Thursday, 26 January 2012

The Monarchy Debate in Canada: An Indigenous Perspective

              On the weekend of January 13-15, 2012, Liberal party members met in Ottawa to discuss, debate, and put forth various ideas on policies, rebuilding, and electoral strategy. One such policy that was put forth was Policy Resolution 114. This policy sought to enhance a ‘Canadian’ identity and severe ties with the British Monarchy. As an Indigenous person, who also studies Canadian/Indigenous state relations and Constitutional forms that have, and currently, exists in Canada, I was extremely concerned by this motion. I would soon find out that I was not the only one concerned – in fact the entire Aboriginal Peoples Commission executive, which is a wing to the Liberal Party, was concerned with the lack of consultation, via the Youth wing which had presented it, or the consideration of possible consequences by such a motion of abolishing the monarchy.

            While many people were arguing over about tradition and modernity, or archaic methods and Canadian identity; the APC was trying to have delegates and Canadians come to an understanding about the unique Indigenous perspective on this debate. When the APC did try to explain, they had various people, Liberal delegates as well as general Canadians, tell them they were wrong, didn’t know what they were talking about, and that they didn’t understand treaty rights. I found this interesting as those telling them they were wrong traditionally had no background, academically or legally, on Indigenous issues, Indigenous rights, and Indigenous/Canadian state relations. In fact, when a couple of lawyers, who had no specific expertise or focus on the Indigenous aspects I mentioned, continued to be listened to over the APC – in fact, even individuals who weren’t lawyers seemed to be assumed as knowing more. This was very concerning because an important perspective on this debate was being, and continues to be ignored. However I will say that many Liberal delegates, Members of Parliament, and general Canadians did understand the APC’s point.

The APC opposed it based on what their job is – to understand the Indigenous aspect, to put forth the concerns and be the best possible representatives of the Indigenous voice to the party. Fortunately Policy Resolution 114 failed, however Indigenous delegates and the APC continue to be told how ‘disappointed’ individuals were with them for speaking out against this policy. So, after a recent transaction with an individual, who again told the APC that they were wrong, I had to respond with facts and some history. Below you can see the issue that exists with the idea of abolishing the Monarchy from an Indigenous perspective. The views expressed are my personal ones and done so from my personal research.

Pre-Federation of the British North American Colonies:

Prior to 1867 it was the Indigenous Nations relationship with the British Crown that existed. In other words, treaties, meetings, and discussions occurred between one Indigenous nation and that of the British Empire. Usually this was done through a Crown representative because the Crown obviously was not able to attend majority of the time, just like when a Prime Minister sends representatives in his/her place due to scheduling conflicts or time constraints. The fact is the relationship with Britain, although not perfect was far better, and still is, than with its Canadian representatives. This can be viewed especially as governing structures of the settlers began to be formulated here in present day Canada. Thus as representatives of the colonies gained more 'power' and only had to report to Britain, many reports were done that did not necessarily contain the proper and factual information. In fact from the late 1700s, and on, settlers carried this out on behalf of the British. Many settlers, due to the debates that had gone on in Europe, about whether Indigenous people were persons, had rights, as well as having territory, allowed for them to take advantage of the split view point (in fact Indigenous people in Canada were not deemed persons until 1997).


However, upon the federation of the original 4 colonies of Canada in 1867, the BNA Act expressed that Canada would respect the treaty rights that had been formulated directly through the British Crown and continue as the Crown's representative in future treaties with the Indigenous nations. Unfortunately, it then became the ‘responsible’ government of Canada who then imposed the Indian Act, outlawed Indigenous rights, and items such as the ability to seek legal counsel. This led to the completely ‘silencing’ of the Indigenous nations and was done so to evade the treaty rights, jurisdiction, and lands that belonged to them – all in order for the Dominion of Canada to expand west and northward. Indian Agents sold of treatied Indigenous land to which they had no right to do so. Shockingly, there is evidence that the Federal government of Canada knew this was occurring but continued to allow it to – and even would have the British assuming it was being done properly and legally.

Furthermore, the decision to further residential schools with federal funding came directly from the government of Canada - which used the fact, as a reason for Britain to support it, that it would civilize and make Indigenous people model citizens. Yet, because of our rights to territory and the fact the Indigenous nations had never been asked to federate or been in discussion to federate, this respect and 'citizenry' was false. However, the reports to Britain would be based off of Canadian government documents. As time went on Canada, as it gained some more independence on some matters, continued to isolate Indigenous people, force assimilate and tell us who we belonged to, and who was allowed to be an Indigenous person, which is still done to this day. Many court cases done through the Canadian jurisprudence have shown heavy biases to Canada's favour. This impact would lead some Indigenous grievances to be taken all the way to the JCPC in Britain. Usually, this action was favourable towards Indigenous rights.

The White Paper and the Constitution Act (1982):

In the 1960s Pierre Trudeau began moving Canada towards a more multicultural state and believed that a modern Canada required a liberalist (and by liberalist I do not mean Liberal Party of Canada as the two are not the same) notion of equal rights. This included a modern and patriated constitution and a charter of rights. This understanding also led to the 1969 White Paper, in which Canada decided that they were going to single handedly abolish Indigenous rights, void treaties and Indigenous reservations. In other words, the plan was to simply annex the Indigenous nations into the Canadian state. This caused a huge uproar and showed the lack of understanding between Canada and the Indigenous Nations, a mentality that is very pronounced with the current federal government. However, Trudeau and many parts of Canada would get their wish in 1982 with the Constitution Act.

In this Act, Section 35 expresses Canada must recognize and abide by ‘existing’ treaty rights. Consequently, there have been many problems with this. For instance, Section 35 of the Constitution Act (1982) and Section 25 of the Charter of Rights were to not originally exist. The Canadian government originally did not want them at the time and it was a ruling by the British government, vis-a-vis the Crown, that Canada must implement something relating to Indigenous rights. This occurred because Indigenous Chiefs went to London England to push for the Constitution to not be patriated or at least for some form of protection. Thus, in fact, these sections now existed thanks to our British Friends – vis-a-vis the Crown. It is also my understanding very few Indigenous organizations supported the wording of Section 35 or Section 25 as it was not constructed through consensus and discussion with the Indigenous Nations.

The Reality of Today and the Impact of Sections 35 and 25:

Since 1982 there has been very little comfort and evidence that section 35 of the Constitution Act, and Section 25 of the Charter of Rights, has done great work to protect the Indigenous nations. This is because the wording of both sections had little to no input from Indigenous people. Additionally, the term 'existing' is consistently debated and often contentious. There have been many court cases where the term ‘existing,’ within Section 35, has been used to infringe upon treaty rights of the Indigenous people. For instance, if the court system rules against a treaty right it is then applied across Canada to all treaty Indigenous nations and people. However if it goes in favour of treaty rights, it is only in favour of those Indigenous communities within that specific treaty area that was being debated and discussed in the court.

            Currently a lot of items that should be deemed treaty rights are still heavily ignored. Thus, I must pose the question that if Section 35 of the Constitution Act and Section 25 of the Charter of Rights is protecting Indigenous rights perfectly, why has Canada failed to acknowledge existing treaty rights? Why do many of the Indigenous people continue to face substandard living conditions, do not have the right to their governance structures, resource sharing agreements, and so on? I would assume if those who are a part of the various Indigenous Nations, a) call this into question, B) have historically known about how decrepit the relationship with Canada has been, c) Knowledge that it is the British Crown that has done quite well in being a voice for and beside the Indigenous nations, then why would they go along with the idea that Canada would be better to work with? It has yet t be proven that Canada has effectively built a proper relationship that is needed with the Indigenous nations for such a possibility as that of Canada becoming a republic.

Case Example: The Jay Treaty:

For one final thought, I suggest people look up the Jay Treaty. This was a treaty that Britain signed with the newly formed United States government in the late 1790s. In section III, it recognized and acknowledged that Indigenous people had existing right to cross the colonial and American border without being harassed by either settler state’s border security. Upon Canada’s federation in 1867, it would refuse to recognize this treaty, even though the U.S continues to recognize this section of the Jay Treaty. In the 1950s a case came forth by a member of the Haudenshuane community of Awkwasasne, which is located within territory deemed to be that of the provinces of Ontario, Quebec and New York state. Due to the individual being charged a duty fee for bringing something ‘into Canada’ he took it to the courts. He argued, via the Jay Treaty, that he has a right to do so without facing fees or punishment.

The Canadian court ruled that because Canada was not a signatory of the Jay Treaty it did not have to abide by it. This was not the only case of its kind relating to the Jay Treaty. For instance, two more cases came forth post 1982. Yet the courts ruled in favour of the previous ruling, stating Canada did not sign the treaty AND thus does not need to abide by it. Thus one must ask, if this occurred even with Section 35 of the Constitution Act and Section 25 of the Charter of Rights: How can the courts then deny the existing treaty rights outlined under the Jay Treaty? This is especially questionable when the BNA Act would have recognized it since it was an original treaty and Canada was supposed to acknowledge all previous treaties. This then must lead to the question of: if a future narrow-minded governments comes into power seeking to destroy the treaties, could they not use Canada's new found republic state as a way to do so? For instance, what if they argued a similar statement of “we never signed those treaties,” and therefore Canada does not have to acknowledge them?

 This is worrisome because if they want to be technical, 'Canada did not sign the pre-confederation treaties – such as the Jay Treaty. Furthermore the numbered treaties were signed by Canada in the name of the British Crown. Does that mean a narrow-minded government can then claim, based on precedent from previous court rulings stating that if Canada did not sign it, they do not have to abide by it? Even further, there would be concern that ALL treaties, including modern ones since they are also done on behalf of the Crown, could be voided. This is especially troublesome when majority of Canadians do not understand the Indigenous/Canadian relationship and majority of Canadians do not look at treaties and treaty rights in a favourable mindset or attitude.


After reviewing this tad bit of Canadian/Indigenous state relations, alongside the place of the Monarchy, I must ask: Why would there be a willingness via the Indigenous nations to trust a Canadian republic? Where has the poof been that the Canadian state, its courts, and citizens, will not try and debunk them and their rights when Canada currently practices many of these tactics now?

Thus, I must kindly express that it is the pro-republic point of view that has been wrong and not based their ‘Indigenous rights component’ on facts, historical examples and the reality of the relationship. Thus, it is those within the APC who a) Come from these Indigenous communities; b) Grow up learning about the history of what has occurred and continues to occur, c) Have worked and studied in these areas, d) Consult with Lawyers and academics who focus on Indigenous aspects to these areas of the Constitution, Charter, and various other fields, who were, in fact, correct in our understanding of our rights and arguments against Policy Resolution 114.

On a personal note, I will continue to stand up and defend the rights of my community and the rights of our future generations, such as my nephews and niece: whom will inherit the current strains and issues Indigenous citizens face because Canada has not shown a willingness to move forward and work alongside us as was, and still is, expected via the treaties that were signed with the Crown. It was Paul Martin who made gains on this and unfortunately, since his defeat in January 2006, the old mentality has returned via the current governing party. It is because of Martin and his commitment to the rights of the Indigenous nations that I became a Liberal and will continue to work within and outside of the party. There is a need to help Canadians move back towards an understanding, proper and healthy relationship. Abolishing the Monarchy is not the step forward - it is in fact a regression away from understanding the inherent and proper treaty relationship.

NOTE: If one wants my sources from my information please notify me and I would gladly submit them - since this is my personal blog I did not opt to post my work cited with this article.

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