Now First Nations are Soviets and Primitive Communists?
First Nations identities, cultures, and lands are under attack once again from the newly revitalized right wingers (thanks to PM Harper and his conservative party) who think that the only "true" Canadians are those that look, walk, talk, and think alike. This is despite the fact that First Nations have never imposed such rules on Canadians. First Nations are not asking for anything other than for Canadians to live up to their constitutional promises.
Section 35 of the Constitution Act, 1982 is the Supreme law of the land. No federal or provincial government has the authority to enact laws and policies outside those legal boundaries by which Canadians have agreed to live. Section 35 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. In case there was any doubt, in 1996 Canada publicly recognized that Aboriginal peoples have the "inherent right" to self-government and that this right was protected in s.35.
The inherent right to be self-governing does not mean that First Nations MUST govern themselves according to western laws, ideologies, and governance structures. That would defeat the whole purpose of being self-governing according to one's OWN laws, customs, and practices. Even the Supreme Court of Canada in Van der Peet recognized that:
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when 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.
Additionally, PM Harper stood before and on behalf of ALL Canadians and apologized to First Nations for the assimilatory attitudes upon which policies like residential schools were based. Specifically, PM Harper explained that:
Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions, and cultures and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed some sought, as was infamously said, "to kill the Indian in the child". Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.
This apology is in line with other pronouncements from the Supreme Court of Canada (SCC)regarding the purpose of protecting the rights of Aboriginal peoples in the Constitution Act, 1982. Specifically, the SCC held in Powley that the purpose of section 35 was to protect to recognize and enhance Aboriginal peoples "survival as distinctive communities." Distinctive refers to the unique laws, cultures, traditions, practices and beliefs of Aboriginal Nations. The SCC explained that the "purpose and the promise of s. 35 is to protect practices that were historically important features of these distinctive communities" so that they can preserve their cultures for future generations.
So, if the supreme law of the land, our country's highest court, and even the Prime Minister recognizes the need to protect Aboriginal laws, customs, practices, beliefs, traditions, and cultures, how is it that the right wingers in society cannot wrap their minds around that concept?
Today, I read a comment in the National Post which referred to First Nations concepts of communal property as "Soviet-style native property rules". Never mind that the "Soviet Union" doesn't even exist anymore, but the comparison shows the ignorance of the commentator.
The commentator alleges that Canadians who live on reserve are "denied the ability to own real property". In fact, any Aboriginal person may own property off-reserve in fee simple. On reserve, they can hold property in a Certificate of Possession (CPs) which is similar to fee simple, except that it can't be sold to non-Indians. This form of property ownership respects the communal nature of land ownership in First Nations. The communal nature of land holding in First Nations has long been recognized by laws, courts, and our constitution as an integral
part of First Nations laws, rules and practices related to their lands.
The commentator also alleges that Aboriginal people "cannot hold true title to their homes" nor can they "mortgage a property to raise capital". In fact, Aboriginal people can hold CPs to their homes and even obtain a mortgage through various programs at CMHC and INAC. The link below provides details about how the process works:
The commentator also claims that Aboriginal peoples cannot develop their "land as they see fit". This may or may not be true, depending on the zoning and other land use codes that may or may not in place in any particular First Nation. It is interesting to note however, that most Canadians cannot develop their land as they see fit due to zoning and other municipal land use by-laws. This comment reflects an obvious lack of knowledge around the subject.
More troubling is the allegation that Aboriginal peoples "can lose their homes without recourse, whenever it happens to be convenient for band council to give their property to a new occupant". This is categorically false. Various provisions of the Indian Act lay out how land is to be allotted, how CPs can be issued, and the process under which land can be expropriated. Canadian and provincial laws allow lands of Canadians to be expropriated in special circumstances, but never without compensation. The rules are similar on a reserve. Of course, the rules may well be different for self-governing First Nations and/or those under the First Nations Land Management Act.
The commentator uses the example of Kahnawake where the band council enacted residency by-laws prohibiting non-members from residing on their reserve. When asked about the legality of such a by-law, the former Minister of Indian Affairs, Chuck Strahl claimed it was "legal" and even "constitutional" despite the fact that in order for a by-law to be legal it must be submitted to INAC for approval - which according to INAC was never done.
I agree completely with the commentator that such a law, which evicts non-Indian spouses of legitimate band members from their homes, is racist. It divides children from their parents, and families from their communities. Instead of protecting their Nation, they are actually speeding up their own assimilation. I myself, have written a blog about the injustice of this situation.
That being said, Kahnawake does not represent all 633 First Nations in Canada. Just as the serial killer Robert Pickton does not represent the values of all Canadians, nor does Kahnawake represent the majority of First Nations values.
Finally, the commentator praises Tom Flanagan's new book: Restoring Aboriginal Property Rights" as the answer to the situation of communal property rights. As Tom Flanagan describes First Nations as "primitive communists", it is easy to see where this commentator divined his inspiration to write about "Soviet" First Nations.
Flanagan's plan is to turn reserves into fee simple, maximize land values, and open up reserves to be sold to non-Indians. In my opinion, this does not recognize constitutionally protected land rights and simply represents a right wing desire to see Aboriginal peoples assimilated once and for all. I have written a book review which summarizes the plan and highlights significant issues with it. It is called "Opportunity or Temptation" and you can find it on the Literary Review of Canada website under back issues in April 2010.
Such a plan far from recognizes the "distinct" First Nations' traditions, practices, laws, and customs in relation to Aboriginal lands, but in fact represents an intolerance for such difference. It demands that Aboriginal people be more like "westerners" and embrace capitalism and concepts of individual wealth over the welfare of family, community and Nation. Aboriginal peoples are not asking Canadians to adopt First Nations laws and concepts, just to respect their right to have their own ideals.
A basic tennet of liberal democracies like Canada, is that of tolerance and respect for difference. Forcing First Nations to adopt Canadian ideals is actually very undemocratic. It is quite hypocritical for Canadians to defend their Charter and Constitutional rights so vehemently, except when it comes to the constitutional rights of Aboriginal peoples. It is time these right wingers thought more about what a true democracy means and start walking the walk before they go around telling other people to be more Canadian.