The number of topics open to robust and far-reaching discussion in Canadian public policy is becoming smaller by the day. Among the many areas in which it appears heterodox thinking is now forbidden is Aboriginal law and policy. As accomplished historian and columnist Conrad Black has noted, there exists an “extreme reluctance of anyone to touch native affairs policy. That is an aversion the political class and the media will have to overcome, as it is a vital and delicate field in desperate need of reform.” Political promises abound to seek reconciliation, address poverty and repair water systems but there is scant willingness to acknowledge that Aboriginal law is based upon bad principles. In the interest of promoting much-needed debate, here are 13 things that can’t – but should − be said about Aboriginal law and policy in Canada.
1. Aboriginal law applies different rules to different people based on race, lineage and culture. That’s a problem.
Justice is supposed to be blind. The ideal that the same rules and standards should apply to everyone has a long pedigree in Anglo-American law. This hard-fought achievement, which required centuries of nurturing and sacrifice, is now fraught with controversy. Identity politics and “substantive” equality claims are both inconsistent with equal application of the law. And simply having a category in Canadian law called “Aboriginal law” is itself problematic, since it means there are different rules for people who are of Indigenous descent. As lawyer Peter Best writes in his impassioned essay, There Is No Difference, “Our new Canadians, a great many of whom have immigrated from South Asia where the odious caste system was and remains prevalent, must be upset and bewildered to see a major element of the caste system – special, hereditary rights possessed by one racial group to the exclusion of all others – becoming further entrenched in the Canadian legal and social fabric.”
The very notion of being “a people” means distinguishing between “us” and “them”, which in turn requires criteria based on race, lineage or culture to determine who shall qualify for the rights and benefits reserved to that group. Globally, everyone is a minority. Virtually all races and cultures on Earth are mixing (or “assimilating”), especially in Western countries. Canadians are usually quick to condemn anyone who advocates racial or cultural purity – except when it comes to Indigenous peoples.
2. In Canadian law, the legally privileged group is Aboriginal, not European.
The above statement may strike millions of Canadians as remarkable, possibly even preposterous. This reaction would not be surprising, given the tsunami of news media coverage portraying Indigenous people as marginalized and victimized. Yet it remains a true statement.
Indigenous people start off with the same legal rights as any other Canadian citizen: the right to vote in general elections, to hold a job, to make contracts, to own property off-reserve, to due process in the legal system, to marry whom they wish and divorce as they see fit, and so on. They hold these rights like everybody else and may exercise them as they choose.
They also, however, have additional rights no one else may claim. Depending on their lineage and group affiliations, they may have treaty rights. They may be entitled to tax exemptions. They may receive exclusive benefits. They may claim positions on bodies and in institutions that are reserved only for them. They may be entitled to procedures and considerations in criminal sentencing that no one else receives. Police seem reluctant, contrary to their statutory responsibilities, to enforce court orders against Indigenous protesters. And Indigenous people have an entrenched set of Constitutional rights, which include a fiduciary relationship with the Crown.
3. Problems with Aboriginal law are entrenched in the Constitution.
Section 35(1) of the Canadian Constitution states:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The effect of section 35(1) is to constitutionally entrench flawed principles upon which Aboriginal law is based, including the proposition that there should be different laws for Aboriginal people than for others.
Section 35 also results in giving courts the job of legislating the content of Aboriginal and treaty rights. The provision reads as though rights were frozen as they existed as of 1982 when the Constitution was patriated to Canada. But because the text is extremely vague and because our courts are willing to be creative and expansive in their interpretation of rights, Aboriginal rights and entitlements have grown over time and may continue to do so. Significant parts of the body of Aboriginal law are products of judicial imagination, cut from whole cloth in the minds of Supreme Court of Canada judges. Legislatures can do little to change the content of the law as pronounced by the courts under the auspices of the Constitution. Nor can section 35 be easily changed or eliminated since it is subject to an extremely onerous constitutional amending formula.
4. The “duty to consult” is paternalistic, incomprehensible and unpredictable.
The Supreme Court has said that the “honour of the Crown” governs the relationship between the government and Aboriginal peoples and that therefore the Crown owes fiduciary duties to Aboriginal peoples, including a “duty to consult” whenever proposed action may adversely affect established or asserted rights under section 35. That duty has become a threat to the Canadian economy. After years of process, astounding amounts of money and its purchase by the federal government, the Trans Mountain pipeline expansion, intended to transport additional volumes of crude oil from Alberta to port in British Columbia, was in 2018 sent back to the drawing board. The Federal Court of Appeal found that the government had failed to fulfil its duty to consult.
Although the project has now cleared its previous legal hurdles, it has yet to be completed. What does a government have to do, exactly, to satisfy the duty to consult? The courts seem unable to say, except after the fact. “[T]he duties that flow from the honour of the Crown will vary with the situations in which it is engaged,” the Supreme Court has observed. “Determining what constitutes honourable dealing, and what specific obligations are imposed by the honour of the Crown, depends heavily on the circumstances.” In other words, courts will not prescribe what needs to be done but, in any specific case, are willing to conclude that it wasn’t.
The Aboriginal right to be consulted may not be a veto, but it is more than an opportunity to give submissions. It is not necessarily a negotiation, but it could be one depending upon the circumstances. Legislatures do not have a duty to consult before they pass legislation but if the legislation is inconsistent with the honour of the Crown, then courts can intervene. It is not difficult to picture the often-unworkable uncertainty this state of affairs imposes on anyone wishing to do anything in any area near Indigenous reserves, on a title claim, or even in an area (or body of water) asserted to be “traditional” territory. And, indeed, uncertainty prevails in many areas, with the courts typically ruling on a situation only after years of negotiation, disagreement or dispute.
5. The recommendations of the Truth and Reconciliation Commission are neither binding nor democratically legitimate.
In 2006 the federal government reached an agreement with about 86,000 Aboriginal people who had been enrolled in residential schools. The Indian Residential Schools Settlement Agreement called for $1.9 billion in compensation and, in a schedule, allocated funding for an Indian Residential Schools Truth and Reconciliation Commission (TRC). The government appointed three commissioners (and then a fourth when one of the original three resigned). The TRC’s 2015 report contained 94 recommendations that expressed the commissioners’ opinions and preferences.
Although the TRC was an appointed body, the political class in Canada treats the TRC’s report and recommendations as political Gospel, not to be questioned or challenged. Universities, for instance, are falling all over themselves developing policies to “Indigenize” their curricula without genuine debate about the wisdom or educational value of these policies. Not even the report’s observation that “[v]irtually all aspects of Canadian society may need to be reconsidered” has been challenged. The Commission’s mandate was truth and reconciliation. The route to truth does not lie through self-censorship, political correctness or adherence to dogma, but requires disagreement and debate in unrestrained dialogue about contentious matters.
That will not be happening anytime soon. Unquestioned acceptance of the TRC’s recommendations is the only view currently tolerated in mainstream society. It is also actively foisted on Canadian law students, as well as lawyers in British Columbia, where the Law Society has determined that training in Indigenous cultural competency will be required as a condition of maintaining a licence to practice.
6. Maintaining a relationship of dependency requires cooperation from both parties.
Dependency is typically portrayed as a one-way relationship based on the Crown’s power and desire to continue oppressing Indigenous people. But in reality it endures because both the federal government and many Indigenous leaders prefer it to continue. In their book, Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation, Frances Widdowson, a politics professor at Mount Royal University in Calgary, and Albert Howard, an independent researcher, argue that dependency and persistently poor social conditions experienced by many Indigenous people can be traced to a thriving “Aboriginal industry”, consisting of Indigenous and non-Indigenous institutions and individuals – leaders, consultants, managers, bureaucrats, politicians, lawyers and others – who have a vested interest in the status quo.
The Indian Act, originally enacted in 1876, is widely acknowledged to be anachronistic and paternalistic, but no consensus can ever be found for its repeal. Meanwhile, the bulk of the TRC’s recommendations seek to reinforce dependency rather than end it, by calling upon government to fix this, build that, or pay lots of money. “We call on the federal government to…” appears repeatedly in the TRC report. Many Aboriginal claims are exercises in rent-seeking that essentially amount to an insistence to be paid for nothing other than their presence.
In her latest book Separate but Unequal: How Parallelist Ideology Conceals Indigenous Dependency, Widdowson describes three distinct kinds of wealth transfer that support many Indigenous communities and maintain dependence and dysfunction: direct government payments to finance local services; royalties for commodities like oil or minerals located not only beneath reserves but within larger traditional Aboriginal territories (which would normally belong to the provincial Crown); and compensation payments for historical wrongs committed by the Crown.
Government spending on Indigenous causes, which comes from different levels of government and from different Ministries, in a variety of forms, and provided for different purposes, totals many billions of dollars per year (although the complete figure is, perhaps not surprisingly, not transparently tallied). This lavish and, by any historical standard, generous approach does not work even for the intended beneficiaries. Instead it contributes to perpetuating overall poverty. In his book The Wealth of First Nations, University of Calgary professor emeritus of political science Tom Flanagan explains why Indigenous communities that focus on developing businesses in the broad economy have become wealthier than those that rely on government transfers and court settlements.
7. Genuine self-government requires genuine self-sufficiency. Self-sufficient means self-funded.
If Indigenous communities are dependent, they cannot be independent. Control and responsibility are two sides of the same coin. In Canada, “self-government” is a fiction while somebody else is footing the bill.
Expenditure of public funds calls for public accountability. Government funds provided for Aboriginal services are taken from Canadian taxpayers, who deserve to know where their money went. Band officials receive government money on behalf of their members, who deserve to know how the money is spent. Whether for infrastructure, housing, salaries, bureaucracy, emergency relief, subsidies for groceries, public inquiries or legal fees, the uses to which every dollar of public money is put should be transparent. The First Nations Financial Transparency Act, enacted by the Harper government, requires band expenses including salaries and compensation to be audited and published. But in 2015, the new Trudeau government resolved not to enforce it.
8. As a general rule, the people who live in houses and use infrastructure services should be the ones who pay for them.
Most people buy or rent their own homes. Urban dwellers fund their infrastructure through municipal property taxes, utility bills, and provincial and federal taxes. People who live in rural areas without access to centralized water and sewer services typically drill their own wells and install and service their own septic systems at their own expense.
These expectations do not seem to apply to all Indigenous communities. Reports abound of substandard housing on reserves, boil-water advisories and poor roads in remote communities, which then inevitably call upon the federal government to provide more funding to fix them – in some cases, more than once as federally-funded infrastructure is neglected and soon deteriorates. The federal government should not be in the housing or infrastructure business on reserves.
9. The reserve system denies robust property rights to individual Indigenous people.
Two-thirds of Canadians own their own home. Indigenous people living on reserves cannot do the same. That is because property rights do not work the same way on reserves. Canadian property law provides for private, individual ownership of land. If you own your home, you likely own a property interest called a “fee simple absolute”, which is the largest interest in Canadian real property law, essentially equivalent to title. The technicalities are not important, but it means that you hold all possible property interests in that land and can use, sell, mortgage, bequeath, or otherwise deal with your property in any way that the law permits.
Reserves, in contrast, are held by the Crown on behalf of a band (or “First Nation” in current parlance). Plots of land are not privately owned. Instead, people must make do with other kinds of property interests that provide them with the right to merely occupy a dwelling. Depending upon the community, they may have “customary rights” that are unenforceable in Canadian courts; certificates of possession under the Indian Act, which are legally enforceable but whose transfer is restricted; or leases, which are more freely transferrable but limited in duration. These kinds of interests leave people poorer than they would be if they were able to own their own homes. True property owners can accumulate equity in the property, care for and improve it to enhance its value, utilize it as collateral to secure loans at attractive interest rates, and sell it to the highest bidder in the open market.
Bands may opt into the First Nations Land Management Act, originally passed by the Chrétien government in 1999, to develop their own land management code. But this statutory regime still does not provide title to the land itself, either to the band or to individuals. The system of landholding on reserves remains an anachronistic obstacle to the prosperity of Indigenous people who live on them.
10. There is no property in culture and no such thing as “cultural appropriation”.
Learning about and using the ideas of others is an inherent part of being human. The idea that specific cultures or communities should be able to prevent others from adopting their customs, clothes, images, or stories is adolescent. Of course, no one minds (nor should they) when Indigenous communities “appropriate” ideas, technologies, or customs from elsewhere. Like Aboriginal law itself, the idea of cultural appropriation depends upon categorizing people not as individuals who are merely human but as members of groups in distinction from one another.
11. Individual responsibility is a core tenet of the Canadian legal system. No one is responsible for things they did not do.
No court would hold you liable if your grandmother caused a traffic accident or your second cousin committed an assault. Even the concept of vicarious liability depends upon the element of control: employers may be vicariously liable for the actions of their employees only if they are acting within the course of their employment and thus subject to the direction of the employer.
Yet people take seriously the proposition that random people of particular races or cultures owe compensation or apology to people of other races or cultures for events or circumstances that may have occurred before any of them were born. According to the TRC report, “reconciliation can happen only when everyone accepts responsibility…” If people decline to take responsibility for things they did not do, is reconciliation impossible?
12. Aboriginal people, like all people, are individuals with differing views and conflicting interests.
As the late Christopher Hitchens wrote in Letters to a Young Contrarian, “I am always and at once on the defensive when people speak of races and nations as if they were personalities and had souls and destinies.” Some Indigenous people are wealthy, some are poor, and some are in-between. Some favour pipelines and resource development and others oppose them. In some Indigenous communities, individuals lack democratic rights, as hereditary chiefs vie with elected leaders for power. There is as much conflict within and between Indigenous communities as there is between Indigenous and non-Indigenous.
13. The United Nations Declaration on the Rights of Indigenous People (UNDRIP) is a preposterous document that is being incorporated into Canadian law.
The UN General Assembly adopted UNDRIP in 2007. At the time, Canada sensibly voted “no”, along with New Zealand, the United States and Australia. Eleven countries abstained. In 2016, Canada reversed its objection. As a General Assembly declaration, UNDRIP is not formally binding in international law nor directly enforceable in domestic courts.
Such international documents can, however, be relied upon by domestic courts as evidence of international legal norms. Moreover, in accordance with a recommendation in the TRC report, the legislature of British Columbia in November 2019 passed Bill 41, the Declaration of the Rights of Indigenous Peoples Act. It requires the B.C. government to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.” The federal government has promised to do likewise.
UNDRIP essentially provides that Indigenous people, amongst other things, own the land and resources, have the right to self-government and to their own distinct political, legal, economic, social and cultural institutions and educational systems, and that the federal government shall pay for all of it. The declaration provides in part:
“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired…to redress…restitution…compensation…to have access to financial and technical assistance…to autonomy or self-government…as well as ways and means for financing their autonomous functions…to establish and control their educational systems…States shall take effective measures [to provide for all of the above].”
Among many other things, UNDRIP stipulates that Indigenous peoples shall have a veto (“free, prior and informed consent”) over resource projects that might affect any lands or territories that they “traditionally owned, occupied or otherwise used or acquired” and over legislation of any kind that might apply to them. If you thought pipelines, property rights and equal application of the law were in peril before, just wait for UNDRIP to take hold in Canadian law.
Speaking openly and critically about Aboriginal law and policy is now one of Canada’s cultural taboos. This reticence does not help Indigenous people or lead to genuine “reconciliation”. It is not emperors but governments, courts and chiefs who are wearing no clothes. For progress to be made, saying so cannot be forbidden.
Bruce Pardy is professor of law at Queen’s University in Kingston, Ontario. [email protected]