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JULY 2020 Page 12 CONTENTS C2CC2CJOURNAL JOURNAL | JULY 2020 page 12 CONTENTS Thirteen Things That Can’t Be Said About Aboriginal Law And Policy In Canada PAGE 1 Bruce Pardy How do you make new laws and policies or reform old ones in a democracy? You talk openly about every aspect, carefully consider the pros and cons and the long-term implications, and strive to come up with solutions that are fair to everyone. That has been the ideal, anyway, in Canada since Confederation. So what happens when vast areas of law and policy cannot even be discussed any longer? Bruce Pardy lists the things that have become perilous to say regarding Indigenous issues – but that need to be said if Canada is to maintain a legal system that is fair to all Canadians. The WE Charity Scandal: One Of Many PAGE 7 Grant A. Brown While it remains too soon to tell whether the WE Charity scandal will finally be the one that truly sticks to the Liberals and their leader, it has entirely consumed Justin Trudeau’s Covid-crisis bounce. Opposition parties are attempting to delve deeper, and even the mainstream media have shown more than a passing interest. It could get nasty indeed for the Liberals. Yet as Grant A. Brown points out, there’s so much more! As bad as WE may be, Brown urges us hold on a second and keep most of our outrage in reserve, for there’s a lot more Liberal wrongdoing where that came from. Escaping The Echo Chamber PAGE 14 Andrew David Irvine Copernicus disproved Ptolemy. Galileo disproved Aristotle. Einstein took physics beyond Newton. Human understanding moves forward as existing beliefs and doctrine fall to bold new theories and ideas. Recognizing that enforced dogma is the enemy of progress, UBC professor Andrew David Irvine offers a lament for the rigid political monoculture currently found in Canadian universities. Amid today’s statements of political solidarity and demands for conformity, it is becoming harder and harder for independent minds to follow the evidence wherever it might lead them. C2C Journal on PressReader Each month, C2C Journal prepares a selection of its best articles for publication in this easy-to-read, printer-friendly layout published by PressReader. For our complete lineup of stories, please visit c2cjournal.ca Thirteen Things That Can’t Be Said About Aboriginal Law And Policy In Canada By Bruce Pardy he number of topics open to robust fraught with controversy. Identity politics South Asia where the odious caste system Tand far-reaching discussion in and “substantive” equality claims are was and remains prevalent, must be upset Canadian public policy is becoming both inconsistent with equal application and bewildered to see a major element smaller by the day. Among the many areas of the law. And simply having a category of the caste system – special, hereditary in which it appears heterodox thinking is in Canadian law called “Aboriginal law” rights possessed by one racial group to the now forbidden is Aboriginal law and policy. is itself problematic, since it means there exclusion of all others – becoming further As accomplished historian and columnist are different rules for people who are of entrenched in the Canadian legal and Conrad Black has noted, there exists an Indigenous descent. As lawyer Peter Best social fabric.” “extreme reluctance of anyone to touch writes in his impassioned essay, There The very notion of being “a people” native affairs policy. That is an aversion Is No Difference, “Our new Canadians, a means distinguishing between “us” and the political class and the media will have great many of whom have immigrated from “them”, which in turn requires criteria based to overcome, as it is a vital and delicate field in desperate need of reform.” Political promises abound to seek reconciliation, address poverty and repair water systems but there is scant willingness to acknowledge that Aboriginal law is based upon bad principles. In the interest of promoting much-needed debate, here are 13 things that can’t – but should − be said about Aboriginal law and policy in Canada. 1. Aboriginal law applies different rules to different people based on race, lineage, and culture. That's a problem. Justice is supposed to be blind. The ideal that the same rules and standards should apply to everyone has a long pedigree in Anglo-American law. This hard-fought achievement, which required We need to talk: True reconciliation is impossible if Canadians are not allowed to engage in vigorous debate about centuries of nurturing and sacrifice, is now key aspects of Aboriginal law and policy. C2CC2CC2CJOURNAL JOURNAL JOURNAL | SEPTEMBER| JULY 2020 2020 page 12 on race, lineage or culture to determine be entitled to tax exemptions. They may The effect of section 35(1) is to who shall qualify for the rights and benefits receive exclusive benefits. They may claim constitutionally entrench flawed principles reserved to that group. Globally, everyone positions on bodies and in institutions that upon which Aboriginal law is based, including the proposition that there should be different laws for Aboriginal people than for others. Identity politics and “substantive” equality claims are Section 35 also results in giving courts inconsistent with equal application of the law. And the job of legislating the content of simply having a category in Canadian law called Aboriginal and treaty rights. The provision reads as though rights were frozen as they “Aboriginal law” is itself problematic, since it means existed as of 1982 when the Constitution there are different rules for people who are of Indigenous was patriated to Canada. But because the text is extremely vague and because descent. our courts are willing to be creative and expansive in their interpretation of rights, Aboriginal rights and entitlements have is a minority. Virtually all races and cultures are reserved only for them. They may be grown over time and may continue to do so. on Earth are mixing (or “assimilating”), entitled to procedures and considerations Significant parts of the body of Aboriginal especially in Western countries. Canadians in criminal sentencing that no one else law are products of judicial imagination, cut are usually quick to condemn anyone who receives. Police seem reluctant, contrary from whole cloth in the minds of Supreme advocates racial or cultural purity – except to their statutory responsibilities, to Court of Canada judges. Legislatures when it comes to Indigenous peoples. enforce court orders against Indigenous can do little to change the content of the protesters. And Indigenous people have law as pronounced by the courts under an entrenched set of Constitutional rights, the auspices of the Constitution. Nor can 2. In Canadian law, the legally privileged which include a fiduciary relationship with section 35 be easily changed or eliminated group is Aboriginal, not European. the Crown. since it is subject to an extremely onerous constitutional amending formula. The above statement may strike millions of Canadians as remarkable, possibly even 3. Problems with Aboriginal law are preposterous. This reaction would not be entrenched in the Constitution. 4. The "duty to consult" is paternalistic, surprising, given the tsunami of news incomprehensible and unpredictable. media coverage portraying Indigenous Section 35(1) of the Canadian people as marginalized and victimized. Yet Constitution states: The Supreme Court has said that it remains a true statement. The existing aboriginal and treaty the “honour of the Crown” governs the Indigenous people start off with the rights of the aboriginal peoples of relationship between the government and same legal rights as any other Canadian Canada are hereby recognized and Aboriginal peoples and that therefore the citizen: the right to vote in general affirmed. Crown owes fiduciary duties to Aboriginal elections, to hold a job, to peoples, including a “duty make contracts, to own to consult” whenever property off-reserve, to due proposed action may process in the legal system, adversely affect established to marry whom they wish or asserted rights under and divorce as they see fit, section 35. That duty and so on. They hold these has become a threat to rights like everybody else the Canadian economy. and may exercise them as After years of process, they choose. astounding amounts of They also, however, have money and its purchase additional rights no one by the federal government, else may claim. Depending the Trans Mountain pipeline on their lineage and group expansion, intended affiliations, they may have to transport additional Canada’s Constitution, signed by Queen Elizabeth II in 1982, enshrined flawed principles of treaty rights. They may Aboriginal law into the Canadian legal system. volumes of crude oil from C2CC2CJOURNAL JOURNAL || SEPTEMBERJULY 2020 2020 page 2 a title claim, or even in an area (or body of water) asserted to be “traditional” territory. And, indeed, uncertainty prevails in many areas, with the courts typically ruling on a situation only after years of negotiation, disagreement or dispute. 5. The recommendations of the Truth and Reconciliation Commission are neither binding nor democratically legitimate. In 2006 the federal government reached an agreement with about 86,000 Aboriginal people who had been enrolled in residential schools. The Indian Residential Schools Settlement Agreement called for $1.9 billion in compensation and, in a schedule, allocated funding for an Indian Residential Schools Truth and Reconciliation Commission (TRC). The government appointed three commissioners (and then a fourth
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