Re: the Prime Minister’s Support of Enbridge’s Northern Gateway Pipeline

A recent question for debate is whether Prime Minister Stephen Harper and his government have overstepped their authority in their promotion of Enbridge’s proposed Northern Gateway Pipeline while the project is before the Joint Review Panel. The case for saying they have is debatable. Although reasonable people with reasonable arguments say they have (here), other reasonable people with reasonable arguments say they haven’t (here).

But there is a similar question which should be raised and discussed, namely, whether the Prime Minister and his government have, in promoting Enbridge’s pipeline, offended the honour of the Crown with respect to the constitutional duties owed to Aboriginal peoples, who would have no choice but to live with risks of Enbridge’s pipeline and the associated oil tankers plying the waters of Douglas Channel and beyond and, as the risks materialize, to endure them as best they can.

In the process of coming to an ultimate decision on whether to approve Enbridge’s project, the federal government has a duty to consult each of the First Nations potentially adversely affected by it. The government’s duty includes a duty to consult in good faith, which in turn includes a duty to proceed with an open mind, a mind not closed to the possibility that the honour of the Crown and, by implication, Canada’s constitution may require it to reject Enbridge’s proposal.

Hence the question: By their promotion of Enbridge’s project, have the Prime Minister and his government offended the honour of the Crown vis-à-vis Aboriginal peoples?  From a legal perspective, the case for saying they have is far less debatable than the case for saying they have overstepped their authority in regard to the Joint Review Panel process.

Misreading Peru's Law on the Right of Indigenous Peoples to Prior Consultation

On 6 September 2011, Peru’s President, Ollanta Humala, signed into law landmark legislation on the right of his country’s indigenous peoples to consultation (Ley del derecho a la consulta previa a los pueblos indígenas u originarios, reconocido en el convenio 169 de la Organización Internacional del Trabajo (OIT)).

Article 3 of the new law sets forth the aim or objective of consultation:

The objective of the consultation is to reach agreement or consent between the State and the indigenous or native peoples regarding legislative or administrative measures that directly affect them, through intercultural dialogue that guarantees their inclusion in the State's decision-making processes and the adoption of measures respectful of their collective rights.

Set against Article 3 is Article 15, which among other things says:

The final decision on the approval of the legislative or administrative measure belongs to the competent state agency. … If no agreement is reached, it is the responsibility of the state agencies to take all the measures that are then necessary to guarantee the collective rights of the indigenous or native peoples.

Some early commentators have read Article 15 as contradicting Article 3 and so either have gone on to assert that Article 15 runs afoul of international law on the right of indigenous peoples to free, prior, and informed consent and then suggest that it should be downplayed in favour of Article 3 or - wishing to avoid drawing attention to it - have noted Article 3 without mentioning Article 15.

Likely unawares, these commentators have inflated the international legal principle of free, prior, and informed consent into an indigenous veto or its like and thus have fallen into a trap similar to one fallen into earlier by the Chief Justice of Canada, albeit to opposite effect. As I note in my previous post on Consultation and Free, Prior, and Informed Consent, drawing from the analysis of James Anaya, United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, there is no contradiction between saying, on the one hand, that the state should seek and even in some cases must obtain the free, prior, and informed consent of indigenous peoples before deciding to go ahead with plans and projects inimical to their rights and, on the other, that the decision is the state’s to make, even if sometimes it must, normatively speaking, result in a “No”.

***

Here is the Spanish text on which the above translations are based:

Artículo 3. Finalidad de la consulta

La finalidad de la consulta es alcanzar un acuerdo o consentimiento entre el Estado y los pueblos indígenas u originarios respecto a la medida legislativa o administrativa que les afecten directamente, a través de un diálogo intercultural que garantice su inclusión en los procesos de toma de decisión del Estado y la adopción de medidas respetuosas de sus derechos colectivos.

 ...

Artículo 15. Decisión

La decisión final sobre la aprobación de la medida legislativa o administrativa corresponde a la entidad estatal competente. Dicha decisión debe estar debidamente motivada e implica una evaluación de los puntos de vista, sugerencias y recomendaciones planteados por los pueblos indígenas u originarios durante el proceso de diálogo, así como el análisis de las consecuencias que la adopción de una determinada medida tendría respecto a sus derechos colectivos reconocidos constitucionalmente y en los tratados ratificados por el Estado peruano.

El acuerdo entre el Estado y los pueblos indígenas u originarios, como resultado del proceso de consulta, es de carácter obligatorio para ambas partes. En caso no se alcance un acuerdo, corresponde a las entidades estatales adoptar todas las medidas que resulten necesarias para garantizar los derechos colectivos de los pueblos indígenas u originarios.

Los acuerdos del resultado del proceso de consulta son exigibles en sede administrativa y judicial.

Consultation and Free, Prior, and Informed Consent

The McLachlin Court's position on the right of Aboriginal peoples to participate in the Canadian state's decision making processes where those decisions may adversely affect their rights is a step back from the position staked out by the preceding Lamer Court.  In his reasons for decision in Delgamuukw (1997), then Chief Justice Antonio Lamer, speaking of what might be required to constitutionally justify state infringement of Aboriginal title, wrote:

... aboriginal title encompasses within it a right to choose to what ends a piece of land can be put.  ...  This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law....  The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (para. 168; italics mine)

There are three things I want to note about this passage here. First, Aboriginal title encompasses the right to exclusive use and occupation of the land (para. 166).  It also encompasses the right to choose to what to uses the land can be put (para. 166).  The latter encompassed right flows from the first.  Thus, Aboriginal title encompasses the right to exclusively choose whether and how to use the land.    Second, the right to consultation in the face of state infringement of title, and along with it the principle that in certain circumstances the state may not proceed without indigenous consent, are aimed at avoiding encroaching unnecessarily not only on land subject to Aboriginal title but also on the right to exclusively decide whether and how the land is to be used.  Third, Justice McLachlin (as she then was), who had been on the Supreme Court of Canada for a decade when the reasons for decision in Delgamuukw were released, there stated - without elaborating on - her concurrence with Chief Justice Lamer.

On 7 January 2000, she was sworn in as Chief Justice of the Supreme Court of Canada.

Nearly seven years after Delgamuukw, after quoting from the aforementioned passage three times in her reasons for judgment in Haida Nation (2004), Chief Justice Beverley McLachlin wrote:

The Redtop Case

Here are Madame Justice Dillon's written reasons for decision in Canadian Forest Products Inc. v. Sam, 2011 BCSC 676 (the Redtop case).  The case found its way into the courts when Canfor applied for an interim injunction preventing members of a Wet'suwet'en Chief's family from blocking a road (video) and thus preventing the company from proceeding with its provincially permitted logging operations in a portion of the Chief's House territory, with the design of harvesting trees affected by the mountain pine beetle epidemic while they still have economic value.  In turn, House Chief, Kelah (aka Mabel Crich), and Head Chief, Hagwilneghl (aka Ron Mitchell), sought an interlocutory injunction restraining Canfor from engaging in timber harvesting in the Redtop area, a culturally vital portion of the larger House territory (Ilh K'il Bin) for which Kelah bears the primary stewardship and decision making responsibility by Wet'suwet'en law. 

Justice Dillon described the Wet'suwet'en relationship to the land generally and to the Redtop area in particular as follows:

Jumbo Glacier Resort and Qat’muk on Redeye

On Saturday, 4 December 2010, on the Vancouver Cooperative Radio program Redeye, Jane Williams interviewed, first, Robyn Duncan, Purcell Program Manager, Wildsight, and, second, Kathryn Teneese, Chair, Ktunaxa Nation Council. Topics discussed included the proposed Jumbo Glacier Resort, its potentially adverse impacts on grizzly bears, the Ktunaxa sacred site known as Qat’muk, and the Qat’muk Declaration.

Here are snippets of the interviews:

Jane Williams: “Now, this Jumbo Glacier ski resort would be built 55 km west of Invermere. Can you describe the terrain and environment in the area that would be affected?”

The Crown’s Duty to Consult First Nations: A Short Quiz on Canadian Legal History

The Supreme Court of Canada’s recent decisions, first, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council and, second, in Beckman v. Little Salmon/Carmacks First Nation, serve to mark how far the Canadian judiciary’s thinking on the Crown’s duty to consult has advanced since – and since before - the Court’s watershed decision in Haida Nation in 2004.  But now as lawyers, political leaders, pundits, and others begin turning their minds to what these most recent decisions mean, some larger perspective and, thus, some proper sense of proportion may be gained by pausing to acquaint oneself with and reflect on the duty’s legal history.

Testing the New Relationship in the Post-Campbell Era: The Ktunaxa Nation and Qat’muk

No one in 1952 could have predicted that Richard Nixon, then former member of the House Un-American Activities Committee and Dwight D. Eisenhower’s Vice Presidential running mate, would in 1972 become the first American president to visit China, journeying there in pursuit of a new relationship with the communist country. Likewise, no one in 1998 could have predicted that Gordon Campbell, then leader of the opposition and plaintiff in a lawsuit challenging the constitutionality of the Nisga’a Treaty, would in 2005, as Premier of British Columbia, commit the Province to a New Relationship with First Nations peoples.

Un Espacio Constitucional Para Los Pueblos Indígenas: La Ambivalente Experiencia Canadiense

Here is the abstract for an article "Un espacio constitucional para los pueblos indígenas: La ambivalente experiencia canadiense," published in Revista internaticional de filosofia politica (Ejemplar dedicado a: Justicia Intercultural), 39-70 (No. 3, 2009):

Cuando los europeos llegaron por primera vez a las orillas de Norteamérica existía ya un gran número de pueblos indígenas que se gobernaban de acuerdo con sus propias instituciones y leyes. Cuando Gran Bretaña afirmó su soberanía sobre lo que más tarde se convertiría en Canadá, permitió que estos pueblos siguiesen en gran medida gobernándose como lo habían hecho sus ancestros. Sin embargo, el moderno Estado canadiense ha tendido a imponer sus instituciones y leyes sobre los pueblos indígenas ignorando nosólo sus instituciones sino la propia tradición previa de pluralismo político y jurídico. La promulgación del Acta Constitucional de 1982 —y particularmente su Sección 35, que elevó los derechos de los pueblos indígenas a un estatus constitucional— prometía revertir los efectos dañinos del colonialismo canadiense. Tres décadas después, Canadá sigue sin conceder un espacio constitucional significativo a los pueblos indígenas. Este artículo explica por qué el pluralismo jurídico y político sigue siendo un lejano objetivo para estos pueblos. Para ello recurre a la jurisprudencia de la Corte Suprema de Canadá sobre derechos indígenas. La tesis principal del artículo es que la Corte ha mantenido un enfoque discriminatorio sobre la aboriginalidad y la diferencia cultural de los pueblos indígenas, excluyendo casi por completo su carácter de pueblos y los elementos constitutivos comunes con los pueblos no indígenas.

To read the article online, see here.

For an English language version, see the previous post: "Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence."

Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence

What follows is the English abstract for my article (to wit, "Un espacio constitucional para los pueblos indigenas: la ambivalente experiencia canadiense") originally published in Revista internacional de filosofia politica (Ejemplar dedicado a: Justicia Intercultural), 39-70 (No. 3, 2009), (for link to my English version, see below) : 

When Europeans first arrived on North America’s shores, there was present a great variety of indigenous peoples already governing themselves and their territories according to their own political institutions and laws. As Britain began to assert sovereignty over what later became Canada, as elsewhere, it was content – and indeed was committed by Imperial policy and law - to leave indigenous peoples to govern themselves and their territories largely as their forefathers had.  But as the modern Canadian state took shape, it increasingly superimposed its political institutions and laws on indigenous peoples and their territories in disregard not only of indigenous peoples, territories, political institutions, and laws but also of the earlier tradition of political and legal pluralism.  Canada’s enactment of the Constitution Act, 1982 – and particularly Section 35 which raised the aboriginal rights of aboriginal peoples to constitutional status - promised a reversal of the damaging effects of Canada’s colonialism.  Despite its almost three decade old promise, Canada has not yielded significant constitutional space to indigenous peoples, political institutions and laws.  In this paper, I explain why meaningful indigenous political and legal pluralism remains a distant dream.  I do so by way of analysis of the Supreme Court of Canada’s aboriginal rights jurisprudence.  My chief thesis is that indigenous political and legal pluralism remains a distant dream because of the Supreme Court of Canada’s discriminatory focus on indigenous people’s aboriginality and cultural difference to the near exclusion of their peoplehood and the constitutive commonalities they share with non-indigenous peoples.

Here is the English language version of the article: Creating Constitutional Space for Indigenous Peoples: Canada's Ambivalence.

Where Coyote and Salmon Once Passed

In Cormac McCarthy’s novel, The Road, nature - along with all things man it supports - lies in ruin. Forests decay, their deaths punctuated by fire. Oceans settle into grey. The sky too. Gone are the unobtrusive pursuits of wild animals, the chitterings of birds, and the occult fluid mastery of fish. The world undone into which the protagonist father has been pitched together with his young son, who has no experience of the prior, is cold, silent, funerary:

The ashes of the late world carried on the bleak and temporal winds to and fro in the void. Carried forth and scattered and carried forth again. Everything uncoupled from its shoring. Unsupported in ashen air. Sustained by a breath, trembling and brief.

McCarthy’s hero is engaged in a struggle to survive. Not survival for himself. Nor survival at any cost. There are, as every father worthy of the appellation teaches his son, limits. Living within such limits sometimes means dying. The man assures his son that they are and, come what may, will always be “the good guys”. Unlike “the bad guys” they encounter on the road, they will starve to death rather than kill other people to eat. At night the father would tell his son “Old stories of courage and justice as he remembered them until the boy was asleep in his blankets.”

Through his tellings of these old stories, his commitment to the ethics of masculinity portrayed therein, and his (sometimes faltering) efforts to exemplify them for his son in a hostile world, the man assures the boy not only that they will always be the good guys but also that as such they are “carrying the fire” – the fire previously carried and passed on by his father and his father’s fathers before him. This task and its fulfillment is what links past generations to future through present. This task and its attempted fulfillment is what engages our fathers passed before us in our affairs. They watch us. But they also weigh us “in their ledgerbook”. Thus they neither watch nor, more importantly, watch over us unconditionally:

They are watching for a thing that even death cannot undo and if they do not see it they will turn away from us and they will not come back.

McCarthy’s “bad guys” rape, kill and eat others, including their own children. They embrace a self-defeating wickedness. They reject the fire. They reject the task of carrying the fire forward, enkindling and nurturing it in a new generation. Their fathers have turned away because they have turned away from their fathers, utterly.

The man’s memories of trout are at the core of his lament for living nature, its beauty, and its grace. At various places on his and his son’s journey, he crosses now dispirited rivers “Where once he’d watched trout swaying in the current, tracking their perfect shadows on the stones beneath”; where once he’d

… watched the flash of trout deep in a pool, invisible to see in the teacolored water except as they turned on their sides to feed. Reflecting back the sun deep in the darkness like a flash of knives in a cave.

Something of the significance of trout and of what was – and, in our case, would be - lost in their destruction is conveyed in The Road’s final paragraph:

Once there were brook trout in the streams in the mountains. You could see them standing in the amber current where the white edges of their fins wimpled softly in the flow. They smelled of moss in your hand. Polished and muscular and torsional. On their backs were vermiculate patterns that were maps of the world in its becoming. Maps and mazes. Of a thing which could not be put back. Not be made right again. In the deep glens where they lived all things were older than man and they hummed of mystery.

***

Salmon are cousin to trout. Pacific sockeye salmon are a race particularly adept at solving the watery maze of ocean, rivers, lakes, and streams they must reverse navigate to return to their individual places of origin to spawn and die.

Dozens of indigenous peoples, with their own distinct languages, political systems and laws, prospered on the yearly sockeye runs of the Fraser River and its tributaries long before the arrival of Europeans in the Pacific Northwest. Indeed the existence of many of these communities, particularly those making their homes in British Columbia’s interior, would have been unthinkable absent the migrating salmon. Hence, the significance of salmon to Pacific Northwest natives is sometimes compared to the significance of buffalo to the Plains Indians.

The gradual ascent of salmon up the Fraser River and its tributaries coincided with the gradual retreat of the glaciers several thousand years ago. Coyote (Sk’elep) was their guide. Coyote’s purpose was to bring the salmon and the people together.

Coyote was particularly solicitous of the Secwepemc (shuh-kwehp-im) people’s needs. The ancestral territory of the Secwepemc, who are more commonly known as the Shuswap, covers a large portion of British Columbia’s interior, an approximately 180,000 square km area extending roughly east-west from the Rocky Mountains to beyond the Fraser River and north-south from the upper Fraser River to Arrow Lakes. Coyote cleared man-made as well as natural obstructions from the lower Fraser to allow the salmon to pass through Secwepemc territory on their way to spawn. He shaped special fishing sites to make it easy for the people to fish. One of his most marvelous works, Coyote formed the canyon at Soda Creek, the ancient village site of Xats’ull, the northernmost Secwepemc community.

***

When British Columbia entered the Canadian Confederation on 20 July 1871, Parliament’s authority to legislate in regard to “Sea Coast and Inland Fisheries” under Section 91(12) of the British North America Act of 1867 was extended to the Pacific salmon fisheries within the former British colony’s sphere. Almost five years later, on 1 July 1876, the federal Fisheries Act was proclaimed in British Columbia. For more than a century and a quarter, the federal government has exercised its powers under the Act in regard to the Pacific salmon fisheries through Fisheries and Oceans Canada (and its predecessor agencies), better known as the Department of Fisheries and Oceans or DFO for short.

For most of its history, DFO managed the Pacific salmon fisheries primarily for the benefit of corporate/commercial interests (and not wholly incidentally for government’s own related interests - revenue and profit are ever hungry twins). The first commercial salmon canneries in British Columbia were founded in the 1870s on the lower Fraser River. They quickly muscled indigenous peoples out of their traditional and/or fledgling commercial salmon fisheries, relying on “the law” and DFO’s enforcement to reduce their fishing to mere subsistence or less. When they were even a thought, indigenous peoples and their needs were a distant second thought. As for their prior rights, they subsisted barely and then only episodically on the edge of DFO’s and the federal government’s awareness.

By almost any measure, DFO’s management – including its willingness to shuck its statutory responsibilities of management - of the Pacific Salmon and, in particular, its management of the Fraser River sockeye, is a disgrace.

Among an increasing number of disastrous years for the Fraser River sockeye, 2009 stands out. On 13 August 2009, the Globe and Mail reported that despite DFO’s confident earlier prediction of a return of 10.6 to 13 million sockeye to the Fraser, it had revised its estimate dramatically downward to 1.7 million. Each year’s sockeye return concludes a four year cycle. DFO’s prediction was based on the facts that nearly nine million sockeye had spawned in the Fraser system in 2005 and, as a result, that a high number of smolts had migrated from lakes and streams downriver to the sea in 2007. These facts gave DFO reason to believe that 2009 would be yet better than 2005. It stood by its original prediction until summer test fishing results began to unfold a different story.

Asked to explain the disappearance of nine or more million sockeye, Gail Shea, the Minister in charge of DFO, and her underlings retreated to the tried and true, namely, overgeneralizing the problem (“coastwide decline across all Pacific salmon species”), invoking global forces beyond anyone’s control (“climate change”), and pleading scientific uncertainty in regard to causes on the one hand, while assuring the government’s reliance on “the best available science” on the other.

Remaining true to its late 19^th century priorities, DFO’s public statements, from administratrix Shea on down, were often aimed less at defending DFO than at defending the corporate/ commercial fish farms that dot British Columbia’s coast. Thanks to the research of a small group of dedicated and thick skinned scientists, including Alexandra Morton, willing to endure the derision of the government-industry tag team and their supporting cast of experts, the causal link between the underwater plagues of sea lice generated by these open-net fish “feedlots” and the demise of juvenile sockeye salmon is now incontrovertible. The only uncertainty remaining is numbers.

Despite this, as soon as questions about the collapse of the 2009 Fraser River sockeye run began to arise, DFO’s Pacific Regional Director General wrote a brief, five-sentence letter to the Globe and Mail assuring the public, in his opening sentence, that “Sea lice from fish farms are not the explanation for this year’s extremely poor marine survival of Fraser River sockeye.” (Despite his use of the definite article “the”, what he really wanted his readers to take away from his letter was that sea lice from fish farms are not a significant part of the explanation, for no serious critic had claimed that sea lice from fish farms were the only explanation.) In short order, the false premise and faulty reasoning on which he based his assurance were exposed for what they were.

On further examination, it came to light that some Fraser River sockeye, specifically those originating from the tributary Harrison River system, not far upriver from the Fraser’s mouth, were returning at 2 times the DFO forecast. Thus, the missing fish were mid and upper Fraser River sockeye. The telling difference between the Harrison and the mid and upper Fraser sockeye is that while the former migrate south through the fish farm-free Strait of Juan de Fuca when they leave the river, the latter migrate north, forced to run the long gauntlet of fish farms between Vancouver Island and the mainland of British Columbia in their effort to make their way to the open sea.

Following upon the recent years of dismal returns, the collapse of the 2009 run hit the Secwepemc people particularly hard. The majority of the 9 or so million sockeye gone missing would have passed through Secwepemc territory on their way to their spawning grounds. Communities that once devoted their late summer months to dipnetting and processing salmon in the thousands to share within and trade without counted their catches in the dozens. Those who still choose to fish, fish decreasingly for the food, much less the wealth, for which their ancestors fished, but increasingly for its symbolic value. Stripped down to its essentials by forces largely outside the Secwepemc people’s control, the act of fishing is a crucial cultural fibril connecting them to their ancestors.

Speak with Secwepemc people about the collapse of the Fraser River sockeye and one soon realizes that they have long seen it coming. They tend to see the causes in historical and cumulative terms. They do not overlook and thus excuse local causes to focus exclusively on distant (e.g. sea lice) or global/speculative ones (e.g. climate change). The Fraser’s life nourishing waters have for many years been heavily burdened by upriver sewage, agricultural runoff, and pulp mill effluent. Decades of unsustainable forest harvesting practices and, more recently, massive deforestation due to the ravages of the mountain pine beetle are also taking their toll on the river and its salmon. Adding insult to injury, and with DFO when pressed standing aside, the Provincial government recently permitted Taseko's Gibraltar Mine to pipe its tailings pond water many kilometers to the Fraser, discharging it not far upriver from the ancient village fishing site of the Xats’ull. To a people whose ethic does not permit them to clean their fish in the River’s waters, despite the inconvenience, or even to cast a rock into it, the authorized addition of the copper mine’s contaminants to the river’s already heavily burdened waters is an insult deeply felt.

When Coyote left the earth, he left a world and a people well suited to one another. He also left lessons to be retold through the generations on how to live and how not to live. As trickster, his conduct was ever purposeful but never predictable. He and his works, the Secwepemc understand well, elude the grasp of reason (including what many call science), taking cover in mystery. Things in their world speak to them specially - things sui generis, things personal, things chosen for their benefit that need not have been. The world, their world, is a gift, a gift given to them. But they too are part of their world, and their identity as Secwepemc inseparable from it. Thus, who they are is also a gift given to them together with their world. Threats to their world, including especially threats to their salmon, are threats to the people. Manifestly, their world is threatened on all sides.

***

Roughly midway through The Road, McCarthy portrays the father awakening from a dream - in which he has been visited in his sleep within his dream by speechless, skulking “creatures of a kind he’d never seen before” - to the realization that to his son he is himself an alien:

He turned and looked at the boy. Maybe he understood for the first time that to the boy he was himself an alien. A being from a planet that no longer existed. The tales of which were suspect. He could not construct for the child’s pleasure the world he’d lost without constructing the loss as well and he thought perhaps the child had known this better than he.

To some extent, all fathers are aliens to their sons. The world in which a son’s father is formed experientially and otherwise is of the past - a past not directly accessible to the son. Unavoidably, something of the father’s world no longer exists. There is often, then, something unverifiable and therefore suspect about a father’s tales. Also unavoidably, in retelling his world lost, he cannot reconstruct it for his son’s pleasure without an admixture of the loss. However, the feeling of loss is ever more the father’s than the son’s. A son looks to his father for inspiration and analogies to guide him in a future to be partly determined by his choices, not for invariable laws governing only what lies beneath choice. Although less evident in traditional societies not habituated to – diverting but mostly superficial - change for the sake of change, the aforesaid is universally true nonetheless.

McCarthy’s protagonist father faces a further obstacle in conveying to his son his world past and his connections to his father and his father’s fathers. Language (anthropic logos) is losing not just its grip on reality but the very reality without which it has no grip, no meaning, and without which it is not. In its ending as in its beginning was the world:

The world shrinking down about a raw core of parsible entities. The names of things slowly following those things into oblivion. Colors. The names of birds. Things to eat. Finally the names of things one believed to be true. More fragile than he would have thought. How much was gone already? The sacred idiom shorn of its referents and so of its reality. Drawing down like something trying to preserve heat. In time to wink out forever.

It is no accident that McCarthy, who is a master of descriptive detail, has the man and the boy communicate in the most basic of words and actions. Their shared world cannot sustain more.

***

For more than 150 years, Secwepemc men (and women) have struggled to be fathers (and mothers) and thus to carry their people’s fire forward in a “world shrinking down” on account of smallpox, measles, and other epidemics, usurpation, dispossession, despoilment of nature – in short, the catalogue of evils colonialism has visited upon them.

From the Secwepemc people’s perspective, the decline of the Fraser River sockeye has shorn the “sacred idiom”, whether Secwepemctsín or English, of core referents and reality. With the fish go first the people’s activities and rituals associated therewith (dipnetting, packing, cleaning, drying, smoking, storing, sharing, trading, eating, celebrating, etc.) and then their names “slowly following.”

The Secwepemc are not unaware of what is at stake. Like McCarthy’s protagonist father, they know that “[f]inally,” after the names of fish, “[t]hings to eat,” and the names of the acts and rituals associated therewith, go “the names of things one believed to be true,” including the names for beauty and goodness. Their waters are polluted, their once green forests are shrouded in red, the colour of death, and their salmon are disappearing. The Secwepemc find it increasingly difficult to think of their world in terms of beauty and goodness or even of beauty and goodness at all.

Despite the heartbreaking circumstances, there are Secwepemc men who continue to struggle as Secwepemc fathers to carry the fire forward in an increasingly hostile world. Their fathers watch. They keep watching because they still see in their sons and their sons’ sons “a thing that even death cannot undo.”

***

Modern fashion counsels meeting those who speak so of their fathers with pity, ridicule or outright derision. So powerful is the fashion that many have internalized the stance in their own inner dialogue. Hence, McCarthy's man, in a despondent mood, poses to himself and provides an answer to the question:

Do you think that your fathers are watching? That they weigh you in their ledgerbook? Against what? There is no book and your fathers are dead in the ground.

Not long after, in a rare respite from the challenges of the road, the man - sensing something in his son, his deepening love for his son, and their struggle beyond death's reach - affirms the ongoing but conditional engagement of his fathers in their lives.

Those of us not bullied by prevailing fashion - that is, those who have not bought the supreme self-aggrandizing invention that "[t]here is no book" or standards against which we are measured and that our "fathers are dead in the ground," period - must nonetheless ask ourselves the question: do our fathers still watch?

***

A film adaptation of The Road is set for wide release in late November. Directed by John Hillcoat, the movie stars Viggo Mortensen, Kodi Smit-McPhee, and Charlize Theron.

Of Poetry and Roads

A phenomenology of roads, so far as I’m aware, has never been written. Although philosophers seldom reference them, poets often do. Lyricists too. Roads haunt the songs of Robert Johnson, Woody Guthrie, Bob Dylan and Steve Earle, to name just a few.

Roads are so interwoven with human life, particularly modern life, we hardly give them a second thought. Hence, philosophers - people who traffic in second thoughts – seldom reference them. Nonetheless, through their real and imagined effects on our lives, roads can evoke wide-ranging, often ambivalent, feelings from deep within, potent emotive associations of which poets and lyricists are particularly cognizant.

Where the Red Road Meets the Sky is the first published book of poems by Kentucky poet E. Gail Chandler. The twenty-six poems chosen for this book are akin to a priceless collection of twenty-six diamonds, each expertly cut, of high clarity, and brilliant.

Altogether, Chandler’s poems relate her experiences at various points in her life journey. They tell us who she is by way of where she is (coming) from. As she says in “Appalachian Emigrant Blues,”

I'm from between McKee and Gray Hawk
just north of Tuff-it-Out
I’m from hills blessed with no coal
the poorest, Republicanist county in Kentucky
and Thank God for Mississippi

But where we happen to hail from is not always our only “from”. As with many of us, Chandler’s subsequent “froms” have compounded somewhat incongruously and entirely unpredictably with her first. Thus, referring to her stint in the Marine Corps in the Vietnam era and her college student days in New York City, she writes further:

I’m from Here and There
McCannan Creek and the Hudson River
The New York Times and The Jackson County Sun
the Marine Corps and We Shall Overcome
Semper Fi and peace signs
…

Perhaps unsurprisingly, since they are the primary terrestrial means whereby we transport ourselves and whatever we may bring with us over any significant distance from Here to There, roads occupy an important place in several of Chandler’s poems. The roads of her experiences in eastern Kentucky and western Kenya play particularly important roles.

Poor roads are commonly associated with isolation, poverty, and, in a word, lack of progress. While a poor road, like the lack of a road, may – not always for worse - discourage outside interference, it may also – not always for worse – encourage it. For those who feel called to alleviate the deprivations of the less fortunate, whether those at road’s end feel less fortunate or not, a poor road beckons. Thus, “the curvy Appalachian roads” beckoned well-meaning folks from Michigan, presumably of the Dutch Calvinist persuasion, to found the mission school attended by Chandler in her youth. In “The Good People,” she describes the visits of the school’s sponsors:

Tour buses brought church sponsors
round the curvy Appalachian roads
to view their good work –
and us, the poor but happy youth

In the school, Chandler and the other children were taught the dual lesson

that our souls needed saving
our mountain ways required adjusting.

They were also reminded, probably most especially in the presence of the school’s sponsors,

... to be grateful
to those kind folks in Holland, Michigan
for providing us our mission school.

The second half of “The Good People” juxtaposes the adult Chandler’s visit forty years later to a Kenyan orphanage where Mama Agesa (“born into the Luhya tribe[,] educated by missionaries”),

… takes me to see her orphans
has them give their recitations
prays long that they’ll be thankful
for this nice American woman.

Chandler describes her visit to the Kenyan orphanage, of which she is a sponsor, with no trace of self-congratulation for her own good work. Undoubtedly, attempting to address the pressing needs of the rising numbers of children orphaned by the calamity of AIDS (often themselves HIV-infected) in Kenya, as elsewhere in Africa, leaves little room for such self-regard.

AIDS and its effects on Kenya’s children form the backdrop for Chandler’s poem “Where the Red Road Meets the Sky.” There she touchingly portrays Afwanda, a young girl, “not yet six”, left alone in charge of her younger twin siblings after Bibi, her grandmother, “strolled down the red dirt road toward Kisumu,” apparently in search of food. After three days of her and her siblings’ growing desperation,

Afwanda pictures sticky
ugali in her fingers
and shakes the empty
maize meal bag, again.

Outside, she stares up the banana tree,
knows she needs a machete,
knows the fruit is gone,
knows it would be green, anyway.
A rooster brags and prances
just out of reach.

As the evening sky turns black and the wind picks up – it is the rainy season -, the same red road down which Afwanda’s grandmother disappeared delivers relief:

On the horizon, two figures appear,
grow larger – not Bibi but a mzungu
and the big woman with the big voice
from the AIDS orphanage.
Never mind the roiling clouds, the lightning.
They will eat tonight.

Gazing into their distance, roads can appear to tail off or disappear into very unroad-like realities such as mountains or sky. Appearing so, it is easy to imagine a point at which a road adjoins, say, the sky to form a portal through which travelers may pass between the two realms. Likely, from Afwanda’s perspective, her benefactors might just as well have descended from the sky onto the red road leading to her hut as having journeyed from some unknown place along a distant unknown stretch of the road. In any case, they appeared heaven-sent.

The construction of new roads and the improvement of old are associated with progress. But progress exacts a price. Something prior, time-tested, already established, in a word, old must give way to the new. All too often, progress is pursued to the destruction of things irreplaceable and cherished.

For complex economic and other reasons that cannot be discussed here, many societies are lacking in a rational, sensible ambivalence about progress and a corresponding caution. It is not only a Western phenomenon.

Having experienced a disproportionate share in progress’s negatives – and in its benefits too -, indigenous peoples have maintained a justifiable ambivalence about progress. Thus, they have sometimes opposed the construction of new roads and the improvement of old. (In two well known cases that reached the Supreme Court of Canada, the Taku River Tlingit First Nation and the Mikisew Cree First Nation challenged respectively the construction of a mine access road and the improvement of a winter road within their ancestral territories.)

In “The Guardian,” Chandler describes her father taking in his hands, carrying to her and her sister, a lone terrapin, and telling them:

First one I’ve seen all year, he says.
Before we built a road around this place
I counted thirty-seven one spring day.

Invoking popular, pre-packaged, large-scale explanations for their dearth, which tend to place blame elsewhere, Chandler writes:

We nod wisely,
talk of weed killer,
acid rain, global warming.

Their father, however, declines to look elsewhere:

He shakes his head. It was the road,
the soft clay, made their eggs
easier for skunks to find.

To convey a sense of the preciousness of what the road had endangered, Chandler then depicts her father acting so:

He turns the terrapin
as if it were a Ming vase,
shows us it’s a female.

Chandler has traveled many roads, many more than the roads of her childhood in Kentucky and her later-in-life visits to the orphans in Kenya only lightly touched upon here. Where the Red Road Meets the Sky is her invitation to retrace in our own mind’s eye her travels down those roads. Her hope, I expect, is that we will leave her book with our outlooks similarly broadened, our understandings similarly deepened, and our hearts similarly enlarged. I am grateful for her invitation. I trust that I’ve left her book more closely approximating what she’d hoped.

The name of the Kenyan orphanage mentioned above is the Vihiga Children’s Home. Chandler donates all proceeds from sales of her book to the orphanage.

Fanning the Embers of Anti-Semitism in Venezuela

President Hugo Chávez is not responsible for the embers of anti-Semitism in Venezuelan society. He is, however, responsible for fanning them. Whatever allowances are made for past political leaders and their association with anti-Semitism, none should be made for President Chávez in our post-Holocaust world. Some conduct is so odious that its doer must be denied credit for all else he might do that would otherwise be accounted worthwhile. President Chávez’s use of anti-Semitism is so odious.

So that there is no mistaking my meaning, I do not automatically equate criticism of Israel with anti-Semitism. Certainly, some criticisms of Israel are mere variations on the larger anti-Semitic theme. But not all are. I also accept that there are grey areas open to disagreement among reasonable people. But not everything labeled “anti-Semitism” is a shade of grey. Nor do the innocent linger in the shade.

Reading President Chávez’s self-appointed apologists is a wearying task, increasingly so in the past several weeks. In a recent article in the Boston Review, “United by Hate: The Uses of Anti-Semitism in Chávez’s Venezuela,” Claudio Lomnitz and Rafael Sánchez provided a brief but rigorous critique – “from,” as they say, “the left” - of President Chavez’s political uses of anti-Semitism. The ensuing online discussion split evenly between those who found the article illuminating or at least confirmatory of their own views and those who saw it as, say, “a horrendous slur on Chavez and Venezuela in general” or, more darkly, a piece of “liberal imperialism”. Much of the criticism consisted of ad hominem abuse, non-sequiturs, irrelevancies/misdirection and other offences against principles of respectful/reasoned engagement.

Somewhat surprisingly, then, rather than dismiss their critics by ignoring them, Professors Lomnitz and Sánchez penned a patient and methodical response (“A Necessary Critique”). They prefaced their detailed point-by-point response with the following general observation regarding the implications of their critics’ approach to their article:

Our most vehement critics discard our argument, accusing us of distorting the facts, and, in some cases, even of outright lying. They bridle at our decision to retrieve the political logic of Chavismo, and they try (unsuccessfully in every case) to argue away this or that piece of evidence, in the hope of discrediting the overall argument. Seemingly, for these critics, the usual standards and procedures of social analysis need to be suspended in the name of “the people,” the “revolution,” or, most poignantly, the “hero.” None of our critics engages our basic argument: that anti-Semitism and homophobia sporadically but consistently emerge as symptoms and instruments of a bigger project, namely, to render any opponent of Hugo Chávez vulnerable to the accusation of being a pawn of devious international interests. By ignoring this logic, our critics leave the door open for Chávez and Chavista spokespersons to make as many slanderous or injurious utterances as they wish, without compromising the purity of the regime [emphasis added].

To their critics’ charge that they are deliberately misinterpreting his rhetoric and associated actions as anti-Semitic, to their claim that the Venezuelan President’s intended target is the oligarchy, Lomnitz and Sánchez invoke the basic principle that language is social. Despite his apologists’ efforts to persuade the world that President Chávez means something other than anti-Semitism, they no more than he control what his words mean in fact. Pointedly, then, Lomnitz and Sánchez placed at the head of their reply this famous passage from Lewis Carroll’s Through the Looking-Glass:

“When I use a word,’ Humpty Dumpty said, in a rather scornful tone [to Alice], ‘it means just what I choose it to mean—neither more nor less.”

Thus, Professors Lomnitz and Sánchez concluded their reply:

Apparently our critics find no anti-Semitic connotations when Chavez mentions Jews, Christ killers, the abject Venezuelan oligarchy, and the riches of the world in the same breath, or when he blames the Jewish State of Israel for perpetrating atrocities against “half the world.” Nor are they bothered when the Chavista TV anchor par excellence, Mario Silva, claims that the Venezuelan student movement is financed by Jewish businessmen. To us, all of this smacks more of the Protocols of the Elders of Zion than of a progressive critique of Israeli policies.

In a Humpty Dumpty world, when Christ killers and Jews are mentioned in the same breath, the referent is merely the oligarchy; in any other world, expressions have histories, and denotation cannot shake off ideological connotation. Not even Commander Hugo Chávez can make words mean only what he opportunistically wants them to mean.

Let me return, then, to my initial assertion that President Chávez’s use of anti-Semitism is conduct so odious that he must denied credit for all else he might do that would otherwise be accounted worthwhile. Among the things for which he has been praised in Canada and elsewhere are his efforts to build a new relationship with the indigenous peoples of Venezuela. While a new relationship between the state and indigenous peoples based on their human rights in international law is long overdue in Venezuela as it is elsewhere in the Americas, including Canada, President Chávez’s use of anti-Semitism – internationally as well as domestically - disentitles him to praise on that or any other score. Those of us living in the shadow of the Shoah, indigenous and non-indigenous, should bristle at the thought of permitting ourselves to admire and, doing so, praise President Chávez for his efforts to deal justly with indigenous peoples despite his use of anti-Semitism.

History does teach. Ethically and therefore practically speaking, we cannot afford to wave off his or any other political leader’s flirtations with anti-Semitism for the sake of some worthwhile goal. The world should, one would like to hope, be growing tired of promises of “higher” and “greater” goods built on the hatred and destruction of others.