The denigration of 'a great national question'
By ANTHONY J. HALL*
(April, 2002) -- The referendum on sovereignty-association in Quebec has found a kind of weird mirror image in British Columbia. Try as the Gordon Campbell Liberals might to deny it, they are no less anxious than Quebec's separatists to exempt their provincial government from those aspects of Canadian law they find inconsistent with their own vision of local autonomy.
Calling on B.C.'s voters to produce a set of predictable answers to a series of loaded questions aimed at sabotaging treaty negotiations with First Nations, B.C. is apparently taking its lead from the U.S. In 1871, Congress passed a law that unilaterally exempted the United States from adhering to the international law of Aboriginal title. All future treaty negotiations with First Nations were thereby prohibited, elevating the doctrine of "conquest" over the rule of law as the basis of future relations with Indigenous peoples.
The Chrétien Liberals came to understand their responsibility to invoke federal authority to demand some clarity on any future referendum on Quebec's relationship with the rest of Canada. But their silence on the referendum on Aboriginal rights in B.C. is deafening and exposes to national and international view the very deep streak of Canadian ethnocentrism towards First Nations. Is it conceivable that Canada would allow the human, civil and property rights of any minority other than Aboriginal peoples to be made hostage to the will of the majority?
There is nothing new in a B.C. government with a reactionary unwillingness to adhere to those aspects of international, British imperial and Canadian law that recognize and affirm the existence of the shared title of First Nations in their unceded lands and waters. One provincial regime after the next has resisted all pressures from the imperial and federal governments as well as from the First Nations and the courts to adhere to the Crown laws of Aboriginal and treaty rights. In the 1997 Delgamuukw ruling, the Supreme Court of Canada removed any doubt that B.C.'s constitutional status within Confederation will always be problematic until some political accommodation is reached through a treaty process giving practical expression to the co-existence of Crown and Aboriginal title.
Not all Liberal regimes in Ottawa have been as timid as the Chrétien Liberals when it comes to leaning on B.C. to pressure its leaders to adhere to the Crown law of Aboriginal title. In 1874 the Liberal regime of Prime Minister Alexander Mackenzie invoked the Dominion government's constitutional power to disallow provincial legislation. With a view towards upholding the federal government's explicit legal obligation to safeguard "Indians and lands reserved for the Indians," Mackenzie made use of his powers derived from the British North American Act to prevent a misconceived BC statute on public lands from becoming law.
During a period when the federal government was busy negotiating seven of Canada's numbered treaties, the Mackenzie Liberals disallowed the B.C. bill because of its failure to recognize that Indian title to most of the province remained intact. The same constitutional inconsistencies between the province's land laws and the Dominion's law of Aboriginal and treaty rights persist to this day except in those areas of B.C. covered by Treaty 8 in 1899 and the Nisga'a Treaty in 2000. Referring to the tradition of Crown military alliances with the First Nations, a heritage that was crucial to the defense of Canada from annexation by the Indian fighters of the United States in the War of 1812, Mackenzie's Justice Minister explained the federal disallowance of the B.C. law in 1874 as follows. He noted, "there is not a shadow of doubt, that from the earliest times, England always felt it imperative to meet the Indians in council, and obtain surrenders of tracts of Canada, as from time to time were required for settlement."
Even within B.C., many have attributed the local government's unwillingness to live within the Crown law of Aboriginal and treaty rights to the role in the province's formation played by immigrant miners from the U.S. As New Westminster journalist, John Robson, noted in the British Columbian in 1864, "There are those among us who are disposed to ignore the rights of Indians and their claim upon us, who hold the American doctrine of 'manifest destiny' in its most fatal form. Under the pretext of this unchristian doctrine the cry for 'extermination' is raised at every pretext."
In 1874, the Mackenzie regime followed up in its disallowance of B.C.'s land legislation by calling on the B.C. government "to reconsider in the spirit of wisdom and patriotism the land grievances of which the Indians of that province complain, apparently with good reason, and take measures as may be necessary promptly and effectually to redress them."
In promoting this policy Mackenzie's minister of the Interior, David Laird, referred to the Indian title issue in British Columbia as "a great national question . . . involving the possibility in the very near future of an Indian War."
"To the Indian," Laird pronounced,"the land question far transcends all others." David Mills, Laird's successor, took the matter further. In 1877, Mills noted that "Indian rights to the soil have never been extinguished." If an Indian war did result from this failure to develop B.C. within the law, Mills indicated the federal government would be obligated to take the Indian side in the conflict.
Such an Indian war finally came to pass near the shores of Gustafsen Lake in 1995. The Canadian government participated in the conflict by committing weaponry and armed personnel including members of Joint Task Force II. As at Oka in 1990, the deployment of the national armed forces in a dispute over Indian rights to land and resources highlighted Canada's move away from the Crown tradition of treaty alliances with the First Nations towards the U.S. dependence on conquest as the basis of its Indian policies.
According to a recent court ruling on an extradition matter involving an Indian veteran of the Battle of Gustafsen Lake, the Canadian government also participated in a concerted campaign of psychological warfare aimed at disguising the true character of the constitutional dispute over the status of the legal title to the lands and waters of British Columbia.
As Judge Janice Stewart ruled in Portland, Oregon in November 2000 in the case of U.S. versus James Pitawankwat, the "defendant has submitted uncontradicted evidence that the Canadian government engaged in a smear and disinformation campaign to prevent the media from learning and publicizing the true extent and political nature of the events."
The case marks the first time in the entire history of Canada-U.S. relations that the political offenses exception clause in the extradition treaty between our two countries has ever been successfully invoked. In overruling the request for extradition originating in the executive branch of the US government, the superpower's judiciary agreed that Canadian authorities had been motivated by political objectives in their wrongful persecution of the Gustafsen veteran. In language that resembled the description by some international jurists of Israel's relationship to the West Bank and the Gaza Strip of Palestine after 1967, the U.S. judge noted that "the Gustafsen incident involved an organized group of Native people rising up in their homeland against occupation by the government of Canada of their sacred and unceded tribal land."
The protesters at Gustafsen Lake were motivated in part by an intense distrust of the treaty process in British Columbia. The nature of their disagreement with the format of the negotiations, however, was extremely different from the kinds of criticisms directed at the same process by the Gordon Campbell Liberals and their right-wing allies in the federal Alliance Party. The position taken by the Gustafsen protesters, however, has never to this day received fair and unbiased coverage in the B.C., national or international media. Instead the dispute over the land question in British Columbia remains shrouded in the same dense fog of government smear and disinformation that has consistently been delivered to the Canadian public by a biased media apparently uninterested in addressing the damaging condemnations directed at it in the landmark Pitawanakwat ruling.
The referendum on the issue of Aboriginal title in B.C. is proceeding without a sufficient framework to make this exercise a credible experiment in direct democracy. The Campbell Liberals, who are by no stretch of the imagination neutral bystanders in this referendum, are asking a series of manipulative questions that leave no room for the champions of fair and equitable treaty settlements to mount a coherent "no" campaign. In seeking a popular mandate to sabotage the treaty process with First Nations by placing it within unworkable constraints, the Campbell Liberals embody the ongoing Americanization of Canadian politics. They advance a well-developed political heritage in the U.S., a country that has frequently rewarded its most ruthless Indian fighters, including William Henry Harrison and Andrew Jackson, with the keys to the White House.
The current right-wing attack on Indian Country, as embodied in Campbell's referendum aimed at extinguishing Indian rights in the name of majority rule, continues the Americanization of Canada. One of the many serious flaws in this ill-conceived process is that the B.C. electorate are being asked to give their opinion about what they would like the law to say without being given ample opportunity to become reasonably well informed about what the existing law of Aboriginal and treaty rights now says.
Canadians outside B.C. have every right to ask why our opinion is not being sought in an unresolved matter which the government of prime minister Alexander Mackenzie identified as early as 1874 as "a great national question." Like the future of Quebec, the future of the First Nations affects us all and we must insist that our federal politicians acknowledge the existence and role of a national political will in seeing that the desire of some to create a New Canada does not disenfranchise, fragment and alienate the oldest constituencies in the country.
*Guest column in Windspeaker. Anthone Hall is Professor, Department of Native American Studies, University of Lethbridge
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