MNCs cross listed financing

DaleTurnerWhitePaperLiberalismandtheProblemofAboriginalParticipation1.pdf

Home >Business & Finance homework help >MNCs cross listed financing

12 This Is Not a Peace Pipe

1 White Paper Liberalism and the Problem of Aboriginal Participation

The term person means an individual other than an Indian. Indian Act 1880, section 12

We respect law that is fair and just, but we cannot be faulted for denouncing those laws that degrade our humanity and rights as distinct peoples.

Ovide Mercredi, Berens River

The Canadian federal government’s now infamous White Paper of 1969 is often cited as one low point among many in the political relationship between Aboriginal peoples and the Canadian state.1 For Prime Minis- ter Pierre Trudeau’s Liberal government of the late 1960s – and indeed, for many Canadians – it represented not only a viable solution to the century-old ‘Indian problem’ in Canada but also a just political vision of Canada. Its sponsors – notably the Indian affairs minister Jean Chrétien and his deputy John MacDonald – believed, and wanted Canadians to believe, that their proposals were going to make Canada a better and more just nation for all citizens.

For many Indians, though, the White Paper was yet another manifes- tation of European colonialism. Its proposals were a calculated attempt by the federal government to ‘get out of the Indian business’ and level the political landscape by unilaterally legislating Indians into extinction – and to do so as an act of justice. For Aboriginal peoples, justice for one culture can mean cultural annihilation for another.

In this chapter I examine the White Paper’s philosophical framework (which I unimaginatively label ‘White Paper liberalism’) and situate it within the evolving Aboriginal rights discourse in Canada.2 Ironically,

Turner, D. (2006). This is not a peace pipe : Towards a critical indigenous philosophy. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from ufvca on 2020-08-15 08:34:02.

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Underline

alexandergrammatikos

Sticky Note

What does this mean?

alexandergrammatikos

Highlight

White Paper Liberalism 13

the White Paper, although for Indians it was an exemplar of colonial- ism, launched a new phase in the political relationship between Ab- original peoples and the Canadian state. The outraged response to the White Paper propelled Aboriginal leaders to demand greater recogni- tion of their people’s political rights; ultimately this gave rise to section 35(1) of the repatriated Constitution in 1982 and, more importantly, to a cluster of political positions opposed to White Paper liberalism.3

White Paper liberalism embodies a particular variety of a broader theory of liberalism, which has a long history in Western European political thought and practice. It is difficult if not impossible to find agreement on the meaning of ‘liberalism,’ but for our purposes I focus on three fundamental ideas that characterize most versions of it.4 First, liberalism privileges the individual as the fundamental moral unit of a theory of justice; that is, individuals count most when we think about political justice. Second and third, but arising from the first, are funda- mental notions about freedom and equality, with both attached to and measured between individuals. Liberals disagree over the ‘proper’ rela- tionship between freedom and equality, but they all accept that any good theory of justice has to be couched in the language of individual freedom and equality. Other important ideas, such as those relating to tolerance and property rights, arise out of liberal theories of justice. I will say more about these as the need arises.

While I am on the topic of liberalism, there is another point worth mentioning. Our discussion of liberalism in general, and of White Paper liberalism in particular, will be in the context of a constitutional democ- racy. This is important because ever since the Canadian Constitution was repatriated in 1982, Aboriginal rights have been thought of as a ‘special’ class of constitutional rights. As difficult as it is for some people to believe, it does not follow from this that this is the only way to under- stand Aboriginal rights in Canada. I will show throughout this book that Aboriginal people’s understandings of their ‘rights’ are in some ways constrained by the contemporary constitutional discourse on rights. We may not have to do away with the constitutional approach; how- ever, I do see some serious difficulties, both philosophical and practical, with incorporating Aboriginal understandings into what I believe are the hostile legal and political discourses of Aboriginal rights.

White Paper liberalism and its characterizations of Aboriginal peoples are founded on this hostility. However, Aboriginal resistance to White Paper liberalism has undeniably helped redefine the political relation- ship between Aboriginal peoples and the Canadian state. Indigenous

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

The author defines a term important to his argument: Liberalism.

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

Thesis.

14 This Is Not a Peace Pipe

nationalists, Aboriginal sovereigntists, treaty federalists, and other de- fenders of the sui generis nature of indigenous forms of governance all contend that Canada’s Aboriginal peoples ought to be accorded some form of unique political status.

This ‘unique political status’ arises from the ‘special’ relationship that Aboriginal peoples have with the Canadian state. There are two impor- tant dimensions to this form of recognition – dimensions that Aborigi- nal peoples argue are overlooked when the meaning and content of Aboriginal rights are being determined. The first is the historical rela- tionship Aboriginal peoples had with the British Crown and later with the Canadian state. This form of recognition has continued to evolve in Canadian legal and political practices since 1982 and is articulated by the discourse of constitutional rights in general and by the discourse of Aboriginal rights in particular.5

The second dimension focuses on the claim that Aboriginal peoples possess a form of sovereignty, or nationhood; more importantly, the kind of nationhood Aboriginal peoples believe they still possess pre- dates the formation of the Canadian state. One of the most serious legal issues in contemporary Aboriginal rights discourse is the problem of reconciling Aboriginal nationhood, as manifested in indigenous laws, with the Crown’s unilateral assertions of sovereignty.6

The White Paper represented a milestone in the legal and political relationship because it was offered with genuine good will as a just solution to what clearly was a dismal situation in Canada.7 Although the White Paper was eventually rescinded as official policy, White Paper liberalism continues to capture many of the attitudes Canadians have about Aboriginal peoples in Canadian society.

I will divide the following discussion into three parts. First I will offer a brief political context for Indian rights in Canada in the 1960s. We must remember that at the time there was no public language of indig- enous self-determination, nor was there any Aboriginal right of self- government; yet there were nascent signs of an evolving discourse on Aboriginal rights in Canada. The ‘trust’ relationship between Indians and the federal government has undoubtedly been oppressive to Indi- ans, but it has also provided a way for Indians to seek political and legal recognition of the rights they believe they possess.

The second section of this chapter focuses on the political, and espe- cially the philosophical, framework of the White Paper. It is important to see the White Paper as a catalyst for shifting Indian politics in Canada. Also, examining the White Paper’s philosophical framework

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

Transitions! Signals to reader.

White Paper Liberalism 15

reveals a lot about how Indians were – and in many ways, still are – accommodated within a liberal theory of justice. Many Indians reacted harshly to the White Paper, and I will examine one of the more famous responses. Harold Cardinal’s Unjust Society, published shortly after the White paper was released, injected an angry indigenous voice into mainstream Canadian intellectual culture, which helped initiate a richer written discourse of Aboriginal rights in Canada.8

In the third part of the chapter I discuss four serious obstacles to generating a more inclusive theory of Aboriginal rights. I argue that these concerns – especially the problem of Aboriginal participation – need to be addressed in more Aboriginal–inclusive ways, because our understanding of Aboriginal rights and how they are implemented in Aboriginal societies ultimately affects how we understand justice in a constitutional democracy. I contend that White Paper liberalism fails to

1. address the legacy of colonialism; 2. consider that indigenous rights are a sui generis form of group

rights and not merely a class of minority rights; 3. question the legitimacy of the initial formation of the Canadian

state; and, 4. acknowledge that any workable ‘theory’ of Aboriginal rights in

Canada must include the participation of Aboriginal peoples.

Unfortunately for Aboriginal peoples, White Paper liberalism re- mains embedded in Canadian legal and political practices and has powerful advocates at all levels of Canadian politics.9 Tom Flanagan’s recent book First Nations? Second Thoughts is the contemporary exem- plar of White Paper liberalism.10 Flanagan argues vehemently against the idea that Aboriginal peoples are entitled to any special rights or political status within the Canadian state. He fails to address the four shortcomings of White Paper liberalism. More importantly, he perpetu- ates not what he calls ‘Aboriginal orthodoxy in Canada’ but defends the status quo – what I call ‘White orthodoxy in Canada.’

Indian Policy in the 1960s

When Pierre Trudeau came to power in 1968, Parliament was divided over how to deal with the skyrocketing costs of running the Depart- ment of Indian Affairs.11 He ran on a platform of greater citizen partici- pation in drafting public policy, and this especially applied to Indians.

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

16 This Is Not a Peace Pipe

Throughout the fall of 1968 and the winter and spring of 1969, he carried out a consultative process with Indians, with the goal of reviv- ing the Indian Act. This raised hopes among many Indians that perhaps the Canadian government was finally going to do something about improving their deplorable standard of living. The consultations were extensive and represented a shift in the government’s view of the place of Indians in Canadian society.12 But then the federal government sur- prised everyone by releasing the White Paper in June 1969; and to make matters worse, this paper seemed not to incorporate any of the voices from Indian Country. The Trudeau government never explained why the paper was released with complete disregard for Indian participa- tion – and many Indians felt they were owed an explanation.13

The paper was written primarily by the Indian Affairs Minister at the time, Jean Chrétien. It suggested a way to reconfigure the political relationship with Indians on what he claimed were more just founda- tions. In only thirteen pages, the report made several sweeping recom- mendations for changing Indian policy in Canada. The main idea of the paper was that the assimilation of Indians into mainstream Canadian society – by force if necessary – was the right approach to solving Canada’s century-long ‘Indian problem.’ Indians were to be ‘welcomed’ into mainstream Canadian society, complete with all its opportunities and benefits of citizenship, and the federal government would facilitate (and celebrate) the necessary institutional processes to make that hap- pen. In other words, the paper offered a practical way for the federal government to ‘get out of the Indian business’ – a relationship that was clearly not working for either Indians or the government.

No one was denying that something had to be done. The statistics from Indian Country in the 1960s spoke for themselves:

1. Indians are deplorably poor; on the Prairies their cash income is $350.00 a head.

2. Indians are deplorably unhealthy; their life expectancy is half the national average.

3. Indians are badly under-educated; their attainment is below the national average.

4. Indian housing is scandalously bad; present government programs will require a generation for correction.

5. While Indians are becoming relatively poorer, the federal bureau- cracy and federal expenditures are expanding.

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

Listing

White Paper Liberalism 17

6. The percentage of Indians on relief is rising every year; in 1962 it was 32%; in 1965 it was 39%.

7. The government is allocating $16 million to Indian relief and some- thing like $4 million to Indian economic development.14

It is important to understand just how frustrated the Canadian gov- ernment and Indian peoples were, and how desperate. The government had an opportunity to gain the Indians’ trust; instead, the White Paper politicized the relationship. The reaction from many Indian groups and leaders was swift, organized, and strongly critical and ultimately forced the government to shelve the White Paper and (for the time being, anyway) its explicit principles of forced assimilation.15 Katherine Gra- ham and Frances Abele, in their research on Aboriginal policy making in Canada for the Royal Commission on Aboriginal Peoples, wrote: ‘The sense of betrayal felt by Indians and their protests, leading to the White Paper’s abandonment, have been well documented. Within a year of the White Paper’s release, reports commissioned by Indian organizations documented broken treaties and the repudiation of Aboriginal rights.’16

Before turning to the details of the White Paper, I will briefly examine the political context of the relationship between Indian peoples and the Canadian state in the late 1960s. In this post-section 35(1) era, it is easy to think that Aboriginal rights have always been part of the Canadian legal and political landscape. In fact, Aboriginal rights discourse as we know it has a relatively short legal and political history. The political relationship in the pre–section 35(1) era (1867–1982) had not changed much for one hundred years. The contemporary political relationship is characterized as a ‘trust’ or ‘fiduciary’ relationship, but the meaning of this relationship wasn’t fully clarified until the Guerin decision in 1985.17

For more than one hundred years the relationship was broadly charac- terized by

• the Royal Proclamation of 1763; • section 91(24) of the British North America Act of 1867; • the Indian Act of 1876; and • The legal support of St. Catherine’s Milling and Lumber Company v.

The Queen (1888).18

The Royal Proclamation of 1763, in demarcating Indian Country, decreed that only the British Crown could purchase lands from Indians.

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

18 This Is Not a Peace Pipe

More importantly, purchases of Indian lands by the Crown required the consent of Indians.19 This requirement was central to the Crown’s po- litical practices with Indians as well as basic to any understanding of the treaty relationship, and it continues to be enforced by the courts.

The British North America Act of 1867 was a unilateral piece of legislation on the part of the British Crown that created the Canadian state. Rotman tells us: ‘Upon Confederation the special relationship between the Crown and the Native peoples in the newly created Do- minion of Canada was given constitutional recognition. Under the Brit- ish North America Act, 1867, absolute legislative authority over ‘Indians, and Lands reserved for the Indians’ was given to the Dominion of Canada by Section 91(24) of the Act.20 Indians, and their lands, then, explicitly became the responsibility of the federal government. This established the fiduciary relationship at the time the Canadian state was formed.21

It cannot be overemphasized that the Indian Act, and its enforcer the Department of Indian Affairs, have always had a stranglehold over Indians. The Indian Act controls virtually every aspect of life on Indian reserves. Ironically, though, the Indian Act, while clearly a colonial policy, also prevents the federal government from stealing Indian lands. The fiduciary relationship has fostered governmental paternalism but it also protects (through treaties) what little political power Indians pos- sess. Little did anyone realize at the time that this flicker of unextin- guished political power would inspire section 35(1), and ultimately lead, for better or worse, to modern-day discussions of Aboriginal title and the right of Aboriginal self-government.

St. Catherine’s Milling is an exemplary case of colonial law in that the Privy Council in England decided which kinds of rights Indians were to have over their territories without them even participating in that deci- sion. The case involved a land dispute between a lumber company and the Ontario government. The province asserted that before the signing of Treaty 3 Ojibway lands were Crown lands, and that all the treaty did was extinguish any other interests the Ojibway might have had over the territory. The province argued that with Confederation, the province had gained control over the lands; therefore, any permits and revenues deriving from the licences ought to be regulated by the province.

The Supreme Court of Canada and, subsequently, the Judicial Com- mittee of the Privy Council in England accepted this argument, ruling that ‘the tenure of the Indians was a personal and usufructuary right, dependent on the good will of the Sovereign.’ Essentially, ‘a usufructu-

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 19

ary right involves the right to use something owned by someone else, as long as that use does not destroy the thing or interfere with the rightful ownership. Hence St. Catherine’s Milling determined that Aboriginal title was a “burden” on Crown title, that Crown title was underlying and preceded the signing of treaties, and that Aboriginal title could be granted and taken away by the Crown.’22 The notion that Aboriginal title is a burden on the Crown still has not been fully purged from Canadian law. Not until the Calder decision of 1973 was it determined that Aboriginal title formally exists in law.

Cumming and Mickenberg’s Native Rights in Canada (1972) was a revision of the first full study of Indian rights in Canada, which had been undertaken by the Indian-Eskimo Association.23 Yet none of its chapters discussed the Aboriginal right of self-government, the downsizing of the Department of Indian Affairs to allow for greater political autonomy, or Aboriginal title as a constitutional right. Put simply, Indian rights as a distinctly recognized class of constitutional rights did not register on the Canadian legal and political landscape in the 1960s. Indian rights existed at the ‘pleasure of the Crown.’ The day- to-day lives of Indians were dictated by the unilaterally imposed colo- nial Indian Act, and the federal government was failing to live up to its fiduciary responsibilities as stated in the treaties. Life was hard on most Indian reserves in the 1960s, but there was a growing community of political leaders who were fed up with the existing relationship and determined to do something about it. Ironically, it was the White Paper that drove them to act.

The White Paper of 1969

The introduction to the White Paper begins as follows (emphasis added): ‘To be an Indian is to be a man, with all a man’s needs and abilities. To be an Indian is also to be different. It is to speak different languages, draw different pictures, tell different tales and to rely on a set of values devel- oped in a different world.’24

So, although Indians are part of humanity, they are ‘different’ (a point stressed five times in the first three sentences). After emphasizing that these differences continue to cause Indians to live in squalor and mis- ery, the last paragraph states: ‘To be an Indian must be to be free – free to develop Indian cultures in an environment of legal, social, and eco- nomic equality with other Canadians.’

Once the concepts of individual freedom and equality have been

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

20 This Is Not a Peace Pipe

introduced – and these are liberal principles of justice – it is a short philosophical leap to open a discussion of justice. That is, appeals to recognizing indigenous difference can be subsumed under a formal recognition of the normative concepts of freedom and equality. The new policy asserts: ‘True equality presupposes that the Indian people have the right to full and equal participation in the cultural, social, economic and political life of Canada.’25

The report goes on to add that bringing Indian individuals into mainstream society requires the following:

• That the legislative and constitutional bases of discrimination be removed.

• That there be positive recognition by everyone of the unique contri- bution of Indian culture to Canadian life.

• That services come through the same channels and from the same government agencies for all Canadians.

• That those who are furthest behind be helped most. • That lawful obligations be recognized. • That control of Indian lands be transferred to the Indian people.

Furthermore, the White Paper states that the federal government would be willing to undertake the following initiatives to facilitate the transformation:

• Propose to Parliament that the Indian Act be repealed and take such legislative steps as may be necessary to enable Indians to control Indian lands and to acquire title to them.

• Propose to the governments of the provinces that they take over the same responsibility for Indians that they have for other citizens in their provinces.

• Make substantial funds available for Indian economic development as an interim measure.

• Wind up that part of the Department of Indian Affairs and Northern Development which deals with Indian Affairs. The residual respon- sibilities of the Federal government for programs in the field of Indian Affairs would be transferred to other appropriate federal departments.26

This last initiative ensured that the federal government, while offi- cially getting out of the Indian business, nonetheless would still control

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

Which of these are good things? Bad things? Neither?

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 21

what goes on in Indian Country. The normative significance of Aborigi- nal title had not yet explicitly become part of Canadian law, which meant that the government could unilaterally allow extinguishment to guide their proposals. At the time, the Calder case – a land claim initi- ated by Frank Calder and the Nisga’a First Nation of British Columbia, decided on 31 January 1973 – was still making its way to the Supreme Court. The Nishga Indian Tribal Council (its name at the time) sought recognition in British Columbia courts that Aboriginal title over its lands had not been extinguished. Aboriginal title at this time was still considered a ‘burden on the Crown,’ which meant that Crown sover- eignty trumped Aboriginal title and precluded the signing of the trea- ties.27 The Nisga’a lost their case by one vote, with the deciding judge basing his ruling on a technical point rather than on the merits of the case. Despite this loss, Calder was a milestone in federal Indian law because it embedded in law the idea that Aboriginal title exists in Canadian law and that it cannot be extinguished without ‘clear and plain intent.’

Justice Judson stated in his now famous opinion: ‘Although I think that it is plain and clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying that land as their forefathers had done for centuries. This is what Indian Title means and it does not help one in the solution of this problem to call it a “personal or usufructuary right.”28

Three justices argued that Aboriginal title existed at one time but that it had been legitimately extinguished. Justice Hall, in his opinion, con- cluded that ‘it would, accordingly, appear to be beyond question that the onus of proving that the sovereign intended to extinguish the Indian title lies on the respondent and that intention must be “clear and plain.” There is no such proof in the case at bar; no legislation to that effect.’29

He further argued that Aboriginal title existed in Canadian law and that in the case of the Nisga’a, it had not been extinguished. Extinguish- ment – or the ‘Doctrine of Extinguishment,’ as it is known in interna- tional law – underpins the White Paper’s assumption that the sovereignty of the Canadian state is absolute.

The fiduciary responsibilities of the federal government were begin- ning to cost the government far too much, and senior ministers were pressuring Trudeau to make some fundamental changes in the relation- ship between the Canadian state and Aboriginal peoples. The White Paper was proposing a basic shift not only in the way Indian policy was

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

22 This Is Not a Peace Pipe

administered and financed but also in the way the political relationship was understood within the larger Canadian state.

But what did the White Paper say to Indians of Canada? That is, what was it about the White Paper that most Indians found, and continue to find, so offensive? The White Paper contained four important messages to Canadian society about how the Indian–Canadian state relationship was to evolve.

Existing Indian policies are discriminatory. The White Paper removes the discriminatory nature of federal Indian policies and policy making in Canada. Indians, as a matter of public policy, were being treated differently, and for many Canadians, this in itself was enough to demonstrate discrimina- tion; furthermore, for White Paper liberals it was fundamentally unfair. At the end of the background section, the paper stated: ‘The policy rests upon the fundamental right of Indian people to full and equal partici- pation in the cultural, social, economic and political life of Canada ... To argue against this right is to argue for discrimination, isolation and separation.’ A few pages later, the paper added: ‘Separate but equal services do not provide truly equal treatment.’30 The kind of participa- tion the government was calling for would have functioned in all-or- nothing terms: all services would be available to everyone (citizens), and everyone would be required to participate in them in the same way.

The federal government was categorizing Indians by their ethnicity and not by their legitimate political status as indigenous nations. Ser- vices would no longer flow from separate agencies established to serve particular groups, and especially not to groups identified ethnically.31

Ottawa was blind to the ownership approach; it simply could not fathom that Indians could actually ‘own’ (i.e., rule over) their home- lands. The language of Indian nationhood was not part of the Canadian legal and political imagination in 1969. The kind of discrimination the White Paper was focusing on, and that it wanted to rectify, was dis- crimination between different races. The ‘difference’ at stake was racial difference, not political difference. There was no need to discuss Indian understandings of treaty obligations, and fiduciary relationships aris- ing from treaty relationships, because such obligations did not matter as long as ‘equality between individuals’ drove basic understandings of justice.32 Rectifying discrimination between races involved levelling the moral playing field between individuals, and doing so dissolved the need to address controversial matters such as the meaning and content of indigenous nationhood within a constitutional framework.

The idea of equality, especially in the framework of ‘truly equal

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

Yup!

alexandergrammatikos

Highlight

White Paper Liberalism 23

treatment,’ represents a form of ‘egalitarianism’ that is foundational to contemporary liberal governments.33 The government’s desire to level the political playing field between individuals made sense in an era of civil rights discourse. The existing political relationship treated indi- vidual Indians unfairly; it followed that in freeing individual Indians, Indians as a distinct group would be freed from being a ‘burden to the Crown.’ The form of liberalism the White Paper embraced did not arise from a desire to accommodate differences between politically distinct peoples; rather, understandings of justice were to be grounded in the idea of equality that is embedded in the moral sanctity of the indi- vidual. Individuals, then, were to be the fundamental moral unit of justice. This is what led to the White Paper’s second claim.

Indians are unequivocally citizens of the Canadian state. Since Indians are citizens, and therefore equal to all other citizens, they possess the same basic package of rights. According to the White Paper, true equality presup- posed that the Indian people have the right to full and equal participa- tion in the cultural, social, economic, and political life of Canada.34 The idea of equal opportunity is another central idea in contemporary liber- alism. In order for all citizens to be equal they must have access to the same goods, services, and institutions. Historically, Indians have not had the same opportunities as other citizens, and antidiscrimination policies have failed miserably. The state’s responsibility, said the White Paper, was to remove these inequalities, and for Indians this meant eliminating the Department of Indian Affairs and Northern Develop- ment (DIAND) and all of the special programs applicable to Indians, thereby forcing them to become citizens. Forcing Indians to embrace Canadian citizenship would have two advantages for the state: first, it would eliminate discriminatory (and expensive) Indian policies, and second, Indians as Canadian citizens would be welcomed into main- stream Canadian society. Once Indians were ‘welcomed’ into main- stream society, they would finally leave their primitive ways behind; more importantly, they would give up their indigenous connections to their homelands. This led to the third claim.

There is no such thing as Indian nationhood. Treaty lands must ultimately be transformed into private property. With equal citizenship and opportu- nities comes the idea of property – another central idea in White Paper liberalism. In a constitutional democracy, citizenship implies the right to own property. Once again, the White Paper was raising the concept of ‘true’ equality: ‘The Government recognizes that full and true equal- ity calls for Indian control and ownership of reserve land ... Between the

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

24 This Is Not a Peace Pipe

present system and the full holding of title in fee simple lie a number of intermediate states.’35 No doubt, the government was fully aware that Indians were not going to relinquish the treaty relationship without resistance, so it was ready to be patient in discussing the transition from the present state of dependency to one where Indians would control their lands as private property. Regardless of how this transition oc- curred, the best Indians would be able to do would be to own their lands in fee simple and not in the form of Aboriginal title (never mind owning their homelands by virtue of their status as indigenous na- tions). This approach would unilaterally dissolve the promises in the treaties; furthermore, owning lands in fee simple would render Indians liable to municipal, provincial, and federal taxation.

Philosophical discussions about the meaning and place of property in New World politics have a long history. Since earliest contact, Indians have influenced how Europeans understand property. More impor- tantly, Eurocentric understandings of property have sometimes been invoked unilaterally to justify the theft of Indian lands in the Americas. Only recently have indigenous scholars and intellectuals begun to un- pack these understandings to show how they have been put to use to dispossess indigenous peoples.36

Private property is the cornerstone not only of liberal theories of justice but also of Western European economies. Even though Indians have a treaty relationship with the state, and even though the Indian Act still constrains life on Indian reserves, Aboriginal peoples continue to assert a unique form of ownership over their homelands. The White Paper was proposing to unilaterally extinguish the unique relationships Aboriginal peoples have with their homelands. This led to the fourth claim.

The fiduciary relationship is not forever. The federal government will make funds available to facilitate the scheduled transition from being wards of the state to full participatory citizenship. The state, by unilaterally eliminating the special status of Indians, unilaterally extinguishing the treaty rela- tionship, and converting Indian lands to private property, would be unilaterally dissolving the fiduciary relationship. The White Paper stated: ‘Those who are furthest behind [must] be helped most.’ This idea of helping the ‘most disadvantaged’ has played an important role in con- temporary political theory, especially in the liberal political thought of John Rawls.37 The federal government could easily facilitate the transi- tion over a finite period of time, so that at some point in the future there would no longer be a fiduciary relationship – and therefore, legally, no

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 25

more Indians. The government planned to spend a lot of money in the short term in order to gradually eliminate funding for Indians entirely.38

It is no wonder that those Indians who believed they still owned their homelands – who still thought of themselves as indigenous nations – were so outraged at the White Paper. What started off as an almost visceral reaction to what most Aboriginal peoples deemed an unjust policy ultimately polarized Canadian politics between those who advo- cated some form of special recognition and those who did not. Two reactions are worth mentioning: one by a young Cree political activist whose book motivated indigenous intellectuals to become more aca- demically active; and the other by national Indian groups who realized that they had to take political advantage of the White Paper’s public failure. Below, I discuss these in turn.

Harold Cardinal’s Unjust Society

Harold Cardinal, a young Cree political activist, wrote Unjust Society as an Indian response, not only to the White Paper but also to Pierre Trudeau’s political vision of Canada as a ‘just society.’39 Cardinal was not so much interested in engaging in a philosophical dialogue over the meaning and tenability of liberalism as a theory of justice (although he is clear about his criticism of liberalism), as with driving home the point (again and again) that Indian voices were nowhere to be found in the government’s new Indian policy initiatives. For example, he states:

The new Indian policy promulgated by Prime Minister Pierre Elliott Trudeau’s government ... is a thinly disguised programme of extermina- tion through assimilation. For the Indian to survive, says the government in effect, he must become a good little brown white man. The Americans to the south of us used to have a saying: ‘The only good Indian is a dead Indian.’ The MacDonald-Chrétien doctrine would amend this but slightly to, ‘The only good Indian is a non-Indian.’40

Cardinal further displays his anger:

The government’s proposed new Indian policy is a sick curious collage of empty clichés and distorted facts. It reflects only, but perfectly, the total lack of understanding possessed by its authors of the situation in which the Indians of Canada find themselves today. It bears more than marked

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

26 This Is Not a Peace Pipe

resemblance to the recent American policy of termination, which proved an utter failure.41

Cardinal flashes this kind of sardonic wit when he rails against the federal government’s Indian policies, but the main point of his book is serious:

The Indian must have from the federal government immediately recogni- tion of all Indian rights for the reestablishment, review and renewal of all existing Indian treaties. The negotiations for this must be undertaken in a new and different spirit by both sides. The treaties must be maintained.42

It is worth making a brief digression to discuss Cardinal’s point, because I believe it goes to the core of the philosophical differences that ground the respective political positions of Indians and Whites. The treaty position, in its various forms, takes the political stance that the treaties represent not only binding political agreements but also sacred agreements, and that to violate them is morally reprehensible in a political relationship between nations.43 Most indigenous peoples have not deviated from this position. The discourses of rights, sovereignty, and nationhood are ways of ‘theorizing’ about what Indians are en- titled to in a just political relationship. But what about explanations, or ‘theories,’ that flow from indigenous philosophies?

Herein lies a fundamental tension: the ultimate sources of Indian explanations of nationhood are found in indigenous oral traditions, yet for these explanations to be effective in Canadian law and politics they must be accommodated within the language of Canadian public policy. I will explore the relationship between indigenous philosophies and the discourses of the Canadian state in chapters 4 and 5; for now, I want to highlight this tension because it helps shed light on the deeply rooted anger felt by Indian leaders in the 1960s. Indians have been explaining themselves to the dominant culture since first contact, and continue to do so. Many in fact do so with an astonishing faith that the dominant culture will some day understand who we are and change the ways they ‘accommodate’ us within existing public policies. I believe that Aboriginal peoples must think more seriously about the constraints that are unilaterally imposed on the language we must use to articulate our legal and political goals. The fact that our ways of understanding the world are not worthy of equal participation in a dialogue over the meaning and content of our rights is itself a form of inequality.

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

Right. "Paradigms" of political articulation.

White Paper Liberalism 27

Cardinal’s book had a powerful impact on contemporary Aboriginal intellectuals because he raised the Indian voice against the dominant culture’s stranglehold on what counted as legitimate intellectual dis- course.44 The 1960s culture of political activism allowed Cardinal to make inroads into mainstream Canadian society. The primary purpose of Cardinal’s book, to me, is political; the common thread throughout his criticism is that the Canadian government has not lived up to its responsibilities and that it is about time it did so.

The problem for this generation of indigenous intellectuals is to find ways to move beyond raising angry voices and actually effect change in the dominant culture’s intellectual and political culture. Writers like Harold Cardinal, George Manuel, and Wabaghesig in Canada and Vine Deloria, jr, Beatrice Medicine, and Jack Forbes in the United States all began as activists and later became intellectuals in the university envi- ronment.45 Cardinal’s book represented a watershed for Aboriginal intellectuals; their political views could now be published and read within mainstream Canadian society.

The Creation of National Indian Organizations

Another political effect of the White Paper was that it empowered four national indigenous groups in Canada: the Native Council of Canada (NCC); the National Indian Brotherhood (NIB), later to become the Assembly of First Nations (AFN); the Native Women’s Association of Canada (NWAC); and the Métis National Council (MNC). For better or worse, these groups remain very much in the forefront of Aboriginal politics in Canada, and have made varying degrees of political progress with the provincial and federal governments. One problem with these groups is that they depend heavily on federal government funding. This has meant that in times of fiscal restraint, or of anti-Aboriginal sentiment in Canada (which is often), these organizations are chroni- cally underfunded.

These groups played a consultative role in shaping the wording of what ultimately, in 1982, became the second part of the repatriated constitution. Although Indians helped shape the wording of the consti- tution, it is important to stress that they acted as ‘consultants’ and not participants in the constitutional dialogue. The first ministers (i.e., pro- vincial premiers) sat around a table discussing the constitutional status of Indians while our legal, political, and philosophical experts sat be- hind them and listened in silence. Of course, this was the political

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

28 This Is Not a Peace Pipe

reality that Indian leaders had to deal with at the time. For the most part, Indian leaders did the best they could. This doesn’t absolve them from criticism, but it does point out that when people exist on the receiving end of a colonial relationship, there are always constraints on legal and political participation.

This is an important point, because it helps us appreciate – and hopefully understand better – what indigenous communities face when the dominant culture permits them to ‘participate’ in Western political practices. It is disheartening to see a younger generation of indigenous people criticizing their elders for signing agreements that gave up too much land or that blocked any future opportunities to assert their rights. No doubt, many decisions made then by Indian leaders are open to criticism, but when we examine more closely the conditions under which they made those decisions, it is not hard to appreciate just how difficult their position was.

The Creation of an Aboriginal Rights Discourse

The White Paper was, to most Aboriginal people, a manifestation of colonialism. However, many non-Aboriginal people believe that the liberal principles of the White Paper were fundamentally sound. The principles that guide liberalism – equality, freedom, opportunity, and especially moral individualism – have a long history in Western politi- cal thought, and the language of individual rights defines contempo- rary constitutional democracies. The White Paper began by focusing on the Indian as an individual: ‘To be an Indian is to be a man, with all a man’s needs and abilities.’ The liberalism reflected in the White Paper assumed that the individual is the fundamental moral unit in develop- ing a theory of justice and that to deviate from the sanctity of moral individualism is to lead justice off its rightful path.46 One supposed virtue of moral individualism is that it simplifies political thinking. If every citizen of the state has the same moral worth, and if everyone must be treated equally, then opportunities to live a good life must be made available to all citizens. This brand of liberalism has been enor- mously influential in shaping Aboriginal public policy in Canada. What made the White Paper interesting philosophically is that it subsumed Aboriginal rights under its vision of a just society.

Moral individualism, though, does not simply hang in the air; it requires support or some philosophical framework to give it meaning. The fact that we live in a constitutional democracy, can own property as

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 29

individuals, have opportunities to pursue a good life, and are free to choose for ourselves (within reason) what a good life is hang together with the idea of privileging the individual in a theory of justice. All of these ideas are central to a liberal theory of justice, and to understand a normative concept we must understand how it is situated within this web of beliefs. The White Paper’s commitment to moral individualism was also woven into the idea that free market capitalism is the ideal economic system to frame our political understanding of justice: Indi- ans ought to become like other citizens, which means they ought to enjoy the same rights, benefits, and economic opportunities as every other citizen in the state. As I mentioned, one recommendation of the White Paper was to disband Indian reserves and redistribute their lands (which were often treaty lands) to Indians in fee simple. In other words, Indian reserves were to be divided into individual private prop- erties.47 At the same time, the legal term ‘Indian’ would disappear (although it would be perfectly acceptable as a cultural construct), and the federal government’s fiduciary responsibilities would be ended, because by then Indians would have become full-fledged citizens and taxpayers.48

When we incorporate the four shortcomings of the White Paper listed earlier, and weave indigenous responses into its vision of justice, we can draw four conclusions about White Paper liberalism:

• It failed to address the legacy of colonialism; • It failed to recognize that indigenous rights are a sui generis form of

group rights and not merely a class of minority rights. • It failed to question the legitimacy of the initial formation of the

Canadian state. • It failed to appreciate that any workable understanding of Aborigi-

nal rights in Canada must include the participation of Aboriginal peoples.

I will consider each of these points in turn.

The Legacy of Colonialism

My criticism of White Paper liberalism runs deep. One way of assessing the philosophical merit of White Paper liberalism is to situate and evaluate it within the historically defined landscape of liberal political thought and then broaden that landscape to include contemporary

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

And why should they give into a free market capitalist system?

alexandergrammatikos

Highlight

30 This Is Not a Peace Pipe

political thought. This is no easy task, but I believe it to be a worthwhile and necessary philosophical investigation because we have a continu- ing need to better understand the nature of justice, which in turn ought to have some effect on our political behaviour. But to determine the meaning of Aboriginal rights in Canadian legal and political discourses, we have to situate our investigation not only within the rich Western history of ideas but also within the context of the Canadian state’s legal and political practices. The value of this kind of investigation is that it lets us explicitly address the problem of colonialism.49

My approach, then, is necessarily multilayered. The first inquiry engages the discourse of rights, while the second critically assesses the legal and political practices that have put the normative language of these discourses to use (especially in Aboriginal communities). I will argue that once we reconcile the normative discourses of rights, sover- eignty, and nationhood with how these languages have always been used in Aboriginal policies, we will find ourselves heading towards a fair account of Aboriginal rights and a renewed and healthier political relationship.

Allow me state this in another way. Because Aboriginal rights are a sui generis class of rights, they ought

to play a sui generis role in our understandings of political justice.50

Aboriginal rights in Canada can be understood in a number of ways; that said, there are two important dimensions to understanding them as constitutional rights. First, Aboriginal rights are part of a more general theory of rights, and their meaning is determined by engaging the discourses and practices of Canadian social and political life (law, poli- tics, history, philosophy, and so on). The second dimension is colonial- ism, which is more difficult to understand and articulate, besides being even more problematic when it comes to rectifying existing policy. We cannot hope to fully understand the meaning and content of Aboriginal rights without understanding first how colonialism has been woven into the normative political language that guides contemporary Cana- dian legal and political practices. Colonialism has stained the legal and political relationship; its main consequence has been that Aboriginal peoples have been physically, politically, and socially relegated to the margins of Canadian society. It follows that Aboriginal voices have not participated effectively in the legal and political practices of the Cana- dian state. The project of unpacking and laying bare the meaning and effects of colonialism will open up the physical and intellectual space for Aboriginal voices to participate in the legal and political practices of

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 31

the state. The process of critically undermining colonialism and return- ing Aboriginal voices to their rightful place in the relationship between Aboriginal peoples and the Canadian state is what I refer to as ‘Aborigi- nal participation.’

Aboriginal participation is a precondition for generating legitimate understandings of Aboriginal rights. Put simply, Aboriginal voices must participate in the Canadian legal and political practices that determine the meaning of Aboriginal rights. White Paper liberalism does not facilitate this participation because it embraces a set of attitudes to- wards equality, sovereignty, and history that reinforce the view that the recognition of Aboriginal rights is an obstacle to, not a requirement for, a just political vision of Canada.

Indigenous rights are a sui generis form of group rights and not merely a class of minority rights.

The White Paper defends a narrow understanding of equality, one which holds that because rights adhere only to individuals, any special form of recognition that accords rights to groups – rights that would exist over and above what everyone else receives – must be inherently unfair, and therefore wrong.51 Aboriginal peoples have always asserted that the treaty relationship situates both Aboriginal peoples and Euro- peans in an international type of political relationship. The disagree- ment between White Paper liberals and treaty federalists is not over whether individual rights are important, or central to a theory of justice, but rather over whether the kind of equality that Aboriginal peoples are demanding (i.e., equality between legitimate political entities – nations) can also play a role in our thinking about justice. The White Paper avoids this issue by making individual citizenship the fundamental unit of political allegiance; thus the problem of recognizing special group rights does not arise.

The crucial question is this: Can our understanding of justice accom- modate treaty federalism while preserving the normative force of moral individualism? From defending indigenous rights as a form of group right, it does not follow that moral individualism should be peripheral to our understandings of political justice. As we will see in chapter 3, an accommodation between the two forms of rights is precisely what Kymlicka seeks. The philosophical problem is how to achieve this kind of accommodation.

Before this accommodation can occur, White Paper liberals will have

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

32 This Is Not a Peace Pipe

to accept that the treaty relationship embraces a richer conception of equality, and I contend that in Canadian politics, they have not yet done so. One reason why is that White Paper liberals believe strongly that the sovereignty of the nation-state is absolute and non-negotiable and that Aboriginal forms of ‘sovereignty’ represent a profound misuse of politi- cal sovereignty.52 It is easy to understand why this belief is so deeply embedded among Canadians, but for many Aboriginal peoples, mem- bership in the Canadian state is a secondary political identity.53 The primary source of identity for many Aboriginal peoples is their com- munity, or nation. If you ask an indigenous person in North America where they are from, most will tell you their indigenous nation first: Mohawk, Lakota Sioux, Haida, Métis, to name a few. This leads to the third problem with White Paper liberalism.

The legitimacy of the initial formation of the Canadian state is not without controversy.

The fact is, most Canadians – except perhaps for many Québécois – believe that the sovereignty of the Canadian state is a given in their lives. The idea of Canada as a country or a nation-state is so deeply embedded in Canadian society that its legitimacy is rarely questioned. It is now being questioned, but it does not follow from this questioning that the Canadian state must be dissolved. Kent McNeil, John Borrows, and other legal scholars have raised some serious legal challenges regarding the source of Aboriginal title in Canadian law, and this has legal and political consequences for Canada’s unilateral assertion of sovereignty. By articulating the source of Aboriginal title, which is the right to the land itself, they are raising fundamental challenges to the legitimacy of Crown sovereignty. For example, Kent McNeil states,

If Aboriginal title is based simply on occupation of lands by an organized society at the time the Crown asserted sovereignty, how could it be a pre- existing right? For it to exist as a legal right before the Crown acquired sovereignty, it would need to be based on some system of law, which would have to be Aboriginal, as no other law existed in North America prior to European colonization.54

John Borrows has recast McNeil’s arguments in an indigenous context:

A faithful application of the rule of law to the Crown’s assertion of title throughout Canada would suggest that Aboriginal peoples possess the

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

There are two (or more!) nations, in a sense. Why should I adhere to Canada if I don't believe myself part of that "nation."

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 33

very right claimed by the Crown. According to the Supreme Court of Canada, the rule of law consists of two inter-related legal principles: it precludes arbitrary state power and requires the maintenance of a positive legal order. Canada’s assumption of underlying title and sovereignty throughout its claimed territory violates both of these fundamental prin- ciples. It is an arbitrary exercise of power aimed at dismantling Indig- enous systems of law and normative order ... Canada’s declaration of exclusive sovereignty over Aboriginal peoples violates the second prin- ciple of the rule of law because, in the process of this declaration, the Crown suppressed Aboriginal governance and denied these groups indis- pensable elements of law and order.55

These extracts can take us in a number of directions. The point I want to make here is that there are credible legal experts who argue that Canada’s unilateral assertion of sovereignty is not without controversy and that the issues they raise are important and require addressing. Borrows’s recent work has been pivotal for bringing an Aboriginal voice into Canadian legal culture. He is optimistic that indigenous legal traditions can be reconciled with a rich, empowering vision of Aborigi- nal rights in Canadian law. For reasons I will offer over the next few chapters, I am less optimistic. I will come back to this problem of reconciliation in chapter 5, when I examine more closely the relation- ship between Aboriginal ways of knowing and the legal and political discourses of the state.

Any workable ‘theory’ of Aboriginal rights in Canada must include the participation of Aboriginal peoples.

The White Paper does not advocate any special form of recognition for Indians, which is remarkable, considering the post-1982 constitutional recognition of Aboriginal rights. But there are contemporary defenders of White Paper liberalism. Tom Flanagan, in his recent book, First Nations? Second Thoughts, argues that Canada has allowed an ‘Aborigi- nal orthodoxy’ to dominate Canadian political life, an orthodoxy that RCAP’s final report endorsed uncritically. Flanagan has resuscitated the White Paper and offers a series of recommendations that, taken together, would eliminate section 35(1) and force Aboriginal peoples to embrace modernity – European civilization – and assimilate into main- stream Canadian society. He claims that Indian cultures were never equal to European cultures and therefore that it is absurd for Aboriginal peoples to now believe they possess the right of self-government:

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

34 This Is Not a Peace Pipe

What I call the aboriginal orthodoxy is an emergent consensus on funda- mental issues. It is widely shared among Aboriginal leaders, government officials, and academic experts. It weaves together threads from historical revisionism, critical legal studies, and the aboriginal political activism of the last thirty years. Although its ideas are expressed in many books, it has no Marx or Engels, that is, no canonical writers to authoritatively define the ideology.56

Marx or Engels?! Beyond this astonishingly Eurocentric appeal to Marx and Engels as ‘canonical’ writers, there is some irony to this statement. Marx and Engels (especially the latter) had a more than casual interest in the Iroquois Confederacy and appreciated the philo- sophical ingenuity of the Great Law of Peace as an exemplar of political thinking.57 Flanagan, whose book won a major academic award in Canada, is unapologetic about his views and sincerely believes he is right. He goes so far as to claim that his views are in the minority and have been silenced unfairly by the majority (who constitute the Ab- original orthodoxy).58 Essentially, Flanagan as a White Paper liberal wants the existing constitutional playing field to be levelled so that the relationship can be renewed on just foundations.59

Yet Flanagan fails to address colonialism. It is interesting that for him, colonialism has disappeared from the political relationship. Somewhere between the unilateral creation of DIAND and its oppressive governing legislation – the Indian Act – and the creation of Flanagan’s Aboriginal orthodoxy, Aboriginal peoples became extra-privileged citizens of the state. From Flanagan’s perspective, it is the state’s responsibility to do whatever it can to rectify any unfair distribution of rights, and such actions make sense when it comes to Indians because of the two central ideas of White Paper liberalism: that they are discriminated against, and that they are citizens like everyone else. He can make these asser- tions about the relationship because he assumes that the individual is the fundamental moral unit of our theories of political justice and that these theories function within the idea that the nation-state provides the unequivocal normative background for any discussion about justice.

These are powerful ideas in contemporary liberal discourse. Con- trary to Flanagan’s claim that there is an ‘Aboriginal orthodoxy,’ a ‘white orthodoxy’ in Canadian-Aboriginal rights discourse has always existed in Canada. This white orthodoxy is characterized by the four dimensions of White Paper liberalism: existing Indian policies are dis- criminatory; Indians are citizens of the state and do not possess any

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 35

special status in the political relationship; Indians do not own their lands and the treaties must be dissolved; and the fiduciary relationship must be dissolved so that Indians can be assimilated into mainstream society. For Flanagan, the Aboriginal–Canadian state relationship is not politically based; rather, the issue at hand is how ‘primitive’ indigenous cultures can be subsumed into the ‘superior’ European culture.

Flanagan invokes a clear distinction between ‘primitive’ and ‘civi- lized’ cultures to emphasize that European cultures are de facto supe- rior to indigenous cultures. The ‘civilization gap,’ as he calls it, is more than an anthropological fact – it has political significance: ‘But if one culture is simple and another complex, is not the latter also superior to the former in some sense? Increasing complexity is a hallmark of progress in scholarship and science, as well as of technical advances in engineer- ing, commerce, and athletics. Why not in cultural generally?’60 On page 33, he lists what he takes to be the criteria for a bona fide civilization:

• Intensive agriculture – long-term cultivation of the same ground, assisted by some combination of irrigation, fertilization, and animal husbandry

• Urbanization – permanent settlements of several thousand residents • Division of labour among cultivators, craftsman, merchants, sol-

diers, rulers, and priests • Intellectual advances such as record-keeping, writing, and astron-

omy. All early civilizations except the Incas developed writing, and the latter had both an astronomically based calendar and a system of record-keeping using knotted strings.

• Advanced technology. New World civilizations did not have the wheel, and their metallurgy was in the early stages, but they per- formed impressive feats of architecture and engineering.

• Formalized, hierarchical government – that is, a state.

Although Flanagan admits that these criteria are a matter of degree, it is not difficult to see what kind of culture he has in mind when using the term ‘civilization.’ This Eurocentric characterization of civil society is no accident, as it allows Flanagan to pass judgments on Aboriginal cultures, governments, and especially the Aboriginal–Canadian state relationship. For example, one proposition supporting the aboriginal orthodoxy in Canada is the claim that ‘Aboriginal peoples were and are nations in both the cultural and political senses of this term. Their nationhood is concomitant with their sovereignty.’ Flanagan responds

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Sticky Note

European categories of progress.

alexandergrammatikos

Highlight

36 This Is Not a Peace Pipe

by claiming that because civil society has only one way of understand- ing the meaning of nationhood, ‘the European concept of nation does not properly describe aboriginal tribal community ... There can only be one political community at the highest level – one nation – in Canada.’61

The idea that indigenous nations are nation ‘states’ represents a fun- damental error in thinking about indigenous cultures, and especially about indigenous nationhood. Flanagan’s ‘civilization gap’ forces us to evaluate indigenous cultures according to the standards used for mea- suring the ‘civility’ of European cultures. Indigenous nationhood is a complex concept whose meaning can only be understood by including indigenous voices in a dialogue with the dominant culture. Flanagan leaves no room for indigenous voices; they are not required because from the very beginning of the political dialogue, they do not measure up. From an indigenous perspective, what he is saying about indig- enous nationhood is mistaken; furthermore, the fact that indigenous voices are not required in order to understand the meaning of the normative language of the political relationship means that indigenous peoples will never need to participate in the relationship. This is unac- ceptable for indigenous peoples, and it certainly goes against the basic principles of democracy. Contrary to what Flanagan believes, indig- enous peoples make workable understandings of rights, sovereignty, and nationhood more complex, not less.

White Paper liberalism acts as a reality check for Aboriginal peoples, and its narrow attitudes towards Aboriginal peoples always lie close to the surface of their relationship with the Canadian state. It often shows its colonial face in courtrooms, in land claim negotiations, and in the everyday lives of Aboriginal peoples. White Paper liberalism would disband any hope of a workable theory of Aboriginal rights by ‘justly forcing’ Aboriginal peoples to assimilate with the mainstream. The White Paper served to rouse Aboriginal peoples from their colonial slumbers and begin to question the legitimacy of liberal views of jus- tice. The problem of Aboriginal participation began to take on a new face after the ideas of the White Paper took hold in Indian Country.

Conclusion

In discussing the White Paper of 1969, I have shown that although the paper was purporting to offer a more just vision of the Indian–white political relationship, it was saying something very different to the Indians of Canada. The White Paper claimed that the discriminatory

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight

White Paper Liberalism 37

nature of the Indian–white relationship could be addressed by welcom- ing Indians into mainstream Canadian culture. By emphasizing that Indians are citizens, and therefore should not possess any special rights, the government could take practical steps to assimilate Indians into mainstream Canadian society.

Indians reacted strongly to this proposed (re)vision of the relation- ship. Harold Cardinal in Unjust Society spoke out angrily the content of the policy itself, declaring that Indians were still being ignored by the dominant culture and that Indian leaders were getting fed up with this kind of treatment. The inception of national organizations increased the Indian presence in Canadian politics. This was only at a ‘consultative’ level; even so, Indians began to play a larger role in shaping Indian politics at the national level. This culminated in the second part of the repatriated constitution, which embedded the rights of Aboriginal peoples in Canada’s highest law.

A robust theory of Aboriginal rights is going to have to incorporate three central issues that White Paper liberalism failed to address: the legacy of colonialism; the idea that Aboriginal rights are group rights that flow out of Aboriginal peoples’ status as indigenous nations (indig- enous nationhood); and the concept that the existence of the Canadian state is not a given in the legal and political relationship. The only way these issues can be resolved in Canadian society is for Aboriginal peoples to participate more effectively in the practices that are followed to define their rights, sovereignty, and nationhood. I will soon explain in more detail the problem of Aboriginal participation in mainstream intellectual culture, but before I do, I will examine two prominent liberal theorists’ responses to White Paper liberalism and discuss how their theories attempt to improve the legal and political status of Ab- original peoples.

In the next two chapters I examine the work of Allan Cairns and Will Kymlicka, whose liberal theories address some of the White Paper’s shortcomings but ultimately fail to incorporate Aboriginal participation into their theories of Aboriginal rights. They may believe they are offering more just alternatives to White Paper liberalism, but from an Aboriginal perspective, their understandings of Aboriginal rights con- tinue to limit and thereby marginalize Aboriginal participation.

C op

yr ig

ht ©

2 00

6. U

ni ve

rs ity

o f T

or on

to P

re ss

. A ll

rig ht

s re

se rv

ed .

alexandergrammatikos

Highlight

alexandergrammatikos

Highlight