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Re: Aboriginal people in Canada and the courts

Jamie and I had, in the not-too-distant past, a disagreement over whether or not the Supreme Court of Canada (in its contemporary form) is an ally of justice when it comes to aboriginal people in Canada. Indeed, based on Monday’s post, it would be hard to make the case that Canada’s court systems are anything other than the most hypocritical arms of a white supremacist system, garbed as they are in the clothing (both figurative and literal) of justice. Any court that doesn’t recognize Canada’s current system of legislated inequality and discrimination when it comes to aboriginal sovereignty and the recognition of Treaty rights cannot really lay much claim to the title of ‘Supreme’.

That being said, I understand (perhaps better than Jamie, perhaps only differently from him) the Constitutional limitations of the court. It is the duty of Parliament, and not the courts, to create legislation, and most judges are quite loath to overturn the will of the elected government* unless there is an extremely compelling reason to do so – i.e., the law violates the Charter rights of Canadians. Judges are also bound to interpret the law according to the way it was interpreted by previous courts, making it a dispositionally conservative entity.

All that being said, as I pointed out before, the Court has made some recent decisions that I support. Decisions that I believe reflect a progressive sense of justice, and a decision-making process that prioritizes harm reduction over tradition, and attempts to balance maximum freedom with the greater good. Of course if I’m happy, that means that there are a lot of people on the political right who probably hate every single Justice, but that’s rather beside the point.

What was the point again? Oh right… Canada’s courts aren’t completely awful:

The federal government is obliged to turn over its archival records on Indian residential schools to the Truth and Reconciliation Commission, an Ontario court decided Thursday. In his decision, Justice Stephen Goudge said the obligation to provide the materials is clear from the settlement agreement that established the commission.

“The plain meaning of the language is straightforward,” Goudge said. “It is to provide all relevant documents to the TRC.” The decision comes in an increasingly acrimonious dispute between Ottawa and the commission over millions of government documents the commission says it needs to fulfil its core mandate.

For those of you not familiar with Canada’s residential schools, they were part of an intentional program of genocide by the Canadian government and (who else?) the Church to disrupt and destroy aboriginal culture, family structure, and First Nations identities in general. As one might expect when powerless children are forced into schools with little oversight save the chaste and benevolent hand of religious authorities, rape and other forms of physical and psychological abuse ran rampant through residential schools. It is possibly the darkest chapter in a history full of fairly gruesome moments – a history we are just now beginning to contend with.

The provincial court of Ontario has made it clear that the federal government cannot address this problem through half-measures and obfuscation, nor can they beg poverty as justification for failing to provide the documents they are legally obligated to provide. Now this is a provincial case, meaning that there are still opportunities to appeal (a decision the government has not made publicly yet, and one it would be smart to avoid in light of ongoing First Nations activism), so this story isn’t completely told yet, but it’s a good sign.

Another interesting development has emerged from the courts quite recently:

The federal government has lost the latest battle in a 13-year legal fight over its responsibilities to Métis and non-status Indians. On Tuesday, the Federal Court ruled that 200,000 Métis and 400,000 non-status Indians in Canada are indeed “Indians” under the Constitution Act, and fall under federal jurisdiction.

The decision helps to more clearly outline Ottawa’s responsibilities toward the two aboriginal groups. “The recognition of Métis and non-status Indian as Indians under section 91(24) should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups,” Federal Court Judge Michael Phelan writes.

As I wrote on Monday, the Indian Act spells out a very specific relationship between the federal government and ‘Indians’, but the basis upon which such a designation is made is anything but specific. As a result, there is a major incentive (both financial and existential) for the federal government to recognize as few people as ‘Indians’ as possible. Like we saw in the events that preceded Re: Eskimos, there is a countervailing incentive for the province to treat as many people as ‘Indians’, since care for them would then be a federal issue.

The legal identification of Métis people and people who are sometimes identified as “non-Status Indians” has been a multigenerational labyrinth, with the federal government (and its set of deep pockets) on one side, provincial governments (with their own relatively-deep pockets) on the other, and a bunch of people who can often barely afford pockets caught in the middle. After a thirteen-year legal battle*, a federal court has made a clear declaration that they should be covered under the Indian Act (for better or for worse – there’s a lot of good and bad on both sides).

But for good or for ill, it is my estimation that the courts, while certainly not perfect by any stretch of the imagination, are at least making some steps in what I consider the right direction. Granted, we’re grading on a curve that starts in an explicitly bigoted place, but we’re also consistently seeing the courts side against the federal government*** and in such a way as to acknowledge not only the rights of aboriginal people in Canada, but their history as well.

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*Which is a fight Jamie and I can have another time.

*I haven’t read enough Kafka (or really, any Kafka) to understand the term ‘Kafka-esque’, but there’s a fascinating aspect to this story that I think bears exploring. The case against the federal government was actually funded by a federal government program that was set up to ensure that legislatively-meaningful cases concerning Aboriginal issues were properly funded. One of the chief arguments of the federal government’s lawyer was, I shit you not, that the case wasn’t legislatively meaningful enough to warrant a decision. The judge himself noted the bizarreness of this argument. If anyone reading this is an English major, maybe they can tell me if this is ‘Kafka-esque’.

***It should also be noted that these cases are against the federal government, not this federal government. These decisions are not partisan, despite the wish of many partisans to crow about them.