The Denigration of ‘A Great National Question:’
by Anthony J. Hall
The referendum on sovereignty-association in Quebec has found a kind of weird mirror image in the decision of Premier Gordon Campbell to go ahead with the controversial referendum on Aboriginal title in British Columbia. Try as the Campbell Liberals might to deny it, in the final analysis they are no less anxious than Quebec’s sovereigntists to exempt their provincial government from those aspects of Canadian law they find inconsistent with their own vision of local autonomy.
Indeed, in calling on BC’s voters to produce a set of predictable answers to a series of loaded questions aimed at sabotaging the fledgling treaty negotiations with First Nations, the British Columbia government is apparently taking its lead from the US government. In 1871 Congress passed a law which unilaterally exempted the USA from adhering to the international law of Aboriginal title. All future treaty negotiations with First Nations were thereby prohibited, elevating the doctrine of “conquest” over the rule of law as the basis of future relations with Indigenous peoples within the USA’s own boundaries.
Where the Chretien Liberals came to understand their responsibility to invoke federal authority to demand some clarity on any future referendum on Quebec’s relationship with the rest of Canada, their silence on the forthcoming referendum on Aboriginal rights in British Columbia is deafening. The contrast in federal treatment extended to the referendum process in Quebec and British Columbia exposes to national and international view the very deep streak of Canadian ethnocentrism towards the First Nations that the Campbell referendum will almost certainly inflame and exploit. Is it conceivable that authorities in Canada would allow the human, civil and property rights of any minority other than Aboriginal peoples to be made hostage to the will of the majority as measured in a provincial public opinion poll?
There is nothing new in the election of a British Columbia government with a reactionary unwillingness to adhere to those aspects of international, British imperial and Canadian law that recognize and affirm the existence of the shared title of First Nations in their unceded lands and waters. From the BC’s inception in 1858 until treaty negotiations began in earnest in 1990, one provincial regime after the next resisted all pressures from the imperial and federal governments as well as from the First Nations and the courts to adhere to the Crown laws of Aboriginal and treaty rights. In 1997 in the Delgamuukw ruling the Supreme Court of Canada removed once and for all any doubt that BC’s constitutional status within Confederation will always be problematic until some political accommodation is reached through a treaty process giving practical expression to the co-existence of Crown and Aboriginal title to the lands and waters of Canada’s westernmost province.
Historically not all Liberal regimes in Ottawa have been as timid as the Chretien Liberals when it comes to leaning on the government of British Columbia to pressure its leaders to adhere to the Crown law of Aboriginal title. For instance in 1874 the Liberal regime of Prime Minister Alexander Mackenzie invoked the Dominion government’s constitutional power to disallow provincial legislation. With a view towards upholding the federal government’s explicit legal obligation to safeguard “Indians and lands reserved for the Indians,” the Mackenzie regime made use of its capacity derived from the British North American Act to prevent a misconceived BC statute on public lands from becoming law.
During a period when the federal government was busy with the negotiation of seven of Canada’s numbered treaties throughout the vast sweep of territory between northwestern Ontario and the Rocky Mountains, the Mackenzie Liberals disallowed the BC bill because of its failure to incorporate any recognition that Indian title to most of the province remained in tact. The same constitutional inconsistencies between the province’s land laws and the Dominion’s law of Aboriginal and treaty rights persist to this day except in those areas of BC covered by the negotiation of Treaty 8 in 1899 and of the Nisga’a Treaty in 2000.
Referring to the tradition of Crown military alliances with the First Nations, a heritage that was crucial to the defense of Canada from annexation by the Indian fighters of the United States in the War of 1812, Mackenzie’s Justice Minister explained the federal disallowance of the BC law in 1874 as follows. He noted, “there is not a shadow of doubt, that from the earliest times, England always felt it imperative to meet the Indians in council, and obtain surrenders of tracts of Canada, as from time to time were required for settlement.”
Even within British Columbia many have attributed the unwillingness of the local government to live within the Crown law of Aboriginal and treaty rights to the seminal role in the province’s formation played by immigrant miners from the United States. As New Westminster journalist, John Robson, noted in The British Columbian in 1864, “There are those among us who are disposed to ignore the rights of Indians and their claim upon us, who hold the American doctrine of ‘manifest destiny’ in its most fatal form. Under the pretext of this unchristian doctrine the cry for ‘extermination’ is raised at every pretext.”
In 1874 the Mackenzie regime followed up in its disallowance of BC’s land legislation by calling on the BC government “to reconsider in the spirit of wisdom and patriotism the land Grievances of which the Indians of that province complain, apparently with good reason, and take measures as may be necessary promptly and effectually to redress them.” In promoting this policy Mackenzie’s Minister of the Interior, David Liard, referred to the Indian title issue in British Columbia as “a great national question... involving the possibility in the very near future of an Indian War.” To the Indian,” Liard pronounced,”the land question far transcends all others.” David Mills, Liard’s successor, took the matter further. In 1877 Mills noted that the “Indian rights to the soil have never been extinguished.” If an Indian war did result from this failure to develop BC within the rule of law, Mills indicated that the federal government would be obligated to take the Indian side in the conflict.
Over several decades there have been many references to the possibility of an Indian war in the steady stream of the interventions made with the intention of pressuring the recalcitrant BC government to come to terms with the Crown law of Aboriginal and treaty rights. Such an Indian war finally came to pass near the shores of Gustafsen Lake in 1995. The Canadian government participated in the conflict by committing weaponry and armed personnel including members of Joint Task Force II. As at Oka in 1990, the deployment of the national armed forces in a dispute over Indian rights to land and resources highlighted Canada’s move away from the Crown tradition of treaty alliances with the First Nations towards the USA’s dependence on conquest as the basis of its Indian policies.
According to a recent court ruling on an extradition matter involving an Indian veteran of the Battle of Gustafsen Lake, the Canadian government also participated in a concerted campaign of psychological warfare aimed at disguising the true character of the constitutional dispute over the status of the legal title to the lands and waters of British Columbia. As Judge Janice Stewart ruled in Portland Oregon in November of 2000 in the case of USA versus James Pitawankwat, the “defendant has submitted uncontradicted evidence that the Canadian government engaged in a smear and disinformation campaign to prevent the media from learning and publicizing the true extent and political nature of the events.”
The Pitawankwat case marks the first time in the entire history of Canada-USA relations that the political offenses exception clause in the Extradition Treaty between our two countries has ever been successfully invoked. In overruling the request for extradition originating in the executive branch of the US government, the superpower’s judiciary agreed that Canadian authorities had been motivated by political objectives in their wrongful persecution of the Gustafsen veteran. In language that resembled the description by some international jurists of Israel’s relationship to the West Bank and the Gaza Strip of Palestine after 1967, the US judge noted that “the Gustafsen incident involved an organized group of Native people rising up in their homeland against occupation by the government of Canada of their sacred and unceded tribal land.”
The protesters at Gustafsen Lake were motivated in part by an intense distrust of the treaty process in British Columbia. The nature of their disagreement with the format of the negotiations, however, was extremely different from the kinds of criticisms directed at the same process by the Gordon Campbell Liberals and their right-wing allies in the federal Alliance Party. The position taken by the Gustafsen protesters, however, has never to this day received fair and unbiased coverage in the BC, national or international media. Instead the dispute over the land question in British Columbia remains shrouded in the same dense fog of government smear and disinformation that has consistently been delivered to the Canadian public by a biased media apparently uninterested in addressing the damaging condemnations directed at it in the landmark Pitawanakwat ruling.
The referendum on the issue of Aboriginal title title in BC is proceeding without a sufficient framework to make this exercise a credible experiment in direct democracy. The Campbell Liberals, who are by no stretch of the imagination neutral bystanders in this referendum, are asking a series of manipulative questions that leave no room for the champions of fair and equitable treaty settlements to mount a coherent no campaign. In seeking a popular mandate to sabotage the treaty process with First Nations by placing it within unworkable constraints, the Campbell Liberals embody the ongoing Americanization of Canadian politics. They advance a well developed political heritage in the United States, a country that has frequently rewarded its most ruthless Indian fighters, including William Henry Harrison and Andrew Jackson, with the keys to the White House.
The events at Oka and at the Lonefighters camp in 1990 or at Ipperwash and Gustafsen Lake in 1995 demonstrate the coming of low-level Indian wars to Canada. The most lethal attacks on the continuing viability of Indian Country, however, are made in the name of a particular approach to individual equality that would deny the collective legal personality of Aboriginal groups. These appeals to the equality of individuals have been used to disguise the USA’s Indian termination policy in the 1950s and Trudeau-Chretien White Paper on Indian policy in 1969.
The current right-wing attack on Indian Country, as embodied particularly in Gordon Campbell’s referendum aimed at extinguishing Indian rights in the name of majority rule, continues the Americanization of Canada. It continues the politics of those once identified by John Robson as champions of “Manifest Destiny,” a conviction that has sought continental integration under US hegemony as well as the concurrent conquest, dispossession, subjugation or elimination of the continent’s First Nations.
The Campbell referendum makes no provision for some sort of equitable access to public resources to undertake the necessary initiatives in public education that would enable a well-informed citizenry to make democratic choices between viable alternatives. Instead the uncertain legal and political status of the dubious procedure promises further to confuse and complicate an already complex and polarized situation. Certainly the Canadian media, tarnished as it now is by the US court ruling calling attention to its role in 1995 as purveyors of government smear and disinformation, have effectively disqualified themselves as credible reporters capable of presenting with neutrality competing arguments in a broad public debate over the role to be afforded Aboriginal title in the future of nation building and province building In Canada.
One of the many serious flaws in this ill-conceived process is that the BC electorate are being asked to give their opinion about what they would like the law to say without being given ample opportunity to become reasonably well informed about what the existing law of Aboriginal and treaty rights now says. In order to appreciate how the present law came into being it is necessary to understand something of the genesis of the Aboriginal title question throughout the course of Canadian and North American history. It is necessary, moreover, to understand something about how the dispute over land title in British Columbia is connected to the oldest and most profound human rights issue in the Americas whose real origins go back to 1492.
Canadians outside BC have every right to ask why our opinion is not being sought in an unresolved matter which the government of Prime Minister Alexander Mackenzie identified as early as 1874 as “a great national question.” Like the future of Quebec, the future of the First Nations affects us all and we must insist that our federal politicians acknowledge the existence and role of a national political will in seeing that the desire of some to create a New Canada does not disenfranchise, fragment and alienate the oldest constituencies in the country.
Given the federal government’s explicit constitutional responsibility for “lands reserved to the Indians,” a provision of the BNA Act that arguable refers to most of the unceded lands and waters of British Columbia, it is unconscionable for our federal politicians to stand quietly aside as if the land question in Canada’s westernmost province was primarily a provincial issue. If ever there was a moment for the Chretien Liberals to invoke the federal power to disallow provincial legislation, now is that moment.
The Dominion government established the precedent for intervening to negate an illegal and anti-Indian BC statute 1874. If the Chretien Liberals fail to live up to their fiduciary responsibilities to recognize and affirm existing Aboriginal and treaty rights by invoking the federal authority to disallow faulty provincial legislation, we Canadians inside and outside of BC must to mobilize to see that the rule of law is no longer subordinated to US-style expedients emphasizing the rule of force as the primary means of subjugating Indigenous peoples. One way of responding to the Campbell regime’s denigration of “a great national question” would be to organize a parallel citizens’ referendum.
The following questions represent a basis for this parallel process:
1.Do you agree that the governments of Canada and British Columbia
should endeavour to adhere to the rule of law as outlined in
constitutional instruments such as Section 35 of the Constitution Act,
1982, the Royal Proclamation of 1763 and the Supreme Court’s ruling in
1997 in the Degamuukw case?
2.Do you want to see British Columbia attain a respected reputation in
the international community as a beacon of justice and decency in the
conduct of relations with Indigenous peoples?
3.Do you want to see the international financial community look towards
British Columbia as a stable society in which it makes sense to invest
large amounts of capital?
4.Do you want to see some resolution to the issue of contested title to
British Columbia sometime in your lifetime?
5.Do you want law enforcement agencies in British Columbia to enforce
the law as it is written justly and fairly without discrimination?
6.Do you want to live in a society where there are entrenched legal
protections for our families, communities and property?
Anthony J. Hall