The decent fix for aboriginal rights

Aboriginal peoples of Canada deserve justice, says Barbara Amiel, but negotiations will be complicated

by Barbara Amiel

Chris Wattie/Reuters

The hunger strike of Attawapiskat Chief Theresa Spence was really more of a diet and thank goodness for that. Spence went 44 days eating only fish broth, herbal tea and water and emerged looking haggard but still well-rounded. IRA protester Bobby Sands, skeletal and comatose, died of hunger—the first of several IRA hunger deaths—in a British prison hospital in 1981. Our other Aboriginal “hunger” striker, Manitoba elder Raymond Robinson, ended his strike simultaneously and told CBC he couldn’t get a proper medical exam after his ordeal. He encountered that special Canadian experience—the overworked emergency ward of delays and curt questions, in his case by a “blond” nurse who he felt was exhibiting “racism” in her tone—and so he went home.

I appreciate that hunger strikes aren’t a competitive sport but one shouldn’t despoil them by so poor a showing. Or they become meaningless, rather like armed road blockages and millions of bucks gone missing on some reserves, not to mention the billions poured annually into Aboriginal programs. These tactics tend to put non-Aboriginals off.

All the same, the Idle No More movement, though inchoate, has focused needed attention.  Aboriginal peoples of Canada deserve justice—and in their lifetime. We’ve had nearly 300 years of wrangling over land title and Aboriginal rights. Only the federal government can end this, not the courts. They can offer a menu of choices for closure: lump sum payments that put an end to all land claims, or payments over time in cash and services, or a mix of both including royalties on mineral and energy resources. If the feds undertake to pay, the provinces will go along and it will be cheaper than endless billions for no good result.

Negotiations will be complicated. Chiefs wanting to talk to the Queen and wearing beautiful war bonnets are all very well (those golden eagle feathers are to die for and one hopes they were simply dropped by moulting eagles) but unlikely to help, though they are good photo ops. The sticking point will be representation of our First Nations. Bipartisanship between bands and leaders, let alone leaders and off-reserve Indians, is tenuous. I’m not sure the professional Indians—the ones we see on TV doing a native round dance or something indigenous—are up to the job.

Until quite recently, massacring native populations seemed the preferred solution. The United States was brutal, as were many South American countries. Canadian hands are not clean but on the whole, we preferred to let our natives starve or die of European diseases. We negotiated in the reassuring language of a monarchy with a Great White Mother (or Father) who would look after her children. This together with the monarchy’s tribal symbols made more sense culturally than the ringing words of Jeffersonian democracy.

We offered land and script in return for peace, homesteading, help against the French and the United States. We created reservations to preserve the hunting-and-gathering society. Great White Mother also removed children from their families and put them in schools where they were forced to speak a language that was not their own and were probably abused in large numbers. We defined who was and was not an Indian and structured payments based on our definitions. We made laws concerning if and where Indians could drink. We did all sorts of things that if done to us we’d be outraged.

Provinces, federal government and the courts played out battles—still going on—over jurisdiction, resources and money to the detriment of resolving Indian claims. The Great Helmsman, Pierre Elliott Trudeau, was behind a 1969 white paper that wanted to eventually abolish Indian status in order to back up his federalist claim that all Canadians were equal (while he paid off Quebec with huge transfer payments). Medieval Europe counted the number of angels on the head of a pin. Canada’s equivalent was to count Indians—granting status, removing status, denying status, excluding status. We even gave a constitutional interpretation to the closing lines of the 19th-century nursery rhyme “Ten Little Injuns:” One little Injun living all alone / she got married [to a non Injun] and then there was none.

Decades accumulated layer upon layer of social moss. The 1990 ruling in the Sioui case brought the notion of treaties to be construed not in legalese but as Indians would naturally understand them. But what 18th- or 19th-century treaty could have contemplated casinos and pipelines? Or human rights legislation? The “living tree” approach to our Constitution—the notion that the Constitution is organic rather than fixed—meant every societal change produced litigation by Indian groups claiming a new right. Today we have environmental rights with Indians wanting protection of their land, royalties from its resources—and no development. Something has to give.

On Jan. 8, Federal Court Judge Michael Phelan once more defined an Indian. Ruling against the federal government, he stated that an Indian remains an Indian wherever he lives and that a Metis is an Indian. You don’t stop being Indian because you leave the reserve. The thoughtful 175-page judgment was not without its bizarre aspects—among them the reliance on a definition of “ ‘Indianness’ . . . based on self- identification and group recognition,” a definition that leaves open a rather large barn door. Does hanging out at a sweat lodge with Indian friends count?

A Conservative prime minister is an unlikely choice to resolve a matter that has defeated so many but Stephen Harper is uncommonly clever. Constitutionally and morally, the greatest contribution any PM could make to Canada is to take this out of the hands of judges and bring equitable closure through the distinguished and respected principle of the High Court of Parliament. “Force, no matter how concealed,” say the Lakota, “begets resistance.” Let’s be idle no more.




Browse

The decent fix for aboriginal rights

  1. The tone is too know-it-all and condescending but mostly Babs get this right, except for one thing: “were probably abused in large numbers.” Probably? Excuse me? Uh, no, the widespread residential school abuse is a non-debatable fact. Theresa Spence is a grandstander trying to avoid scrutiny of her own sloppy-spending ways, but that doesn’t change the disgusting legacy of the residential school system.

    • The extent of the abuse is highly debatable, even though the courts and government have hidden behind Political Correctness. Many students had entirely positive experiences, but speaking out about them would create risks of retribution from those who want to use the issue to grab money and sympathy.

      • Many students had entirely negative experiences that they do not wish to relive through the torturous forms the government requires to be completed in order to “prove” the abuse. Take a look at this form and what the former students must “check off” in order to accumulate points that correlate to a compensation… purely disgusting. Whether or not the abused received any compensation, they at least deserve sympathy.

        • To add to what you’ve said – they have also implemented an “interview” process. A mother of one of my friends was part of this. She sat in a hotel, in front of 4 peoples who “graded” her experience while making her divulge various horrific experiences she has encountered while attended Residential School. After she had to do this, she suffered from a stroke from the stress and tension this meeting put on her body.

  2. This comment was deleted.

    • my mother-in-law was a status indian. My husband refuses to apply for his status. Has a job he likes and feeds the family. Doesn’t wanna take advantage of the system. We have a few native friends, all work hard, pay their way and are content with their lot in life

        • Indians are defined in the eponymous Indian Act.

          • This comment was deleted.

          • Nope, for indians are not only from India, but exist in Canada as well, and our Courts have even recently created over half a million of them.

          • Indians come from India.

            “Our” courts?
            Oh dear. Not my courts.

            Query?
            Is “nope” recognised as a legitimate word in the Canadian version of The Queen’s English?

        • It’s
          amusing (as well as offensive) watching our ‘legal beagles’ and
          government agencies try and grapple with the ‘definitions’ that
          are necessary for the continuation and administration of “race
          based law”…

          but if you’re going to
          administer people by racial and ethnic categories, then you
          must divide people into racial and ethnic categories, which
          means that you must first define the racial and ethnic
          categories:

          From Canada Revenue Agency’s page:

          “Note: We recognize that many First Nations people
          in Canada prefer not to describe themselves as Indians. However,
          we use the term Indian because it has a legal meaning in the
          Indian Act.”

          And from the Canadian Bar Association…

          (“A voluntary organization representing over 35,000 lawyers
          across Canada”):

          “The term “First Nation” has come into popular use as a
          term of respect for the position of aboriginal people as the
          original inhabitants of Canada. However, IT HAS NO CONSISTENT LEGAL DEFINITION
          and ITS ACTUAL APPLICATION IS BECOMING UNCERTAIN as it is
          increasingly defined in various statutes. Generally speaking, it
          applies to Indian bands or groups of bands and to Indian people,
          and it is used in that way in this script…”

          And: “The Metis are people of mixed aboriginal and
          non-aboriginal ancestry, but THEIR PRECISE LEGAL DEFINITION IS
          NOT CERTAIN… THERE STILL REMAINS A GREAT DEAL OF AMBIGUITY.”

          (I’m not making this stuff up…)

          “It has no consistent legal definition…”; “It’s actual
          application is becoming uncertain…”; “Their precise legal definition is not
          certain…; “There still remains a great deal of
          ambiguity…”

          I’m going to go out on a limb here: “Can’t you just smell
          the court cases that are coming?”

        • On using the term
          ‘Indian’:

          “The reader may have already have uncomfortably noted that I
          have been repeatedly using the word “Indian”. This is deliberate
          and I will continue to use this hard-sounding word throughout.

          “Indian” is the most legally accurate word to use and it is
          bluntly and uncomfortably to the point. “Indian” is the precise,
          legal and denotative term for what is in fact a purely
          race-based legal category of persons in Canada. It’s in the
          title of the Indian Act and used throughout that statute. It’s
          in the constitution of our country, referring to that class of
          aboriginals who inhabit southern Canada. (The other two legally
          defined types of aboriginals in the constitution are “Inuit” and
          “Metis”.) It’s used by our courts in their many decisions
          emanating out of this burgeoning area of law. Indeed, in a very
          recent and important Court decision, ‘Keewatin’, the court
          extensively discussed what it clearly regarded as the important
          and worthy concept of “Indianness”.

          “To me, it’s offensive and counter-intuitive to our basic, civic
          values that we should still have and want to permanently keep
          any category of Canadians defined solely on the basis of their
          race — and who would possess a whole series of special legal
          rights and entitlements based solely on the mere fact of their
          race — the mere accident of their birth. To me, Canada’s
          ultimate goal in this regard should be for us all to have no
          need or desire to have the word “Indian” in our constitution, in
          any of our statutes, or to be a meaningful legal term generally.
          Canadian history at least provides us with an explanation and a
          reasonable “excuse” for the original legal separation of Indians
          from non-Indians. But now, there is no reasonable excuse for our
          courts, our governments and governing classes generally to
          further entrench and expand this inherently illiberal and
          segregationist concept into our laws and civic life. But even
          though they have the best of intentions, that’s what they’re
          doing. That is the case.

          “Therefore, in order that the essentially segregationist and
          benignly racist nature of this case be brought to the fore and
          kept there — in order to continually highlight how this
          situation runs counter to our “not here-new world” liberal,
          humanist hardwiring — in order that the wrong and discomfiting
          nature of what is happening be not just read, but felt — I will
          be using, as if it were a verbal hairshirt, that precise, legal,
          racial term “Indian”. If the reader feels uncomfortable seeing
          and reading the word everywhere because it “sounds racist”, then
          good! That’s the point — 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.

          “For the same reason — clarity of unpleasant thought — I will
          be trying to avoid as much as possible the use of those other
          sanitized, progressive-sounding terms now being used to denote
          Indians — terms such as “natives”, “elders”, “urban elder”,
          “aboriginals” and “First Nations” (the last, a complete recent
          fabrication, nowhere to be found in the historical record or in
          the wording of any of the original treaties).

          “These are soft, vague, very emotive, relatively modern terms.
          They’re politically inspired and biased terms, connotative of
          pre-fall Edenic perfection, poorly supported in law or history,
          favoured and used by governments, the media, academia and by the
          “Indian industry” generally, and all of whom use the word
          “Indian” only when, usually for legal or technical reasons, they
          absolutely have to.

          “These terms all have the deliberate effect of masking the
          fundamentally (albeit unintentional and benign) racist,
          segregationist nature of the current situation. They also have
          the Orwellian effect, as most mandated politically-correct
          terminology does, of clouding clear thought and deliberately
          constraining and debasing free speech and public discourse on
          this issue.”

          –D. Peter Best, “Terminology”

          • Wow. You just quoted a failed real-estate lawyer turned blogger. *slow clap*

  3. This comment was deleted.

    • Nah, they’re only reputed to be comatose when thoroughly drunk.

  4. If your first nation…you lived or seen the abuse indirectly or directly…unless your abducted to live in the white society…..dont get me started on the childwelfare system of alberta and the scarey stats of fatalities from starvation, abuse, and sucide of “saved native children” ..then what about the fact the canadian govt had 145 YEARS to learn how to be a government…still riddled with corruption……and the first nation bands learn how to govern from this fine role model. Wow who can blame them for not being corrupted…when lawyers trained MPs and MLAs….are allowed to…..seems a double standard. God forbid when we met alien life….and make treaties…….because as soon as the government pulls the same shit…….it will be not pretty. so canada open your eyes and minds up…..bill c~45 is killing your drinking water and your wilderness and how soon we forget our children legacy for all canadians…..steven harper just started poisoning it for them….and i wonder how much oil money or perk he got under the table from the oil and gas shadow government to make them even richer……water, wildlife,clean air, nature, sustainable renewable energies, camping, hiking, and many other canadian treasures are the true riches of canada….to be enjoyed for generations to come……but oil and gas now……hey they have the last living moose at the zoo……let go see it before their extinct.
    Come soon if you let harper screw canada like he screwing the first nations

    • Even if I can manage to lift the fog of malapropisms and grammatical errors, your post still makes little or no sense.

      • This comment was deleted.

        • “your” instead of “you’re”, “seen” instead of “saw”, “their” instead of “they’re”… all the wrong words for the intent, plus misuse of the ellipsis and even there it is not spelled correctly (…), capitalization errors, other spelling errors, and then there are the outright lies about Bill C-45 supposedly poisoning water and the underlying assumption that we can somehow generate prosperity by camping and hiking.

          Comme diraient les français: “Un bordel de merde”

          • This comment was deleted.

          • “Why did you respond in a negative way…” Because he’s a semi-literate bullshitter. Reason enough not to fawn.

    • “our” first nations also have entrepreneurs, buisness people, and so on. There are bands that own huge industry and commercial buisnesses. They use part of their lands to prosper, the other part to live off of or for recreational. Example: Osoyoos, Westbank, Kelowna, other west coast tribes, the blood and blackfood in alberta, as well as the tribes in hobbema, the ones around, yes, the evil, fort mac. Not familiar with the eastern tribes, but i’m sure there are quite a few self-sufficient ones, as well. too bad they are not futured more, but I understand that they wanna keep a low profile, so as not to be alienated by the whiners.As for being stewards of the land we all know how well taken care of some reserves are. They resemble more a garbage dumb than a town. A lot of schools built on reserves have no qualified teachers.Why don’t the chiefs find out what interests the kids and try to give them the training they need in those fields? I’m sure there are boys and girls on most reserves that want to be teachers, nurses, carpenters. In this country everybody has a chance to train in anything they want. It starts with management at the top of the band to allow that and make it happen. Those kids would all be assets to any band once trained to help out their community. There is no reason for any reserve not to flourish, wherever they are. The up-lift or down-fall starts with the leadership

      • Indeed, not only are there successful reserves, but also many many indians are successful, have gotten an education, employment, and achieved as much prosperity as their neighbours.

        But if you grow up not being kin or crony of the chief you’re taught that nothing you do in life, no effort you make, is going to make a difference to your housing and living standards. So why bother to do anything at all under such circumstances? Might as well just drink booze or sniff gasoline.

        • It is sad, for sure. Maybe a way for the chiefs to take responsibility could be, if the government would announce where (which reserves) exactly they spend all the millions for water treatment. Where the schools are they built. That way if the media wants, or anybody else for that matter they could see what kind of condition those facilities are in after being in operation for one year, two, etc. They would have to take ownership. Small step, but a step none the less.Ever see a child that’s given a bean seed and planted it? They take so much care to water it and are just amazed to watch it grow. That’s whats needed in some families. A little seed that needs nurturing

          • That’s just tinkering with a bad system, though. The problem is the reserve system itself, with communal ‘ownership’ that necessarily means band, chief and council control. The people themselves need security of tenure, the knowledge that they won’t just be arbitrarily kicked out if they invest in their homes. And the people need the freedom to leave the reserve and get out from under the organization. Those who do end up with much better lives, on average.

  5. Michael Phelan is a fool . These judges who rule by how they feel on a given day need to live with the meth heads who share their logic.It is the judges who keep giving to Indians until they will truly be able to afford to kill themselves with taxpayer money What a fool Phalen is, he needs to quit abusing Canadians and stick to his own family.

  6. It’s time to support our native friends, protect access to clean water, healthy foods, an education that serves them and their wants…I am thankful for wisdom, art, dance, spirituality gifted to us whites who do not deserve such an honor.

    • I’m all in favour of making sure that all Canadians have decent living conditions, but please spare us the “magical Indians are more spiritual than white people” stuff.
      It’s a racist trope that doesn’t deserve to be repeated.

    • What a foolish, racist remark. You think that just because you’re sympathetic that you can make racial stereotypes? That’s exactly the attitude that the early Christian missionaries had. Why can’t you let Canadians of Indian descent come into the modern world — as INDIVIDUALS? And why can’t you realize that your do-gooder, Christian guilt-ridden stereotypes are inherently racist? It doesn’t matter that you think of yourself as a good person and carry guilt for your skin colour…

  7. “Reservations?”
    That is the term for the United Staes. In Canada they are called Reserves.
    Dave, Moose Jaw Sask

  8. Barbara Amiel needs to give her head a shake. I find this article to be offensive and written with ignorance. Ms. Amiel should either do more research for her articles or stick with subjects that she has more expertise in… such as fashion or dogs.

  9. What about the rest of us nevermind the freeloaders like thief spence

  10. Magical Mystery Tour.

  11. The basic problem with our Aboriginals today is that they are not equal to other Canadians. They are given more rights and more privileges than other Canadians whilst also being treated by the government like children who can’t take care of themselves and shoved off into the periphery on the reserves, which are basically ethnic ghettos. The objective, for both Government and the Aboriginals, should be to end the Treaties, dismantle the Reserves and make Aboriginals into fully equal Canadians, with no more rights and no fewer responsibilities than everyone else, free to succeed or fail on their own merits. We can’t do it quickly or easily, because casting Aboriginals adrift now with all the social problems they have is a recipe for disaster, but that has to be the long-term goal. Otherwise we’re just prolonging an injust system of racial separatism and ethnic tribalim that helps nobody, makes everyone miserable and only divides our country.

    We should have one Canada, indivisible, from Atlantic to Pacific, and part of that one Canada should be the Aboriginals, not as something separate but as full Canadians like all of us.

Your email address will not be published. Required fields are marked *