Toxic Multiculturalism

[The Brain]

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.

So Canada is a single sovereign state. Good.

[Malthus]

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.

To my mind, that complexity is part of the problem.

As pointed out in the article I posted on aboriginal women and the law, the complexity created by the intersection of multiple legal sources is so great that even legal experts are flummoxed by it - the aboriginal women involved, some of the most if not the most impoverished in the country, have little hope of navigating its complexities in such a manner as to know or guarantee their rights (and in some cases, the effect of the intersection is to strip some of them of rights non-native women enjoy as a matter of course under "regular" law - for example, the matrimonial home). 

Again, the whole area is rife with unintended consequences.

[Barrister]

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.

To my mind, that complexity is part of the problem.

As pointed out in the article I posted on aboriginal women and the law, the complexity created by the intersection of multiple legal sources is so great that even legal experts are flummoxed by it - the aboriginal women involved, some of the most if not the most impoverished in the country, have little hope of navigating its complexities in such a manner as to know or guarantee their rights (and in some cases, the effect of the intersection is to strip some of them of rights non-native women enjoy as a matter of course under "regular" law - for example, the matrimonial home). 

Again, the whole area is rife with unintended consequences.

No argument there. 

[The Minsky Moment]

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. 

My point is they don't have sovereign rights except to the extent the federal Canadian government has chosen to respect them.  Which is proof that the rights in question aren't sovereign at all, because a true sovereign's rights as a sovereign are not conditional on another sovereign's discretion and sufferance.  (Note that under the Indian Act, all covered "bands" (as defined) are placed under the superintendence of a federal minister.  That is not remotely consistent with sovereignty)

This applies regardless of the historical context and regardless of whether a particular individual tribe ever signed a formal instrument of cession. 

The simple test is what would happen if a particular tribe decided (wihtout the consent of the Candian federal authorities) to send and accept ambassadors; allow foreign nations to establish trade missions or base military installations on tribal soil; seek recognitiion from others; declare war; refuse to hand over fugitives to Canada in the absence of a formal extradition treaty; coin money; and any number of fundamental and basic incidents of sovereignty.

[Barrister]

My point is they don't have sovereign rights except to the extent the federal Canadian government has chosen to respect them.  Which is proof that the rights in question aren't sovereign at all, because a true sovereign's rights as a sovereign are not conditional on another sovereign's discretion and sufferance.  (Note that under the Indian Act, all covered "bands" (as defined) are placed under the superintendence of a federal minister.  That is not remotely consistent with sovereignty)

Which is what makes them sui generis.

In some areas they are sovereign, and need not ask for anyone's permission.  But not in others.

Trying to decide whether they are 'sovereign' or 'not sovereign' is hot helpful, as they are somewhere inbetween. 

[Barrister]

Here's a link attempting to set out the basic issues in aboriginal law in Canada.

http://www.canadalegal.com/gosite.asp?s=1003

I'm slightly suspicious of the site, but can see no overall errors in this summary, and it does cite many of the proper cases.

[The Minsky Moment]

Which is what makes them sui generis.

In some areas they are sovereign, and need not ask for anyone's permission.  But not in others.

Trying to decide whether they are 'sovereign' or 'not sovereign' is hot helpful, as they are somewhere inbetween.

I agree that getting hung up on terminology is not helpful.

I press this seemingly semantic issue for only one reason: that in response to Malthus' argument that the rules with respect to the FN should be revised as a matter of good policy, you and Jacob both responded that one of the objections to such a course of action would be that it would violate the sacroscant status of treaties.  I took that objection as meaning that even if revision would be justifiable and correct as a matter of policy; nonetheless the dishonor inherent in violating a treaty in itself would be reason from refraining from adjusting the policy.

That specific argument did not strike me as persuasive because the treaties are treaties in name only: the decision to recognize them as such is simply another policy decision of the Canadian government (albeit one constitutionalized by the courts) and not inherent in their nature as true treaties between true sovereigns.  The fact is that the decision to give the treaties special status is as much as a national policy decision as the rest of the FN regulatory regime (indeed they are part-and-parcel of each other).

[grumbler]

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.

If everyone gets every privilege, then this is not an issue.  People who don't want to exercise a privilege wouldn't need to.

I don't know enough about eminent domain to take anything from your comparison.

ED allows the state to force sales of land (and maybe other things, but land is where we hear about it) for the public good, but requires just compensation for the land taken.  The courts have adjudicated disputes over compensation.

"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.

I guess the problem I have with this is that the treaty obligations were made to a group of people who no longer exist.  Allowing peoples not a party to the treaty to decide who is eligible for the "various rights" obligated by the treaty seems to me to be a recipe for corruption.  You sure that you are okay with this?

[Jaron]

I wonder how fast these one culture arguments will die when typically white areas find white culture in the minority.

In a sense, it is almost justice since centuries ago white people poured out in great numbers, displaced people in their homelands, and attempted to force their values on others. Now they find themselves besieged not only by outsiders, but by their enlightened institutions which are slow to react decisively.

The intelligent man can take no pleasure in this, however, because the fall of white culture to minority status/insignificance can only be seen as a step backwards for mankind and unfortunately such a step would very likely lead to a level of social violence not yet witnessed anywhere in the world by mankind.

[garbon]

I wonder how fast these one culture arguments will die when typically white areas find white culture in the minority.

In a sense, it is almost justice since centuries ago white people poured out in great numbers, displaced people in their homelands, and attempted to force their values on others. Now they find themselves besieged not only by outsiders, but by their enlightened institutions which are slow to react decisively.

The intelligent man can take no pleasure in this, however, because the fall of white culture to minority status/insignificance can only be seen as a step backwards for mankind and unfortunately such a step would very likely lead to a level of social violence not yet witnessed anywhere in the world by mankind.

[Neil]

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.

Their sovereign rights are a polite fiction, as they've never defeated Canada in a war.

[crazy canuck]

My point is they don't have sovereign rights except to the extent the federal Canadian government has chosen to respect them.  Which is proof that the rights in question aren't sovereign at all, because a true sovereign's rights as a sovereign are not conditional on another sovereign's discretion and sufferance.  (Note that under the Indian Act, all covered "bands" (as defined) are placed under the superintendence of a federal minister.  That is not remotely consistent with sovereignty)

This applies regardless of the historical context and regardless of whether a particular individual tribe ever signed a formal instrument of cession. 

The simple test is what would happen if a particular tribe decided (wihtout the consent of the Candian federal authorities) to send and accept ambassadors; allow foreign nations to establish trade missions or base military installations on tribal soil; seek recognitiion from others; declare war; refuse to hand over fugitives to Canada in the absence of a formal extradition treaty; coin money; and any number of fundamental and basic incidents of sovereignty.

It is actually an open question as to whether they have rights indepedant of the recognition they have already gained in the Canadian Courts.  In fact one of grounds argued before our Courts is precisely that their rights are recognized by international law.

It is not possible to state as emphatically as you would wish that their rights only exist to the extent Canadian Courts have recognized them.  Its just that Native leaders have not pursued international Actions - which had been started - seeking declarations that Canada was in violation of its Treaty obligations because decisions by Canadian Courts made those internations Actions unnecessary.

[crazy canuck]

I guess the problem I have with this is that the treaty obligations were made to a group of people who no longer exist.  Allowing peoples not a party to the treaty to decide who is eligible for the "various rights" obligated by the treaty seems to me to be a recipe for corruption.  You sure that you are okay with this?

What makes you think they no longer exist?

[grumbler]

What makes you think they no longer exist?

Because the treaties were signed more than a lifetime ago (as I understand it; it may be that some of the treaties were signed during the lifetime of people in those bands/tribes/nations today, and I just don't know of them).

[Jaron]

I wonder how fast these one culture arguments will die when typically white areas find white culture in the minority.

In a sense, it is almost justice since centuries ago white people poured out in great numbers, displaced people in their homelands, and attempted to force their values on others. Now they find themselves besieged not only by outsiders, but by their enlightened institutions which are slow to react decisively.

The intelligent man can take no pleasure in this, however, because the fall of white culture to minority status/insignificance can only be seen as a step backwards for mankind and unfortunately such a step would very likely lead to a level of social violence not yet witnessed anywhere in the world by mankind.