The Supreme Court of Canada Strips 1.8 Million Indigenous Canadians of Their Charter Rights on Their Home Reserves and Territories

 Liberal societies normatively should not recognize groups based on fixed identities like race, ethnicity or religious heritage… Liberalism with its premise of universal human equality needs to be the framework within which identity groups should struggle for their rights. – Francis Fukuyama  

The individual human being is the ultimate unit of all law. His well-being is the ultimate object of all law.Hersch Lauterpacht

Governments of the over 600 First Nations bands and self-governing Indigenous communities across Canada have been given the green light by the Supreme Court to, in their laws, legally abrogate and override the civil liberties of their band members and citizens.

In its Dickson v. Vuntut Gwitchin First Nation decision the Court ruled that so long as an Indigenous government law “protects Indigenous difference- understood by the collective as interests connected to Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty or Aboriginal participation in the treaty process”– then, despite the fact that the law infringes the Charter rights of its citizens, those Charter rights cannot have any application or be given any effect to.

Four of the seven Judges who ruled on the case ruled that the Canadian Charter of Rights and Freedoms prima facie applies to Indigenous government laws, but notwithstanding that, if the law is to “protect Indigenous difference”, and the exercise of a Charter right would have the effect of diminishing that “Indigenous difference”, then section 25 of the Constitution Act “shields” the law from Charter application.

A fifth Judge ruled that section 25 meant that the Charter didn’t apply at all to Indigenous government laws, not even prima facie.

Two of the seven judges dissented, one of whom very significantly was Madame Justice O’Bonsawin, the Indigenous person appointed to the Supreme Court supposedly to import an “Indigenous perspective” into its judgments. These two dissenting Justices wrote correctly that the majority opinion creates “Charter-free zones” in Canada. They further wrote:

“Minorities with Indigenous communities (will) not be protected from the actions of their own governments. All Canadians, including Indigenous people, need constitutional tools to hold their governments accountable for breaches of their entrenched rights and freedoms. It is against the purposes of the Charter and s. 25, as well as being profoundly inequitable, to deny members of self-governing Indigenous nations similar, rights, remedies and recourse.”

There are more than 1.8 million Indigenous Canadians, two-thirds of whom live “off-reserve” in Canada’s towns and cities. The Supreme Court of Canada has deprived all these Canadians of the protections afforded by the Charter of Rights and Freedoms on their home reserves and territories.

The Court employed cloud castle reasoning to bring about this illiberal and un-Canadian result, heavy on empty verbal assertions and abstractions with little relation to practical life.

Cloud castles are pleasant and charming to conjure up, even more so because they have no foundations.

The factual foundations of the Court’s decision, such as they are, like those of cloud castles, are mainly imaginary. To the extent that may exist in reality, they are wrong.

In an earlier article the writer wrote on this case Cindy Dickson discussed the discriminatory, black sheep treatment she faced when trying to run for office in Vuntut Gwitchin.

The article pointed out other negative, First Nations realities ignored by the majority of the Supreme Court of Canada in its judgement: the “banana republic” nature of small Indigenous governments, and alpha-type band chiefs and councils- “colonizers of their own people”- overseeing a conflicted, family-based system of self-dealing and crony capitalism.

Indigenous Justice O’Bonsawin, as part of her “Indigenous perspective”, expressly acknowledged these entrenched negatives and  listed other illiberal aspects of the “Indigenous difference” that the Charter exists to prevent or remedy: the unequal role given men in debating constitutional reforms, band membership rules that excluded some women and their children, election codes that prevent individuals from running for office on the basis of their gender, marital status or sexual orientation, and warrantless searches of homes.  As she wrote:

“It should come as no surprise that the inequalities that exist within the wider Canadian society may also be present or reproduced within Indigenous communities…Indigenous communities can be just as dismissive and oppressive when it comes to issues of gender equality as other orders of government. There is a similar and common need to protect the rights of all Indigenous citizens if their governments treat them unfairly, especially if they are part of a minority within the larger Indigenous collective.”

The Supreme Court majority wrote of “Indigenous difference” in a completely value-free way, making no moral, ethical or public benefit distinctions amongst all the infinitely diverse aspects of Indigenous cultures as lived by sovereign Indigenous nations from the time of the pre-literate, pre-contact period up to the high-tech, assimilative present.

The Court’s decision effectively shields from Charter application all Indigenous laws – good and bad – dealing with Indigenous collective rights and obligations that are culturally and historically rooted in “prior occupancy” and “prior sovereignty”, the presumptions of the Court majority  being that the concept of original sin is inapplicable to Indigenous peoples, (only to the rest of humanity), and that present-day Indigenous legal governance will be, as stated in the writer’s earlier article, only a positive and “dreamy exercise in pastoral collectivism”.

Life as always lived in the real world begs to differ with the Supreme Court of Canada, luxuriously ensconced in their wood-panelled chambers in Ottawa.

Recently near Quesnel B.C. the Lhtako Dene Nation and the Nazko First Nation demanded that the Quesnel City Council “utterly repudiate” the themes of a book, Grave Error-How the Media Misled Us (And the Truth About Residential Schools). They said the book was harmful to Indigenous peoples. The B.C. Assembly of First Nations echoed this demand.

These bands and self-governing nations are now all free, for the ostensible purpose of protecting “Indigenous difference” as they choose to understand it, to legally ban Grave Error from their reserves and territories and to make it illegal for any of their citizens to possess it or read it, or to even talk about it positively.

Any First Nation across the country is now free to do the same.

This writer’s own book, There Is No Difference, which denies the very existence of an innate “Indigenous difference”, could be regarded as a threat to it, and may now be legally banned by band councils and self-government leaders on their reserves and territories. (I wish! The sales of Grave Error shot up as the result of the attempts to suppress it.)

The late Cree lawyer and writer, William Wuttunee, one of the founders of what is now The Assembly of First Nations, in his 1971 book Ruffled Feathers: Indians in Canadian Society, (out of print), agreeing with Trudeau Sr.’s 1969 White Paper, argued that the Indian Act should be repealed, reserves abolished, and that Indigenous peoples, (he called them “Indians”), should be brought into a state of complete legal equality with all other Canadians. His was the argument of Nelson Mandela in South Africa, Martin Luther King in America, and of the writer’s There Is No Difference.

To the extent that there was an Indigenous difference, he ascribed it, not to innate Indigeneity, but rather to remediable social conditions caused by the Indian Act and the reserve system. (The mythological concept of “innate” human characteristics being transmitted at birth in racially or ethnically pure blood -a core concept of “Indigeneity” and “Indianness”, terms frequently used approvingly by the Supreme Court- is a core concept of racism.)

For his pains, Mr. Wuttunee was denounced by the Indigenous establishment of his day and was banned from setting foot on numerous reserves.

Today, thanks to the Supreme Court of Canada, if he were alive and if his book was still in print, both he and his book could now be legally banned from Indigenous reserves and territories.

Jody Wilson-Raybould wrote glowingly  in her book, True Reconciliation – How to be a Force for Change, of pre-colonial, Pacific Coast cultures governed by hereditary monarchs and clans. She describes herself as a proud Kwakiutl noblewoman.

Thanks to the Supreme Court’s ruling her Kwakiutl band and similar Indigenous bands and self-governing territories in B.C. can now legally pass laws to protect and even revive core aspects of those cultures. They can legalize slavery. They can pass marriage prohibition laws preventing nobles, commoners and slaves from marrying above or beneath their caste, laws to protect and preserve the greater rights of their nobles, laws that discriminate against non-reserve or non-territory residents, and election laws to preserve these feudal, hereditary monarchies and castes.

The B.C. government recently recognized the aboriginal title of the Indigenous inhabitants of Haida Gwaii. They represent 45% of the population of the Haida Gwaii territory. Despite that, thanks to our Supreme Court, the Indigenous minority can now legally pass laws denying to the non-Indigenous majority equal status and representation in relation to many important matters of common interest. This will surely create resentment and division, the opposite of “reconciliation”.

Because of this disastrous Vuntut Gwitchin decision the same illiberal realities face the vast majority of vulnerable, marginalized Indigenous Canadians across the country, with non-Indigenous Canadians, like in Haida Gwaii, surely liable to suffer collateral damage.  

The authoritarian, “banana republic” nature of Indigenous reserves and self-governing territories will only worsen.

“Indigenous difference”, in 2024 Canada, is a concept totally without foundation in practical reality.

Canada’s elite classes, including our Supreme Court, in opposition to the vast majority of the Canadian populace, uncritically assume that, unlike most other civilized countries in the world which work towards giving race no special legal status, Canada must always continue to do so with respect to our Indigenous peoples. This is partly because, according to Canada’s elites, Indigenous peoples are racially unique from the rest of Canadians.

In fact, the concept of race is mainly an illusion – a mental construct – perhaps genetically and historically a necessary one originating in man’s emotional and psychological need to feel that he “belongs”, and that’s he’s special and different from the “other”.

But it’s an illusion, nonetheless.

“Race,” or “racial differences” – substantive and seemingly conclusive and definitive concepts used to categorize and divide humans, and which engender such strong and intense and so often negative emotions – on close analysis, turn out to be largely imaginative social constructs only- “narcissistic minor differences” according to Sigmund Freud- with little scientific validity.

Historian Sir David Cannadine writes in his book, The Undivided Past:

“According to the findings of the Human Genome Project, people of all backgrounds, locations and “races” share more than 99.9 percent of their DNA, and in the cases of the remaining 0.1 percent there is more variation within stereotypical racial groups than between them. This means that 99.9 percent of the genes of a “black” person are the same as those of a “white” person, and that the genes of any “black” person may be more similar to the genes of a “white” person, than to another “black” person. Thus understood, race is a biologically meaningless concept and category, literally no more than skin deep. It is neither innate nor permanent, for skin color can change dramatically from one generation to another as the result of mixed-race marriages.”

He further writes, quoting numerous other scientists:

“Scientists have reached general agreement in recognizing that mankind is one: that all men belong to the same species, Homo Sapiens. Genes responsible for the hereditary differences between men were always few when compared to the whole genetic constitution of man and the vast number of genes common to all human beings regardless of the population to which they belong. It follow(s) that the likenesses among men are far greater than their 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.”

Are there that many social differences between the races and ethnicities of the world? – between Indigenous and non-Indigenous Canadians?  When one thinks of the preponderance of similarities, one realizes that relative to those, there are almost none.

In fact, the races and ethnicities of the world have almost everything in common.

Pulitzer Prize-winning biologist and naturalist Professor Edward O. Wilson, in his book, The Social Conquest of Earth, described human nature as “the inherited regularities of mental development common to our species.”

He then set out a famous alphabetical list of 67 social behaviors and institutions (“universals of culture”) common to virtually all human societies:

“Age-grading, athletic sports, bodily adornment, calendar, cleanliness training, community organization, cooking, cooperative labor, cosmology, courtship, dancing, decorative art, divination, division of labor, dream interpretation, education, eschatology, ethics, ethno-botany, etiquette, faith healing, family feasting, fire making, folklore, food taboos, funeral rites, games, gestures, gift-giving, government, greetings, hair styles, hospitality, housing, hygiene, incest taboos, inheritance rules, joking, kin groups, kinship nomenclature, language, law, luck superstitions, magic, marriage, mealtimes, medicine, obstetrics, penal sanctions, personal names, population policy, postnatal care, pregnancy usages, property rights, propitiation of supernatural beings, puberty customs, religious ritual, residence rules, sexual restrictions, soul concepts, status differentiation, surgery, tool-making, trade, visiting, weather control and weaving.”

Indigenous and non-Indigenous Canadians share all these universals of culture!

And conversely, one is hard-pressed to name just one cultural characteristic of Indigenous Canadians, (that is not rooted in and caused by the dysfunctional social conditions of “separate but equal” reserve life), that is not shared by non-Indigenous Canadians.

The conclusion is inescapable: genetically, “racially,” socially, and in every other way that counts, there is no “Indigenous difference”; certainly, none worthy of canceling the Charter rights and freedoms of 1.8 million Indigenous Canadians!

In recent years the Supreme Court of Canada has rendered many decisions harmful to the necessary sovereignty of the Canadian state. Now, the Supreme Court has rendered a decision harmful to the sovereign rights of individual Indigenous citizens of Canada.

 The Supreme Court of Canada is failing to properly perform its stewardship duties towards the preservation of Canada’s liberal, democratic order, where preserving individual rights and freedoms, subject only to necessary state restrictions, should be their highest, presumptive aspiration, value, and goal.

The illiberal and un-Canadian Vuntut Gwitchin decision is another example of this continuing failure.

Peter Best

April 23, 2024

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