal claim against Canada, the TCSSD instructs every Crown lawyer that the approach to the litigation is to “promote resolution and settlement” and to “seek opportunities to narrow or avoid” the litigation by “pursuing dialogue, co-operation, partnership and negotiation based on recognition of rights”, because, as the TCSSD states, Indigenous peoples are “full partners in Confederation, with their rights, treaties and agreements recognized and implemented.”
And, is the goal of Crown lawyers to win the claim or case for Her Majesty, and thereby defend Her sovereignty, laws, agreements, rights and privileges?
No, because the TCSSD states that “litigation cannot be the primary forum for achieving reconciliation”, and, if litigation is unavoidable, the new litigation goal is not to stand up for the Queen, her sovereignty and powers, and Her Canadian taxpayer subjects. Rather it is merely to limply “assist the Court constructively, expeditiously and effectively so that it may provide direction on the matters in issue.”
For all of Canada’s history up until now, the federal government, jealously protecting the public purse and its own sovereignty and powers, as a condition of new rights being recognized, usually insisted on a court declaration before recognizing those rights. Not anymore. As the TCSSD states: “Transitioning out of this practice is part of the work of forming new nation to nation, government to government, and Crown-Indigenous relations…recognition of rights speaks to the need for the Government of Canada to prioritize resolution and settlement through collaboration and co-operation.”
In other words, no court declaration to be required any more. Let the unelected civil servants and conflicted or ideologically-driven MPs decide behind closed doors, and then just hand over Crown sovereignty, rights, powers and taxpayers’ monies by administrative fiat. In essence the new official policy is to cave and surrender at the first opportunity and just give the Indigenous claimant(s) what they want.
Why? Because, according to the TCSSD, it is self-evidently truthful that “Indigenous self-determination and self-government are affirmed in the UN Declaration and are central to addressing the history of colonization…Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government…Recognition of inherent jurisdiction and legal orders of Indigenous nations is a starting point of discussions aimed at interactions between federal, provincial, territorial and Indigenous governments.”
The federal government may fight the provinces tooth and nail on issues, but peace, love and surrender- the white flag- is the order of each day for Indigenous claims.
Shockingly for a legal policy document, there are no definitions for the reams of abstract, romantic, mostly legally baseless, essentially myth-based words and phrases in the Trudeau Crown Sovereignty Surrender Directive: “Indigenous peoples”, “recognition” “rights”, “partners”, “full partners”, “reconciliation”, “nation to nation”, “government to government”, “self-government”, “inherent right of self-government”, “cooperative federalism”, “Indigenous nations”, “Indigenous self-determination”, “Indigenous governments”, “Indigenous legal traditions”, “inherent jurisdiction”, “legal orders of (Indigenous) nations”, “colonization”. That’s because these words and phrases are merely politically aspirational and most have no bearing in any actual legal reality, and thus are essentially incapable of legal definition.
No matter, these words and phrases are for true believers who know what they want- more power and money- and how to use them. No definitions, no concrete meanings required. It would be career suicide for a Crown lawyer to ask for specifics of what they meant, or to challenge them.
Also shockingly, according to the TCSSD, Canadian legal policy towards Indigenous peoples is now to be governed by the “UN Declaration”, (you’re just supposed to know what that means too- “UNDRIP”), which, except as an optional interpretation aid for activist Courts is not part of the law of Canada!
The basic political message of the TCSSD is that the federal government is deeming Canada’s “Indigenous peoples” to collectively comprise a sort of abstract, notional, eleventh province, almost co-equal with the other provinces, territories and the federal government, and is thusly opening its store of sovereignty, powers and public purse to them for the virtual free taking.
The basic legal message of the TCSSD is that if a First Nations band or some other group or association of Indigenous persons merely asserts a claim for something, whether by way of actual Court action or not, that claim is prima facie valid and must, with little inquiry, be “recognized” as such, meaning quickly and easily accepted and allowed, and then “implemented” i.e. government action taken or taxpayer money paid to settle it. The basic tenor of the TCSSD is that it would be against the “honour of the Crown” to contest it, and that, in the face of Indigenous claims, the issue is not whether, but only how much, the federal government will give up and/or the Canadian taxpayer will pay.
The Trudeau Crown Sovereignty Surrender Directive is indeed a Crown sovereignty surrender directive – a recipe for fiscal ruin, increasing federal government weakness and racial division- a sellout to the AFN, Indigenous elites and the Indian Industry- a shameful appeasement document, like the “piece of paper” Neville Chamberlain came back from Munich with- a betrayal by the Trudeau government of its sacred responsibility to maintain a strong, fiscally responsible, full-powered, central government that can take strong and decisive actions for the benefit of all Canadians- the kind of government that has throughout our long past allowed Canada to achieve greatness.
Here are four examples of legal situations where our federal government, following the TCSSD, when faced with a legal claim injurious to its sovereign powers or the public purse, simply lied down, rolled over and abjectly surrendered.
In May of 2018 the Federal Court of Appeal blocked the construction of the Trans Mountain pipeline on the grounds that a few faraway B.C. First Nation bands had not been sufficiently “consulted and accommodated.” The decision threw thousands of people out of work, jeopardized Ottawa’s $4.5 billion investment in the pipeline and has cost the Canadian economy millions and millions of dollars. The decision was a direct slap in the face of federal power. Clearly the federal government disagreed with it. There was a very strong argument to the effect that Ottawa had indeed adequately consulted and accommodated these bands. Ottawa could have and should have appealed. But it didn’t. Why not?
Because, according to the TCSSD, “The Government of Canada will not appeal every decision with which it disagrees.” (!) Because, you see, to appeal would not be nice or “honourable” towards Indigenous peoples, whose claims must always be “recognized” and “implemented”, and that is a federal government policy that now takes precedence over preserving its sovereignty, treasury, and acting in the best interests of Canada as a whole.
In 2016 the federal government and Ontario were sued by the 21 Robinson Treaties Indian bands who claimed damages for over 150 years of allegedly deficient Treaties annuities payments. The claim, if successful, would upset and re-interpret every treaty ever signed by Britain or Canada with any Indian band in Canada, seriously diminish Crown sovereignty, powers and privileges vis a vis Indian band treaty signatories, and cost the public purse, and thus the Canadian taxpayer, many millions, likely billions of dollars. The claim was successful. In December of 2018 the Superior Court of Justice ruled in favour of the Treaties bands.
And they were successful in large measure due to the TCSSD-ordered tepid, lame, weak, overly-accomodating, “non-adversarial”, cravenly-appeasing, “honour of the Crown”-to-a-fault litigation behaviour and positions adopted by the federal government. Some examples:
-agreeing to proceed by way of summary judgment- thus making it as procedurally easy as possible for the claimants- where, for example, the claimants could put in their evidence by way of carefully-crafted, lawyer-prepared affidavits;
-agreeing to permit or not objecting to the self-serving and undeserving –of-weight testimony of “Elders” to be treated as expert evidence;
-agreeing to “take respectful consideration of Anishinaabe law…as part of the Anishinaabe perspective that forms part of the common intention analysis”;
-agreeing to permit or not objecting to all forms of loose, speculative, undeserving-of-weight testimony being allowed in as evidence;
-agreeing to permit or not objecting to parts of the trial being conducted on First Nations reserves- the “homes” of some of the purportedly separate, self-governing “nations” suing the nation of Canada;
-agreeing that the post-Treaties conduct of the Indian bands, which strongly showed that they thought the Treaties were “one-time agreements”, and thus not open for re-interpretation, was not relevant; (!)
-agreeing to take a “liberal or generous” and a “reconciliatory and purposive approach to treaty interpretation” and that “the Robinson Treaties established and reshaped aspects of the Crown-Anishinaabe relationship in a manner that contemplated its long continuation and future evolution”-these were real legal-surrender, litigation-suicidal admissions.
-agreeing that all past, present and future Crown discretionary decisions on treaty implementation are to be transparent and reviewable by a Court;
-agreeing to the radical legal proposition, contrary to hundreds of years of established common law traditions and principles, that the trial was “a proceeding of respect and an exercise in reconciliation”;
-agreeing to holding two weeks of the trial proceedings on three First Nations reserves, and then, on those reserves, permitting its lawyers to participate, with the Judge, in numerous and diverse Anishinaabe social events and sacred ceremonies, when alleged, distinct “Anishinaabe perspective and worldview” was a trial issue.
There’s a straight line between the Trudeau Crown Sovereignty Surrender Directive and Canada losing this case at trial- (No! Canada throwing this fight!)– which, as stated, opens up all Crown-Indigenous treaties across Canada for re-interpretation, and will cost Crown sovereignty, the Canadian taxpayer and the Canadian economy mightily.
If there was ever a case that should have been fought tooth and nail, on principle, this was it.
Instead, with the federal government’s decision to accept this ruling and not appeal, as Ontario did, the Canadian common weal got surrender.
During the Harper government years the federal government was sued in a class action by 16,000 former Northern Ontario Indian reserve residents who, due to dangerous and dysfunctional reserve home conditions, had been deemed “in need of protection” and were taken out of their homes, made Crown wards, and eventually allowed to be adopted by non-Indian couples- the defamatorily-named “Sixties Scoop” case.
The Harper government properly fought the case, again, tooth and nail.
The absurd legal claim against the federal government was that Canada had allegedly breached its fiduciary duty towards these children by failing to “preserve and protect” their “Indian culture and identity”, resulting in “psychological problems associated with a loss of culture, self-esteem and identity.”
As soon as the Trudeau government was elected the federal government’s approach to the litigation changed from principled resistance to evidence-be-damned “recognition of rights” and overall “reconciliation” i.e. surrender.
After the federal government agreed in the litigation to permit crucial issues to be determined by summary judgment, (meaning there would be no live witnesses called to the witness box to testify about their alleged “loss of Indian culture and identity” and about the social conditions that caused them to be removed from their reserve homes, and then be cross-examined), and despite the presentation of little or no evidence of the existence of a distinct Indigenous culture on 1960’s Northern Ontario reserves, (it was merely presumed as a fact), the Court ruled in favour of the plaintiffs, finding that in substance the Crown did have a common law duty to preserve and protect the “Indian culture and identity” of each of these 16,000 individual plaintiffs.
The reckless and irresponsible Trudeau government, following the spirit and letter of the TCSSD, immediately announced that it would not appeal the decision. And then, in October of 2017, in most profligate manner, the Trudeau government entered into a settlement with the plaintiffs involving the payment to them of 800 million of taxpayers’ dollars.
Surely there was a real issue as to whether, in 1960’s Northern Ontario, there was any “distinct Indian culture and identity” still in existence that was capable of being “lost”, and surely that issue deserved a live trial!
Surely, in our modern world characterized by constant multi-cultural contact and exchanges resulting in constant change and more change for us all, there is a strong and compelling argument that the “loss of cultural identity”- an abstract, fluid, malleable, totally subjective, unmeasurable concept if ever there was one, and which happens to us all- is not compensable at law!
Surely there is a strong and compelling argument that the law of negligence and duty of care should not be extended to this type of vague and nebulous situation, where the story of each of these 16,000 individuals would be unique and different.
Surely there was a significant damages issue with respect to each and every claimant. It’s trite law that even if a person suffers a compensable breach of a duty of care against him, if he didn’t suffer a loss than he has no damages and no legal case. Here, it may be that the lives of many of the so-called “legally injured” claimants, objectively viewed, were as least as good, or better, than they would have been if they had been left by social welfare authorities in those reserve homes they considered dangerous to the then-children.
Surely the federal government should have appealed this legal decision to avoid the establishment of dangerous, quasi-racist, (oh yes, but always with the best of intentions), and financially ruinous, (to the Canadian taxpayer), floodgates precedent.
We’ll never know the answer to any of these queries, because, in a slap in the face of all those good people who adopted these children, following the Trudeau Crown Sovereignty Surrender Directive, the federal government simply deemed them all to have harmed, and, in “recognition” of their “rights”, and to promote “reconciliation”, reached deep into the pockets of Canadian taxpayers and paid them off.
On June 21st, 2018 a class action nominally brought by one Garry McLean was certified as a class proceeding. The claim is for compensation for all Indigenous children across Canada who attended Indian Day Schools from 1920 (!) onward and who were excluded from the Indian Residential Schools Settlement Agreement. These were typical day schools, usually situated on reserves, funded by the federal government and operated by various religious organizations. The children went home after school, like most of us did. Again, like for all of us, it was the law that these children had to attend school.
The legal action asserts “forced” school attendance. Following the Sixties Scoop giveaway precedent, it claims compensation for “cultural harm”. It claims compensation for alleged physical and sexual abuse. And not just compensation for the former students. It also claims compensation for the families- spouses, former spouses, children, grandchildren, siblings and their spouses- of the students.
Raise up the white flag and again open wide and deep the pockets of the Canadian taxpayers!
As reported in the Manitoulin Expositor on January 30th, 2019:
“The class action was certified (approved) on June 21 as a class proceeding and on December 6 Garry McLean and Crown-Indigenous Relations Minister Carolyn Bennett jointly announced that an agreement-in-principle had been reached between the parties. The agreement-in-principle includes individual compensation for harms suffered while attending an Indian Day School including cultural harm and physical and sexual abuse. In addition to individual compensation, the agreement-in-principle provides for $200 million in funding available to support healing, wellness, education, language, culture and commemoration. The court still has to approve any terms of settlement, which the (class action) law firm intends to seek in the Spring of 2019.”
There were no questions asked as to how getting an education can be “culturally harmful.” No scepticism shown as to how there could be rampant sexual abuse at day schools. Was the “physical abuse” just getting the strap? No questions period. No evidence required. No placing things in a larger context. No considerations of larger principles or broader public policy issues. No, as per the TCSSD, the mere making of claims by Indigenous persons now means that, because of the “honour of the Crown” and “reconciliation” they must be almost instantly “recognized”. And so here, after getting the false patina of respectability and “public interest” consideration represented by a pre-arranged, consent court order, more than $200 million of taxpayers’ money will, in a manner that can only be described as profligate, be paid out.
We have a “While England Slept” situation here.
The Trudeau Crown Sovereignty Surrender Directive represents a betrayal by the federal government of the best interests of the vast majority of marginalized, vulnerable, powerless Indigenous Canadians. It will only lead to the strengthening and expansion of the terribly harmful, apartheid-like, “separate but equal” legal and social reality represented by the reserve system.
It represents a civically demoralizing, irresponsible and incompetent betrayal by the Trudeau government of the public trust it owes to the Canadian people to jealously protect the federal government’s sovereignty- the entirety of its necessary powers- and the public purse, and to only act in ways that will bind Canadians together, as equals in all respects, rather than, as this does, further divide us on the basis of race and thus cause the opposite of reconciliation to occur.
Indeed, as Privy Council Clerk Michael Wernick said, Canadians deserve public debate and public hearings on this matter, and they deserve to know where their so far seemingly-oblivious, head-in-the-sand politicians stand on this profound matter.
March 7th, 2019
Letter September 10, 2018 from Peter Best to the Sudbury Star holding the consult and accommodate law responsible for the loss of 100,000 jobs in Canada (Globe and Mail source) in the last 5 years.
Letter: Duty to consult with First Nations hampering development
I agree with Douglas Cuthand that the way the Supreme Court has interpreted section 35 of the constitution places Indigenous bands, with their resulting de facto consult and accommodate veto, “on an even playing field” with the provinces and the federal government.
But I disagree that it’s a good thing. In fact, it’s a disaster for Canada as a whole, including the vast majority of Indigenous Canadians. If, as Mr. Cuthand asserts, bands, with this de facto veto, are legal equals with the provinces and Ottawa in resource development, then that means that our duly elected governments are no longer masters in their own respective houses — no longer sovereign.
Crown sovereignty is essential for the maintenance of the rule of law, the protection of the tax base and the regulation of the marketplace. More than 100,000 jobs have been lost over the past five years because of this de facto veto. (Northern Gateway, Energy East and Trans Mountain pipelines.) Investment capital is turning away from Canada. It is causing the opposite of “reconciliation” to happen.
For the sake of the country, the law requiring Ottawa and the provinces to consult and accommodate tiny Indigenous bands before any major project can go ahead should, one way or another, be gotten rid of.
Article- August 20th, 2019
What Can Harold Cardinal’s The Unjust Society Tell Us About the Indigenous Situation in Canada Today?
This is the 50th anniversary of Indigenous-rights activist Harold Cardinal’s book, The Unjust Society, his so-called “stinging rebuttal” (from the book-jacket) to Pierre Trudeau’s 1969 White Paper, the latter of which had called for the gradual, staged elimination of the Indian Act, reserves and separate legal status for Canada’s Indigenous peoples, all with the view of bringing them into the legal and social mainstream of Canadian life, and thereby improving their lot generally. With its defiant and aggressive Indian Power theme- almost racist-sounding at times, (constant references to “the white man”, and references to Indians who don’t agree with him as “brown white men” and “Uncle Tomahawks”), his defiance summarized by his cry: “We would rather live in bondage under the Indian Act than surrender our sacred rights.” – it became an instant success with the new, ascendant Woodstock Generation, and, along with similar books about Black Power, Women Power and Quebec (independence) Power, symbolized the country’s new and ever-increasing focus on group rights and identity politics over individual rights and civic nationalism.
A far more mature and humane book, Ruffled Feathers, written by Saskatchewan Cree William Wuttunee, the first Indian to practice law in Western Canada and a founder of today’s Assembly of First Nations, supported the White Paper, arguing, as the White Paper did, that ending the dependency-inducing reserve system and separate (read “apartheid”) legal status for Indians, and giving them equal rights and responsibilities with the rest of Canadians would, in the long run, better ensure Indian-Canadian individual and group pride and progress.
The howls of protest from the nascent Indian Industry, best articulated (such as could be done) by The Unjust Society, the weakness and irresolution in the face of this on the part of the Trudeau government, (No “Just watch me!” here), and the new Woodstock zeitgeist, all combined to make Harold Cardinal a cultural hero on the winning side, and to cause William Wuttunee to be successfully branded as one of Mr. Cardinal’s Uncle Tomahawks and to be banned from numerous reserves in Saskatchewan and Alberta-
a political outcast. The White Paper was withdrawn to the reported sound of Trudeau’s resigned and frustrated statement- “We’ll keep them in the ghetto as long as they want.”
Ruffled Feathers went out of print; long forgotten. On the other hand The Unjust Society was re-released in 1999 and is still regarded as a foundational Ur-document of the Indigenous rights movement.
Now, with the benefit of 50 years experience and hindsight, what can we learn from all this?
Overall we learn that Harold Cardinal was wrong and William Wuttunee and the White Paper were right.
More particularly, we learn that many current assertions of the Indian Industry underlying their claims for more money and power are only very recent fabrications, not based in history, because there’s no mention of them in The Unjust Society, supposedly a superior and full expression of Indian grievances.
There’s no mention, as constantly asserted now, of the treaties being agreements to “share” lands and resources, indicating that this claim too is only a recent, ahistorical fabrication. As Mr. Cardinal writes:
“To our people the treaties were the beginning of a contractual relationship whereby the representatives of the queen (sic) would have lasting responsibilities to the Indian people in return for the lands that were ceded to them.”
There’s no mention in The Unjust Society, as is the case now, and as is the legal reality now, of the ceded lands being “traditional lands” in relation to which the Crown or a private company should have a duty to consult and accommodate all remotely nearby Indian bands before being allowed to do anything on them, (like build a pipeline), confirming that this too is a purely modern legal invention- a modern invention out of legal thin air by a dangerously overly-activist Supreme Court- with no roots in, and completely divorced from, Canada’s past. When Mr. Cardinal refers to Indian “homelands” he is clearly, strictly referring to Indian reserves.
There’s no mention of “nation to nation” relationships, as now. In fact, rather the opposite. Mr. Cardinal writes:
“We like the idea of a Canada where all cultures are encouraged to develop in harmony with one another, to become part of the great mosaic…The vast majority of our people are committed to the concept of Canadian unity and to the concept of participation in that unity…Indian society will add to the mosaic and upon what we can accomplish as individuals to add to our country’s total potential.”
About residential schools, unlike today, as in the Truth and Reconciliation Report, where they are stereotyped as always worthless snake pits of sexual abuse and criminal neglect, Mr. Cardinal says nothing about this, restricting his criticism of them as being institutions staffed by incompetent teachers giving a poor quality education and yes, as being vehicles for Christianization and assimilation. But not a whiff of the one-sided hysteria and hyperbole of the TRC Report. And significantly, unlike the TRC Report, the CBC and the Indian Industry today, he acknowledges the “good intentions” underlying them:
“Let it be acknowledged that the missionary teacher acted (usually) out of the best motives but brought about the worst of all results: a Christian without character…Much can be said about the inherent good intentions of these missionaries, and it is true that without their efforts the educational level of our people might be even lower than it is today.”
The demands that Mr. Cardinal set out so forcefully and threateningly, (“The present course of the federal government drives the Indian daily closer and closer to the second alternative…despair, hostility, destruction.”), correctly betting that no one would call his bluff, were numerous and diverse, and which can be summarized as follows:
“Bigoted”, “ignorant”, “insensitive” “white men”, (all appellations from the book), “give us paid-for general skills training, help us get off welfare by providing us with financing “without strings attached”, training and technical aid for Indian-owned, on-reserve business development projects, give us paid-up medicare and paid up education controlled by Indians, set up a land claims commission, fully fund our provincial and national organizations so that we can speak to the white man’s government face to face, and give us money and equipment for farming.”
“Further”, (Cardinal writes), “your White Paper, “amazingly”, states that:
“a plain reading of the words used in the treaties reveals the limited and minimal promises which were included in them…the significance of the treaties in meeting the educational, health and welfare needs of the Indian people has always been limited and will continue to decline…the services that have been provided go far beyond what could have been foreseen by those who signed the treaties.”
“This is more than a gross distortion of fact”, Cardinal writes. “This is a deliberate, white-faced lie.” (Yes, actual quote.)
It’s “quite the opposite”, Mr. Cardinal baldly, and without any supporting facts, asserts. “The position of the Indian people always has been that a plain reading of the treaties is inadequate and, more than that, unjust. Simple, literal reading of the treaties does not reflect the spirit in which they were signed. The Indian has long realized and has said clearly that all the promises made to the Indian at the signing of the various treaties were never in fact written into the articles of the treaties. It is doubtful, however, that had the promises not been made, any treaties would have been signed…The Indian must have from the federal government immediate recognition of all Indian rights for the re-establishment, review and renewal of all existing treaties. The negotiations for this must be undertaken in a new and different spirit by both sides. The treaties must be maintained. The treaties must be reinterpreted in light of needs that exist today…The terms of the treaties must be extended and interpreted in light of present social and economic standards.”
The final big demand of The Unjust Society was that, along with all the above unilateral, unsubstantiated demands being met, the White Paper be withdrawn, so that “…the Indian future will rest in qualified brown hands…”
And again, as with residential schools, Mr. Cardinal, despite calling the federal government, amongst other things, an ignorant, white-faced liar, acknowledged the good intentions underlying the White Paper, saying, “The intention of the government may be good, but the realities of the situation are ignored.”
So why do I say that the events of the past 50 years have proven William Wuttunee right and Harold Cardinal and his The Unjust Society wrong?
Because virtually every one Mr. Cardinal’s demands as set out in The Unjust Society have been met, and in some cases exceeded, yet Indigenous Canadians continue to remain at the bottom of virtually every measurement of social and material progress in Canada. Cardinal’s demands have been met and Indigenous Canadians are worse off than ever. The proof is in the pudding.
Indian bands have been given all the “no strings attached” money transfers and programs demanded by Cardinal. They’ve got unlimited free medical and dental care. They’re getting free education, increasingly run by themselves. More importantly, by way of radical court decisions like Haida Nation and Restoule, the treaties have been judicially redefined as “sharing” agreements rather than cession of land agreements, as even Cardinal understood them to be. And, according to these courts, they are to be interpreted in the “modern” way, as Cardinal demanded, not literally. Indian bands, with their right to be consulted and accommodated, now have a de facto veto over what takes place on their “traditional lands”, being all of Canadian Crown and wilderness lands, rather than, as Cardinal thought, only on reserve lands.
But it hasn’t made a difference. Indigenous poverty, despair and social dysfunction continue at the highest, tragic levels. Only their small leadership class has short-term benefitted from all this. We see every day the particulars of all the various manifestations of this tragic dysfunction and social and economic failure, which particulars speak volumes for themselves.
At an aboriginal law legal conference I attended in 2016 Joe Wild, Senior Assistant Deputy Minister for Indigenous and Northern Affairs, in a refreshing and unusual moment of candour and realism said:
For the past 40 years we have been plowing money into programs. We have no evidence that it’s working.
In other words, we have no evidence that the approach of Harold Cardinal and The Unjust Society is working. In fact, having regard to Cardinal’s defiant cry, even with all his demands met, Indians have continued to live in bondage under the Indian Act, and they will continue to do so unless there is a radical change of course.
Our Indigenous population is suffering! Fifty years of experience tells us that all the present approaches being adopted to improve their situation are failing and are sure to keep failing. The effect of all the present approaches is disastrous and it is malpractice and a breach of the “honour of the Crown” to continue with them. As Christian writer Marilyn Robinson writes in The Death of Adam:
If serious solutions were being attempted, would not someone hold them to the standard of their effect, and suggest a reconsideration?
It’s time to abandon this obviously losing, destructive, illiberal, quasi-racist, “separate but equal” approach to improving the situation of Indigenous Canadians. Fifty years of failure and waste of human potential is enough. It’s time to start on the White Paper- William Wuttunee path of ending the reserve system and, in a gradual, staged and steady manner, bringing Indigenous Canadians into the Canadian family on the basis of equal rights and responsibilities.
Peter Best- August 20th, 2019
IT DOESN’T HAVE TO BE THIS WAY!
There Is No Difference is a plea for a society free of all laws based on race- a race free society. Read Brian Giesbrecht’s article below on Mexico, a country whose indigenous peoples were treated a thousand times worse than Canada’s, yet, because of the absence of treaties, reserves, “consult and accommodate”, an Indian Act, constitutional provisions that favour one race over another, and all the other special rights and entitlements Canada’s Indians have, that country lives in relative racial harmony. Why can’t Canada be like Mexico?
Brian Giesbrecht, Commentary, Culture Wars January 2, 2019- (published by the Frontier Centre For Public Policy, Winnipeg, Manitoba- an excellent Think Tank dealing intelligently and compassionately with this and other similar issues of crucial social and political importance. Please support them by subscribing and donating.)
Oaxaca is one of the best preserved colonial cities in Mexico. It has a bustling center, rich with busy markets – street vendors and music wherever you go. Oaxaca state has the largest percentage of Indigenous people in Mexico. Zapotec, Mix-tec and other peoples jostle together in the city, most living in villages in the three surrounding valleys. Sixteen different culturally distinct groups are represented, each with its own language and dialects.
The Olmec came first, then Zapotec, Mixtec, Aztec, and, ultimately, the Spanish. Each group rose, fell, and ultimately mixed. Mexicans are basically Metis. Some with more Spanish blood and lighter complexioned, others darker and more Indigenous. Their culture is deep and rich.
The Indigenous groups govern themselves at the local level, according to their traditional ways. This includes dealing with less serious crimes and seeing to the usual administrative duties needed to keep villages and rural areas functioning. Despite such diversity, all Mexicans are equal in law, taking pride that the Mexican constitution makes everyone equal citizens.
In Mexico, there are no “status cards” providing one group superior rights. There are no special financial privileges, and everyone pays taxes. Mexicans take pride in the fact that they are self-reliant. While alcohol abuse is a problem – mainly the traditional pulque that Indians have made from agave since time immemorial, it is not nearly the massive problem that it is in Canada’s Indigenous communities.
So, the Mexican status quo is quite unlike that which prevails in Canada, where status Indians have status cards, special laws, special financial privileges, and special tax exemptions based purely on race. Mexico has no separate system, and Mexico’s Indigenous communities do not have the welfare dependency and alcohol-related child neglect problems that exist in many Canadian Indigenous communities.
Another striking difference between the Indigenous people of Mexico (basically everyone) and Canada’s Indigenous people is that in Mexico there is not the sense of grievance and victimhood that consumes Canada’s Indigenous people. Mexico lacks the endless series of victim inquiries and other demands on the federal government. Mexicans have no overriding belief that others are responsible for all their problems. Nor, do Mexicans have the sense of helplessness and dependency on the federal government and mainstream taxpayers. Mexicans are independent, self-reliant, proud of their independence.
And this seems odd, because as Mexican history unfolded there was no shortage of brutality and unfairness. Dominant tribes victimized the weaker ones. And, when the Spanish arrived, brutality went off the scale. The “Encomienda ” system the Spanish introduced held the Indians in virtual slavery for five hundred years. And, the Catholic Church acted both as exploiter and protector. If one wanted to identify themselves as victim, the Indigenous people of Mexico would have good reason to make that claim. But they haven’t.
The Spanish were among the most brutal conquerors of old. The British in North America were pussycats compared to the fierce conquistadors. Spanish conquerors brutalized and exploited the Indians mercilessly. Yet, one only has to walk down a street in Oaxaca to recognize the contribution made by the Spanish. Their language served to unite the country. Their religion, remedied by the Mexican state takeover of all church property, still bring great comfort to much of the population. Oaxaca has beautiful churches on virtually every street corner. While the Spanish brought great suffering, they also made a tremendous contribution to what Mexico is today.
Not to say that Mexico lacks problems. The poverty is evident. In Oaxaca, one of the poorest states, most people get by on the minimum wage of 80 pesos a day. (80 pesos can buy a sandwich and a Coke at a tourist restaurant.) There are the usual tensions between areas and among groups – Mexico has its politics. And, Mexico being next door to a northern neighbor with an insatiable appetite for illegal drug, suffers from the tragedy of cartel corruption and violence.
So, despite having no end of problems, there is a real sense of brotherhood and sisterhood between Mexicans of all descents. And, with that, a strong sense of pride that everyone is equal under the law. Mexico’s diversity is honoured, and, while every citizen can celebrate their culture in their own way, there is the strong recognition that every citizen is, first and foremost, a Mexican. Every Mexican is equal under the law.
Mexico offers a model that Canada should consider.
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