27 April 2009

No More Buffalo Soldier?

Many past U.S. Administrations failed to appreciate the negative international consequences attending the hypocrisy of pressing other nations to reckon with their grievous historical wrongs while refusing to admit America’s own. Descending from bad to worse, some chose to avoid the hypocrisy by refusing to press other nations on their historical wrongs. Worst of all, some entered into tacit pacts of mutual silence, reasoning that what becomes unspeakable disappears - or at least ceases to interfere in the to and fro of pragmatism in service of politics de jour.

The political/international relations problem with historical wrongs of peoples and nations, especially grievous ones, is that they are seldom simply wrongs that are past. The acts that constitute a grievous historical wrong usually form a series stretching over a lengthy period of time – months, years, decades, or even centuries -, hammering their effects into not only the victims but also the perpetrators and their relations. Thus, they linger in the present through their effects and transmit their poison to the future.

Although not its only grievous historical wrong, its treatment of Native Americans is America’s prime historical wrong. It stands to reason, then, that if the United States cannot own up to this historical wrong and its continuing effects, it cannot escape the charge of hypocrisy in calling other nations to account for their past injustices – or, worse, it must dishonor the ethical principles to which the hypocrite obliquely pays homage. The days of America’s free pass, internationally speaking, are over. It must choose.

President Obama is showing himself unafraid to face America’s history not only squarely but publicly so. His political courage, if you will, is exemplified in his willingness to acknowledge his country’s history vis-à-vis Native Americans.

In his remarks to the Turkish parliament on 6 April 2009, Mr. Obama, simultaneously encouraging Turkey to continue to strive to fulfill its democratic potential and to acknowledge its people’s role in the Armenian genocide, had this to say:

Another issue that confronts all democracies as they move to the future is how we deal with the past. The United States is still working through some of our own darker periods in our history. Facing the Washington Monument that I spoke of is a memorial of Abraham Lincoln, the man who freed those who were enslaved even after Washington led our Revolution. Our country still struggles with the legacies of slavery and segregation, the past treatment of Native Americans.
Building on this, he went on to say:

Human endeavor is by its nature imperfect. History is often tragic, but unresolved, it can be a heavy weight. Each country must work through its past. And reckoning with the past can help us seize a better future. I know there's strong views in this chamber about the terrible events of 1915. And while there's been a good deal of commentary about my views, it's really about how the Turkish and Armenian people deal with the past. And the best way forward for the Turkish and Armenian people is a process that works through the past in a way that is honest, open and constructive.

We've already seen historic and courageous steps taken by Turkish and Armenian leaders. These contacts hold out the promise of a new day. An open border would return the Turkish and Armenian people to a peaceful and prosperous coexistence that would serve both of your nations. So I want you to know that the United States strongly supports the full normalization of relations between Turkey and Armenia. It is a cause worth working towards.

Who could gainsay that the President’s remarks took on greater moral force through his admission of America’s faults, including its mistreatment of Native Americans?

It is as yet uncertain, but the gathering signs point to President Obama reversing the previous Administration's refusal to sign the UN Declaration on the Rights of Indigenous Peoples. On 13 September 2008, when the UN General Assembly voted on the adoption of the Declaration, only four countries, the United States, Canada, Australia and New Zealand, of the 158 countries voting, voted against it (eleven of those voting abstained). Since then, Australia has changed its position and declared its support for the Declaration.

One of the signs pointing to President Obama’s reversal of the Bush Administration’s refusal to sign the UN Declaration is the recent Declaration of Commitment of Port of Spain proclaimed at the Fifth Summit of the Americas held in Port of Spain, Trinidad and Tobago. The Declaration of Commitment stated:

Recognising the diversity and the traditional and ancestral nature of the cultures, histories and demographic, socio-economic and political circumstances of indigenous peoples, we reaffirm our commitment to respect their rights and we will promote the sucessessful conclusion of negotiations on the American Declaration on the Rights of Indigneous Peoples. Recognition of the rights of indigenous peoples is essential to their existence, welfare and integral development. In accordance with the domestic laws of each State, we will promote the exercise of their rights, their full participation in national activities and the creation of the conditions that allow them to overcome poverty, social exclusion and inequality.

The Declaration of Commitment was affirmed by consensus of the Western Hemisphere’s nations attending the Fifth Summit of the Americas. The still-draft American Declaration on the Rights of Indigenous Peoples is a more detailed articulation of the human rights of indigenous peoples than the UN Declaration. Hence, if President Obama is, as the Declaration of Commitment affirms, committed to “the successful conclusion of negotiations on the American Declaration on the Rights of Indigenous Peoples,” he should have no difficulty committing the United States to the international human rights norms articulated in the UN Declaration.

Of course, only time will tell.

Should the United States reverse its stand on the UN Declaration, it would leave Canada and New Zealand alone among nations in maintaining their opposition. Moreover, should the United States accept the American Declaration on the Rights of Indigenous Peoples, Canada would likely be left alone in the Western Hemisphere in its opposition to both Declarations. The government of Stephen Harper has affirmed and reaffirmed its opposition to both Declarations at every opportunity - although it has kept curiously quiet about the Prime Minister's apparent commitment at the recent Summit of the America's regarding the draft American Declaration on the Rights of Indigenous Peoples.

Canada still revels in its self-image as an exemplar of not merely tolerance but acceptance of diversity and respect for human rights. It still points with pride to its efforts since 1982 to build a new relationship with aboriginal peoples based on recognition and reconciliation. Yet, Canada has for some time been busily running in place. The rest of the world has moved on. The recognition Canada is willing to give to its indigenous peoples and the reconciliation it offers them are increasingly apparently less than what the international community’s developing human rights norms demand. The question begs asking: will Canada embrace the hypocrite’s stance, even more regrettably, fall into silence on international human rights, or face up to its continuing injustice towards indigenous peoples and work to overcome it? As with America, so too with Canada: only time will tell.

Michael Lee Ross

20 April 2009

We Are All Here To Stay, Aren't WE?

Undoubtedly, it seems, the proposed Recognition and Reconciliation Act will be introduced in the British Columbia legislature in the coming year. (Apologies to those whose political hopes outstrip political reality, but the Liberals will again assume the responsibilities of governance in this province after this election.) One of the remarkable aspects of the campaign in favour of the Act has been the invocation of the maxim, "We are all here to stay." The underlying idea is that since WE, that is, both the original indigenous and the subsequent non-indigenous peoples who have made British Columbia their home, "are all here to stay", WE may as well accept one another's presence and get on with life, together, and to this end, the proposed Act is the best vehicle for making this happen.

The maxim has a history and more saliently an eminently authoritative source. In the final paragraph of his reasons for judgment in the Delgmamuukw case, Antonio Lamer, the Chief Justice of Canada, wrote the following:
Finally, this litigation has been both long and expensive, not only in economic but in human terms as well. By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in Sparrow, at p. 1105, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place”. Those negotiations should also include other aboriginal nations which have a stake in the territory claimed. Moreover the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet..., to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. Let us face it, we are all here to stay [emphasis added].
Identified with its source, what I have called "the maxim" has a larger context. The larger context is the long overdue work of political reconciliation, that is, the reconciliation of indigenous and non-indigenous peoples and their respective jurisdiction and authority through negotiated settlements (i.e. treaties). The advancement of such reconciliation requires an acceptance on both sides that "we are all here to stay" - neither of us is going anywhere. Hence the Chief Justice's plea, "Let us face it."

In 2005, when the Province and the leadership of the First Nations Summit, the Union of BC Indian Chiefs, the BC Assembly of First Nations agreed to a shared vision statement of a New Relationship, they choose to open the first paragraph of their historic joint statement with the Chief Justice's words:

We are all here to stay. We agree to a new government-to-government relationship based on respect, recognition and accommodation of aboriginal title and rights. Our shared vision includes respect for our respective laws and responsibilities. Through this new relationship, we commit to reconciliation of Aboriginal and Crown titles and jurisdictions [emphasis added].
Curiously - although to some, perhaps not surprisingly -, Chief Justice Lamer's maxim is being employed rhetorically in support of the proposed Recognition and Reconciliation Act. I say "curiously" because the Act would legislatively legitimize the Province's (i.e. the Provincial legislature's and government's) intrusions into the lives of indigenous peoples for time without end. In other words, the majority of indigenous peoples within the boundaries of British Columbia would have virtually no space other than their current postage stamp reserves free of the Province's jurisdiction and designs.

As I've discussed in a previous post, the notion of aboriginal title lands which are wholly (or virtually wholly) open to Provincial interference is inconsistent with the notion of exclusive aboriginal title lands as previously articulated by Chief Justice Lamer in Delgamuukw. All of which leads one to infer that when the Chief Justice said, "Let us face it, we are all here to stay," he implied that the indigenous peoples of British Columbia are here to stay as peoples rightfully and in some crucial areas free of Provincial interference in their lives. The Chief Justice's "WE" implied not only difference but also distinct spheres of self-determination and liberty, an appreciation of which is hard to detect in the current discussions.

True, as we are all here to stay, the indigenous and non-indigenous peoples of British Columbia must share the space, physically, politically, and legally. But must we share all the space? And if we come to share all the space, will a genuinely plural WE still be here to stay? Let us face it, such are the questions surrounding the proposed Recognition and Reconciliation Act that ought to be weighed and deliberated more explicitly and openly than they have heretofore been.

Michael Lee Ross

12 April 2009

The Proposed Recognition and Reconciliation Act

Although advancement of British Columbia's proposed Recognition and Reconciliation Act was postponed until after the provincial election, current political indications point to its passage within the coming year, whatever its final form. Premier Gordon Campbell has suggested that passage of the proposed Act is not merely a provincial but a national imperative: "There is nothing more important than British Columbia leading the way in recognizing the constitutional rights of aboriginal people."

The goal is laudable. Questions, however, arise. Most immediately, what will be the Act's final language? At present, we have no draft to discuss. We have only a discussion paper and few other related documents. The discussion paper makes it clear that the Act will commit the province to recognizing aboriginal rights and title. More specifically it will commit the province to recognizing "Aboriginal rights and title exist in British Columbia throughout the territory of each Indigenous Nation that is the proper title and rights holder."

But there are less immediate questions deserving of answers. One such question may be framed as follows. The Canadian state already has aboriginal rights recognition legislation binding on the provincial legislature and government as well as parliament and the federal government. Section 35(1) of the Constitution Act, 1982 says:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The question, then, is this. Since British Columbia is already constitutionally obligated to recognize and affirm the aboriginal rights and titles of First Nations, why is the proposed Act necessary? The short answer is, it is not. The province is already obligated to recognize and affirm aboriginal rights and title and even reconcile them with its share in the Crown's assertion of sovereignty over aboriginal peoples and territories.

But if it is not necessary, why is the current government promoting it? One attractive - but wrong - answer is that the proposed Act will serve as the province's way of implementing Section 35(1), that is, the Act will serve as its way of giving effect to its share in the constitutional promise to recognize and affirm the aboriginal rights and titles of First Nations.

Let me explain why the answer is wrong. In the Delgamuukw case, the Supreme Court of Canada determined that aboriginal title is a collective right to the exclusive occupation and use of the land. Recognition of aboriginal title implies then recognition of the title holder's right to collectively and exclusively decide to what uses the land and resources shall be put. Subject to certain justifiable interference, the right is exclusive of all others, including the province. Were British Columbia really, then, to recognize aboriginal title "throughout the territory of each Indigenous Nation" as some are convinced the proposed Act will require, the province would have to keep its hands off most of the land and resources subject to aboriginal title. Since we can be certain beyond a shadow of a doubt that the province is not going to do any such thing, we can be similarly certain that the proposed Act will not recognize aboriginal title as determined by the Supreme Court of Canada in Deglamuukw and confirmed in subsequent cases.

What the current government is promoting by advocating the passage of the proposed Act is recognition of non-exclusive aboriginal title, that is, title that does not exclude the province from the land and resources, that secures Crown and Crown-generated interests thereon and thereto, and in the main preserves the status quo. The current government is hoping to give its recognition to this less-than-aboriginal-title in exchange for indigenous consent to and thus legitimacy for what the province has been about for roughly 150 years.

In the final analysis, deciding whether the province's proposed Act is acceptable and thus whether its underlying exchange is reasonable is really up to First Nations peoples. It is unfortunate, however, that the title as well as the language of the proposed Act will ape Section 35(1)'s language of recognition and affirmation of aboriginal rights despite the fact that it most certainly will not recognize and affirm or thus reconcile one of the most fundamental aboriginal rights, that is, aboriginal title.

Michael Lee Ross