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.


  1. jesse says

    Not as familiar with Canada’s situation re: Native people as I am with that in the US but yes, the situation you describe qualifies as Kafka-esque, at least in its logic.

    Kafka wrote a lot about bureaucracy, and how the rules can make no bloody sense.

    I haven’t followed the posts you mention — I will — but it sounds like the fundamental disagreement you have with Jamie is that one of you sees the courts as an avenue of reform that flawed as it is, sometimes works. The other doesn’t. Is that about right?

    In the US, the Supreme Court has a decidedly mixed record regarding Native claims, though it should be noted that as far back as the Jackson administration the courts said the Federal government had a relationship that was that of nations (Worcester v Georgia, 1832) though that decision itself was something of a reversal of Johnson v. M’Intosh which aid Native people could not hold title to land (though the situation is more complicated). Worcester v Georgia is famous for president Jackson saying the courts couldn’t enforce it.

    Anyhow, while I agree that the system the courts in the US and Canada are involved in is hostile to Native people and the same is true in Canada, that doesn’t mean that you can’t pull out a win every now and then. After all, the system of law can be hostile to black folks too but we don’t have explicit segregation anymore, an there are (very, very imperfect) avenues for redress. It’s the difference between what I would like to see and what I know we can get in the here-and-now, I suppose.

  2. flex says

    Mildly Kafka-esque. I can see the logic of the lawyer. If the motion was not brought up by the lawyer for the decision of the judge, then it would be possible for the lawyer to be accused of wasting government money on a case which wasn’t legislatively meaningful enough to warrant the expense. In other words, it looks to me like a little CYA. So while the situation is a little surreal, it’s comprehensible.

    I would recommend reading some Kafka. While I’m not an English major I loved ‘The Trial’ and ‘Metamorphosis’ is about the most depressing short story I’ve ever read.

    My favorite Kafka, however, is the incredibly surreal “In the Penal Colony”, a short story about the operation of a torture device in a penal colony. The device inscribes the law which was broken on the prisoner with razor sharp knives, and over the period of 12 hours the machine etches the sentence deeper and deeper until the prisoner dies. During the last 6 hours of torture, the prisoner reportedly experiences a religious epiphany. But the story isn’t about this at all, the above is just a teaser.

    Kafkaesque is really more related to surrealism, but it’s understandable that it is also used for incomprehensible bureaucracy. Anyone who has had to navigate through a long-established bureaucracy encounters the surreal accretion of paperwork which covers the desired result like a paper-mache pinata. It is surreal in two senses; in one sense that such convolutions are necessary, and the other in that every form was added for a reason which seemed perfectly natural at the time. Sometimes, however, peeling off the forms, one at a time, becomes impossible and the only way to reach the desired result is to smash the pinata.

  3. pianoman, Heathen & Torontophile says

    Due to geography, I’m only partially familiar with the dysfunctional government machine that operates out of New York State. But one of the most striking things I’ve noticed is that every governor, whether newly elected or a re-elected incumbent, seems to go out of their way on day 1 of their term to start a confrontation with the Natives over taxes. The tribes have apparently done well with cigarette and gas sales, and Albany now wants tax money from their sales to non-Natives. Well, that’s probably an enormous chunk of their business. So the fighting begins, and the Native people threaten to set fire to tires on the Interstate or to set up toll barriers along I-90 over what is apparently Native soil.

    I don’t understand all the legalities, but there are arguments about the Treaty that the tribes claim is being violated, but New York has seemingly always had the courts on their side. What bothers me is Albany’s insistance on creating this strife so frequently. However, when the tribes stand up for themselves, the New York government appears to always back down. It makes me wonder if this is nothing more than political grandstanding.

  4. Anthony K says

    I had the opportunity to attend the Assembly of Alberta First Nations Chiefs in Calgary last week. Unfortunately, as I was representing my organisation at a booth outside the meeting room, I was unable to hear much of the discussion, but I was able to glean that one of the topics was the issue of general lack of justice for (or even interest in) missing and/or murdered Aboriginal persons within the Canadian justice system, an issue that certainly requires redress.

  5. says

    My understanding is that the problems driving the lack of justice for missing/murdered aboriginal people is more in the law ENFORCEMENT arena rather than the courts, but I could be completely wrong about that.

  6. Anthony K says

    My understanding is that the problems driving the lack of justice for missing/murdered aboriginal people is more in the law ENFORCEMENT arena rather than the courts, but I could be completely wrong about that.

    I would say you’re probably right about that. Thanks for the correction.

  7. jesse says

    @Pianoman — short version: yes, it’s political grandstanding. The strife ebbs and flows.

    (I live in NY State and lived and worked upstate for a while)

    Anyhow, the thing that makes NYS treaty obligations complex is that some of them actually predate the formation of the US. And the jurisdictional mess. To give just one exmple, when the violence broke out at Akwesasne 20 years back, over casinos, there was a huge to do over whose jurisdiction it was under. The reservation straddles the international border — remember what I said about pre-dating the US? and two provinces.

    So, what happened when things got hairy? You had, fighting over turf:

    1. The Ontario Provincial Police
    2. The Surete du Quebec (who managed to shoot one of their own men IIRC. Congrats, guys).
    3. The Franklin County Sheriff
    4. The FBI
    5. The New York State Police

    Oh, they also called in the National Guard.

    Akwesasne is a bit of an outlier, but not by much. So you can imagine that trying to untangle relatively simple matters (on their face) becomes a field day for billable hours.

    So what does this mean? The local counties want the cig tax and gas tax money. They get irritated because they feel like they have to pay and the Natives don’t. They aren’t too receptive to the argument that the Natives have a treaty with the US and all kinds of legal agreements about taxes. Onthe other hand the local (white) residents go get their gas on the res all the time. So local pols pander to that a bit. (In NYC nobody cares).

    There was even a dispute around the same time about the town of Salamanca, NY. Look that one up — at the time the Cuomo (Mario) administration kind of stayed out of it. Eventually a settlement was reached, but it was a needless mess all the same.

  8. pianoman, Heathen & Torontophile says

    @jesse – thanks for the info! It sure looks like these issues won’t be settled anytime soon.

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