Bravo to Canadian skeptics: Jenny is Dropped »« Re: Aboriginal people in Canada and the courts

What it means to be represented

Following up on our discussion this morning of the Canadian legal system and whether it has improved in its ability to represent the best interests of aboriginal people. I think that, considering where we have come from, the courts are doing a better job than they were. However, I have time and again railed against the false comfort of downward comparisons, and I do not wish to come across as trying to make the point that we have ‘fixed’ the problem. A multi-generational history of white supremacy doesn’t get canceled out by a few court cases washed down with the tears of angst-ridden liberal settlers.

The problem isn’t that judges were white supremacists, and now they’re not, so we can stop worrying. The issue undergirding all of these problems, be they about race or gender or culture or ethnicity, is one of representation. Any supremacist system is one in which a single group of people is empowered to make decisions that affect all other groups. In Re: Eskimos, we saw an overt ‘classical’ case of white supremacy, in which aboriginal people were not even notified let alone consulted before their ethnicity was made into law. In the cases this morning, it was still up to a white judicial system* to recognize the rights** of aboriginal peoples.

No, we can’t really call a system ‘fixed’ until the people who are subject to the machinations of power are able to fairly and proportionately participate in the exercise of power. And, as I mentioned this morning, we have some cause to think that may start happening:

Her approach paid off this week when she was awarded a PhD in education from UBC, becoming part of the largest group of aboriginal doctoral students to date to graduate from an education faculty at any Canadian university in one year. The group of 11 students undertook research areas such as prison education, aboriginal children in care and family violence and healing.

(snip)

Forty-three aboriginal doctoral students have graduated from UBC’s faculty of education in the past 20 years.

Now, to be sure, a handful of aboriginal people with PhDs is not “the mountaintop” to borrow a King-ism. It’s perhaps a step in the right direction. Given the way in which academia tends to rest pretty heavily on its own set of white supremacist (or at least European-rooted) axioms and traditions, there are likely to be unique cultural and racial challenges that aboriginal students face as they matriculate, but these new graduates will be in a position to contribute to academia, rather than merely being subject to its outputs. As they bring their own traditions and values to bear in their work, they can begin to push the lily-white edifice of education toward one that is more representative of the cross-section of Canadian and First Nation experiences, rather than simply the perspective of the colonizers.

This decision matches other recent developments that give me some cause for optimism that we may be seeing a meaningful and enduring shift away from a society based on racially/culturally homogenous exercise of power towards one that is more representative of the diversity that makes this country so distinct. What we cannot allow ourselves to do is rest on our laurels and imagine that all of the hard work has already been done. We are only now starting to see these gains – we serve ourselves best by redoubling our efforts and refusing to shrink from our responsibility as human beings.

The first step must be to create more opportunities for people whose agency and participation has long been denied them by an unfair system. The second step is to assist in building support structures to make success more possible once those opportunities have been seized. Somewhere in there is a step called ‘get out of the way and let people build their own things’. The nth step is profit.

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*Although I feel compelled to relax this standard a little bit, given that this isn’t strictly a ‘white people’ problem. Not a lot, though.

**HUGE pet peeve of mine is when someone reports that a court or a government ‘grants’ rights to a group. Rights are rights. Governments and courts either recognize and agree to protect them, or they don’t. Nobody grants them.

Comments

  1. bobthelunatic says

    Agreed. Rights are revealed, not granted. A nation disrespecting liberty will claim it took them, or never addressed them, etc… but the reality is, they are too short sighted or selfish, or inhuman to recognize them.

  2. Brad says

    Hold on, what? Where do rights come from, then, if they are not granted by an existing body? Rights existing independent of the social contract sounds rather woo-y.

    What skeptical origin of rights is there, independent of the systems of law that arise from the social contract?

  3. says

    Rights are claimed, not “revealed” or “given”. People claim to have a right to something, and then a group (in this particular case, the state) decides whether to protect that right or not.

  4. Brad says

    Ok, that’s much better, if a smidge problematic. Not sure how I feel about not having the “no, you don’t” response to “I/we have the right to X” where X is something shitty.

  5. says

    Not sure how I feel about not having the “no, you don’t” response to “I/we have the right to X” where X is something shitty.

    It then becomes a philosophical debate. Or you have to get them to define in what sense they have a right – a legal right? a metaphorical right?

  6. says

    I studied Indigenous Law at UBC law school. One thing is very clear. We do not have a justice system, we have a legal system. Moreover, it is a corrupt legal system. It is corrupt with regard to the Indigenous Peoples, but the general corruption is easier for me to explain by reference to the prohibition of Cannabis. I am not trying to change the focus of the conversation here on Indigenous Peoples by discussing this. It is the corruption of the legal and political systems I’m interested.

    Cannabis is prohibited in Canada solely because of “the hysterical, unscientific and racist rantings of Emily Murphy, Canada’s first female magistrate (and one of the Famous Five who successfully argued that women were “persons” under Canadian law) that may have been the impetus for criminalizing cannabis.” A close reading of the legislative history suggests she is responsible for those immoral laws that have cost individuals and society so much pain and treasure. For a concise history of how corrupt the whole process of prohibition was and is see:

    http://www.cfdp.ca/giffen.htm and http://mypage.uniserve.com/~ttrevor/peter_pot.html

    Here is a draft excerpt from an open letter I am working on to all law societies, bar associations, lawyers and judges.

    ***
    An Open Letter to All Canadian Law Societies, Bar Associations, Judges and Lawyers

    A Globe and Mail Editorial, “The war on drugs becomes a meaningless skirmish with sick people”, February 4, 2013, stated the following:

    “The constitutional arguments around this issue could fill volumes without ever touching on the most obvious point: The supposed war on drugs has become a meaningless skirmish with Mr. Mernagh and people like him. The machinery of the state is being used at great cost to prosecute a man whose adult life has been a struggle against pain of one sort or another.”

    What the editorial does not make clear is that those who created and maintain that machinery are mostly lawyers and judges. It is lawyers and judges that have made that immoral, unjust war against citizens possible. An honest reading of the legislative history of Cannabis prohibition in Canada results in no other possible conclusion but that the laws prohibiting Cannabis were created in a legal vacuum, without reference to history, facts, science or reason. The famed ‘reasonable person’ was nowhere to be found in any parliamentary debate, not even in the legal profession that so often turns to that ‘reasonable person’ for guidance.

    For nearly a century now, the prohibition of Cannabis has corrupted the ‘heart’ of Canada’s legal profession, which professes to uphold the rule of law, but in practice brings great disrepute to the administration of justice. Millions of Canadians have ignored those prohibition laws for decades now, recognizing they are unjust and immoral, while the machinery of the state has wasted billions of dollars attempting, but failing, to change the harmless behaviour of citizens through the strong arm of the law, and creating a black-market for organized crime gangs in the process. It is irrefutable that the prohibition of Cannabis causes far greater harm to individuals and society than the drug itself does.

    While those lawyers who wrote, write, enact, prosecute and enforce unjust prohibition laws have much to answer for, so do those on the opposite side who defend and advocate for citizens caught up in the injustice system. Just as with poverty, where an industry has arisen that perpetuates poverty & homelessness through food banks and homeless shelters which normalize poverty and homelessness, the war on drugs has created a prohibition industry of defense lawyers, advocates and activists, which also seems to solidify the status quo. Unfortunately, it appears to me as if the love of lucre, which some believe is the root of evil, may be part of the explanation as to why so many lawyers and judges turn a blind eye to the evil caused by prohibition. And to be clear, by evil I do not mean in the theological sense, but in the psychological sense of harming innocent people.

    Over the decades, after each legal victory in the courts, successive governments have simply moved the goal posts, so justice is never possible. If Canada had a true justice system, as politicians and lawyers are so fond of calling it, then no citizen would ever face any legal sanction whatsoever for consuming, possessing or growing for personal use. If we had a true justice system, instead of a legal system, no prosecutor would prosecute anymore Cannabis cases, no judge would hear a Cannabis case, and all law societies and bar associations across the country would call for a civil disobedience strike against Cannabis prohibition.

    Justice delayed is justice denied, and justice has been denied to Canadians for decades now thanks to lawyers. …

  7. DeepThought says

    “A HUGE pet peeve of mine is when someone reports that a court or a government ‘grants’ rights to a group. Rights are rights. Governments and courts either recognize and agree to protect them, or they don’t. Nobody grants them.”

    Mine too. Because groups DON’T have rights. Only individuals do. Groups can be granted legal PRIVILEGES (e.g. limited-liability corporations) but not RIGHTS.

    The case for racial justice is made just fine on the basis of individual rights, thank you. If your idea of achieving racial justice is adhering to an idea of group rights, you are careening down the wrong path at breakneck speed. You have to special plead every single time. Unlimited financing of political candidates and political activity by major corporations? Bad. (Yes, it’s bad, and the U.S. Supreme Court got this one wrong in a big way.) Unlike individuals, who have and should have the basically unlimited right to participate in the political process in a free society, this is NOT a RIGHT corporations can claim to have. It is a privilege which may or may not be granted. But, “rights” of First Nations or Native Americans to, well, nebulous things like “self-determination”, “self-government”, etc.? Good, according to you. But on what basis, if you are willing to deny group rights in some circumstances but allow them in others? And then, what if I should decide to join this group but they wish to exclude me? Good, if it’s Native Americans, right, on the basis that I can’t trace my ancestry 700 years ago on this continent; “they got here before we did”. But bad, if it’s we excluding Mexicans from immigrating to the U.S., right, even though “we got here before them”.

  8. says

    All this paragraph is is a repeated assertion that groups don’t have rights, because you say so. Well that’s not fair, that’s not ALL that’s in the paragraph. There’s also a bunch of weird inversions of fact (corporations aren’t even groups, aboriginal Mexican people were in the U.S. territory long before most Americans). All in all, I give it an F-.

  9. DeepThought says

    Yes, well, that was in response to your assertion that groups have rights, because you say so. You didn’t even attempt a response to my complaint that that leads to all kinds of difficulties. And you deliberately (and quite intellectually dishonestly!) confuse “aboriginal” Mexicans with what you know I was referring to, Mexicans who are now attempting to immigrate to the U.S. Move to strike as non-responsive, your honor.

  10. says

    I honestly had no idea what you’re referring to, so you might want to get your psychic thingamajig looked at.

    There are lots of examples of rights being exercised by groups (political parties, governments, trade unions), so this assertion that “groups don’t have rights, only individuals have rights” is patently absurd on its face, and nothing in your ramble following the assertion supported any coherent argument, so I’m not exactly sure what you’re asking me to respond to. Your corporations example is just plain wrong, and I’m not sure what right is being claimed by Native Americans that is being denied to Mexican immigrants.

  11. says

    Umm, what’s to keep anybody from claiming any right they want then?

    Absolutely nothing. Which is why people claim all kinds of rights. Only some of them are recognized and defended under law.

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