The level playing field myth

The number of opinion pieces coming out over the June 26, Supreme Court Tsilhqot’in decision have been staggering in volume. Unsurprising, given that we have waited 17 years since the Delgamuukw decision first pronounced the possibility of Canada recognizing Aboriginal title to see a Court point to a specific tract of land and say, “and it looks like that”.

I do not want to go too much into depth about the content and possible implications of the judgment itself. I already live-tweeted my first reading of it, and I discussed it on Indigenous Waves recently. So very briefly, the ‘highlights’ in my opinion are:

  • The decision removes the fear that Aboriginal title could only be found on postage stamp areas where people lived either permanently or semi-permanently, and instead extends the possibility of Aboriginal title to wider territories that were heavily used by a people.
  • The Court reminds everyone that translating pre-Contact Aboriginal practices into modern day rights cannot be done by shoving everything into a common-law box. Aboriginal perspectives must inform the translation process.
  • The Court admonishes everyone to remember that it is inappropriate to approach Aboriginal land/rights claims on an overly technical basis. The issue is justice and reconciliation, so don’t try to undermine this with nitpicking over dotted ‘i’s.
  • Terra nullius, on which the Doctrine of Discovery heavily relies, was found to have never applied in Canada. So the Court has once again told us how Canada did NOT gain sovereignty over the lands, but remained consistently vague on how Canada DID gain this sovereignty. Other than saying, as always, that when sovereignty was asserted by the Crown, it crystalized. Colonial magic.
  • The Court says that the content of Aboriginal title is basically the right to ‘enjoy the economic fruits’ of the land and resources. Aboriginal title is collective, not individual, and underneath it all still remains Crown title. Crown title consists of whatever is left over after Aboriginal title has been subtracted from the equation. Essentially remaining are: a fiduciary duty to deal fairly with Aboriginal peoples and the right to infringe on Aboriginal title as long as the infringement meets section 35 test criteria (i.e. if it’s important enough to Canada).

To keep this all in context, the Tsilhqot’in had Aboriginal title recognized in only 5% of their total claim area, private properties within that area were left out of the claim and continue to exist as private properties, the territory in question did not overlap with other First Nations territory, and Aboriginal title lands are still part of Canada and subject to justifiable infringement. Also important to remember, is that this entire discussion is being framed within a context wherein Canada has the right to ‘recognize’ anything at all when it comes to Indigenous rights; a right hotly contested by Indigenous peoples themselves.

However, to hear some people talk, the Tsilhqot’in decision spells the end for ‘modern democracy’. It’s really this fear-mongering, and the western liberal myth of a ‘level playing field’ that I want to address.

To give you a sense of the arguments I’m referring to, Gordon Clark wrote a perfect example in The Province today. I call this a perfect example without a shred of sarcasm. Other pieces, that I will not be linking to, have done a bang up job of exposing a deeply racist approach to the Tsilhqot’in decision and to Indigenous peoples in general, and are easily deconstructed for the distasteful bigoted mess they are. Clark’s piece, however, is arguably more insidious, because it appeals to the progressive desire for equality within a liberal democracy, wherein all people are created equal and deviations from that philosophy constitute the real injustice.

However, the argument ends up betraying itself in the end, requiring the sacrifice of human rights in the name of some notion of ‘economic security’. For this reason, I would encourage progressive Canadians to critically re-examine this all too common-place opinion and evaluate whether they truly wish to support such an approach.

Clark treads a well-worn path with this piece, and variations on this theme can fill volumes, so this is really not a response to the man himself. I want to challenge the ideas he expresses that are shared by so many well-meaning Canadians. So please permit me to break down for you, what I find so problematic with this particular approach.

Acknowledging the past is good enough

First, this argument invariably begins by acknowledging Europeans behaved very naughtily towards Indigenous peoples and that racism has certainly factored into that behaviour. Clark even mentions provincial and federal governments, so he does not contain these bad things in the distant past directly following Contact. Starting with this position allows one to recognize the racism and abuse inherent in the Residential School system, for example, while ignoring how contemporary Aboriginal child welfare policies are linked to that system.

However, in acknowledging the past but cutting it off from the present, there is a strong implication that at some point, Canada got itself sorted out and began dealing fairly with Indigenous peoples. The exact date of this occurrence is never mentioned, so the driving events that led to ‘the change’ vary greatly in the opinions of those making this claim. The idea is that policies and actions taken in the past were driven  by inexcusable racism, whereas policies of today, if they fail Indigenous people, fail because of incompetence rather than malice or structural design.

This is a central pillar of the western liberal myth of a level playing field: recognizing that Indigenous peoples have legitimate grievances stemming from awful things that were done in the past, but that the advent of a modern democracy means that we are now all equals and we have an obligation to behave as such.

What this part of the argument always relies upon is the implicit notion that any remaining problems faced by Indigenous peoples stem from an inability for people living in Canada to commit to a standard of “equal citizenship and equality before the law”. This charge will be levied at First Nations leadership and Canadian politicians both. There is little need then to understand how historic injustice has molded and shaped conditions today, and continue to find structural expression within the Canadian context. There is even less need to deconstruct how ongoing injustices are inextricably rooted in that history. Instead, a bright line is drawn between the past and the present we could all be living in if only everyone embraced liberal democracy wholeheartedly.

(Of course all ideologies rely on the notion that if everyone wholeheartedly committed to living the ideology in question, there would be unity; a recursive notion that disregards the reality of differing perspectives.)

Ironically, this way of acknowledging the past is just as dismissive as pretending the actions of European governments after Contact were justified. Both approaches refuse to acknowledge that there is in fact no break between the past and the present, and that current policies and structures differ only in appearance. Historic policies to assimilate Indigenous peoples and deny their rights were overt and irrefutably based on beliefs of Indigenous inferiority, while today’s policies simply make assimilation into the Canadian body politic seem like an unintended consequence of ensuring everyone is equal ‘under the law’ (if not socially).

Equal access to rights has been achieved

The next step in this argument is that everyone in a modern democracy has equal access to the same rights, and that any policy or judicial decision that recognizes differences is in fact creating inequality. Thus, the progressive can criticize the deeply racist Indian Act while at the same time arguing that recognizing Aboriginal title is equally as damaging to the notion of “equal citizenship and equality before the law”.

This position is only tenable if one believes that equal access to the same rights has already been guaranteed. Again, this belief relies on an ahistoric view of the modern context. Not only does it dismiss outright the way in which Indigenous and colonial relations have shaped current political and legal structures in Canada, it also outright rejects Anglo common-law socio-political traditions.

Canadian law, be it Anglo common-law or French civil law, comes from a tradition that favours male land owners, and is inherently set up so that the richer you are, the more rights you have. If we narrow the view of rights to include only the trappings of modern liberal democracies, such as the right to vote, and the right to protections under the Charter, then one can claim with a straight-face that we are all equal ‘under the law’. However, even liberal progressives are quick to acknowledge that legal equality does not necessarily translate to social equality, so why insist in the context of Indigenous peoples that the one will naturally follow the other?

Equality before the law will solve any problem

One way in which western liberal thought attempts to address the reality of difference in modern democracies is through the notion of equality before the law. Sometimes you will see people arguing that it is imperative all people are treated exactly the same under the law, but of course modern democracies do not actually function that way, and this position crumbles easily.

Equality in this sense does not mean sameness. It does not insist that all people are the same and are to be treated as such. In fact, accommodating differences is arguably a central tenet of modern liberal democracies.

For example, legal equality as sameness would require people in wheelchairs to use the stairs, a patently ridiculous and unjust notion. Instead, building codes throughout Canada require a certain number of wheelchair ramps and elevators to ensure equal access to all people regardless of their level of mobility. Less obvious accommodations are also normalized. For example, the Quebec building code requires that women’s bathrooms have more toilets installed to address issues with longer wait times experienced previous to these legislative changes. Neither wheelchair accessibility nor extra toilets in women’s bathrooms are held out by liberal progressives to undermine modern liberal democracy, so why then is acknowledging Indigenous differences so threatening?

Many will argue that there is no need for the category of ‘Aboriginal’ at all, only ‘Canadian’ and that equality before the law will address any accommodations needed via other individual categories (woman, person needing a wheelchair, unemployed, single-parent, etc).

It is at this point the argument requires that Indigenous people assimilate completely, voluntarily giving up the category of Indigenous (because it can be legislated away but it must also be collectively rejected). Here is where the outcome (complete assimilation) mirrors the overtly racist historic approach, despite the philosophy (we are all equal versus you are inferior to us) differing considerably.

Canada has an official policy of multiculturalism, which would ‘allow’ Indigenous people to exist as Canadians, and celebrate surface culture (food/music/clothing) without existing as a separate legal category. Indigenous people would need to stop advancing their claims to Indigenous rights, and exist within a framework of Canadian rights. This can appear as completely non-problematic to those who do not understand that Indigenous  socio-political orders continue to exist, and exist outside of the context of any Canadian legislative or judicial sphere. Giving that up to ‘become Canadian’ and to be folded into a western liberal rights framework is the definition of assimilation. No amount of fry-bread and community Cree classes can change that.

The other option, if Indigenous peoples refuse to voluntarily assimilate into the Canadian body politic, is for Canada to stop recognizing the category of ‘Aboriginal’. Abolish the Indian Act, abolish recognition of Aboriginal status, and simply stop discussing the notion of Aboriginal rights entirely.

Both of these options have been repeatedly called for literally since the beginning of Canadian politics. The rhetoric changes with the times, but the goal is still the same.

Equal citizenship requires erasure of differences

The underlying problem with this entire approach is that certain differences or acknowledging certain differences is seen as being inherently threatening to modern democracy. Further, the choice as to which differences threaten national cohesion is not value neutral, despite any possible claims to the contrary.

Divisions between us already exist in a myriad of unavoidable ways, and we do not attempt to erase those differences in the name of “equal citizenship and equality before the law”. In fact, we constitutionalize those differences and legally require that they be accommodated. We attempt to get rid of ways in which those differences are penalized legally or socially, unless those differences are actively harmful (i.e. pedophiles).

It is very unlikely that the same people arguing that Indigenous ‘differences’ threaten democracy would argue that differences between able-bodied and disabled people hold the same threat (though they will certainly differ on what level of accommodation is appropriate). Yet Clark states, “As long as natives are treated differently, it will perpetuate divisions and even breed resentment, neither of which is good for Canada.”

Replace the word ‘natives’ with any other descriptor of difference that exist in Canadian society and is legally accommodated, and try to argue that this category of difference should be erased for the sake of unity or to avoid resentment. This argument only works when discussing how that category of people should not be specifically discriminated against (such as within the Indian Act), but the argument quickly falls apart when arguing that accommodations should no longer be made, unless the category is actively harmful. And here is the crux of the argument. Indigeneity IS seen as actively harmful.

The Indigenous danger is economic

The harm of discriminating against Indigenous peoples is clearly recognized by liberal progressives, so we don’t really differ on that account. The disagreement is rooted in the notion that accommodating Indigenous difference is actively harmful to a modern democracy.

Accommodating Indigenous differences is not seen as harmful merely because it creates resentment, regardless of Clark’s statement. No doubt people resent all manner of accommodations provided to various categories of differences within the Canadian liberal democracy. This resentment is not called upon as justification for abolishing those other categories altogether or for moving backwards on advances that have been made (i.e. imagine resentment being used as an reason to abolish gay marriage in Canada).

Rather, the danger lies in the fact that of all groups in Canada, only Indigenous peoples (and possibly the Québécois, also mentioned by Clark) have prior legal claim to land and resources that are otherwise believed to belong to Canada. That this prior legal claim is recognized by Indigenous law and Canadian Aboriginal law is viewed as deeply problematic because it directly impacts Canada’s economic power. There is great fear that the Tsilhqot’in decision, and the entire body of Aboriginal law that recognizes Aboriginal rights as ‘burdens’ on Crown title, will damage Canada economically.

The test: economy vs human rights

Notice that throughout, I have only been arguing within the western liberal framework, rather than from a position of Indigenous rights. I do this deliberately, because I think the western liberal approach needs to be self-critical, and these are the flaws I am seeing.

If a modern democracy wishes to ensure “equality of citizenship and equality before the law”, then the law must become a tool to ensure equal access to rights and resources. That process is undermined when we ignore a group that has been historically disadvantaged, and ignore how that history results in contemporary lack of access to rights and resources.

Engaging in this sort of blind eye approach in the name of unity without admitting that the real fear is economic is problematic enough, but the meat of the matter is that people are suggesting a human rights matter be overlooked for the sake of the Canadian economy.

Liberal democracies engage in this sort of balancing act all the time, so this concept of tempering human rights concerns with economic concerns is hardly new or antithetical. However taking this position that economic concerns must in this case trump the human rights issue of Indigenous peoples in Canada, much is assumed.

It is assumed that abolishing the category of “Aboriginal” will be more cost-effective than acknowledging it. This is a major flaw in the argument that economic concerns should trump human rights. Billions of dollars are spent on providing Indigenous people with services such as health-care, education, social services, infrastructure and so on, not to mention the monies spent on court cases centered around Aboriginal rights.

However, the vast bulk of these monies (flowing Constitutionally from the federal rather than provincial government) are already provided to Canadians. Were we to abolish “Aboriginal” as a category, this cost would not disappear, it would simply shift onto the shoulders of the provincial governments. Making Indigenous people “Canadian” does not mean they no longer require healthcare, education, social services and infrastructure. In fact, given that Indigenous peoples are historically underfunded in all those areas, the cost would be higher once they were folded into the Canadian body politic.

It is also assumed that abolishing judicially-created obligations towards Indigenous peoples would be more cost-effective than continuing to engage in them. This includes things like the Duty to Consult, court costs, as well as all the time and money put into negotiating outstanding land claims and comprehensive claims.

This ignores the well-studied economic and social impact that occurs when Indigenous people are denied Indigenous rights or not accommodated as a category of people. Whether the strategy is relocation from isolated communities to those with more accessible services, refusing to accommodate Indigenous people in the justice system, or ignoring how differences impact Indigenous children in the child welfare system, it has been  made very clear over the years that the social (and economic) cost of denial is shockingly high. In essence, abolishing “Aboriginal” as a category does not abolish the very real differences that exist, nor the social and economic costs associated with dealing with how those differences are manifested in Canadian society.

One would have to engage in a very thorough cost-benefit analysis to determine whether the supposed economic benefit of abolishing the category of “Aboriginal” would be worth it. In doing so, one would have to become much more familiar with the issues than most people making this argument are, so in that sense I recommend it. Just don’t ignore data and skew your equation with a bunch of minuses.

More importantly, those advocating these kinds of arguments need to take a hard look at whether using an economic cost-benefit analysis to determine when to trump human rights is consistent with one’s own beliefs. Is this really where people want ‘modern democracy’, even within a capitalist economic system, to go?

Calling for a more honest discussion

For many, the answer to the question above might still be yes, but I would rather have them say it outright than pretend that the call to abolish “Aboriginal” as a category is about fairness and equality rather than economic concerns. Let’s agree that this conversation needs to become more honest.

There does not exist today a ‘level playing field’ upon which Indigenous peoples can benefit equally. Historic injustice did not cease at some magical moment to be replaced by contemporary fairness.

There is no ‘level playing field’ when it comes to the access of equal rights. Not for Indigenous peoples, and not even within the wider Canadian public. A host of barriers exist, preventing millions of Canadians from accessing the same rights and resources as other Canadians.

There is no ‘level playing field’ when it comes to equality before the law, in the sense that due to the recognized lack of access to equal rights, accommodations are specifically ‘written in’ to Canadian law. There is an attempt to create a level playing field by recognizing, not ignoring differences.

There is no ‘level playing field’ when it comes to deciding which differences must be abolished for the sake of equal citizenship. Before gay marriage was legalized in Canada, did the exclusion of homosexual marriage threaten equal citizenship? Canada has now taken the position that yes, it did, but quite obviously Canada did not take this position until very recently. Was it any less true when homosexual marriage was excluded? Recognition and accommodation is based on value judgments and values shift over time. In an age where racism against Indigenous people is widespread and systemic, it is difficult to imagine someone arguing that weighing the decision to recognize or abolish the category of “Aboriginal” is a value-neutral ‘level playing field’ exercise.

There is no ‘level playing field’ when the discussion becomes about how the colonization of land and resources as the source of Canadian wealth cannot be allowed to be threatened by the human rights issue of Indigenous peoples within Canada. The ultimate irony of the progressive liberal fearing that Indigenous peoples will ‘take Canadian land’ cannot be lost on any of us when this discussion is engaged. A great deal of this fear is based, in my opinion, on ignorance and that ignorance is preventing us from having the deeper discussions necessary to address the fear. A Mobius strip of foolishness that cannot be done away with by waving the legislative wand and pretending Indigenous peoples would be better off assimilated into Canadian society.

So if you find yourself making these arguments, or you come across them, please do a little bit of digging to find the roots. I see too many surface arguments calling for unity without a shred of nuance to be found, and I think that we ought to expect more from those who claim to be socially progressive.

êkosi

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Categories: Aboriginal law, First Nations

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