A Separateness that’s Anything but Equal

Brian Giesbrecht
October 24, 2019
A book’s significance doesn’t always lie in its literary quality. Poor writing, storytelling and plot might be fatal for a novelist, but politicians can often get away with all this and more. Their work’s importance lies in the insight provided into the mind of the person who presumes to rule, or participate in ruling, a country. Brian Giesbrecht finds it is just so with Jody Wilson-Raybould’s From Where I Stand. The public’s heroine in the SNC-Lavalin affair just won re-election as an Independent MP and, for good or ill, is likely to influence Canadian public policy for many years to come.

A Separateness that’s Anything but Equal

Brian Giesbrecht
October 24, 2019
A book’s significance doesn’t always lie in its literary quality. Poor writing, storytelling and plot might be fatal for a novelist, but politicians can often get away with all this and more. Their work’s importance lies in the insight provided into the mind of the person who presumes to rule, or participate in ruling, a country. Brian Giesbrecht finds it is just so with Jody Wilson-Raybould’s From Where I Stand. The public’s heroine in the SNC-Lavalin affair just won re-election as an Independent MP and, for good or ill, is likely to influence Canadian public policy for many years to come.
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By now, Jody Wilson-Raybould needs no introduction. She is best known to the Canadian public as the determined Minister of Justice who stood up to the repeated pressure from Prime Minister Justin Trudeau and his most senior people as they attempted to convince her to change her mind in the convoluted SNC-Lavalin affair. That scandal and her firing have made “JWR” part of Canadian history. She is widely admired by a Canadian public sympathetic to a proud Indigenous woman who stood up to powerful men. Now that she has retained her seat as an Independent – a rarity in Canada – it is certain we will hear a lot more from the member for Vancouver-Granville.

Wilson-Raybould has written a book, From Where I Stand: Rebuilding Indigenous Nations for a Stronger Canada. It opens with a very brief Foreword by Senator Murray Sinclair and a slightly longer but still slim Introduction by the author. From there it is entirely a collection of speeches she gave throughout her career. In the Introduction, Wilson-Raybould speaks with great pride about her Indigenous background, stating, “I come from the Musgamagw Tsawateineuk/LaichKwiltach people of northern Vancouver Island, who are part of the Kwakwaka’wakw, also known as the Kwak’wala-speaking peoples.”

With these almost unpronounceable and oddly spelled words it is almost as if Wilson-Raybould, and the creators of these words, were trying to be as separate and different as possible from the mainstream. After all, the spelling was made up by someone in recent times, for North American Indigenous culture had no written language. Why such inaccessibility? 

Self-described truth-teller Wilson-Raybould ran as an Independent MP and bucked the odds to retain her seat.

Lest this sound like pedantic or rude pettiness, the observation is emblematic, for all of the book’s speeches evince a determination to have Indigenous people be regarded as different from everyone else. Wilson-Raybould insists that Indigenous people are so different from all other ethnic groups that they need their own laws and even their own economic systems. But she doesn’t explain her radical position. That is because she can’t. Indigenous people are people with a different history. How or why that different history makes necessary the separate systems that Wilson-Raybould insists on is neither explained nor even mentioned. It is simply assumed and considered proven because Indigenous advocates say it is so.

If this weren’t enough, Wilson-Raybould insists that each of Canada’s 600-plus First Nations be entitled to an individually crafted legal system. She does suggest – echoing the 1996 Royal Commission on Aboriginal Peoples – that they consolidate into 80 or so larger units. Not one “nation” has since chosen to do that, however, and there is little reason to believe that Wilson-Raybould’s current recommendation will change things. Virtually nobody vested in the current system is willing to give up the, jobs, power, salaries and budgets that consolidation would eliminate.

Favouring separateness: Wilson-Raybould self-identifies almost entirely as Indigenous, despite having a non-Indigenous mother who raised her as a single parent.

Also jarring is that Wilson-Raybould speaks almost entirely of the Indigenous side of her ancestry, seldom referring to her other side – specifically the white mother who raised her in Vancouver as a single parent. Wilson-Raybould sees herself as an Indigenous person and has made her career out of her chosen identity. This eerily echoes the modern trend to identify as an Indigenous person or other minority if the family tree reveals even one long-dead such ancestor. It’s a strange inversion of the racist “one drop” laws of the American Old South, where the tiniest proportion of “Negro blood” disentitled a person from claiming to be “white”.

The need to abolish the federal Indian Act is taken as a given in Wilson-Raybould’s speeches. She eschews any slow and careful dismantling of all the legal and governance differences separating mainstream Canadians from status Indians living on reserves (First Nations). There’s no question this system is enormously expensive and grossly inefficient. But in its place she proposes a vague and complicated-sounding “nation-to-nation” structure that could well bring even more problems. It was Wilson-Raybould’s insistence on a radical version of this concept that led to her downfall. This, not the SNC-Lavalin affair, was the underlying cause.

Readers looking for revelations or even surprises about that scandal will be disappointed. There are none. Instead, they must plough through bromides about reconciliation, the need to work together, and the supposed benefits of developing separate systems of law for 1.5 percent of Canada’s population, who will be divided further into more than 600 self-governing nations. (Indigenous people make up about 5 percent of Canada’s population, but only an estimated one-quarter to one-third are status Indians living on reserves.)The speeches forming the book’s chapters are typically readable, but tend to run together into a monotone and contain surprisingly little that’s original.

Everyone supports reconciliation as a concept, for the fractured relationship between Indigenous people and the mainstream population has been an open sore for as long as the relationship has existed. The implied promise of the reconciliation that Canadians have in theory been participating in since 2015 was always social mobility: the large underclass of chronically unemployed and dependent Indigenous people on reserves and in poor urban offshoots would be enabled to make their way up the ladder. This has not happened, and there is no evidence that preaching more reconciliation or spending still more money in its name will produce it.

Instead, the underclass has remained poor while Indigenous people who have integrated and are already middle-class seem to have received the bulk of the $21.4 billion the federal government doled out in the name of reconciliation. Canada now has many more “Indigenous educators”, “elders in residence” and experts on “traditional knowledge and Indigenous science”, but it is hard to see how those government-funded positions will produce social mobility for the rest. Put bluntly, people like Wilson-Raybould don’t need to reconcile with me, and I don’t need to reconcile with her. We are already reconciled in that we are both fully integrated into Canadian society, and we are both doing fine.

Reconciliation has not alleviated chronic unemployment and poverty on hundreds of isolated reserves.

As for the people who are not doing fine, it is not reconciliation they need, it is jobs, and often the desire even to have a job. They need a way of improving their situation, and a reason why they should aspire to do so. This is the fundamental problem with the Trudeau/Wilson-Raybould notion of reconciliation, and none of Wilson-Raybould’s speeches addresses this conundrum. Instead, her speeches paint “reconciliation” in near-reverential terms, suggesting it is more ideology than well-thought-out political reform.

Her political agenda for Indigenous people’s future, meanwhile, goes in the opposite direction. She wants each First Nation given the power to make its own laws which, in her view, is the path towards both prosperity and cultural authenticity. She never explains why such separateness is necessary nor how it can bring success to these usually isolated mini-nations. Certainly, reserves rich in natural resources and/or lying close to major centres could exploit their advantages and conceivably succeed as politically independent entities. Most reserves are blessed with neither advantage, though, and Wilson-Raybould mounts no real case to show how more laws and powers – including still-more powers for the chiefs – will bring economic success and social health. The weight of the evidence suggests the opposite, but it’s an article of faith with her, as it has been with the Assembly of First Nations (AFN) since its inception.

Wilson-Raybould’s success in life belies her message of separateness. She is a thoroughly impressive person. Through education and hard work she has become a role model for young people, for women, and particularly for young Indigenous women. How did she do it? Her parents – particularly her mother – were key. They recognized that for their daughter to achieve the successful life they wanted for her, she had to be raised and educated in the city. At the same time, her mother recognized the importance of steeping young Jody in the Indigenous side of her culture. This was a successful formula. Wilson-Raybould went on to law school and a three-year legal career as a junior prosecutor before leaving for treaty work and what became a fast-rising and high-profile career with the AFN. Justin Trudeau recognized her star power and recruited her. Were she to return to the AFN it would probably be straight into the top spot. She is a rock star.

It was in her role as Attorney-General and Minister of Justice that she became nationally famous. Countless articles, including this C2C Journal essay, have documented her split with Trudeau and the Liberal Party. Of interest in From Where I Stand is that some of her earlier speeches hint at underlying disagreements with Trudeau. For two years, federal officials held secret discussions with the AFN that were intended to lead to what were called Section 35 legal rights and recognition framework talks. If successful, those discussions would have resulted in a radically transformed Canada, for the nation-to-nation concept was their focus. As information leaked out, Wilson-Raybould’s Cabinet colleagues grew increasingly concerned.

The closed-door discussion’s details remain secret, but Wilson-Raybould’s speeches provide intriguing glimpses into their substance. One key element was the AFN’s demand that each of the approximately 635 First Nations be entitled to separate negotiations with the federal government, in the nature of international treaties. Another was that their geographical demands were not limited to their reserves but also claimed limited jurisdiction over any land said to be “traditional territories”. Taken together, those claims could cover the entire country many times over, and might well give chiefs a virtual veto over any significant development throughout the country. Combined with Wilson-Raybould’s echoing of the AFN’s demand that their interpretation of the United Nations Declaration on the Rights of Indigenous Peoples be adhered to by the Government of Canada, and it’s no wonder federal negotiators blanched when the full implications sank in.

Indigenous people standing in a row with flags. Book Review
Secret talks to transform Canada: Trudeau, the Liberal Cabinet and even the AFN balked at Jody Wilson-Raybould's radical agenda.
Secret talks to transform Canada: Trudeau, the Liberal Cabinet and even the AFN balked at Wilson-Raybould's radical agenda.

British Columbia already labours under multiple claims to the same land by competing Indigenous groups. The concept, at bottom, isn’t so surprising in a country where pre-contact tribes of hunter-gatherers needed huge swathes of land to find the game necessary to sustain them. In Alexander Henry’s account of early Indian life it is estimated that each Indian family in the northern Prairies probably needed about 500 square miles of territory to survive the winter, mainly by hunting small game like rabbits. When one area was hunted out, the family would move on, set up a temporary shelter and hunt until the rabbits there too were gone. Families, clans and tribes would range over huge areas, the stronger driving out the weaker. That was pre-contact reality.

Still, such “traditional” territory wasn’t owned in the modern sense, but was open to anyone who dared enter. This provides some historical perspective on the latter-day practice of elevating “aboriginal title” to a doctrine equivalent to European legal ownership. It is an absurdity that, if not fought head-on, may yet see Indigenous groups owning or controlling much of Canada. It’s not a sound basis for creating virtually unchangeable policies to steer the future of a growing nation of 37 million.

Pre-treaty reality: Indian families ranged over huge areas in a relentless struggle for survival.

In any event, despite Wilson-Raybould’s persistence the secret talks were not successful – though she did make some enemies along the way. In one speech she directly attacked Cabinet colleague Carolyn Bennett, Minister of Crown-Indigenous Relations. She basically accused Bennett of cowardice for failing to let Wilson-Raybould and the AFN take the envisioned “transformational leap” (a frequent term in her speeches). But Bennett represented nearly the entire federal Cabinet’s views (an exception being Jane Philpott, who regarded Wilson-Raybould as her “mentor”) and had the ear of the Prime Minister.

Wilson-Raybould used similar terms in urging Trudeau to take a chance and accept her rights and recognition demands – even if no one knew where they’d lead. She quoted the late Chief Joe Mathias, who said the turtle moves when he sticks his neck out. “So let’s stick our neck out,” she said. In a speech in Comox, B.C. in September 2018 she declared, “The path of justice and equality is not achieved through half-measures, good intentions or lofty rhetoric. And it is certainly not achieved through obfuscation, or confusion about what we mean when we speak.” While Bennett was the direct target of these remarks, Wilson-Raybould’s subsequent statements made clear Bennett was only the proxy; the real object of her frustration and ire was the Prime Minister himself.

Wilson-Raybould would later tell Justin Brake of the Aboriginal People’s Television Network (APTN) in an April 26, 2019 interview that Trudeau had made “an incredibly important historic speech” on February 14, 2018. In what became known as his “Valentine’s Day” speech, Trudeau certainly sounded like he was promising the moon. He vowed to transform Canada’s relationship with its Indigenous people; this was to be his legacy. In a subsequent television interview he repeated what sounded like the same promise, later boasting that although he was not contemplating constitutional changes he intended to make it impossible for subsequent governments to undo the new laws, policies and relationships.

Making enemies: attacking Bennett, who had the Prime Minister’s ear, wasn’t Wilson-Raybould’s best move.

It seems Wilson-Raybould took Trudeau at his word. When he backtracked, she became “the woman scorned”. For, somewhere along the line Trudeau got cold feet and changed his mind. Perhaps Wilson-Raybould had spooked him with her ambitious talk about “transformational leaps”. And he wasn’t the only one. The AFN had grown nervous as well.

In May 2018 National Chief Perry Bellegarde insisted things were moving too fast and demanded a pause to the secret talks. We don’t know exactly which of the 10 parts of Wilson-Raybould’s agenda scared off the AFN, but it’s probably fair to assume the chiefs became worried by her talk of First Nations communities surrendering their constitutionally protected fiduciary relationship with the federal government in return for being granted more lawmaking powers. At least one CBC News report suggested as much.

The national chiefs have long maintained they want full self-government but have never been able to agree on the corollary that, to be recognized as adults legally and politically, they must give up the security of being treated as children by the “father” federal government – Ottawa’s fiduciary responsibility. They want both the new set of rights and the old, with each available to draw upon as a particular situation requires. It would be great for them, but is obviously untenable to any government and population not hell-bent upon abject surrender.

The chiefs also complained that Wilson-Raybould’s vision included what they referred to as “municipalization”, with each First Nation having powers largely along the lines of civic governments. The AFN chiefs do not see themselves as being like other Canadian rural residents who deal with local matters through Municipal Acts. They want to be genuinely treated as real nations. Either way, the secret talks stalled and have not been revived to date; the rights and recognition framework’s fate is unknown.

The AFN’s Bellegarde pressed “pause”, and Wilson-Raybould’s agenda remains in limbo to this day.

Wilson-Raybould’s confrontation with Trudeau over SNC-Lavalin, and her subsequent public statements and Parliamentary testimony, meteorically forged a national reputation for personal integrity and truth-telling. Less well-known is that she filled her previous speeches, and other public statements, with almost unending claims to having those same characteristics. In an October 17, 2019 interview with Brian Barth of The Walrus, for instance, she threw in the claim, “to be honest, which I always am”. She seems to have a fine opinion of herself.

A close read of her behaviour, however, suggests that view should be qualified. Her surreptitious recording of her ostensibly private telephone conversation with Michael Wernick, the Clerk of the Privy Council, is one instance. Wilson-Raybould later insisted this was the only such secret recording, but we’ll never for sure, will we? Are there other former colleagues she could still skewer if required? Her hubris likely also contributed to her problems with fellow Cabinet ministers, who found her difficult to get along with and concluded she was not a team player.

The implementation of a critical document guiding the tactics and behaviour of the entire federal bureaucracy vis-à-vis Indigenous claimants is another questionable episode – and one with huge import for the country. It is known as the “Practice Directive” and must be considered when assessing her claims to integrity. Drafted under Wilson-Raybould, it was brought informally and surreptitiously into force in 2017. It greatly constrains Department of Justice legal teams in their defence against Indigenous claims, no matter how expansive, and in settlement negotiations.

The Practice Directive’s 20 points changed the normal litigation rules by directing that “reconciliation” be the end goal of all such cases and that settlements satisfactory to the Indigenous plaintiffs be sought as a matter of policy. In the words of one anonymous senior Justice Department lawyer, it directed his colleagues “to litigate badly”. The Practice Directive seriously affected major claims even before it was formally implemented, such as the Restoule and Bruce Peninsula cases (covered in the linked C2C Journal articles).

Wilson-Raybould chose to formally implement the Practice Directive only early this year, but after she learned she’d been demoted from Attorney-General and Minister of Justice. She did so without consulting Trudeau – almost on her way out the door. This blindsided the Prime Minister and tied the hands of her successor. This certainly seems like less than honourable behaviour and not something a departing Minister of Justice should have done. Once in force, the Practice Directive almost certainly came into play in the federal government’s decision to remain silent at the first stage of the Federal Court proceeding in late summer in which Indigenous litigants challenged the new approval round for the Trans-Mountain Pipeline expansion.

Disappointingly, From Where I Stand sheds no new light on Wilson-Raybould’s split with Trudeau and the federal Cabinet. But a careful perusal of the record shows the rift had cracked open before the SNC-Lavalin affair, and if conflicting personalities could be seen as the chisel, the hammer was certainly her zealous and heavy-handed campaign for the “transformational leap”. There’s also the matter of just how well claims to “integrity” and “truth-telling” can be wedded with secret talks aimed at changing a nation – so secret that not only the Canadian public but the federal Cabinet and even the Prime Minister were to be kept ignorant of their substance until the result was sprung upon them.

While speculative, it’s possible federal negotiators realized the changes contemplated would require amending Canada’s Constitution. But Trudeau had ruled out taking the country down this path. It was in this context that the SNC-Lavalin affair then unfolded. Nor does From Where I Stand illuminate this drama, either. If revealing new truths in a balanced, reflective account was too much to ask for, one might have thought it at the very least a golden opportunity for Wilson-Raybould to drive him her side of the story.

Transformation through integration: Fort McKay Chief Jim Boucher works to spur even more economic development for his successful First Nation.

Reviewing her speeches in book form does, however, illuminate just how betrayed Wilson-Raybould felt by a brave-talking Prime Minister who then scuttled for cover. While the proposition is unprovable failing a confession from her, it would be only human for the accompanying anger and frustration to influence her handling of the SNC-Lavalin file. It led both to her own (probably temporary) downfall, and to the (possibly longer-lasting) tarring of Trudeau’s carefully cultivated “woke feminist” image.

There are other aspects of Wilson-Raybould’s record that, in her own words, suggest a personality of limited magnanimity whose idea of “reconciliation” runs in only one direction. Her speeches refer to “settlers” (rather than, say, “pioneers”) and “colonialism” (rather than the “exploration” and “founding” of Canada) and portray these as uniformly bad. Yet the benefits that those people and their system bequeathed on all of us provided the riches, comfort, peace and legal rights that current-generation Indigenous people and their leaders want more of. The world of the “settlers” was vital to Wilson-Raybould’s own success. She fails to acknowledge this. Perhaps, despite being raised by a non-Indigenous mother, she’s unaware of it.

Wilson-Raybould’s own story strikingly demonstrates that integration with the Canadian mainstream is the path to success for Indigenous people. She has succeeded magnificently without losing the cultural identity of her father’s side. So have many other Indigenous people – from tradesmen to lawyers. Their success was not delivered by separate laws, expanded treaties or, for the most part, special entitlements. Instead, their success has come from becoming good at something, going where the jobs are, working hard and persevering.

In many cases this has meant leaving the reserve for the city – but not in all, especially where native communities aggressively go after opportunities to participate in natural resource developments and/or infrastructure construction. But in those cases as well, it is by integrating into the Canadian economy rather than resting on special entitlements and separate laws that they have succeeded. Nowhere in her voluminous body of speeches does Wilson-Raybould address this obvious reality or tackle this clear rebuke to her vision.

From Where I Stand is worth reading if for no other reason than that Wilson-Raybould has become an important Canadian. Although our history includes people like Pauline Johnson, Wilson-Raybould is our nation’s first Indigenous woman to compete head-on with the powerful men and women who form our national elite. Despite all-too-human flaws, she is almost certainly destined to play an important role in this country. It is, however, to be hoped that as she matures she will leave behind some of her enthusiasm for the wrongheaded AFN separateness agenda and gain an appreciation for all the benefits that integration has bequeathed to her and the other Indigenous people who have become successful without losing their cultural identity. Perhaps, then, others who have not done so well can follow.

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 contributing to various newspapers and other publications.

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