One of the most persistent red herrings in public debates that consider Aboriginal rights of self-government, or treaties, is the idea that setting up Aboriginal governments, or negotiating treaties with people who are Canadian citizens, is 'a form of apartheid, based on 'racial background'. Another favourite reference is to the struggle for equal treatment by all Americans in the 1960s civil rights movement. These references, when used by well-intentioned people, are intended to illustrate deeply held values about how a society should be organized. But they miss the mark.
The appropriate reference in debating treaties and rights of Aboriginal peoples in Canada is to American Indian Tribes, who are recognized in American law and policy as 'domestic, dependent nations'. There are good reasons why the Americans have recognized that Indians consist of a large number of distinct historic nations, and not one 'racial group' defined by outsiders. These reasons involve the same important values that are behind the Constitutional protection given the rights of the Aboriginal peoples of Canada in the patriation amendment of 1982. That amendment also introduced a policy of multiculturalism that is based on its own distinct philosophical underpinnings. The mix is further complicated by the Charter of Rights and Freedoms, which prohibits adverse discrimination based upon a number of factors, including 'national or ethnic origin, and 'race'.
Let us start unravelling the mix with a discussion of the equality guarantee and the prohibition of adverse discrimination based on the idea of 'race'. It is worth pausing to emphasize that 'race' is an idea and not a biological fact. There are no biological races. The term is usually applied to a group singled out for special attention for political reasons. That the term has no scientific content is a fact that is beyond contention. Those individuals who happen to have one or more 'Aboriginal' ancestors and who are treated adversely on that account, are entitled to the remedial benefits of the Charter as interpreted by the courts. But this does not mean that each such individual has any Aboriginal rights. This is where the confusion often begins. Aboriginal rights are group rights, and not individual rights. They are expressly recognized and affirmed in Part II of the Constitution Act 1982, where they are carefully separated from the individual rights contained in the Charter, which makes up Part I of the Act.
The Supreme Court of Canada has explained that Aboriginal rights are held by historic groups that have lived and continue today to live in a particular territory or place. Aboriginal rights are specific to distinct historic societies in their own ancient homelands. They are not held by persons on account of their biological 'heritage'. Aboriginal rights can only be exercised by persons by virtue of their membership in a particular historic community in a particular place. Compare that to the case of immigrants, who come to Canada as individuals, and whose ancient homelands and cultures remain behind. The practical differences can be stark. If an Aboriginal language dies here; it dies absolutely. If an immigrant's language dies, it survives elsewhere in its homeland, and continues to contribute to the heritage of humanity.
There are different categories of Aboriginal rights, and they are all based upon general moral and social principles and values rather than upon the opinions of individual commentators or idiosyncratic notions of judges. Aboriginal title and other Aboriginal rights to lands, for example, reflect the values behind notions of property that are adhered to by all societies, such as that 'things that are not acquired wrongfully belong to those who have them.' The courts have developed Aboriginal rights that recognize the undisputed occupation and use of particular places by particular communities as homelands for a long time. These rights are meant to redress the wrongful taking of these lands and to counter policies that aimed at dismantling these ancient communities. One device to dismember the communities and to hide the true basis for Aboriginal group rights, has been the discredited notion of 'race' which aims to describe all Aboriginal people as a single homogenous mass of individuals rather than as communities united by an historic relationship to place and community.
Canadians who do not need red herrings have no reason to fear that Aboriginal people, a small numerical minority at about 3 per cent of the Canadian population, will get judicially recognized rights inconsistent with generally recognized rights or fundamental values. As B.C. residents ponder the current referendum on treaties, they might reflect on the words of Felix Cohen, the pre-eminent jurist who struggled for Indian rights in the U.S.A. In 1953 he wrote "… the Indian plays much the same role in our American society that the Jews played in Germany. Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere: and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall of our democratic faith…"
Aboriginal rights are not products of ill-conceived 'race-based' notions; they are based upon fundamental values and general principles that recognize our common humanity and aim to reconcile our mutual interests in common space and territory.
Paul L.A.H. Chartrand is a is a Métis from Manitoba
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