The Doctrine of First Nations:
An Analysis of Indigenous Political Recognition in Canada versus Australia
An Analysis of Indigenous Political Recognition in Canada versus Australia
In 1978, Saskatchewan had the lowest unemployment in Canada at 5% below the national average. Blakeney did not make the mistake of the previous CCF governments by trying to create industry. Resources were Blakeney’s focus. He did not use the Crowns to change the management/worker relationship. They did not attempt to implement democratization in the workplace. Crowns were profit-makers. In 71, Blakeney removed the deterrent fee that Thatcher implemented on healthcare. The poverty gap was very large however. Particularly as First Nations immigrate to cities. The NDP implemented affirmative action policies but they backfired as Natives felt that whites resented the policy. The Affirmative action programs began in April of 1980. They would cause the NDP to lose the subsequent election. Women were dramatically under-represented in the CCF cabinet although they campaigned. There was no female candidate in 1978. The NDP did not have female representation and a vicious cycle emerged. There were calls for universal day care. 80 percent of families were headed by women in 1980. They implemented a career opportunities program in the civil service at the time. A voluntary program to encourage women into middle-management positions occurred. At the height of his power, Blakeney failed to truly deal with First Nations and Women’s issues until his 3rd term.
About the author https://professornerdster.com/2011/07/17/dennis-gruending-biography/
[This is a precis: Professor Nerdster does not endorse Flanagan’s views.]
Chapter 10: This Octagon Is a Stop Sign
Flanagan’s short conclusion describes a diagram of an octagon that connects various political arguments by the RCAP together in the form of a stop sign. This is to suggest that these practices and the direction taken has to end since it has adverse effects on liberal democracy. The polity must be united. Racial communities are at odds with a polity of individuals and threaten the functional society. Flanagan’s solution is simple: “…call it assimilation, call it integration, call it adaptation, call it whatever you want: it has to happen” (196). Self-government is the wrong direction for aboriginal peoples and for Canada. Flanagan wants society to proceed without new legislative institutions that protect people who are already well on their way to assimilation in urban centres across Canada. Three things must happen for real change: 1) aboriginal self-government should be more accountable to DIAND by introduction ‘self-funding’ principles: taxation. 2) there should be a break-up of the concentrated power of elected band councils. Dispersion of power would help to dampen the familial factionalism that curses aboriginal politics. 3) introduce a regime of individual property rights. Flanagan finally states that “Aboriginal self-government will be a failure if it means nothing more than transferring the powers of the DIAND to band councils” (198) and warns that self-government should not exercise total control over community affairs.
RCAP: Aboriginal people, living and working on their own land base, will become prosperous and self-sufficient by combining transfer payments, resource revenues, and local employment.
Flanagan states that the reserve system cannot accommodate the free market and the pro-capitalism market; mainly because of the lack of property rights of Aboriginal individuals. Generally, as a model, the reserve in the 1880s to 1930s was sustainable and required little or no federal transfer payments. As farming practices become less profitable, government food rationing become more prominent causing a dependency on external capital. Flanagan does not wish to glamorize ‘free-loaders’ since infant death rates were 3 times the average in 1950 among aboriginals. For Flanagan, segregation limits the horizons of aboriginal peoples much like African-Americans before Brown v Board of Education in 1954 and the Civil Rights Movement. Different but equal segregation does not work and is unjust. The rural isolation could not be sustained in the second half of the 20th century; 1) isolation failed as English TV beamed into Aboriginal communities undermining their languages, 2) mechanization of agriculture meant larger farms which reserves that could not provide and there was also less demand for farmhands 3) no room for hunting, trapping or fishing makes reserves unsustainable 4) there was massive growth of the aboriginal population post-1920s. Provinces became responsible for off-reserve welfare (some of the money comes through the CHST). Aboriginal self-government led to further problems and by 1992, 42% of on-reserve natives were on welfare entirely. Welfare utilization varies from BC’s 20% to Saskatchewan’s 80% average. Welfare dependency of off-reserve aboriginals is significantly less but still significantly higher than the average. Racism, discrimination, cultural differences and deficient education help perpetuate the welfare trap but this does not explain prosperity among other ethnic groups who fully participate in liberal democracy. As long as reserve members are not accountable by taxing their members on reserve, mismanagement will persist. The cost benefit of life off and on reserve is not significantly different because of off reserves competitive labour market. Building ‘aboriginal economies’ is the RCAP’s leading idea but the Hawthorn report is favourable to Flanagan’s sensibilities because it calls for participation in the general economy. The RCAP praises entrepreneurialism; it rejects government intervention on economic policy asserting that aboriginals can effectively compete in the market if they own and control capital and resources. For Flanagan, the RCAP recommendations are unlikely to succeed in practice and he feels that tough-minded welfare policies must be implemented simultaneously on and off-reserves. Flanagan reiterates that reserve resource wealth is not substantial and those reserves with large resource income are not inclined to share with less fortunate reserves: just like any federal system and/or the Arab League, as examples. Implementing RCAP would increase unemployment, welfare dependency and human misery, according to Flanagan. Tax-payers should not pay the bills: Ian Ross’s award winning play fareWel talks about this dependency. Aboriginals often blame the ‘White Man’ further exacerbating the racial tension between cultural groups.
The Flanagan Factor: Prosperity and self-sufficiency in the modern economy require a willingness to integrate into the economy, which means, among other things, a willingness to move to where jobs and investment opportunities exist. Heavy subsidies for reserve economies are producing two extremes in the reserve population – a well-to-do entrepreneurial and profession elite and increasing numbers of welfare-dependent Indians.
RCAP: The land-surrender treaties in Ontario and the Prairie Provinces mean something other than their words indicate. Their wording needs to be ‘modernized’ – reinterpreted or renegotiated – to recognize an ongoing relationship between nations.
Flanagan argues that treaties are signed by States such as the King of England with the King of France and therefore he questions the legitimacy of documents that were signed under duress and without two States. The people who signed the treaties may have merged with other families and other clans to form new legal entities that should not be considered part of these treaties. Flanagan says that the treaties with aboriginal people are not internationally recognizable. Despite this fact, contemporaries argue that First Nations treaties are ‘nation to nation’. Europeans signed treaties with aboriginal tribes with militaristic and dubious motives and they were signed verbally. The treaties themselves show that aboriginals surrendered the land even if there was no word to describe surrender in their native language. The Liberal government of pre-1979 election argued that Maritime natives have extinguished aboriginal title but this failed to carryover with Trudeau in 1980. The numbered treaties stipulate: a) recognition of Canadian sovereignty, b) call for the explicit surrender of Indian title and land, c) the right to hunt on surrendered land, d) land reserves to be held by the Crown, e) cash bonus for the undersigned, f) educational assistance, g) livelihood assistance and h) the promise of the aboriginals to keep the peace. Under all these sub-sections there have been legal cases at the Supreme Court level. Flanagan contends that the treaties are uncontroversial despite their archaic language. The RCAP accepts that Aboriginal title has been extinguished but the people of the treaty do not accept this since they were deceived. Flanagan argues that the RCAP has a one sided reading of the treaties. He says that any clause conferring benefits for aboriginals must be realized, while any clause where aboriginals loss something must be ignored, reinterpreted or replaced. The Horse (1988) decision stated that treaties should be interpreted in accordance with the normal rule for contracts, “that extrinsic evidence is not to be used in the absence of ambiguity.” Flanagan expresses skepticism towards oral history using a series of assertions about legal evidence, rejecting the legal implications of oral story-telling. Oral history is irrational, unreliable thanks to human forgetfulness, poetic, mystic and often non-factual. Oral traditions have value but not when negotiating new settlements, according to Flanagan.
The Flanagan Factor: The treaties state the facts. Reinterpretation, while not be as significant as redefining of aboriginal title in British Columbia and Atlantic Canada, is expensive and mischievous for provincial economist in which treaty are signed.
RCAP: Aboriginal property rights should be recognized as full ownership rights in Canadian law and entrenched, not extinguished, through land-claims agreements.
Aboriginals do not accept property rights since they are proto-socialists and natural environmentalists. According to French and English legal theory of the 16th century, the king, as political sovereign, held the underlying title to all land in the realm, and all landowners. The Royal Proclamation organized the British New World colonies after the 7 Years War and prescribed land west of the Appalachians as “Hunting Grounds” for “the several Nations or Tribes of Indians”. The Proclamation failed to create a huge land reserve for Aboriginals. Native property rights are communal, Indians are subject to British sovereignty and Indian property rights were to be ‘henceforth’ surrendered voluntarily. Governor James Douglas of BC in the 1850s tried to assimilate the Aboriginals while judicial doctrine has debated, but overall, protected a minimalist characterization of Aboriginal property rights. Lamer Doctrine under Calder (1973) said that aboriginal title was not extinguished. The SCC split 3-3-1 on this issue. The Delgamuukw (1997) decision gave Nisga’a ownership of 22,000 square miles of traditional territory. This occurred because legal team was weakened, according to Flanagan, by the new NDP mandate on subsequent legal appeals by the Nisga’a. Lamer makes a distinction between aboriginal rights and aboriginal title. The Lamer Doctrine states that Aboriginal title is communal (despite conflicting examples), it is inalienable except to the Crown, there is an ‘inherent limit’ to aboriginal title. Governments, both federal and provincial, may infringe aboriginal title, though compensation may be required. Lamer envisioned broad grounds for such infringement. Flanagan feels that land-claims litigation is very profitable for government lawyers. It costs money to negotiate entitlement: tax-payers money. Flanagan argues that the market economy cannot work in a reserve setting. Delgamuukw has caused legal uncertainty due to its vague theoretical foundation. Canadians should feel guilty that Aboriginals have been kept out of the world of individual property rather than encouraged to step inside it.
The Flanagan Factor: Contemporary judicial attempts to redefine aboriginal rights produce uncertainty not clarity. Recent Supreme Court of Canada judgements say that aboriginal title will make its use impractical in modern Canada.
Chapter 6: The Inherent Problems of Aboriginal Self-Government
RCAP: Aboriginal peoples can successfully exercise their inherent right of self-government on Indian reserves.
Canadians know little about Aboriginal politics. On the reserve, tax-free Chiefs abuse their power since there is a lack of accountability. Chief John Snow of Stoney Nation: Morley Reserve hired his children for senior jobs, for example. There is a high level of suicide, violent crimes, accidents and drug overdoses at the Morley Reserve. Fiscal mismanagement is common on Canadian reserves; one explanation forwarded is that they do not take ownership as tax-payers. Flanagan does not believe in the ‘magic of self-government’ as the RCAP puts it. The inherent problems of self-government include: A) Institutions: their culture of traditional governance would need to integrate Canadian societal norms. However, elected chiefs will continue to rule over the reserve. B) Size: because of size there is a shortage of financial resources, shortage of skilled personnel. How can modern life take hold in secluded areas? Reserves let farmers rent the land for cultivation because legally it cannot be sold (see Chapter 7). Also, Flanagan points out that tribal groupings working together could be problematic, citing the pan-Arabism of the 1960s. Flanagan argues that reserves are dysfunctional; there is preferential access to welfare, poorly monitored expense allowances, appointment of family members and political supporters to positions on the band payroll, assignment of valuable on-reserve property rights, such as housing, agricultural land and timber licenses. Aboriginal governments deal with cultural preservation, cultural adaptation, service delivery, economic development, resources and environmental management and law enforcement; these require expertise which is scarce on reserves. Land-claim settlements, fiscal transfers and natural-resource rents. Privatization of on-reserve housing is urgently needed, but legal hurdles must first be overcome. Property rights on reserves are lacking and this has pejorative implications. At the same time, the US unemployment figures amongst American “Indian Country” is at 30 per and the average income of those who do work is well below American norms. Aboriginals are becoming the 5th wave of immigration to Canada as they move off the reserves in growing numbers.
The Flanagan Factor: “Aboriginal government is fraught with difficulties stemming from small size, an overly ambitious agenda, and dependence on transfer payments. In practice, aboriginal government produces wasteful, destructive, familistic factionalism.”
Flanagan extrapolates on word ‘nation’ in history and discusses its semantics in politics. There are conceptual distinctions between definitions of ‘nations’ and the word must be interpreted in its context for meaning. The term ‘nation’ in Quebec has been reworded to mean ‘distinct society’, for example. The nation of Quebec and the nation of Aboriginals threaten Canadian sovereignty. Words like nation and sovereignty must be tactfully used. The Aboriginal ‘Nations’ are referred to in the Royal Proclamation of 1763 yet in the Indian Act of 1876 the ‘band’ not the ‘nation’ is the unit of organization under law. First Nations is symbolic semantics. Is there a Métis nation as Riel espoused? Is there one pan-Arab nation? How can Aboriginals have a nation without the strife of the Arab nations? Flanagan outlines five criteria for a nation that several American theorists use (“and that Canadians could use as well”). 1) Civilization: aboriginals reject the distinction between civilization and savagery. 2) Significance: the group’s size must be substantial in order to achieve international recognition. 3) Territory: aboriginals have reserves but they are dependent on federal transfer payments. 4) Solidarity: collective action and united leadership is not present in the aboriginal community. 5) Sovereignty: the people of Canada will accept a murky concept of aboriginal sovereignty. The majority of Canadians are not willing to endorse a clearly stated theory of aboriginal sovereignty and want to preserve the integrity of the Canadian state. This Aboriginal sovereignty is paradoxical to Quebec nationhood under a certain definition.
The Flanagan Factor: The European concept of nation does not properly describe aboriginal tribal communities. Unless we want to turn Canada into a modern version of the Ottoman Empire, there can be only one political community at the highest level – one nation – in Canada. Subordinate communities, such as provinces, cities, and ethnic or religious groups, cannot be nations.
Chapter 4: The Fiction of Aboriginal Sovereignty
RCAP: Aboriginal peoples were and are nations in both the cultural and political sense of this term. Their nationhood is concomitant with their sovereignty.
Sovereignty can only exist in civilized society, according to Flanagan. The State or the Nation has been applied to various groups erroneously. Self-government as an entrenched ‘third order’ would have complicated legal ramifications and Flanagan is weary of the rhetoric of sovereignty which must be curtailed. Analyzing how Europe asserted authority over the New World, he demonstrates that Europeans saw the indigenous people lacked sophisticated States and used the argument of Terra nullius “no man’s land” to gain control. Spain usurped the agriculturally based Mexico and Peru as these Christians felt they had the right to govern heathens. Also, King George III was explicit about sovereignty in the Royal Proclamation of 1763 as semantics for British conquest. The US Supreme Court’s John Marshall (1823) asserts, on the principle of sovereignty, that conquest prevails over claims of civility. Therefore US Congress is competent to legislate in any way whatsoever regarding aboriginals. Marshall coined the term ‘domestic dependent nations’ to describe the status of American Natives. Yet the Charter entrenches sovereignty of aboriginals under section 35 (1) of the Constitution. Legislative jurisdiction, in the US Congress can override anything decided by an Indian tribal government; Parliament would not have that same power if the RCAP was fully realized.
RCAP: Aboriginal cultures were on the same level as those of the European colonists. The distinction between civilized and uncivilized is a racist instrument of oppression.
Flanagan defines civilization and culture in this chapter. Civilization must encompass progress in technology and political structure. He argues that aboriginals did not have civilizations under the Eurocentric definitions he uses. The superiority was not of race but of civilization and is justification for conquest. On property theory; Natives were holding the soil for agricultural settlement. They were not using it themselves. Following the More’s ‘Utopia’ principle of expansionism, it is just for an advanced group to conquer the land and assimilate the less advanced group. Vattel says it is lawful to take land away from Aboriginals if they are not using it. Similarly, Locke’s property theory says that mixing one’s own labour with the common world produces property. He adds that every nation is bound to cultivate the land. The conflict between Aboriginals and non-aboriginals is simply between hunters versus farmers. Hunter’s need surplus land but this is not sustainable. The hunters should take on the farmer life as the farmer’s expand to remove hunting land. Assimilation is inevitable since, according to Flanagan, Aboriginals are equally capable of being civilized. RCAP refuses to recognize the distinction between civilized and uncivilized to its detriment. The word ‘treaty’ cannot be found in this chapter.
The Flanagan Factor: “Sovereignty is an attribute of statehood, and aboriginal peoples in Canada had not arrived at the state level of political organization prior to contact with Europeans. The ‘’inherent right of self-government’ would be acceptable in contemporary Canada if it has the same meaning as the American formula of ‘domestic dependent nations’ possessing ‘tribal sovereignty’; but in fact it means much, much more.”