ARC Insider AT A GLANCE ...
Road to justice?
The Canadian Constitution protects all race-based theories
THE CONSTITUTION ACT OF 1982 ensures that even the Charter of Rights and Freedoms does not frustrate our attempts, as an enlightened society, to strive towards justice and genuine equality. Although section 15(1) of the Charter states every individual is equal before and under the law without discrimination, it is followed immediately by section 15(2):
Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
And Section 25 makes sure the Charter is not "construed so as to abrogate or derogate from any aboriginal, treaty or other rights that pertain to the aboriginal peoples of Canada."
The tradition of civil political discourse in Canada has led to a renewed vision of Aboriginal Inherent and Treaty Rights, which is enshrined in the 1982 Constitution, Section 35(1):
"The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."
Note the wording. In this section Canada gives nothing to Aboriginal peoples. This section acknowledges Canada's history. Aboriginal peoples were here first and so, due to this historical fact, as well as through contracts (Treaties) signed with the Crown, they retain certain rights that other Canadians do not share. This is not unique to Canada. The legislation and policies of other governments, including the US, Australia, New Zealand, and more recently Japan, enshrine and recognize Aboriginal inherent and treaty rights.
How to Challenge Misconceptions
Is that what you people are afraid of -- that the Indians will be a self-supporting nation? Aboriginal activist George Manuel, to the Joint Committee on Indian Affairs, 1960
The unacceptable economic and social conditions faced by Aboriginal peoples in Canada are perpetuated by a federal Aboriginal policy that defies Canadian history and Canadian laws, and seeks to dispossess Aboriginal peoples of their lands, assimilate their cultures and terminate their rights. In Canada, as in many other countries around the world, Indigenous peoples are struggling to retain or win back their ancestral lands - lands lost to governments and transnational corporations who put resource exploitation ahead of the rights of Aboriginal Peoples. In Canada, land is at the heart of social justice with Aboriginal peoples.
When Aboriginal peoples talk of possessing their ancestral or traditional lands, they are talking not only of a legal concept, although international and domestic laws do recognize Aboriginal land rights, but of a world view and way of life as well. This is why Aboriginal peoples desire to maintain and develop their long-standing relationship to the land and its resources. Access to an adequate land and resource base is key to Aboriginal peoples being able to realize self-determination and self-sufficient economies.
Aboriginal rights are collective rights which flow from the fact that Aboriginal peoples occupied their lands prior to the arrival of settlers. Treaty rights are those which are set out in the treaties negotiated between Aboriginal peoples and the Crown or Government of Canada.
Does "one law for all" exist in Canada today?
First and foremost, ... [we] believe in equal rights for all, and special privileges for none. At the present, we feel the Native Canadians enjoy certain privileges, such as special gaming rights and tax exemptions unavailable to the rest of Canada's citizens.
Does this sound reasonable? Do you know what organization made this their policy on aboriginal issues? It is the Heritage Front, an organization dedicated to preserve and protect "white people's" rights.
Advocates of the "One Law For All" argument, and its derivatives such as "Equal Rights For Everyone", mislead Canadians into thinking that these principles form the core of Canadian law and justice. The implication is that "One Law For All" is a legal reality and implementing Aboriginal rights threatens Canada's existing legal structure. In fact, neither point is true.
In fact, Canada is far from being governed by "One Law For All." For example, the Québec Act of 1774 affirms French Civil law in Québec, while the rest of the countrypractices English Common law. Also, the Constitution Act of 1867 specifically recognizes minority linguistic and religious rights. Contrary to what the "One Law" dogma implies, centuries of legal precedents have evolved Aboriginal rights in many areas, including: common law, constitutional law and international law.
Second, although the "One Law" camp's message is that the "One Law For All" principle is being threatened by Aboriginal peoples and their supporters, the reverse is true; Aboriginal rights, which are well-entrenched in Canadian law, are being threatened by "One Law For All" advocates. For example, opposition to the implementation of Aboriginal fishing rights, as found in the Supreme Court of Canada Sparrow and Marshall decisions, is often grounded in the argument that Canadian law is inconsistent with the "One Law For All" dogma.
A vocal and increasingly influential anti-Aboriginal sector in Canada promotes views that are outside the ideals expressed by the Constitution (and most Canadians). Even modest gains made by First Nations in the courts and at land rights negotiation tables trigger shrill reactions from this segment of Canadian society.
The rule of law
The large majority of Canadians adhere to the rule of law, that is, the belief that all branches of federal and provincial governments are bound to follow the law in all their actions. The implementation of "One Law For All" and legislation based on race theories, however, would lead to the dismantling of Canadian law and jurisprudence, and the imposition of rule under a rigid, intolerant belief system.
Does Canada recognize other laws and makes room for the 'less equal'?
Perhaps the best response to the cry for "Equal Rights For All" and "One Law For All" is from Judge Murray Sinclair in the report of the Manitoba Aboriginal Justice Inquiry:
"Systemic discrimination involves the concept that the application of uniform standards, common rules and treatment of people who are not the same constitutes a form of discrimination. It means that in treating unlike people alike, adverse consequences, hardships or injustice may result."
In other words, when you treat people who are unequal as though they were equal, the result is discrimination. Since J. Sinclair was talking about Aboriginal people, the discrimination that results from treating them as non-Native people is racial discrimination.
Will adhering to the race-based theories that deny Aboriginal Peoples their rights lead to justice?
We are currently in claims negotiations and we remain hopeful that Canada and Newfoundland will change their positions on the amount of land and resources they want the Innu to give up. If Canada's and Newfoundland's positions prevail, we won't have sufficient land and resource revenues to build a self-sufficient economy; we will remain welfare dependent. Is that what Canadians want? Peter Penashue, President, Innu Nation
The Canadian Alliance Party argues that Aboriginal peoples should be denied access to resources on their traditional territories because this amounts to "Race Quotas" and is thus unfair. The Canadian Alliance advocates that only private interests should have access to resources.
As with the "One Law For All" line, the "Race Quotas" argument misleads Canadians by claiming that Aboriginal inherent and treaty rights are race-based. What is implied by the "No Race Quotas" slogan is that Aboriginal rights are based on race and so they are unfair and threaten Canada's existing legal structure. This assertion again ignores, and demonstrates a profound lack of understanding, of the historical and legal factors that form the foundation of Aboriginal rights.
Aboriginal inherent rights and treaty rights are based on historical, not racial factors.
The "Race Quotas" theory is based on false assumptions and if its proponents were for once to examine history, they would discover the dangers of withholding or denying peoples rights on the basis of race theories. Canadians should look under the surface of these simplistic slogans "One Law For All" and "No Race Quotas" to consider their implications. People who value an open society and peaceful relations between various communities in Canada will not accept this deceptive attack on Aboriginal Peoples. A more constructive view is that Treaty negotiations are part of a long-overdue and creative process of nation building and implementing existing rights.
Should Indian reserves be privatized?
Another argument often put forward is that everyone - Aboriginal and non-Aboriginal - would be better off if Aboriginal reserve lands were privatized. Once again, unfortunately, this position chooses to ignore decades of examples which proves that privatization of lands and resources is detrimental to the well-being of indigenous peoples. For example, the U.S. government imposed the Indian Reorganization Act in 1934 which allowed for the private exploitation of resources on Aboriginal lands. The Act led to the breakup of reservations and the widespread loss of lands to non-Aboriginal financial institutions and speculators. The result was increased poverty for American Indians.
Prior to signing the North America Free Trade Agreement, the government of Mexico changed the Mexican Constitution to eliminate the protection of indigenous and campesino communally held lands, called ejidos, to allow for privatization. Once the protection of the ejidos was eliminated, Indigenous and campesino communities began losing their lands to large landowners and transnational corporations through violence and fraud.
There is no reason to believe that the privatization of Aboriginal lands in Canada would have a different outcome. Rather, as Jean Larose, Communications Director of the Assembly of First Nations, stated, the privatization of lands and resources, "when applied against the backdrop of our Treaty and Aboriginal rights, means the death knell of our nations, our communities, our languages, and our cultures."
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