Bad is the plan that can never be changed. – Montaigne
“Irrespective of what political party has been in power, there has been an incredibly challenging relationship between indigenous peoples and the Canadian government over time,” she said, and paraphrased Nelson Mandela on reconciliation: “Laws need to be changed and policies need to be rewritten.”-Former Federal Justice Minister Jody Wilson-Raybould 1
It is imperative that Indians should have full equality before the law. The provisions of the Indian Act do not give them equality. They are saddled with disadvantages which hound them continually in their daily lives…(Their) problems cannot be attributed to white Canadians only, or to Indians only. It is a problem which lies on the shoulders of everyone. Canadians must be prepared to repeal the Indian Act completely. -Aboriginal lawyer, former AFN founder William Wuttunee 2
The reason for the incorporation of the American-style Charter of Rights and Freedoms into the Canadian constitution in 1982 was to strike at the heart of the British constitutional doctrine of the supremacy of the legislature.
Prior to that time the Canadian legislatures, the House of Commons in Ottawa or any one of the provincial legislatures, could legally pass any law it liked, however wrong-headed or unjust.There were no limits on what a legislature could do so long as the constitution gave it jurisdiction over the particular subject matter in issue.
For instance, as an extreme example, before the Charter, the federal government had the legal right to pass laws having the effect of ordering members of a particular ethnic group to leave the country by a certain date, or face expulsion. Such a law would have been perfectly legal even though politically unthinkable, unconscionable and discriminatory. Similarly, a provincial government, before the passage of the Charter, could have passed a law forbidding a landlord in the province from renting an apartment to an Indian, a Black, or an Asian. However unthinkable such a law is, it would have been perfectly legal.
These examples are extreme, but they highlight the theoretical but perfectly logical dark side of the doctrine of legislative supremacy; that is, that Parliament can grant and Parliament can take away, at its total discretion and whim.
The framers of the Charter sought to avoid this theoretical evil by making all laws of the legislatures of Canada subject to the Charter insofar as they dealt intentionally or in effect with matters covered by the Charter, including section 35 of it, the section recognizing and affirming the aboriginal and treaty rights of aboriginal peoples. What these aboriginal and treaty rights were in 1982, when section 35 of the Charter was passed, no one could really say.
But Haida Nation and subsequent cases have certainly filled in those blanks with an interpretation of “rights” so “generous” in favour of Indians, and so harmful to the general weal, that I assert that if the framers could have imagined how the courts were going to interpret section 35 they never would have put it into the Charter.
Men have been sometimes led by degrees, sometimes hurried into things, of which, if they could have seen the whole together, they would never have permitted the most remote approach.
(Edmund Burke, Reflections)
The price for it – the social and economic harm caused and the legal destruction of Crown sovereignty itself- has proven to be too high.
With the repeal of sections 25 and 35 of the Charter the legislatures of Canada, the House of Commons and the provincial legislatures, their legislative supremacy restored, and, they not being constitutionally restricted as before, would then be able to pass laws in the areas of their respective jurisdictions reversing, eliminating or otherwise dealing with those destabilizing and devolutionary aspects of Haida Nation jurisprudence that each respective legislature felt it was in the public interest to do.
More particularly, the Tsilhcot’in created aboriginal title, and the chokehold mandatory duty to consult and accommodate, would both be able to be legislatively abolished, thereby restoring sole and paramount Crown sovereignty. The Indian Act and its progeny, the reserve system and special race-based laws and entitlements for Indians -UNDRIP- the heart of the whole benignly racist, quasi-segregationist, dysfunctional and harmful matter – would then be able to be moved to Canada’s legislative centre stage.
I assert again that the Crowns of Canada would be acting honourably towards Indians, having our fundamental Canadian values and the best long-term interests of Indians in mind, considered reasonably and in a modern context – having all the facts and arguments made in this essay in mind – if they, in constant consultation and, to the extent possible, in concert with Indians, in a measured and gradual manner, legislated the reserve system out of existence, legislated the eventual abrogation of all treaties with Indians and legislated the eventual end of special race-based laws and entitlements for Indians in Canada – thusly setting all Indians on the just and correct path of legal, social and political unity with all other Canadians.
This would not be anything like acting out the “dark side” of the doctrine of legislative supremacy. This would constitute the collectivity of Canada, acting through its legislatures, firmly, gently, wisely and in accordance with our highest Western enlightenment traditions, in accordance with a muscular exercise of the classically liberal values that have made Canada a beacon and refuge for the world, taking the collective hand of our fellow Indian citizens and with morally just and meliorist intentions and ultimate effect, pulling them up and into the Canadian family as equals.
Indian elites and many others will charge that these new laws, taken separately and together, would constitute a massive abrogation of Canada’s existing treaty obligations to Indians. They would be correct in that regard.
But, as stated above, an examination of the facts and circumstances surrounding the making of the treaties leads one to fairly conclude that the treaties were never intended by the Crown to create a permanent state of segregation of Indians from the rest of Canada. They were regarded partly as interim measures, as half-way stations between the old, lost Indian tribal cultures and eventual assimilation and integration into modern Canada.
Abraham Lincoln’s abolition of the evil institution of slavery represented a breach of the original agreement between the founding states of America that slavery would be permitted. He is a deal-breaker in that regard and is hailed, partly because of that, as one of America’s greatest presidents.
An article in the New York Review of Books3 by Yale History Professor David Brion Davis, argues that had Lincoln not acted the way he did – had the South been allowed to secede from the Union and create a pro-slavery republic – then the entire moral and political history of North and South America (where slavery was also commonplace) would have been markedly and tragically different. Mr. Davis writes:
Had there been no Civil War a thriving, independent Confederacy would… have gone far in presenting a wholly “modernized” view of racial slavery-probably a renamed institution, adapted to industry and reinforced by the shocking rise and spread of “scientific racism”…Given the expansionist dreams of Southern leaders in the 1850’s, coupled with the later Euro-American imperialism exemplified by the “Scramble for Africa” and the Spanish-American War, it is also quite possible that the Confederacy would have taken the lead in conquering Cuba and Puerto Rico and extending a proslavery empire into Central America. While such expansion might well have been checked by a war with the United States or Britain, it seems probable that an independent Confederacy would have retained slavery well into the twentieth century, significantly setting back “the century of New World emancipation,” especially in Cuba and Brazil. As for any argument that slavery is incompatible with “modernized” nations, in the 1940’s the productive German and Soviet economies became dependent on more enslaved people than ever existed at one time in the New World.
As in the case of the abolition of American slavery, an egg well worth breaking for the omelette of freedom, the passing of a law that takes away someone’s established rights or that abrogates an existing agreement can often be regarded as a much-needed and morally justified act – an act that serves a higher purpose than the abrogated law or agreement did – an act that brings a country’s reality into conformity with its ideals.
Laws abrogating the old treaties with Canada’s Indians, accompanied by meliorist measures, would fall into that category.
The affording to Indians of the status of full equality with their non-Indian fellow Canadian citizens would constitute Canada’s version of Lincoln’s Emancipation Proclamation and the passage of the thirteenth amendment of the U.S. constitution abolishing slavery.
It would constitute the Crowns’ full and final satisfaction of their enduring duty, ever-changing in application, to act towards Indians in accordance with the highest dictates of both non-native and native honour.
Whenever the white man treats the Indian as they treat each other, then we will have no more wars. We shall be all alike- brothers of one father and one mother, with one sky above us and one country around us, and one government for all. -Hinmaton Yalatkit- Nez Perce chief 4
- Quoted in Residential-school deals to be probed, Sean Fine, The Globe and Mail, November 18, 2015.
- Ruffled Feathers, above
- David Brion Davis. Should You Have Been an Abolitionist? The New York Review of Books, 21 June 2012.
- From Native American Wisdom, above