A reconciliation project

No legal advice, just some random commentary on the core principle of aboriginal rights jurisprudence in Canada

Month: June, 2011

Critical reflections on Reconciliation

Caught an interesting Op-Ed by Steven Newcomb in Indian Country Today.

Playing from the ecumenical sense of the term (I sincerely hope), Newcomb draws the connection
between ‘reconciliation’ and the Inquisition (yeah, we got a piece of that action in the Americas).

Consider as well the connections between the quasi-religious connotations of reconciliation and those
of the doctrine of discovery, terra nullius, and a range of related theories used to justify the illigitimate
dispossession of indigenous nations.

And between "Reconciliation" and the residential schools policy (this is something I’ve heard before –
indeed I’ve argued that ‘reconciliation’ could well be used as a cover for assimilation – surely in a different
time and era, because we hopefully have moved beyond that)

This is what I love about Newcomb (in fact, I highly recommend his book, Pagans in a Promised land –
don’t just read it, buy it and put it on your bookshelf, you’ll be well served to read through it carefullly several
times over).

While I agree with him, I think the key question raised is ‘what are we reconciling’? Are we reconciling
the fact there are established societies surrounding our communities, and these societies aren’t going anywhere?
Are we reconciling modern realities with the equally compelling realities that we (collectively) remain nations,
endowed with the same rights, privileges and obligations of other nations? (I like this one)

Or, in terms of Canadian law, are we reconciling the fact that Canada has exercised de facto (factual, rather
than legal) sovereignty over this territory, despite the fact indigenous nations remain, and remain fully endowed
with the juridical status of nations?

I like that one a bit, too.

But there are several other incarnations of reconcilation, that appear less charitable.

But the choice of term by the Supreme Court is definitely interesting, given its connections to the doctrine of discovery.

Something to think about…
this territory

Canadian Human Rights Act: A Nation Building Opportunity

The Canadian Human Rights Act provisions exempt the Indian Act from scrutiny under the CHRA are
now fully exempt. Starting today (I believe), individuals with complaints against First Nations may file
complaints with the CHRA.

Did you know that one of the provisions of the CHRA allows the Canadian Human Rights Commission to
defer consideration of a complaint, following the completion of another procedure? My guess is this was
probably developed for union grievance processes or some such matter, but I bet First Nations could
find it…useful.

Many First Nations have claimed for centuries that our traditional societies were more respectful and more
equitable than the modern liberal rights framework. Although many are concerned about the ‘imposition’ of
the CHRA, because it may generate liability, I say it gives First Nations an opportunity to demonstrate through
action what has been asserted through advocacy and theory.

If a First Nation were to develop a human rights body for its community (or a group of related communities),
it would provide a vehicle for the resolution of disputes that combine the human rights framework with customary
law frameworks. Those who suggests these two bodies of law are irreconcilable may wish to consider the
progress that has been made in international human rights law with respect to indigenous rights, particularly
collective rights and application of customary law.

The CHRA; however, offers more than an opportunity to apply customary law – one could arguably apply customary
law in a common law court. It offers control over the procedure – the development of First Nations Human Rights Commissions.

In additition to control over cases, these bodies could also provide a critical monitoring function, elaborating for the
Canadian Human Rights Commission, Parliament and the international community on our own interpretation of what
human rights mean and how those rights are recognized (or not) in Canada. An independent voice and an expert voice
that would lend additional credibility to many of the arguments so many have made on the aboriginal situation in Canada.

Hey, if anyone’s interested in looking into this, go ahead and count me in!

A minor omission

It strikes me I never got into why I started this endeavor, or what its really about.

Reconciliation can mean many things to many different people. I believe that in aboriginal rights law (as we call it in Canada), the term
reconciliation is almost a legal term of art.

This is from paragraph 44 of a case called Van der Peet. The court defines "the purpose underlying s. 35(1)" as "the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions".

There have been several other elaborations of reconcilation, as a purpose, as a concept, and perhaps as a legal principle.

I believe that reconcilation is a term used by courts to signify the uncomfortable fact that Canada may have been established through means that
discriminated against indigenous nations, a discrimination that courts aspire to address though the aboriginal rights framework.

Aboriginal rights is about more than mere practices or some kind of legal archaelogical expedition, its about recognizing indigenous nations, and specifically
those nations of our ancestors were and remain nations. This is really about nation building. Or, more accurately, creating legal mechanisms and frameworks
for the recognition of our nations.

A belated goodbye to AG Fraser

Here’s the story:

I’m a bit shocked the former AG expressed so much surprise about this. It just seems like the only
way any progress is ever made on these issues (for better or for worse) occur from a rights-based
platform. Because the hard issues on these files aren’t really about program performance (its an issue,
but there are several, bigger issues)

I’m hoping Ms. Fraser considers continuing to work on aboriginal issues, particularly related to performance
measures and data disaggregation, in order to determine the extent of the gaps in both outcomes and
funding faced by First Nations. We all hear about the ‘gap’, but it would be helpful to have more quantitative
data to describe it.

Those gaps may reveal discriminatory conduct that someone may deem to be unjustifiable, leading to
a legal remedy. Which may not form a complete solution, but would likely provide both motivation and
a solid basis for future program and accountability reform.

And maybe greater control by First Nations themselves….but that’s quite another story…

ILO Convention 111

One of my main ideas is that a true and just reconciliation cannot occur between First Nations (and other aboriginal groups) and the state so long as discrimination is tolerated in Canadian society.

Often, the discrimination faced by aboriginal peoples is particularly invidious because it is directed not at the individual, but rather at the collective, the aboriginal nation.

One potentially sore sticking point is the concept of ‘moderate livelihood’. Without getting into the nuances of this idea, I’d only suggest that the application of the ‘moderate livelihood’ concept means
that Canadians accessing commercial fisheries through constitutionally entrenched treaty rights may not be able to generate and accumulate wealth in the same way as (predominately) non-native fishers accessing fisheries through standard state channels.

It belies a bigger problem in Canada, or I think its bigger. And that is the general problem related to aboriginal peoples seeking to exercise traditional harvesting rights, or other traditional practices, but finding themselves restricted. I say ‘I think’, because I honestly don’t know whether this is a major problem, and if it is, how broadly the problem manifests.

I do; however, know of an ancient case (well, from the early 20th century), where I believe a Canadian court held that a practicioner of traditional medicine was enjoined from continuing his practice.

Probably because medicine was (and is) a provincially regulated occupation. Although it does beg the question whether someone could bring a similar factual situation to court today on the strength of an aboriginal right (or for that matter, a treaty right).

Or whether failure to enforce environmental laws that result in the depletion or contamination of resources that aboriginal peoples depend on for sustainable livelihoods and traditional occupations, would constitute discrimination under this Convention (particularly where the degredation occurs to benefit some other occupations, say those related to a different kind of resource extraction)

I digress.

ILO Convention 111 prohibits discrimination, based, among other things on the basis that a particular ‘occupation’ is a traditional one for First Nations.

From the ILO website:
"The Convention also covers discrimination of indigenous peoples’ traditional occupations, such as pastoralism, shifting cultivation, hunting and gathering which are under pressure in many countries"

I’ll write more on this some other day.

But if you can’t wait, the good people at ILO have put out a handy guide to C111, specific to indigenous peoples, that can be accessed through this link here:

I’ll write more on this some other day. But I’ll let you know now, for accessing the ILO rights framework, it can be very handy (ie necessary) to have friends in the Labour movement (ie unions).