Chapter 20

Indigenous solutions: they talk, we listen

When I asked the Innu in Matimekush Lac John what they would say to settler Canadians about indigenous rights, the answer was unanimous – nothing, since settler Canadians never listen. In the 50 years since the notorious 1969 White Paper on Indian policy, the growing body of indigenous leaders and academics have come up with solutions which would go a long way towards reconciling the differing needs and values of both settlers and indigenous peoples – but these have largely been ignored.

In his seminal work in answer to the White Paper, Harold Cardinal1 accused the Pierre Trudeau government of washing its hands of its responsibilities towards Indians. His criticisms still resonate today. He questions the sincerity of a government which protests at the persecution of minorities in other countries while ‘ignoring the plight of Eskimo, Metis and Indians in their own country. There is little knowledge of native circumstances in Canada and even less interest. To the native, one fact is apparent – the average Canadian does not give a damn.’2

Cardinal goes on to point out the ethnocentric nature of Canadian society and its lack of vision, which leads it to promote its own culture and values to the exclusion of those of the indigenous peoples. He observes: ‘Throughout the hundreds of years of Indian–government relationship, political leaders responsible for matters relating to Indians have been outstanding in their ignorance of the native people and remarkable in their insensitivity to the needs and aspirations of the Indians in Canada.’3

Writing before the 1973 decision in Calder v Attorney General for British Columbia,4 before the implementation of the modern treaty process, and with national indigenous organisations in their infancy, he points to the usurpation of the aboriginal right to self-government and the endless promises of change which are – even now – never fulfilled. Cardinal calls for both sides to abandon negative attitudes towards each other and to end the long period of separation from each other, and for settlers to accept Indians as individuals in their own right who wish to work with the dominant society without the need to assimilate. He declares that it is time for the white man to do the listening in order to begin a purposeful dialogue.

While deploring the divisive and demeaning nature of the Indian Act, Cardinal recognised that, with the implementation of the White Paper and the abolition of the Act, Indians stood to lose a large part of their identity and their rights under the old treaties. His thesis was that Indians must be allowed to rebuild their social institutions themselves, with both social and political leadership.5 Canadians, he says, must fully accept Indian identity. In response to Pierre Trudeau’s assertion that, ‘It is inconceivable that one section of a society should have a treaty with another section of society. The Indians should become Canadians as have all other Canadians,’6 Cardinal answers:

To the Indians of Canada, the treaties represent an Indian Magna Carta. The treaties are important to us because we entered into these negotiations with faith, with hope for a better life with honour. We have survived for over a century on little but that hope. Did the white man enter into them with something less in mind? Or have the heirs of the men who signed in honour somehow disavowed the obligation passed down to them?

…

While we find much to quarrel with in the treaties as they were signed, they are, we contend, important, not so much for their content as for the principles they imply in their very existence.7

Emphasising the importance and relevance of the treaties in the modern day, Cardinal nevertheless calls for them to be renegotiated. He describes the demotivating effects of the Indian Act, when all meaningful power over the reserve lies with the Department of Indian Affairs, especially financial affairs, provision of medical facilities, housing and education:

… the Indian Act, that piece of colonial legislation, enslaved and bound the Indian to a life under a tyranny often as cruel and harsh as that of any totalitarian state. The only recourse allowed victims of the act is enfranchisement, whereby the Indian is expected to deny his birthright, declare himself no longer an Indian and leave the reserve, divesting himself of all his interest in his land and people. This course of action is one that any human being would hesitate to take.8

Later Cardinal observes: ‘Time and again, in the very department which was set up to protect our rights, decisions have been made that openly flaunt the treaties.’9

Cardinal’s riposte also draws attention to the fact that indigenous peoples were promised full consultation on the contents of the 1969 White Paper, but this was never forthcoming (even though the government claimed it was, on the basis that it called meetings with indigenous leaders at which officials promised that consultation would come later).10

Like most writers, indigenous and non-indigenous, Cardinal also deplores the welfare trap; a view which, he says, is shared by the majority of Indian people.11 He demands that indigenous people be put in charge of their own destiny, be allowed to set their own goals and create their own opportunities.12 This, surely, is the true objective of the Royal Proclamation and the wampum belts; the Crown reserving to itself only the power to deal in indigenous land. Further, these are still the demands of the Innu of Matimekush Lac John 50 years on.

Most white people wishing to help, Cardinal says, know not what they do. If they wish to help, they should ‘nourish the initiative of the Indian people’ and not inhibit the growth of their potential.13 Yet this is a message ignored with impunity by lawyers and consultants who tell indigenous people that surrender of their lands is the only game in town.

Cardinal insisted that there should be no repeal of the Indian Act until all indigenous rights were recognised in Canada. With the promise of Trudeau fils to pass UNDRIP fully into Canadian law, the first true steps of recognition have been taken, but it remains to be seen how this UN legislation will be implemented in Canadian domestic law. Like other indigenous writers, Cardinal called for positive recognition of Indian contributions to wider society.14 Further, he said: ‘Keep in mind, also, that no amount of preaching by the federal government about goodwill and acceptance of Indian values can change the attitude of Canadians generally unless the Indian achieves the position of economic self-sufficiency.’

This is a point expanded by Calvin Helin (see below). Cardinal also noted the way in which the White Paper attempted to deny the force and effect of the treaties, calling their provisions ‘limited and minimal’, and showing, he asserts, utter contempt. By contrast the Indians say that a plain reading of the treaties is ‘inadequate and, more than that, unjust’.15 He concludes that all trust of the Indians for the government has been lost.

Turning to land title, in the White Paper provision proposing that each indigenous community should have the right to decide the manner in which they intend to manage their land,16 Cardinal foresaw the danger that proposals decided by one community would be imposed on others – exactly the effect of the modern policy with regard to comprehensive land claims.

Writing at much the same time as Cardinal, Vine Deloria turns the tables on the dominant North American society. In We Talk, You Listen,17 he examines America (and Canada) in its relations with indigenous peoples with the same scrutiny usually applied to the first peoples. He points to the fissures forming in the American Dream with 1960s opposition to consumerism, the devastation of the environment and the Vietnam War. He observes that ‘American society is unconsciously going Indian’:18

There is no doubt in my mind that a major crisis exists. I believe, however, that it is deeper and more profound than racism, violence, and economic deprivation, American society is undergoing a total replacement of its philosophical concepts. Words are being emptied of old meanings and new values are coming in to fill the vacuum. Racial antagonisms, inflation, ecological destruction, and power groups are all symptoms of the emergence of a new world view of man and his society. Today thought patterns are shifting from the traditional emphasis on the solitary individual to as yet unrelated definitions of man as a member of a specific group.19

Deloria is writing for the ‘electric’ age but what he says applies equally, if not more so, to the electronic age. He urges us to reflect on the meaning of the changes, attributing them in large part to the speed of modern communication and the supremacy of scientific knowledge. He says that, following the Depression, Americans lost faith in the American Dream.20 America, like Canada, tried to end its federal responsibilities for the Indians.

Deloria believes that: ‘The key to the communication gap is thus really quite simple. We must return to and understand the land we occupy. Communications have made the continent a part of the global village. The process must be reversed. The land must now define the role communications can play to make the country fruitful again.’21

Sadly, Deloria did not live to hear the voices from the protest groups Idle No More and Occupy joined in promotion of the values of their predecessors, who challenged the American myth and demanded a more human-scale approach to change.

Deloria calls for society to reject the ‘conquest-orientated’ interpretation of the American Constitution, saying that it should provide adequate protection of existing treaty rights and provide a balance between groups – as it has for conflicts between individuals.22 He believes not in revolution, which he says tends to be self-destructive, but in change within the existing system.23

Deloria is also critical of both white liberals and militant leaders within the indigenous community. He says that ordinary folk within the different white and minority groups understand each other better than the leaders,24 saying:

The liberals who create havoc within the minority groups are people in the official structure, be it church or state, private or public organization, who wield tremendous amounts of power and who do not for a moment listen to anyone … These are [people] who beat people of goodwill into the ground by calling them do-gooders. By blasting the motives of the average man, the liberals within the power structure are able to raise themselves as knowledgeable, authority figures to whom the common citizen then cedes all power and funding sources, asking only that the problem be resolved.25

He asks for the inclusion of the ‘others’ – those like Indians who are never consulted on the big decisions that affect them relating to housing, roadbuilding and industrial development. He calls for greater understanding of the needs of the ‘others’ when such decisions are made. He calls for the recognition of the sovereignty of all minority groups so that group rights are recognised rather than the rights of individuals within the group.26 Deloria concludes that the American Constitution did not meet the needs of government of the increasing settler population:

The new government was immediately plagued with two problems – land acquisition and slavery. Without land it could not push west to develop itself, and without cheap labor in the South it could not settle the country. The Constitution, although based upon the freedom and equality of all mankind, did not extend those rights to every group. The social compact was created among Western Europeans and it spoke only tangentially of non-Europeans. Congress was given authority to deal with the original inhabitants on the basis of regulating commerce.27

It was only in 1871, at the end of the treaty process, that Indians were brought within the remit of the US Constitution, and even then not as individuals. As in Canada under the Indian Act, Indians in the US had to relinquish their indigenous rights in order to obtain emancipation. Deloria suggests that there is no need for a new Constitution, but for the recognition of rights in common as well as individual rights. However, while minority groups call for a pledge of faith from white society, white society continues to deal with minority groups on a contractual basis, as in the treaties. Nevertheless, he acknowledged that there had been more progress on this score among Indian groups since the formation of the Indian Claims Commission to deal with land claims.

Deloria also raises the issue of the rising power of corporations: ‘The accumulation of capital, development of income, and distribution of profits characterizes the profit-making corporations. To achieve this goal, land and natural resources have been destroyed, communities dispersed or dominated, and social problems unwittingly created. The profit-making corporations have generally disclaimed any responsibility for the conditions created by their activities.’28

Does it not seem strange that Flanagan et al. do not turn their attention to what Deloria terms these ‘organizations that produce income but have no social responsibility’ before focussing their attention on the ‘Aboriginal Industry’? Deloria also deplores the conflict between profit-making organisations and those not-for-profit organisations which try to assume social responsibility for the victims of capitalism – from which he predicts ‘severe oppression’ from the right or ‘destruction of the economic system’ from the left.29 He sees the solution in a return to tribal government and community development corporations to manage the vast resources on indigenous lands. These moves would bring about a return to community-based governance. As to progress, he concludes:

In recent years we have come to understand what progress is. It is the total replacement of nature by an artificial technology. Progress is the absolute destruction of the real world in favor of a technology that creates a comfortable way of life for a few fortunately situated people. Within our lifetime the difference between the Indian use of land and the white use of land will become crystal clear. The Indian lived with his land. The white destroyed his land. He destroyed planet earth. (Deloria’s emphasis)30

This, he says, is the reason that settler society is re-forming into tribes of its own. Deloria’s prediction was that mankind would not survive for 50 years from the time he was writing, 1970.

Taiaiake Alfred wrote his Indigenous Manifesto31 following the Oka crisis. Through the trope of the Rotinohshonni ceremony of condolence, in his great polemic Alfred declares:

Indigenous people today are seeking to transcend the history of pain and loss that began with the coming of Europeans into our world. In the past 500 years, our people have suffered murderous onslaughts of greed and disease. Even as history’s shadow lengthens to mark the passing of that brutal age, the Western compulsion to control remains strong. To preserve what is left of our culture and lands is a constant fight. Some indigenous people believe the statements of regret and promises of reconciliation spoken by our oppressors. Some have come to trust and accept the world that has been created through the colonization of America. But those who find sincerity and comfort in the oppressor, who bind themselves to recent promises, must yield to the assimilationist demands of the mainstream and abandon any meaningful attachment to an indigenous cultural and political reality. And in so doing they are lost to the rest of us. Thankfully, those who accept the colonization of their nations are a small minority. Most people continue to participate in, or at least support, the struggle to gain recognition and respect for their right to exist as peoples, unencumbered by demands, controls, and false identities imposed on them by others.32

He says that affording indigenous peoples a ‘reasonable’ standard of life does nothing to end the ‘European genocide’ of 500 years while their nationhood is denied.33 He calls for the induction of more ‘special individuals’ into the culture of leadership: people who understand and will abide by indigenous traditions, and will work to counter the vulgar, westernised leadership which has caused the current crisis in most indigenous communities. He does not see this as a return to the past but as invigoration of indigenous politics. He acknowledges that this will not be a uniform process across all nations.34

Alfred describes the fluid nature of indigenous political power and its respect for individual autonomy, which precludes the concept of sovereignty because on a matter of conscience no individual surrenders their power to decide for themselves to a superior authority. Unlike westernised governance, indigenous decision-making is consensual. There is no element of coercion.35 In native politics, Alfred says: ‘There is a division between those who serve the system and those who serve the people. In a colonial system designed to undermine, divide, and assimilate indigenous people, those who achieve power run the risk of becoming instruments of those objectives.’36

Nevertheless, he says the failure to confront these failures in leadership rests with the indigenous peoples themselves and that they have a responsibility to the ancestors to rebuild the foundations of nationhood – as he says, ‘Native people can’t cry their way to nationhood’.37

Alfred tells us that power exercised in the non-indigenous way involves the imposition of the leader’s will on others and the satisfaction of personal motives using the ability to control resources such as service provision and connections to the outside world. He recognises that, in order for indigenous nations to withdraw from colonial power, they still have to deal with the state.38 He counsels against adopting the western concept of sovereignty because of the sharp contrast between the concept of the ‘state’ and the indigenous concept of nationhood, where there is no absolute authority or hierarchy.39 For example, in land claims, assertion of Canadian sovereignty over indigenous land and peoples underpins the power structure, and consequently perpetuates the colonial structure on which settler/indigenous relationships are based, such that ‘any progress made towards justice will be marginal’. Alfred sees sovereignty as a legal fiction.

Where Flanagan and Alcantara are quick to promote the immediate gains which follow land claims settlements and the First Nations Land Management Act, Alfred presses for the long-term gains from returning to an indigenous form of government.40 Alfred maintains that indigenous leaders ‘… know what’s right; they have long known what’s wrong as well, and what needs to be done. But they choose to suppress their knowledge and accept the dispossession and disempowerment that are part of being colonized. Wilfully ignoring what is ultimately the only resolution – to forsake good relations with the state – they join the conspiracy of silence that has perpetuated the historical injustice done to their people.’41

Yet the leaders in Matimekush Lac John are paying the crippling price of holding out for their rights: by taking a stand, they remain wards of the Crown and subject to its whims in the matter of withholding finance.

Alfred recognises that economic development does not flow from money pumped into native communities but rather from learning, skills and business acumen and from taking control of indigenous lands and using them for the benefit of their true owners.42 He deplores the ‘aggressive manipulation of the state’ in the modern treaty process,43 which relies on settler ignorance, native apathy and the grooming of native leaders, all based on the false premise that Canada owns the land:

In effect, the Canadian government arrogantly asserts ownership rights over the identity of indigenous nations. On the eve of the twenty-first century, Canada’s final solution to the Indian Problem is to force indigenous peoples who have inhabited the land for millennia to do what no other people in the world is obliged to do: to formalize a definition of themselves and agree a set of criteria for determining membership that will not be subject to evolution or change as the group responds to the shifting realities of the political and economic environment.44

This is what the treaty principle of ‘certainty’ truly means. In brief, Taiaiake Alfred’s manifesto is:

In our relations with others, we need to engage society as a whole in an argument about justice that will bring about real changes in political practice. We need to convince others to join us in challenging the state’s oppression of indigenous peoples. This will require a broad-based intellectual and political movement away from prevailing beliefs and structures. All actions in this effort – not just our own but those of everyone who supports us – must be inspired and guided by four principles. First, undermine the intellectual premises of colonialism. Second, act on the moral imperative for change. Third, do not cooperate with colonialism. Fourth and last, resist further injustice. Decolonization will be achieved by hard work and sacrifice based on these principles, in concert with the restoration of an indigenous political culture within our communities.

These words are a manifesto, a challenge, a call for action. Don’t preserve tradition, live it! Let us develop a good mind and do what is necessary to heal the damage done to us and bring back to life the culture of peace, power and righteousness that is the indigenous way.45

Calvin Helin echoes Alfred’s call to action in his mantra ‘Wai Wah!’ – ‘Just do it’. He too is deeply concerned at the levels of dependency and social dysfunction in indigenous communities although his proposed solution is not assimilation but, like Alfred’s, a return to the old values of self-reliance. His starting point is the question: ‘What can be done to make the lives of indigenous peoples better?’46 Taking a much more pragmatic approach, he calls for an open and frank discussion of the problems besetting indigenous communities. He too says that the non-aboriginal ‘hucksters’ only add to the despair of the communities they claim to serve.47 As the indigenous elders in Matimekush have testified, Helin claims that the Department of Aboriginal Affairs has promoted dependency with its firm hold on all expenditure in indigenous villages which remain wards of the Crown. His thesis is that these problems will never be overcome until the indigenous people take control of the situation,48 as the best economic decisions are made by people who are spending their own money, creating their own wealth.49 The indigenous peoples themselves must take responsibility for getting themselves out of the welfare trap.50 This is a much more positive, constructive approach to the future of Canadian–indigenous relations than those of Flanagan and Widdowson.

He looks to pre-contact practices to find solutions for today, citing the trade between the peoples of the coastal and interior regions of what is now British Columbia in order to supply the needs of others.51 In the absence of government welfare payments, Helin says that ‘stark reality ensured that a fundamental level of organization and understanding pervaded the very grassroots of the tribal structure.’52

He too advocates the leadership style of the elders who paid close attention to the conditions of their people and gave good advice. Describing the current state of indigenous leadership, Helin concludes: ‘The further problem with the manner in which governance is exercised in First Nations is that the system that has arisen is effectively a closed loop that concentrates all political power in the hands of chiefs at the same time as politically disempowering the great masses of community members … This powerlessness directly contributes to the existing status quo of Aboriginal poverty.’53

This problem, he says, extends to the Assembly of First Nations, citing the failed attempt by Matthew Coon Come to have his successor chosen by direct election. The failure arose because the federal government threatened to withdraw funding from the Assembly. This resulted in a situation in which chiefs are not accountable to their electorate but to the Department of Aboriginal Affairs. Helin says that a ‘banana-republic-like mindset prevails in many communities’.54 He sees new opportunities in the new definitions of meaningful consultation emerging from the Supreme Court.55 He supports the initiative of the First Nations Land Management Act and the introduction of the First Nations Finance Authority, the First Nations Tax Commission, the First Nations Financial Management Board and First Nations Statistics because they promote ‘a whole new fiscal framework for doing business on reserves’.56 Yet, I would suggest, these are Canadian constructs, designed to bring indigenous economies into line with the mainstream.

All these writers, indigenous and non-indigenous, whatever their point of view, identify the same obstacles in the path to full indigenous emancipation in Canada:

• failure to honour the treaties;

• failure to repeal the Indian Act;

• the continued existence of the Department of Indian Affairs in its many forms;

• the Comprehensive Land Claims process;

• life on welfare payments;

• lack of education; and

• lawyers, consultants and leaders who do not negotiate in the true interests of the people they represent.

John Borrows goes much further. He returns to the principles laid down by Harold Cardinal in his 1969 book The Unjust Society and finds them as relevant at the beginning of the 21st century as they were in 1969. Yet where Cardinal and the Royal Commission on Aboriginal Peoples call for aboriginal control of aboriginal affairs, Borrows has even more radical solutions. Noting that, since Cardinal’s text:

All the while, Aboriginal citizenship with the land is being slowly diminished. The disfranchisement of our people (and our spirits) from the land, water, animals and trees continues at an alarming rate. Do we need a new story, new solutions? We do. We no longer need a revolutionary message for a transformative time: we need a transformative message in a reactionary time … To preserve and extend our participation with the land, it is time to talk also of Aboriginal control of Canadian affairs.57

He calls on indigenous peoples, especially those in positions of authority, both individually and in groups to incorporate indigenous ideals and perspectives into mainstream thinking and thus expand indigenous influence throughout Canada. It is no longer enough to leave this to the elders and teachers within communities. What Borrows is calling for is not assimilation, but for ‘Canadian citizenship under Aboriginal influence’: ‘Aboriginal peoples can resist assimilation by applying their traditions to answer the questions they encounter in the multifaceted pluralistic world they now inhabit.’58

Borrows returns to the theme of the wampum belts distributed at the great gathering at Niagara in 1764, the Gus Wen Tah.59 Rather than looking at the two rows of purple beads representing the two separate nations, he looks at the three rows of white beads in which they are embedded. He says that the three white rows signify the importance of sharing and interdependence and stand for peace, friendship and respect and the linking of the two cultures. Borrows also speaks of the second belt which was present at Niagara, which depicted a ship at one end of the belt and 24 Indians holding hands to reach the Quebec shore. This belt was touched by the participants at Niagara and from it, he concludes that it supports ‘a notion of citizenship that encourages autonomy and at the same time unifies us to one another and the lands we rely on’.60

In his book Recovering Canada,61 Borrows deplores the uncritical acceptance of the Canadian courts that indigenous lands are vested in the Crown and that the Crown holds sovereignty and underlying title to these lands:

Some Canadians do not realize that the nation is built upon a deeply troubling relationship with its original owners and governors. Many people assume that since their experience of life in Canada is one of fairness and justice, most people must experience life in Canada in the same way. However, Canada is a country that does not have an ‘even’ experience of justice. Aboriginal peoples have often been denied the essential legal rights in property (title) and contract law (treaties) that lie at the heart of our private law ordering. This should be of concern to all Canadians because such a basic failure of the rule of law presents a threat to the very fabric of our fundamental principles of order. If the rule of law cannot be relied upon to overcome the political and economic exploitation of Aboriginal peoples, what assurances do we have that it will not be equally vulnerable in situations involving non-aboriginal Canadians? … Aboriginal peoples might function like the miner’s canary. When the most vulnerable among us suffer from the toxins present in our legal environment, their suffering serves as an important warning about the health of the larger legal climate.62

Borrows goes on to acknowledge that recognition of underlying aboriginal title would cause ‘significant disruption’ but points out that many Canadians are unjustly enriched through failure to uphold the rule of law in favour of the original owners and that there must be radical change: ‘Nevertheless, seriously disrupting our socio-political relations is not the same thing as completely undermining those relations, especially when the correction of injustice may ultimately set the entire society on the path to a more peaceful and productive future.’63

Rather than simply offering a form of citizenship under the auspices of settler Canada, the state should recognise aboriginal sovereignty and incorporate indigenous law into the mainstream, giving it equal and, in some cases, superior force to Canadian law. This would get rid of the bias in Canadian law. Judges should examine aboriginal laws, oral tradition and perspectives in order to ‘sustain Canada’s constitutional text’.64 True to his word, in September 2018 Borrows and Val Napoleon, another indigenous lawyer and academic, launched the first law degree teaching both Canadian law and indigenous law at the University of Victoria.

Borrows, like Helin, calls for indigenous groups to take on greater responsibility than that afforded indigenous peoples under the rights-based, ‘clientelisation’ process prevalent today. Instead, he says, citizenship should be interactive and reciprocal. For example, indigenous concepts of citizenship might deter Canadians from destroying the land – or indeed encourage them to adopt the indigenous core belief that the land is a living entity which should itself be treated with the respect and status due to any other citizen. What Borrows is calling for is ‘Aboriginal control of Canadian affairs’ so that their citizenship is pro-active rather than reactive,65 saying that Canadian authorities must learn to share so that indigenous peoples have, not dominance, but the same privileges as settlers in an interdependent model of citizenship.

Borrows has some limited support for Flanagan’s attitude to indigenous title: ‘Clearly Professor Flanagan sees problems with concepts of Aboriginal citizenship that accentuate group rights, reinforce Aboriginal organizations, and emphasize Aboriginal identity. While certain elements of his argument may seem to overstep the mark if one is concerned about fostering civic peace, his emphasis on concerns of stability and peace is worthy of attention.’66 Borrows acknowledges that there are legitimate concerns expressed by both Flanagan and Cairns over social cohesion if indigenous interests are protected to the exclusion of their relationships with settler society. Borrows sees the problem as one of promoting ‘Aboriginal affairs for Aboriginal peoples’. What Borrows is trying to do is to promote this ideal together with aboriginal control of Canadian affairs: ‘Refusal to recognize the interdependent nature of Aboriginal/non-Aboriginal peoples is also likely to provoke hostility and resentment from each group, alienating them further from their activity as citizens with the land. The simultaneous call for Aboriginal control of Canadian affairs could actually enhance citizenship.’67

Borrows concludes that the special indigenous relationship to the land should be reflected in any model of indigenous citizenship. Only then can there be any meaningful participation of indigenous people with settler Canadians and with each other.