Chapter 19

Academic solutions

In recent years, academics have turned their attention to finding a solution which will reconcile the need to acknowledge indigenous rights in land with Canadian needs for economic expansion.

The Royal Commission on Aboriginal Peoples (RCAP) maintained that the foundation of Canadian/indigenous relations was that symbolised by the two-row wampum – two peoples living side by side in a spirit of equality, respect and dignity. Having led distinguished academic careers as defenders of indigenous rights, political scientist Alan Cairns and historian J.R. Miller now seek alternatives. They believe it is unrealistic to ignore the common history of the past 250 years, following which indigenous peoples no longer live entirely separate lives. As examples of this, the academics claim that indigenous people today are dependent on the wage economy or the social security payments made by the governments, that generations of children have now received Canadian schooling and that indigenous people enjoy the mechanical and technological advances which have been made over the centuries.

It was Cairns who developed the idea of ‘Citizens Plus’:1 that First Nations should be treated as Canadian citizens with special extra rights because of the injustices of the past. Cairns found the governments’ failure to stimulate public discussion on the findings of the RCAP Report of 1996 ‘disturbing and astonishing’.2 He maintained that the indigenous population of Canada had been silenced and marginalised, and that the settler population did not hear their arguments.3 He argued that RCAP’s continuation of the concept of nation-to-nation dialogue (albeit with a consolidation of the indigenous population into just 80 nations) militated against the idea of a common citizenship and ignored the ties that had developed over time.4 He adopted the idea first mooted in the Hawthorn Report,5 the precursor to the 1969 White Paper entitled Statement of the Government of Canada on Indian Policy, which proposed that indigenous peoples should enjoy full Canadian citizenship with additional special rights and that existing policies were discriminatory.6 Cairns proposed that there should be a continuing debate about the past and that a real settlement of differences required that the settler population should make amends.7 This should include respect for and validation of traditional practices.8 As an example of the way in which the first peoples had no voice in mainstream politics, Cairns observed that the chiefs’ submissions to the 1969 White Paper had been totally ignored.9 He noted the paternalism which persisted in the Comprehensive Land Claims process.10 Rejecting both assimilation and the parallelism of the two-row wampum, he said:

Neither the assimilationist paradigm nor the parallelism paradigm is capable of handling difference and similarity simultaneously. Neither, therefore is an adequate recipe for a future constitutional order that needs to recognize difference or reinforce similarity. The assimilationist paradigm says to Aboriginal peoples, ‘You can only become full members of Canadian society by ceasing to be yourself.’ The parallelism paradigm says to non-Aboriginal Canadians, ‘You cannot expect to share a strong sense of citizenship with Aboriginal peoples for you and they are not travelling together.’ Clearly, we can no longer deny our differences, but if this is all we have, and if we are unable or unwilling to try to transcend them in part, we have no basis for trying to reconstruct a common country.11

The problem with this idea is that there was never a common country in the first place. Cairns advocates that multiple identities are retained in a citizenship model, but with greater emphasis on the similarities.12 Perhaps it would be simpler, as Calvin Helin does, first to identify common goals such as prosperity, independence and good health for indigenous communities.

There is also the consideration that the two-row wampum provides effective links between its two strands in terms of equality, dignity and respect, which should enable the celebration of similarities and closer ties where appropriate.

Endorsing the views of Canadian liberals such as Will Kymlicka and Charles Taylor, the main thrust of Cairns’s writing is towards greater involvement of indigenous individuals in Canadian democracy. His concern is that nation-based treaty relationships in which indigenous/settler relationships are worked out by negotiations outside the parliamentary system ‘nation to nation’ isolates indigenous peoples and their differing needs both from mainstream policy-making and from the attention of the settler society.13 He asks what will enable the two peoples represented by the two-row wampum to take a sustained responsibility for each other.14 Part of this process, he says, would be for settler Canadians to take responsibility for past misdeeds.15 But these are not past misdeeds. As long as there is no genuine attempt to address the consequences of indigenous land rights, this remains a present and future problem. Cairns notes with approval Peter Russell’s remark: ‘Native autonomy and integration must be treated not as choices but as parallel and interacting paths. The path of integration cannot be followed without positive regard for the benefits of participating in the life of the larger and newer society.’16

Dismissing the solution in Scandinavia of indigenous representation through the establishment of Sámi parliaments, Cairns concludes that the circumstances which supported nation-to-nation relations have vanished and that it is time to create a new model based on citizenship in order to move beyond the indifference which exists between the indigenous and non-indigenous nations.17

J.R. Miller agrees with Cairns that assimilation will not work and, in any event, has lost the support of the settler Canadian population. His solution is that indigenous peoples have to join the mainstream Canadian way of life,18 in something resembling the multiculturalism offered to modern settlers from abroad rather than assimilation. Writing in 2004, he describes relations between government and First Nations organisations as ‘poisonous and apparently intractable’.19 He rejects the two-row wampum model, saying it is unsustainable in a situation where there are now 633 separate aboriginal nations,20 but fails to point out that these are the federal government’s concepts of ‘nations’.

Miller proposes that the Citizens Plus approach would refashion native–non-native relationships recognising these social realities; an approach which, he says,21 ‘seeks to establish a shared basis in Canadian citizenship, and to supplement it with arrangements that reflect both Aboriginal peoples’ special needs and their claim to prior occupancy to consideration by newcomers’.22

This arrangement appears to fall far short of the equality, respect and dignity promised in the two-row wampum, certainly so far as equality is concerned. After long and distinguished careers supporting indigenous rights, these writers lend credibility to the governments’ land claims practices despite the size of the land transferred into government hands by the new treaties – usually approximately 90 per cent of the land guaranteed to the indigenous peoples under the Royal Proclamation. They do not seem able to divest themselves of the colonialist propensity, pointed out by Will Kymlicka, to ‘[a]ssert their “principles” in the Empire without realising that what they were really seeking was to impose their own national forms, regardless of the historic life and culture of, and needs of, some quite different community. In short, they thought it sufficient to transplant, where the need was to translate.’23

Kymlicka goes on to point out that, in considering minorities within a state, it is wrong to equate the situation of immigrants to a country with that of peoples who were already there. Quoting Walzer, he points out that:

… [T]he process of voluntary immigrants differs from the assimilation of conquered or colonised national minorities … In the latter case, it is wrong to deprive ‘intact and rooted communities’ that ‘were established on lands they had occupied for many centuries’ of mother-tongue education or local autonomy. Under these conditions, integration is an ‘imposed choice’ which national minorities typically (and justifiably) have resisted. The integration of immigrants, by contrast, ‘was aimed at peoples far more susceptible to cultural change’ for they were not only uprooted: they had uprooted themselves … they had chosen to come.24

This is a distinction which seems to have escaped Cairns and Miller. However, Kymlicka does recognise the difficulty of accommodating indigenous groups within the state.25 He also points to the propensity of liberal theorists to begin by talking about the moral equality of ‘persons’ but to end up talking about the equality of ‘citizens’ without even noticing the shift.26 Kymlicka concludes that there can only be a true integration into one citizenry when all inhabitants of the state have a shared identity and a sense of common purpose, and that this model will not be possible in the case of the indigenous peoples of Canada until the ‘deep diversity’ of their cultures is recognised and honoured.27 Surely, however, this integration is another form of assimilation and, in any event, in Canada would take centuries.

Tom Flanagan, one of the advisers to the most recent Conservative government, takes the assimilationist view that civilisation is an objective standard and that societies who live by it have greater power over their environment than those who are uncivilised. Clearly misinformed on legal precedent, Flanagan claims that only the Canadian state had sovereignty in Canada and Indian lands were held under the regime put in place by the state. For Flanagan there was no inherent Indian title.28 He claims that ‘European civilization was several thousand years more advanced than the aboriginal cultures of North America both in technology and in social organization. Owing to the tremendous gap in civilization, the European colonization of North America was inevitable and, if we accept the philosophical analysis of John Locke and Emer de Vattel, justifiable.’29

Flanagan also asserts that the doctrine of terra nullius has never been totally rejected in arbitrations across the colonised world and in particular was not in fact rejected in the Australian case of Mabo v Queensland [No2].30 However, the Canadian case of Tsilhqot’in Nation v British Columbia has now made it clear that there is no place for this doctrine in Canadian law.

In a text intended to influence government policy, he rejects what he calls ‘Aboriginal Orthodoxy’,31 the idea that aboriginal peoples came to the American continent as early as 40,000 years ago, and notes their migrations within North America because of war and conquest, buffalo depopulations and the arrival of new people. Ignoring the significance of the phrase as legal shorthand for living on the continent before European contact, Flanagan concludes that aboriginal peoples cannot have lived there ‘since time immemorial’.32 He rejects the finding of the Supreme Court of Canada in R v Van der Peet33 that aboriginal peoples can establish title to land because they were there before first contact, living in organised societies. The Royal Proclamation, he maintains, did not have the sanction of an elected parliament, and was issued over the heads of the settlers and of the Indian people. He describes the Proclamation as ‘monarchist, imperialist and mercantile’,34 possibly unaware that foreign policy was the prerogative of the Crown and exercised by the monarchy up until the death of Edward VII in 1911. He makes the claim, in the face of 19th-century expansionism and of 20 years of Supreme Court of Canada decisions to the contrary, that Indians could not have ceded title to land and resources to the federal government by treaty because they had never owned the land.

He goes on to reject aboriginal rights to self-government, claiming that indigenous peoples had de facto become subjects of the Crown.35 Flanagan regards European settlement as a fourth wave of migration, of a more powerful people who have the right to assume sovereignty.36

Flanagan supports the position set out in the 1969 White Paper that Indian status should no longer be recognised, hailing this as the beginning of a stage of ‘negotiation and renewal’.37 He goes on to reject the far more contemporary findings of RCAP that aboriginal peoples find themselves in their present state of deprivation due to the bad faith of settler Canadians and their governments; instead attributing it to their low level of development, taking as his authority the early Canadian anthropologist Diamond Jenness who, Flanagan asserts, considered the disparity between Europeans and native peoples to be ‘huge’. This is his reason for rejecting RCAP’s framework of equality in native/non-native relations.38

In his review of indigenous self-government,39 Flanagan notes the unviably small size of many First Nations, leading to a shortage of skilled personnel and scarcity of financial resources. His answer to this is for bands to join together in some kind of tribal government. He describes abuses of leadership positions: meetings held off-reserve at considerable expense, the drawing of unreasonably high salaries, and nepotism. He points to fiscal mismanagement of band funds and harsh treatment of those members of the band who dare to question Band Council activities. Flanagan cites a number of isolated incidents in support of mismanagement which he appears to claim is present in all nations and Band Councils. However, he is right in his conclusion that they are all overloaded with bureaucracy and administration in comparison with Canadian local councils of similar size.

Another problem which Flanagan identifies is the level of government funding for aboriginal communities – whether in the form of fiscal transfers, land claims settlements or natural resource rents – all of which he claims are unearned income. The money comes, he says, without the need to work for it.40 Flanagan claims that resource-related income is dependent on mere chance – these are windfall gains which improve cash flow but do not necessarily take the poorer members of the community off welfare.41 He also notes that few of the well-paid jobs generated by resource extraction go to the members of communities who sign agreements.

He recommends that, as a start, aboriginal governments should be taxing their own communities, thus making themselves more accountable to their electorate.42 In indigenous governance, leaders are accountable to the elders. His next step would be to privatise on-reserve housing, removing it as a source of undue influence exercised by Band Councils on their electorates. He notes that the most successful aboriginal governments are those where there is a separation of powers.43 As more and more indigenous people move into wider Canadian society, Flanagan advocates that the reserve system be wound down, or at least that Band Councils should no longer be flooded with money – hardly a state which is felt to be the norm in Matimekush Lac John.

Flanagan identifies welfare dependency as the major barrier to improving of quality of life in indigenous villages. He tells us that 41 per cent of on-reserve Indians were on welfare in 1991.44 He asks: ‘If the band offers a place to live, if the government pays for every bit of health care, if some government jobs are available and there is a tradition of sharing the benefits with family members, and if all of this is tax-free, is it surprising that so many people stay on the reserves even if no real jobs are available there?’45

Flanagan approves the RCAP’s solution of ‘building aboriginal economies’ because it would enable indigenous peoples to provide for their needs from their own resources and because it is pro-capitalist. Ultimately, however, he rejects the RCAP model because, he says, this kind of regional development tends to increase rather than reduce unemployment – corporations go bankrupt, debts go unpaid.46

Flanagan’s ultimate conclusion is that what is necessary is better auditing, the creation of a ‘politically neutral’ body of aboriginal public servants, and self-funding through local taxation. He also floats the idea of dividing up the C$6.3 billion spent annually on indigenous funding and delivering it to individuals and families. Further, he advocates the breaking-up of Band Councils and the separation of the management of public services. His final suggestion is the introduction of individual property rights. The doctrine of the 1969 White Paper lives on.

Writing in 2011 with Christopher Alcantara and André le Dressay,47 Flanagan turned his attention once more to individual property rights for indigenous peoples. With the support of a small number of West Coast Nations, he and his co-authors advocate the repeal of the Indian Act and its replacement with a First Nations Property Ownership Act which would give Band Councils the ability to mortgage, sell, lease or cede land to individuals without the lengthy bureaucracy attaching to the procedure under the Indian Act, some of which persists under the regime of the First Nations Land Management Act (FNLMA) 1999.

The 1999 Act went a long way to addressing the indignities and difficulties promulgated by the Indian Act, by repealing its clauses dealing with indigenous land. It allows indigenous groups to opt in to a regime under which they sign a framework agreement enabling them regulate the land and its environmental protection and natural resources without the Crown’s approval. By 2016, 58 of the 633 First Nations had signed up to the system and another 60 had applications in the pipeline. No application is accepted by the government until a code of land management and funding has been agreed both by the members of the applicant First Nation and the government of Canada.48

Le Dressay, in his concluding chapters,49 acknowledges that the FNLMA is an improvement on the Indian Act regime, clarifying land-use laws and creating a land registry system. He says the Act creates long-term tenure but does not create an indefeasible title. Most important, under the FNLMA, the process of releasing the land for exploitation takes only two years or so, in comparison with the 20 or more years it takes to settle a land claim.

Under the legislation proposed by Flanagan et al., indigenous land could be mortgaged, and its advocates believe this would make the use of indigenous land, in particular reserve land, more commercially viable – to the advantage of the band which holds the land. No mention is made by Flanagan either of the government’s obligations under the Royal Proclamation or the United Nations Declaration on the Rights of Indigenous Peoples which, under a Liberal government, has finally begun the process of passage into Canadian law. This seems to be another attempt to circumvent the awkward fact that the Crown in Right of Canada holds only a paper title to indigenous land. It is difficult not to believe that the underlying purpose of this legislation would be the enrichment of those corporations and individuals intent on resource extraction. The authors note on the very first page the wealth which is tied up in indigenous land, and frequent references are made throughout the book to the economic advantages of indigenous access to ‘the market’, and to the need for certainty.

As with FNLMA, under the proposed legislation participation by interested First Nations would be optional. For those opting in, they would either own the reversionary title to the land or an ‘allodial’ title would be created which would mean that there was, in effect, no reversionary title. This, Flanagan says, would enable First Nations to grant fee simple titles to individuals (emphasis added).50 The consequence of this would be that the individual could alienate land just as any settler Canadian could and, ultimately, the land could pass out of indigenous hands altogether. Referencing Hayek and his individualistic philosophy, Flanagan approves this system, comparing it to Margaret Thatcher’s ‘right to buy’ social housing scheme in the United Kingdom, which has led to chronic public housing shortages in the country today.51

Despite recent Canadian Supreme Court judgments, in his section of the book Alcantara dismisses the force and effect of the Royal Proclamation, claiming that: ‘There was no attempt at negotiation or even consultation with the natives of North America regarding the property rights which the Proclamation attributed to them.’52

What, then, it might be asked, was the purpose of the great gathering at Niagara at which wampum belts were distributed recording indigenous agreement to the terms of the Proclamation? Despite the ambiguity of the text, which Alcantara correctly points out, by taking control of the land to the detriment of the indigenous peoples the Crown assumed a fiduciary duty, and the parallel paths of the wampum belts indicated that in all other respects than control of alienation of the land, the indigenous peoples could continue on the land as they had before.

Le Dressay, in the third section of the book, has some interesting ideas as to the future. The proposed legislation would be based on a Torrens registration system which, unlike the FNLMA scheme, would guarantee title once registered. Having worked with First Nations wishing to take up the FNLMA opportunities, he notes that they see it as an escape from the inevitable poverty imposed under the Indian Act. Le Dressay sees the solution in private investment,53 which he says would be more forthcoming with a more certain property regime. However, he points out that:

Even economic development is a controversial goal because many First Nations fear it masks an agenda for the federal government to abandon its fiduciary obligations. These apprehensions are exacerbated because the business constituency within First Nations is small and many First Nations opinion leaders were educated in law or history rather than business or economics. This is why all escapes [from poverty and the Indian Act] generally require strong First Nations leadership and a voluntary approach so that interested First Nations can make the break when they are ready.

Le Dressay’s thesis is that the proposed First Nations Property Ownership Act would reduce property transaction costs, afford First Nations ‘clear underlying and individual property ownership’ and increase indigenous land values to a level competitive with Canadian land values.54 He compares this with the benefits the Nisga’a Nation received under its land settlement. In that case, the reversionary title to indigenous lands lies with the province, should the Nisga’a Nation cease to exist. In their land management legislation, the Nisga’a adopted the Torrens registration system but they are still working towards registration which would protect individual title.

Looking at the detail of how a First Nations Property Ownership Act (FNPOA) would work, Le Dressay identifies five prerequisites to escape from the Indian Act:

a) It must be First-Nations-led.

b) It must provide First Nations with powers to replace parts of the Indian Act.

c) It must support markets on First Nations land so that they become independent.

d) It must be optional.

e) It must create First Nations institutions to facilitate takeover of responsibilities from the federal Department of Indigenous and Northern Affairs Canada.55

The FNPOA, he says, is not a reflection of the 1969 White Paper because it promotes inalienable reversionary rights to indigenous title.

Where Flanagan gives a considered, albeit fairly shallow, argument from his standpoint that Locke and Vattel provide a firm foundation for European land rights and sovereignty in the New World, Frances Widdowson and Albert Howard by contrast provide a disrespectful, ill-considered rant about what they call ‘the Aboriginal Industry’ in Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation.56 A number of academic writers refused to offer their texts for publication by McGill following its acceptance of this diatribe against all who seek a constructive solution to the situation in which Canada’s aboriginal peoples find themselves.57 However, their views are representative of a significant proportion of the non-indigenous population of Canada and, again, seek to validate the governments’ approach to the land claims and resource extraction process.

In the most pejorative language they can find, the authors dismiss traditional knowledge and oral history as irrelevant. In an introduction entitled ‘Discovering the Emperor’s Nudity’, they give a description of the way in which traditional knowledge is presented before inquiries, usually in the form of recordings and notes of interviews with elders. They describe the way in which indigenous leaders are slow to get their points across, not understanding that they think before they speak. They dismiss these processes as unsystematic and their proponents as giving undue weight to cultural difference.58 Even today, in the 21st century, they place indigenous peoples as still in the Stone Age, approving Lewis Henry Morgan’s use of the terms ‘barbarism’, ‘savagery’ and ‘civilization’ to classify the various stages of human development.59

Widdowson and Howard describe the progress in establishing land rights which indigenous peoples have made through the courts, limited as it is, as ‘stealthful’. Judges, they say with disapproval, are becoming more active.60 They prefer the doubtful evidence of Sheila Robinson that the Gitksan and Wet’suweten had learned to live in ordered societies from contact with Europeans for centuries prior to official first contact – approved at first instance by Judge McEachern in Delgamuukw61 – to that of anthropologists who have spent years in the field working with the indigenous peoples concerned. Robinson relied on her doctoral thesis on work with other peoples. She had never worked with the Gitksan or Wet’suweten.62

They claim that the cultural gap between indigenous communities and Europeans at the point of contact was that between the Neolithic and the later stages of capitalism. Since then, they continue, aboriginal peoples have been helped into the modern world with the advantages of ‘the ministrations of the church for hundreds of years; they also use modern technology such as computers, pickup trucks, and cell phones’.63

At a time when the apparatus of the Truth and Reconciliation Commission was crossing Canada to take testimony on, and to commemorate the victims of, the Indian Residential Schools system, Widdowson and Howard assert:

The most significant initiative with respect to this [assimilationist] agenda came to be the residential school system; removing aboriginal children from their communities was intended to reduce the impediment of a tribal and subsistence lifestyle on their development. Thus, the pace of the civilizing process could be increased and aboriginal peoples more effectively assimilated into the social fabric … Aside from the horrors of physical and sexual abuse, the church is accused of destroying aboriginal culture by forcing aboriginal children to speak English and adopt Christianity, by disrupting community child-rearing practices, and by subjecting aboriginal children to disciplines that were alien to their traditions.64

Unsurprisingly, the writers dismiss the widely held view that this project amounted to cultural genocide. Anticipating a response supportive of their ‘thesis’, they ask the question: what would aboriginal communities be like if they had not been subjected to residential schooling? The people of Matimekush Lac John would provide them with an answer which might surprise them.

The other thrust of Widdowson and Howard’s argument is that non-native lawyers, anthropologists and archaeologists who work to enable indigenous communities to improve their lot are not altogether altruistic and work in what they call the ‘Aboriginal Industry’ for their own benefit. They point to the ‘altruistic posture’ assumed by such people and maintain that this cloaks the need to keep the people they purport to help in dependency. They claim that some of these workers can be naively uncritical of Rousseau’s concept of the ‘noble savage’ while others see themselves strictly as professionals who take up consultative roles. This second group, they say, can be cynical and disinterested.65

They come closest to making their point that there is an aboriginal industry when discussing the activities of consultants and the aboriginal leaders they advise. They describe meetings where the consultants interpret and translate the proceedings, and both consultants and clients receive sinecures and attendance fees. They make sweeping claims of corruption in all native administration and claim this is played down by the federal government.66 They note the disconnect between the aboriginal leadership and the grassroots people it represents. They say this disconnect flows from the fact that funding for all activities seeking to establish native rights comes from governments.67 They describe self-government as the basis for ‘tribal dictatorships’.68

The writers portray dealings between settler Canadians and native peoples as an Orwellian nightmare of double-speak. They end by describing the difficulty they had in finding a publisher for their vituperative, simplistic text, quoting an article in Canada’s Globe and Mail newspaper in which the book was described as ‘so full of mean-spiritedness and factual distortion as to make it not worth refuting in detail’.69 Yet the online responses to newspaper coverage of stories of successful court cases and negotiated settlements with native nations display similar levels of vitriol. There are many settler Canadians, some of my own relatives among them, who are adamant that all native rights are ‘granted’ by the federal government and paid for out of settler Canadians’ taxes. This is fuelled by a genuine sense of grievance that so much money is poured into proposed solutions with no real return.

With the airing of ‘research’ like this, the Canadian governments are relatively free to pursue their resource extraction policies safe in the knowledge that they have the backing of voters who feel native peoples have no entitlement to the land or its resources. As long as the federal government is able to perpetuate the myth that Canadian settlers are equally entitled to indigenous lands and that indigenous peoples do not work for their subsistence, they will have a mandate to take land and resources at will with no regard for the solemn undertakings given in 1763.