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Aboriginal rights...
Jul. 18th, 2010 09:16 pmI completed the following (very) “short assignment” for my “Canadian Political Environment” course that I'm taking this summer (vs. “Canadian Political Institutions”, which is the sister course to this one). From the syllabus: “This course introduces students to the social and economic foundations of the Canadian polity. We focus particularly on the evolution of political cleavages and the politics of identity in the Canadian context. We begin by situating Canada in the global context. The classes that follow focus on Canada’s original inhabitants, First Nations and Inuit peoples, and Canada’s traditional cleavages of language and region. The class cleavage, frequently noted for it lack of saliency in the Canadian context, is also considered. The course moves on to analyze the impact of notions of ethnicity, ‘race’ and gender in Canadian political identity. We continue by looking at how various Canadian political interests mobilize through group politics, and conclude by considering the process of political socialization in Canada and the role of the mass media.”. This first assignment had a particular goal: “The task is to select a quotation that relates to a topic covered early in the course and write a critical response no more than two pages double-spaced. One of the purposes of this task is to get students in the habit of writing clearly and concisely, which is a very useful skill for assignments of any length.” and “In this paper, students should: State whether you agree or disagree with the selected quotation; Identify clearly your position on the matter; Construct a logical argument in support of your position, while using specific examples; Address possible counter-arguments to your position.”. Please let me know if you think I have succeeded.
Phelonius P. Friar, Short Assignment, July 19, 2010
Title: Aboriginal Privilege in Canada
Course: PSCI 2002A, John Crysler
In the Supreme Court of Canada case R. v. Van der Peet, Chief Justice Antonio Lamer wrote for the majority, “[W]hen Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society, and which mandates their special legal, and now constitutional, status.” While the court recognized that when considering the Constitution Act, 1982, “any ambiguity as to the scope and definition of s[ection] 35(1) must be resolved in favour of aboriginal peoples”, it is important to note that the ruling also rejected Van der Peet’s appeal against a conviction for selling 10 salmon that had been “caught under the authority of an Indian food fish licence” and found her guilty of “contravention of 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence” (R. v. Van der Peet, [1996] 2 S.C.R. 507, 1996). Section 35(1) of the Constitution Act, 1982 states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” (Constitution Act, 1982, 1982), and with this ruling, the Supreme Court saw fit to both reaffirm those rights as they exist within the framework of Canadian law, and also to seriously limit the definition of what those rights are. While I agree with Lamer’s statement above on “special status”, and support the expansion of Aboriginal rights within Canada as a means of achieving reconciliation, the rest of the ruling creates an environment where that “status” is interpreted in a narrow, restrictive, and colonial manner.
The Canadian justice system had no choice but to adopt the approach it did given the paucity of precedent and the glaring lack of direction from the legislature regarding how to interpret section 35(1). The problem is that this judicial approach has created a situation where the contemporary Aboriginal peoples in Canada once again have their livelihoods and many aspects of their day-to-day existence dictated to them from the central authority of the institution of Canada, albeit in a more subtle way than in the past. The ruling in the Van der Peet case states “those practices, customs and traditions that are integral to distinctive aboriginal cultures will serve to identify the crucial elements of the distinctive aboriginal societies that occupied North America prior to the arrival of Europeans.” (R. v. Van der Peet, 1996). This implies that unless the right being sought was a practice that existed prior to European colonization – presumably as interpreted by anthropologists, historians, and the courts – then it is not “recognized”. In his essay, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster”, John Borrows writes that “in arriving at these conclusions the Court seriously undermined the future commercial competitiveness and survival of Aboriginal nations in contemporary Canadian society” (Borrows, 1997), in essence shutting Aboriginal peoples out of all modern activities that did not exist at the time “prior to the arrival of Europeans”.
While those taking a purely capitalist approach will argue that the Aboriginal peoples “lost fair and square” against the “superior” forces of the colonizers, and that the ongoing demands of that community need to be silenced to maximize access to valuable resources and minimize the cost of supporting that population – presumably through more aggressive attempts at assimilation – Canada provides a richer social tapestry than the monoculture of capitalism. The international experience with reconciliation providing long-term solutions also argues against a purely capitalist-pragmatic approach to the problem. While the courts did provide value by acknowledging special status for Aboriginals, the broader body of Canadian society needs to take an active role in recognizing and expanding the rights of the Aboriginal peoples of Canada in a modern globalized world – not merely recognizing traditional ways of life, but projecting those historic social constructs into our post-subsistence and post-industrial reality.
Bibliography
Borrows, J. (1997). Frozen Rights in Canada: Constitutional Interpretation and the Trickster. American Indian Law Review, 22(1), 37–64.
Constitution Act, 1982. (1982, April 17). Retrieved from http://laws.justice.gc.ca/eng/const/PRINT_E.pdf
R. v. Van der Peet, 2 S.C.R. 507. (1996). Retrieved from http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html
Phelonius P. Friar, Short Assignment, July 19, 2010
Title: Aboriginal Privilege in Canada
Course: PSCI 2002A, John Crysler
In the Supreme Court of Canada case R. v. Van der Peet, Chief Justice Antonio Lamer wrote for the majority, “[W]hen Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society, and which mandates their special legal, and now constitutional, status.” While the court recognized that when considering the Constitution Act, 1982, “any ambiguity as to the scope and definition of s[ection] 35(1) must be resolved in favour of aboriginal peoples”, it is important to note that the ruling also rejected Van der Peet’s appeal against a conviction for selling 10 salmon that had been “caught under the authority of an Indian food fish licence” and found her guilty of “contravention of 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence” (R. v. Van der Peet, [1996] 2 S.C.R. 507, 1996). Section 35(1) of the Constitution Act, 1982 states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” (Constitution Act, 1982, 1982), and with this ruling, the Supreme Court saw fit to both reaffirm those rights as they exist within the framework of Canadian law, and also to seriously limit the definition of what those rights are. While I agree with Lamer’s statement above on “special status”, and support the expansion of Aboriginal rights within Canada as a means of achieving reconciliation, the rest of the ruling creates an environment where that “status” is interpreted in a narrow, restrictive, and colonial manner.
The Canadian justice system had no choice but to adopt the approach it did given the paucity of precedent and the glaring lack of direction from the legislature regarding how to interpret section 35(1). The problem is that this judicial approach has created a situation where the contemporary Aboriginal peoples in Canada once again have their livelihoods and many aspects of their day-to-day existence dictated to them from the central authority of the institution of Canada, albeit in a more subtle way than in the past. The ruling in the Van der Peet case states “those practices, customs and traditions that are integral to distinctive aboriginal cultures will serve to identify the crucial elements of the distinctive aboriginal societies that occupied North America prior to the arrival of Europeans.” (R. v. Van der Peet, 1996). This implies that unless the right being sought was a practice that existed prior to European colonization – presumably as interpreted by anthropologists, historians, and the courts – then it is not “recognized”. In his essay, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster”, John Borrows writes that “in arriving at these conclusions the Court seriously undermined the future commercial competitiveness and survival of Aboriginal nations in contemporary Canadian society” (Borrows, 1997), in essence shutting Aboriginal peoples out of all modern activities that did not exist at the time “prior to the arrival of Europeans”.
While those taking a purely capitalist approach will argue that the Aboriginal peoples “lost fair and square” against the “superior” forces of the colonizers, and that the ongoing demands of that community need to be silenced to maximize access to valuable resources and minimize the cost of supporting that population – presumably through more aggressive attempts at assimilation – Canada provides a richer social tapestry than the monoculture of capitalism. The international experience with reconciliation providing long-term solutions also argues against a purely capitalist-pragmatic approach to the problem. While the courts did provide value by acknowledging special status for Aboriginals, the broader body of Canadian society needs to take an active role in recognizing and expanding the rights of the Aboriginal peoples of Canada in a modern globalized world – not merely recognizing traditional ways of life, but projecting those historic social constructs into our post-subsistence and post-industrial reality.
Bibliography
Borrows, J. (1997). Frozen Rights in Canada: Constitutional Interpretation and the Trickster. American Indian Law Review, 22(1), 37–64.
Constitution Act, 1982. (1982, April 17). Retrieved from http://laws.justice.gc.ca/eng/const/PRINT_E.pdf
R. v. Van der Peet, 2 S.C.R. 507. (1996). Retrieved from http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html
