Toxic Multiculturalism

[Jacob]

I am not surprised that there are concepts of law you have not heard of.

[The Minsky Moment]

Martinus has a point.  Canada may have decided that it is going to abide by various obligations formerly contained in treaties with FN tribes, and has even come up with internal legal doctrines ("Honor of the Crown"; (lack of) "extinguishment") to make these obligations operational and binding under domestic law.  I get that and that is a choice that Canadian legislators and judges can and have made.  But it rather confuses matters to treat these obligations as treaties with a sovereign where it is quite clear that the counterparty is not sovereign and in fact is subject to supervision from a Canadian federal functionary.

[Grey Fox]

It's political correctness & guilt.

[grumbler]

When Malthus says we should abolish the system, that sounds to me like he's advocating unilateral action, without the buy-in of the Native peoples*.  If he's not, and no one else is, then great

How about this, then:  everyone in Canada gets status as a "Native person" and the whole country is declared to be a reserve for the "Canadian tribe."  All privileges of the Indian Act are applied to everyone equally.

No need to get any "Native peoples" to buy in to this, because they are not affected.

*and yes, you are correct, not by "Native peoples" as a monolithic group, but my the individual tribes and bands which makes the whole situation more complicated.

They are often legally distinct as well; some have been granted sovereign status in the past and some have not, so they cannot all be treated as sovereigns.  But let's leave that for the times when the distinction is important.

I mostly agree with this, I think; however, the sticking point for me is that when "compensation is offered for the abandonment of those privileges" that the people who are abandoning their priviliges accept that the compensation is fair.

I would hope that this would be a requirement.  Kinda like eminent domain.

And this is where I disagree with you and Malthus.  I'm cool with the Algonquin people determining who is Algonquin, and I am okay with them having a unique status within the larger Canadian society.  Similarly, I am okay with the Huu-ay-aht and Toquaht and so on defining themselves and having unique status within Canadian society.  I don't hold this to be some natural injustice that must be corrected, though I recognize that problems can come from it; I am, however, all for attempting to address the problems as they arise on a case by case basis, and I'm also fine with a negotiated move towards dissolution of the various forms of special status, again on a case by case basis, if that is what the various Native groups involved believe is useful for them.

I am not sure what "unique status within Canadian society" means in this context.  I have no problems with some Algonquin bureaucratic types being able to say who is Algonquin and who is not, just as I have no problem with some Boy Scout bureaucratic types being able to say who is a Boy Scout and who is not.  What I have a problem with is having that bureaucrat be able to grant government-financed benefits without being selected by the government or elected by the people.  Such things always result in corruption and contention.  As long as the "unique status within Canadian society" of the Algonquin or Boy Scouts imposes no burden or disadvantage on those who don't qualify, I share your indifference to the rules of belonging.

[grumbler]

I don't have a problem with that, philosophically.  The problem is how we have that transition in a way that's constructive. 

Precisely.

I'm not saying you're arguing for this, but my concern is that going in and saying "you're all Canadians like everyone else now, your Native status is now irrelevant, here's what we've decided to give you in return for it, enjoy your future as regular Canadians now" is high handed and, I suspect, will produce negative outcomes.

I am certainly not arguing that anyone should make declarations of irrelevance, and that the concept of just compensation should be abandoned.  Just to clarify (as an amendment to your note that this was not what i was saying).

[grumbler]

yep. Nobody likes being told who they are, especially by a faceless bureaucracy.

Yep. that's why any legal definition of "who they are" should be taken away from the faceless bureaucracies in the various tribes. 

[grumbler]

It's you who don't understand the concept of sovereignty. Sovereignty is indivisible.

[grumbler]

Martinus has a point.  Canada may have decided that it is going to abide by various obligations formerly contained in treaties with FN tribes, and has even come up with internal legal doctrines ("Honor of the Crown"; (lack of) "extinguishment") to make these obligations operational and binding under domestic law.  I get that and that is a choice that Canadian legislators and judges can and have made.  But it rather confuses matters to treat these obligations as treaties with a sovereign where it is quite clear that the counterparty is not sovereign and in fact is subject to supervision from a Canadian federal functionary.

That's a separate issue.  Shared sovereignty is legally tenable (and exists in relations between the US federal and state governments).

I agree with you that the concept of tribal sovereignty in Canada seems moot (as it is in the US nowadays), but understand that the courts don't always see things as clearly as outsiders do! 

[crazy canuck]

Martinus has a point.  Canada may have decided that it is going to abide by various obligations formerly contained in treaties with FN tribes, and has even come up with internal legal doctrines ("Honor of the Crown"; (lack of) "extinguishment") to make these obligations operational and binding under domestic law.  I get that and that is a choice that Canadian legislators and judges can and have made.  But it rather confuses matters to treat these obligations as treaties with a sovereign where it is quite clear that the counterparty is not sovereign and in fact is subject to supervision from a Canadian federal functionary.

the mistake both you and Marti (God I never thought I would be putting those words together) are making is the assumption that the parties with whom the Treaties were made no longer have sovereign rights. 

There are two ways, it has been argued, in which the First Nations lost their soveriegnty.  The first is by way of conquest (Marti's example of Scotland being conquered by England) and the second is extinguishment (the notion that if a First Nation was soveriegn at the time the Treaty it isnt any longer because it no longer has the capacity to exercise sovereign rights)

The responses to these two points are lengthy and I am not doing them justice by this brief summary, but with that caveat out of the way, in brief, the response is:

a) In relation to the conquest notion, many bands in the West were never conquered (the Nisga'a being an excellent example) and never ceded sovereign control over their lands.  Those bands who did sign treaties further say that they also were never conquered but that the Treaties which they signed (or as Oex points out the ones that were made orally) were made between equal partners.

b) In response to the extinguishment issue, many bands will argue that they have never given up their sovereign rights.  Those who have not signed treaties or made oral agreements will say that they have always asserted their soverign rights.  Again the Nisga'a are an excellent example of such a group.  Further those that have signed treaties or have oral agreements amounting to a treaty will say that those agreements expressly protect and confirm their sovereignty and so it is a little underhanded to suggest (as some have tried to do) that simply becuase the First Nation has followed their treaty obligations that they have also given up their soveriegnty.

[Jacob]

How about this, then:  everyone in Canada gets status as a "Native person" and the whole country is declared to be a reserve for the "Canadian tribe."  All privileges of the Indian Act are applied to everyone equally.

No need to get any "Native peoples" to buy in to this, because they are not affected.

Well, as you yourself point out just below here, various Native groups have different agreements, priviliges and legal statuses so if we wish to make everyone in Canada exactly the same, the status of some Native groups would have to change.

I would hope that this would be a requirement.  Kinda like eminent domain.

As long as it is, then I'm good.  I don't know enough about eminent domain to take anything from your comparison.

I am not sure what "unique status within Canadian society" means in this context.  I have no problems with some Algonquin bureaucratic types being able to say who is Algonquin and who is not, just as I have no problem with some Boy Scout bureaucratic types being able to say who is a Boy Scout and who is not.  What I have a problem with is having that bureaucrat be able to grant government-financed benefits without being selected by the government or elected by the people.  Such things always result in corruption and contention.  As long as the "unique status within Canadian society" of the Algonquin or Boy Scouts imposes no burden or disadvantage on those who don't qualify, I share your indifference to the rules of belonging.

"Unique status within Canadian society" means, in this context, amongst other things that they have various rights that other Canadians do not, like the ones owed them due to treaty obligations.

[Barrister]

Native treaties are sui generis - that is they are unlike any other thing.

In some aspects First Nations are held to have limited sovereignty - and they are called Nations, not Tribes or Bands or other terminology.

That being said Ultimate sovereigntyhas long been held to belong to the Crown.  SOme native groups have pushed for things like passports, immunity from prosecution, membership in the UN - Canada has resoundingly held that Canada is one nation.

As CC said, it appears Marty is unfamiliar with a non-unitary state.  When I stand up in court I formally represent "The Queen in right of Canada".  It is not unheard of for another Prosecutor to stand up beside me who represents "The Queen in right of Yukon".  Both are sovereigns (as opposed to a municipality, which is merely a delegated pwoer from the province/territory).

That being said I've taken entire courses on aboriginal law.  It really is unique, and even Canadian lawyers have some difficulty wrapping their heads around it.  It's difficult to explain the concepts in just a few lines on an internet chat board.

[crazy canuck]

I agree with you that the concept of tribal sovereignty in Canada seems moot (as it is in the US nowadays), but understand that the courts don't always see things as clearly as outsiders do! 

The differences in the way these issues have been dealt with in the US and Canada is an interesting area of study.  Most people simply brush away the differences by saying that the US used military force whereas the British and then Canada used diplomacy (the war with the Metis being a very notable exception to this notion).

However, I think the question is much more complex then the simple anaysis that the US used guns and Canada used paper.  I think a more useful analysis is why the US used guns and we didnt.  I think a lot turns on the relatively sparce population in Canada (particularly in the West), the signficant role that Native communities played in the history of Canada and perhaps most significantly of all the way in which Natives have been able to create a powerful political voice in the last 40 years.

[crazy canuck]

That being said I've taken entire courses on aboriginal law.  It really is unique, and even Canadian lawyers have some difficulty wrapping their heads around it.  It's difficult to explain the concepts in just a few lines on an internet chat board.

Agreed.  Part of the problem is that it is developing so quickly.  For example, if you had suggested to me that the duty to accomodate existed after a Final Agreement I would have said you were wrong, until you posted that link of course.

[The Minsky Moment]

Martinus has a point.  Canada may have decided that it is going to abide by various obligations formerly contained in treaties with FN tribes, and has even come up with internal legal doctrines ("Honor of the Crown"; (lack of) "extinguishment") to make these obligations operational and binding under domestic law.  I get that and that is a choice that Canadian legislators and judges can and have made.  But it rather confuses matters to treat these obligations as treaties with a sovereign where it is quite clear that the counterparty is not sovereign and in fact is subject to supervision from a Canadian federal functionary.

That's a separate issue.  Shared sovereignty is legally tenable (and exists in relations between the US federal and state governments).

The US is involves something different - in the US the People are sovereign and the federal and state governments are limited delegatees.  As between the federal and state governments, the division of authority is clear: within the sphere of those powers delegated to the federal government, the federal government is supreme and the states are subordinate and subject to pre-emption.  Within the sphere of those powers not delegated to the federal government but where state governments can and do act, the federal government has no authority and must respect state action as constitutionally permitted.  Although the term "shared sovereignty" can be and has been sed to describe this situation, that description can be confusing to the extent it doesn't capture the true nature of the hierarchical relationship.

In any event, this is a very different situation from what is going on with Canda and the FN groups.

[Barrister]

By the way for whatever it's worth - native rights and treaty rights have since 1982 been entrenched in our constitution as constitutional rights.  Any attempt to unilaterally extinguish those rights would require a constitutional amendment.  So it could be done, but with difficulty.