Commentary

“What Mr. Best has to say in There Is No Difference is important.”

– Professor Tom Flanagan, University of Calgary, member of the Royal Society of Canada and author of First Nations? Second Thoughts (McGill-Queens University Press)

“Mr. Best shows a principled determination, with There Is No Difference, to ride this tiger of a topic into the colosseum of political correctness.”

Barbara Kay, National Post Weekly Columnist

“In his newly published book, There Is No Difference, lawyer Peter Best devotes a chapter to unpacking the consequences of the Haida Nation decision. It makes for fascinating reading. Haida Nation jurisprudence, Best says, decrees a devolution of Crown sovereignty to Indians- a handing back of previously-surrendered power, effectively turning Indian bands into a third order of government…And so what happened to Kinder Morgan- and has happened to other companies since Haida Nation- will eventually kill all private interest in major infrastructure and mining projects. Aboriginal correctness will slow down our economy…”

-Barbara Kay- The Villain in the Trans-Mountain Fiasco- and Other Fiascos Since 2004- is the Supreme Court of Canadawww.thepostmillenial.com, September 11th, 2018.

“This is a volume of deeply researched common sense. It stands as a beacon in the swamp of Indian (or “aboriginal”- your choice) law and a path to hope for the victims.”

– Gordon Gibson- author of A New Look at Canadian Indian Policy: Respect the Collective-Promote the Individual, 2009), national columnist, Special Assistant to Prime Minister Pierre Trudeau from 1968 to 1972, B.C. MLA, Senior Fellow at the Fraser Institute, and, in 2008, awarded the Order of British Columbia.

“The Trudeau government and First Nations’ leaders want to “close the gap” between indigenous and non-indigenous Canadians. Peter Best agrees, but his solution is not their tried and perenially failed one: to merely continue and tinker with the status quo. In There Is No Difference Mr. Best compellingly argues that to really “close the gap” approaches and laws must radically change, and the reserve system must be ended. There Is No Difference is an important contribution to the national conversation that must take place about Canada’s most serious and pressing social issue: the situation of our First Peoples in modern, 21st century Canada.”

Colin Alexander- Ottawa- former publisher of the Yellowknife News of the North

 


Excerpts from There Is No Difference

From Chapter 1, Introduction.

“Indians have always had special race-based legal status. But surely, having regard to our highest and best civic values , we must now realize that what happened in our increasingly distant pass with respect to our fellow Indian citizens was a mere product of those very different times and should not constitute an unchangeable template for the indefinite future. And surely, given what we now know from experience about where race-based thinking and constructs can lead we should now be changing that old template by adopting new frameworks and solutions that accord with our current knowledge and values and that , deliberately, over time, point us all towards a common, shared, “one people”, race-free legal, political and social destination.”

From Chapter 2, Terminology.

“The reader of this book may have already uncomfortably  noted that I have repeatedly been using the word “Indian”. This is deliberate. “Indian” is the most legally accurate word to use. It is the precise legal and denotative term for what is in fact a purely race-based category of persons in Canada. It’s used in the constitution, statutes and court cases. Canadian history at least provides us with an explanation and a reasonable excuse for the original legal separation of Indians from non-Indians in Canada. But now there is no such excuse. Therefore, in order that the essentially segregationist and benignly racist nature of what is happening be brought to the fore and kept there, in order to continually highlight how this situation runs counter to our modern hardwiring and our modern values, and in order that the wrong and discomfiting nature of what is happening be not just read but felt, I will sometimes use (but not exclusively), as if it were a verbal hairshirt, that precise, legal, racial term, “Indian.” If the reader feels uncomfortable because it “sounds racist”, then good! That’s the point! In today’s Canadian context, it is inherently racist! And as such it’s inherently wrong that it’s in our constitution, statutes and court decisions in the way it is.”

From Chapter 3, The Separate But Equal Doctrine.

“If apartheid were measured by results rather than intent, we would have it on reserves today.” –Indigenous writer and businessman Calvin Helin, from his book Dances With Dependency.

From Chapter 4, Assimilation and Cultural Loss.

“Real Indian culture is just about dead on the reserves.” –Indigenous AFN co-founder and pioneering indigenous lawyer,   William Wuttunee, from Ruffled Feathers– 1971.

From Chapter 5, An Issue of Freedom of Speech.

“It’s not that ordinary Canadians don’t want to help Indians. We desperately do. But we’re not permitted to get involved except on the fallacious and unacceptable terms laid down by the Indian and non-Indian establishments. We’re in effect being told that to be involved and heeded, to be allowed into their conversation, we cannot challenge or question their pre-packaged orthodoxy. We cannot use our heads and think for ourselves. We cannot question the very existence of the Indian Act, the reserve system and the “separate but equal” status quo generally. So, fearful and unable to stomach that- unable to cope with the Alice in Wonderland nature of it- we find ourselves forced to stay out of it and, like the decent and caring Senator Beyak, we find ourselves expelled from the arena of public debate and engagement on this issue and forced to stand back and helplessly watch the terrible social damage being suffered by Indians continue unabated.”

From Chapter 6, Pre-Contact Indian Culture and the Shock of the New.

“Within a generation or two of the first contact by any Indian tribe with Europeans, that tribe’s essentially Stone Age culture, with all the skills, arts, knowledge, crafts and practices inherent in it, was to a large extent caught up in a process of being given up, let go and assimilated by and into the all too rationally compelling, easy and understandable attractions and advantages of that higher European culture.”

“The notion that Indians are or would be better stewards of the land than non-Indians is completely unfounded in history or by anything happening in the present.”

“What horrors of damp huts, where human beings languish, may not become picturesque through aerial distance.”- Novelist George Eliot.

From Chapter 9, The Violence and Dispossession Caused By Migrating Peoples.

“Why not consider the coming of the Europeans as a fourth migration, a new set of tribes pushing others in front of them?Should we hesitate to do so because the European colonists had lighter-coloured skin, hair and eyes than the older inhabitants? At bottom the assertion of a right of self-government is a kind of racism. It contends that the only legitimate inhabitants of the Americas have been the Indians and the Inuit. According to this view, they had the right to drive each other from different territories as much as they liked, even to the point of destroying whole peoples and taking over their land, but Europeans had no similar right to push their way in.” – Professor Tom Flanagan, from his book First Nations? Second Thoughts.

From Chapter 10, Great Britain: A Conqueror With A Conscience.

“Therefore, by properly and necessarily taking a deeper, longer, more informed, reflective and relative historical point of view, by considering Canadian issues today not with reference to a blindly naïve, never-attained standard of human perfection, but rather with reference “to the human norm, not with Utopia”, with reference to how man has actually behaved in similar circumstances throughout history, we can justly say that, after its victory over France in 1759, Great Britain did indeed act in a unique and superior fashion- in a manner way above the moral standards and regular practices of the times- in its subsequent dealings with the Indians of Canada.”

From Chapter 12, The Essential Humanity of the Migrators to Canada.

“Too much history discourse is “big sweep-big picture” in nature, where the people who were actually involved in the narrative in question are abstracted and dehumanized in the service of some grand, overarching historical theory- treated like mere automata or bloodless units in some supposedly vast and inexorable world-shaping force or movement like communism, fascism, capitalism, colonialism or imperialism…This is how the Indian Industry- with these essentially empty word constructs, these abstractions, euphemisms and stereotypes- falsely portrays European migrators to Canada: as “colonizers”, “colonialists”, “settlers”, “exploiters” and “imperialists”- fictional”ist” or “ism” people– essentially as knowing, callous culture-killers and land thieves….But which non-Indian Canadian among us regards his or her pioneer ancestors in such an insulting, shallow and cartoonish way? Hardly any of us, and with good reason. It’s not true! In fact these were mainly innocent, vulnerable human beings, just like us, not humans “ists” or “isms.”

From Chapter 14, The Myth of Nation to Nation Dealings.

“There can’t be a “nation” in the modern nation-state sense of the word when the highest loyalty of its members is to other members of their same extended family. That’s characteristic of a small tribe, band or clan only, not a “nation” in the modern sense of the word. The situation may have been a little different in western and northern Canada, but not so much as to constitute any of the Indian groups or tribes in Canada at the time of the original treaties as nation-states, or as nations generally, in any modern sense of the word.”

From Chapter 15, The Treaties: Fairly Made and Honourably Implemented.

“Ordinary Canadians often read and are told that the Indians of Canada are the victims of fraudulently or coercively-induced treaties, which even then were afterwards broken by the Crown, and that this is a large part of the cause of their present troubles. But an examination of some of the treaties entered into in the latter part of the 19th century and the circumstances surrounding the signing of them shows that this is generally not true. With respect to the implementation of the treaties, Canada and our provincial governments have more than just honoured them. Over the many years since they were signed they have, even though there are well-recorded and to me, over-emphasized exceptions to this, generally followed them to the letter. They have, in addition, in more than reasonable fulfillment of their fiduciary and “Crown honour” obligations, generously granted countless, significant, additional benefits to Indians, over and above the treaties, for which there is no basis in the wording of the treaties themselves, and which go far beyond the original intent of them.”

From Chapter 21, Common Themes.

“The historical record shows that the overall theme of the treaties, in the circumstances giving rise to them, in the talks engaged in before they were signed, in the treaty wording, in the speeches made by the parties after they were signed, was extinguishment of Indian rights and control over the lands surrendered, with no residual obligation on the Crown to continue to “share” the surrendered lands and the resources on them. Generally, the only (rather paltry) things given to the Indians in the treaties were small, annual cash payments, reserves, and the limited right to hunt and fish on the surrendered lands, all of which, in the Crown’s mind, were to be followed, hopefully sooner rather than later, by assimilation and integration of Indians into the mainstream of Canadian life, such as it was at the time.”

From Chapter 22, The Emasculation of Crown Sovereignty.

“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 fruits of long and quiet effort. It is tempting but dangerous to fragment the state”. -Historian Timothy Snyder.

“To an alarming degree, Canada is in a very real sense going back to the pre-treaties era of collaboration and shared power with Indians- to a situation of limited, reduced and emasculated- partially self-emasculated-Crown sovereignty, which is already having very negative consequences for all Canadians, Indians and non-Indians alike, and will continue to do so, in even worse fashion, in the years to come.”

From Chapter 26, Dancing With Danegeld.

“When you are talking about projects that could have a profound impact on the lives of First Nations people, you don’t just talk to us. You’re going to need our permission before anything goes forward. That’s just a fact of life.”- Art Sterritt, Coastal First Nations of B.C.

“These elite Indian band representatives are no longer victims talking. They are cock-of-the-walk clear winners of the judicial wars of the past thirty years talking and acting as such. These are people placed by our higher courts into positions of awesome power and control over the rest of Canada- power and control in no way democratically based– people  who are making no bones about the fact that they are going to exploit this new position handed to them countrywide- to the maximum- with no moderating consideration of the whole country’s best interests.”

“Indian band elites have been handed positions in the Canadian economic order partially akin to those 19th century rentiers, except for now, their new-money, passive income, Danegeld wealth is not inherited. Rather, it is coerced from anyone nearby wanting to engage in hitherto untethered, (except for the obligation to pay taxes and comply with laws of general application), normal, entrepreneurial economic activity on their now (as decreed by the Supreme Court of Canada) “traditional lands” and their now, in B.C., thanks to Tsilhqot’in, for many important nation-building intents and purposes- sovereign, aboriginal title-based lands.”

“When kings fail to do their jobs and regulate the markets properly, it leads to loss of trust, dwindling credit and economic depression.”-Yuval Noah Harari.

“Our “kings” are failing to do their jobs.”

From Chapter 28, The Frontenac Ventures Blockade:

“Frontenac Ventures exemplifies our higher courts’ increasing tendency to stack the deck in favour of Indians in any civil suit involving them- to give members of any Indian band before it the full Walt Disney approach, to assume without critical inquiry that they have been injured, to regard them, regardless of clear evidence before them, as innocent, victimized, noble pre-contact beings, to refuse to place on their shoulders the same degree of personal responsibility for illegal behavior as is on the shoulders of non-Indian Canadians- all regardless of the plain, modern, reality of the situation before them. All this is a recipe for the breakdown of law and order…It’s also a recipe for economic disaster for mining companies involved in mining leases and for the mining industry generally- in fact for any other business or undertaking in Canada carrying out a state-authorized activity which finds itself in the same vulnerable, unjust situation as Frontenac Ventures found itself in.

From Chapter 34, The Imperative of Sole Crown Authority.

“Haida Nation jurisprudence and our political, bureaucratic and police elites weak and confused- and, at crucial times, frozen– response to it, represents a full, frontal assault by our ruling classes against the system of hierarchy which Professor Wilson suggests must be present for a democracy to function properly, against what Brian Lee Crowley describes as Canada’s real wealth: our “endowment of rules, institutions and behaviors” that make up the civilization we inherited from our ancestors.”

“To diminish Crown sovereignty-the fount and guardian of our democracy, our property rights and the rule of law, the latter themselves the basis of a superior economic system which has provided so well for us, as Haida Nation jurisprudence has diminished Crown sovereignty- is to attack and diminish our democracy, our very civilization itself. Ordinary Canadians know or at least sense that. Unfortunately, our “ruling classes”- our increasingly post-liberal elites-seem not to know that any more.”

From Chapter 33, The 2012 Algonquin Land Claims Settlement Agreement: The Deal of the (19th) Century.

“A most retrograde and illiberal agreement! A fundamentally unprincipled agreement-in-principle! An agreement that will impoverish and demoralize all the people of Ontario. An agreement that will constitute a huge, reckless and unaffordable revenue and sovereignty giveaway. An agreement that will only harmfully overindulge those few thousand Algonquin Canadians affected (they will get their perpetual benefits under this new agreement while still keeping all their existing Indian Act rights and entitlement), and that will further retard, as a group, their integration into the Canadian mainstream.”

From Chapter 35, Indian Reserves as Tax Havens and Places of Privileged Fiscal Immunity.

“Taxes are what we pay for a civilized society.”- Oliver Wendell Holmes

“No, it’s not right for Indians, while on the one hand, making ever-increasing demands for more and more funding on our cash-strapped governments- in effect on already hard-pressed Canadian taxpayers- and on the other hand, at the same time adopting tax haven policies and practices that knowingly and almost intentionally weaken and deplete the treasuries of those very same governments. To the increasing extent that this goes on, non-Indian Canadians have to shoulder an increasing tax load. We have to make up the difference lost by these activities. This is not right or fair.”

From Chapters 36, 37 and 38, A “First Nations” Education.

“Indian elites want more money and better on-reserve primary and secondary schools- schools run by themselves.”

“Segregating children from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The impact of segregation is greater when it has the sanction of law. A sense of inferiority affects the motivation of the child to learn. Segregation with the sanction of law tends to impede the educational and mental development of children and deprives them of the benefits they would receive in an integrated school system.” -Chief Justice Earl Warren, United States Supreme Court, in Brown vs. Board of Education, 1954.

“Canada succeeded by actively supporting ethnic and religious multiculturalism, believing that children educated together in the country’s public schools and hockey arenas would emerge as integrated citizens.”- Erna Paris, in From Tolerance to Tyranny.

“Indigenous teachings” is just another phrase denoting romantic, baseless, anti-intellectual, non-scientific, new-age malarkey.

“The approach of Galileo, Newton, Darwin and Einstein is eschewed in favour of an approach that would countenance such an intellectual fraud as “native science”, and in favour of an approach grounded in “the spirit of things”, that is, in favour of the irrational and superstitious.”

From Chapter 39, Indian Reserves: Canada’s Gated National System of Gated Communities.

“A Canadian Indian reserve is Canada’s poor man’s gated community, where the pervading spirit is one of inertia and dependency, and the essential qualification for belonging and the essential reason why “outsiders,” i.e. the rest of Canadians, are implicitly told, “you don’t belong here”, is race, rather than wealth.”

From Chapter 40, Setting Indians Free From Their Past.

“Do not grieve- misfortunes happen to the wisest and best of men. What is past and cannot be prevented, should not be grieved for.”- Teton Sioux Chief Big Elk

“The current problem is that many indigenous leaders still seem to be stuck in grieving mode when the time to move on has already come and gone.”- Indigenous writer and businessman Calvin Helin.

“Canada’s Indians did not suffer “genocide” in any form.”

“Residential schools couldn’t have “killed” aboriginal culture. Three hundred years of contact with European culture caused that culture to tragically but inevitably diminish to the point of near-disappearance before residential schools were ever thought of.”

“You may have heard 7000 negative stories about residential schools. But what you haven’t heard are the 7000 stories that were positive stories.”- Indigenous novelist, playwright and pianist Tomson Highway.

“The Truth and Reconciliation Report must be condemned with the verdict of being bad history… In fact the Report is being used by Indian elites to reinforce all the dysfunction, to continue the stoking of the guilt-making machine behind the past wrongs done to Indians, and to maintain difference between Indian and non-Indian Canadians, and thus is seen by ordinary Canadians as being cynically used too much as merely an agent for the accumulation of more money and power in the hands of the Indian Industry…It’s tragic that it didn’t emulate South Africa’s ubuntu spirit and philosophy.”

From Chapter 41, Rethinking The Honour Of The Crown” Principle.

“Thus the Crown honour principle needs to be re-visited, re-thought and re-applied in such a way that Canada starts to treat Indians like a responsible parent would, not in accordance with what her Indian “children” subjectively want , but in accordance with what they objectively need in order to become self-supporting, civically-engaged, civic adults.”

From Chapter 42, Our Liberal Values.

“Indigenous AFN co-founder and lawyer William Wuttunee, in Ruffled Feathers, described the chief and band council-controlled land management system as “feudal.”

“Aboriginal writer and businessman Calvin Helin, in Dances With Dependency, set out in clear and depressing detail all that is wrong and illiberal about the status quo: “band governments answerable to no one; powerless community members; an AFN comprised of and representing only the self-interested Chiefs- “colonizers of their own people”- and generally, “a situation not unlike many banana republics.”

“We can and we must take Indians out their illiberal, race-obsessed, waking dream of voluntary servitude.”

From Chapter 43, The Myth of Race and Racial Differences.

“For all practical purposes race is not so much a biological phenomenon as a social myth. Biological studies lend support to the ethic of universal brotherhood.”- Sir David Cannadine.

“The conclusion is inescapable: genetically, “racially”, socially, and in every other way that counts, there is no difference!”

From Chapter 44, The Amygdala Factor: Our Civic Duty To Give No Legal or Political Effects to Race-Thinking.

“Our elites need to be better aware of the amygdala factor. Haida Nation’s and Tsilhcot’in’s purported “reconciliation” of the Indian and non-Indian peoples of Canada is rendered virtually impossible when the underlying legal and political basis for it is one that increasingly focuses on the emotional triggers of racial differences and racial apartness.”

From Chapter 46, Why Bother?

“For the past 40 years we have been plowing money into the programs. We have no evidence that it’s working.”- Joe Wild, Senior Assistant Deputy Minister for Indigenous and Northern Affairs, 2016.

“We see now that too little of the billions of dollars paid annually by Canadians to Indian bands flows down to and benefits the dispossessed Indian underclass. The “strong men rule” nature of the tribal/reserve governance system, with its inherent lack of accountability, with its tendency not to nurture all the excellences of which human nature is capable, ensures that, even with all the consult and accommodate monies and entitlements flowing into the possession and control of these elites, this will always remain essentially the case.”

“Many Aboriginal youth feel that they are “conquered subjects” of a systemic and antiquated form of government suited to the benefit of the elites and paid for on the backs of the suffering grassroots indigenous people.”- Indigenous writer and businessman Calvin Helin, from his book, Dances With Dependency.

From Chapter 47, Amending the Constitution and Overiding Haida Nation Jurisprudence.

“Any steps taken by Ottawa or the provinces to fundamentally change the status quo, short of amending the Constitution by repealing section 35, would be unconstitutional, plain and simple. But constitutions are not meant to stay the same forever. They can and should be amended when circumstances warrant.”

From Chapter 48, Ending the Reserve System and Race-based Laws.

“It is imperative that Indians should have full equality before the law. The provisions of the Indian Act do not give them equality. They are saddled with disadvantages which hound them continually in their daily lives. Their problems cannot be attributed to white Canadians only. It is a problem which lies on the shoulders of everyone. Canada must be prepared to repeal the Indian Act completely.” – William Wuttunee, indigenous AFN co-founder and pioneering indigenous lawyer.

“The affording to Indians of the status of full equality with their non-Indian fellow Canadian citizens would constitute Canada’s  version of Lincoln’s  Emancipation Proclamation and the passage of the Thirteenth Amendment of the U.S. Constitution abolishing slavery.”

From Chapter 50, It’s Not Impossible- (Nelson Mandela Proved It.)

“Not one of our Indian and non-Indian elites is prepared to engage with, much less try to answer, the big  question- the Nelson Mandela question Why is Nelson Mandela’s goal and vision of  “one set of laws for all races” in the country not the right goal and vision for Canada?”

“Canada needs to start off on a different path in order to better the disgraceful position of Indians in our country today, in order to achieve true progress for them. Indians and non-Indians need to become partners again, like we were in the early days of first contact, only this time, inevitably and necessarily, under the aegis of social and legal equality and ultimate Crown sovereignty.”

“To my compatriots, I have no hesitation in saying that each one of us is intimately attached to the soil of this beautiful country.

Each time one of us touches the soil of this land we sense a personal renewal.

We are moved by a sense of joy and exhilaration when the grass turns green and the flowers bloom.

The time for the healing of the wounds has come.

The moment to bridge the chasms that divide us has come.

The time to build is upon us”- Nelson Mandela

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