The decent fix for aboriginal rights - Macleans.ca

The decent fix for aboriginal rights

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

by

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.