I find most of what the Alliance stands for offensive, but nothing rivals its policy towards Aboriginal people in sheer, blatant offensiveness.
In essence, the Alliance policy proposes to ignore the law as it applies to Aboriginal people. They make no such proposition in relation to white people, only to Aboriginal people, which blows a monstrous hole in their claim to be “committed to equality before the law” for everyone.
As Chief Art Manuel of the Interior Alliance of BC. wrote to Day in September, when challenging him to a debate (Day’s team responded that he was too busy, although Manuel is in Day’s constituency): “I do not think any fair-minded Canadian would accept the proposition that an agreement should not be honoured because it has been made with Aboriginal people, and because it is old. The arguments of the right wing are really a throw back to a darker period in Canadian history when it was ‘acceptable’ to violate the basic rights of Aboriginal peoples. During the period 1927 – 1951, the Indian Act made it illegal for Indians to hire a lawyer or raise money to commence a claim against the Crown. There is very little difference between this kind of legislative discrimination, and present attempts by right-wing parties, such as the Canadian Alliance, to suppress Aboriginal and treaty rights altogether.”
Manuel’s letter establishes that Day and his Alliance cohorts are either ignorant about the history of Aboriginal rights, or racist in their blatant attempt to put Aboriginal people to one side as the only group in the country to whom the law does not apply.
Manuel adds: “Right-wing opponents suggest that Aboriginal or treaty rights should expire with age, because the situation is now different, and the signatories to the treaty should not be bound by it. How old would they suggest a right be before it can be disregarded -100 years, 200 years? If one can ignore a 100 year old treaty, can one also disregard the Constitution Act, 1867 because it is over 100 years old? What about the land titles of non-Aboriginal citizens, which may have been acquired through a chain of title that is 40 or 100 years old? Where do such critics draw the line? Moreover, there is no suggestion by these same critics that treaties in which Aboriginal people surrendered their title to land might expire over time and the land revert back to the Aboriginal groups.
How can this ‘expiration theory’ only apply to one side?
“You cannot, on the one hand,” Manuel writes, “piously demand that Aboriginal peoples respect the rule of law, while you and your party seek to form the next Government of Canada on an electoral platform that violates the special, legal and constitutional rights of Aboriginal peoples.
“For example, the Canadian Alliance is ready to constitutionally entrench ‘private property’, but
pre-existing Aboriginal title property, which is already constitutionally protected, is to be extinguished or ignored according to your Party’s Platform.”
Manuel reads Day a brief lesson in the legal facts concerning Aboriginal title in Canada today.
He reminds him (if he ever knew, which seems doubtful) that in 1982, section 35 was inserted in the repatriated Constitution to “recognize and affirm existing Aboriginal and treaty rights of the Aboriginal people of Canada”, agreed to by Parliament and the provincial legislatures according to the amending formula in the Constitution and is now the supreme law of the land.
In 1985, the Supreme Court twice reaffirmed its recognition of Aboriginal and treaty rights. In the Guerin decision the Court confirmed that the federal Crown has a fiduciary duty and obligation to Indians, which if violated, would lead to a claim of damages. In the Simon decision the Court upheld a Mi’kmaq treaty entered into in 1752, and said it must be interpreted in a manner that was understood by the Mi’kmaq. In Simon the Court also made it clear that it was no longer acceptable to use language and legal concepts which “reflect the biases and prejudices of another era in our history”.
In the Sparrow case of 1990, the Supreme Court gave legal meaning to section 35 of the Constitution Act, 1982 in the context of fishing rights in BC. It recited the history of the evolution of Aboriginal and treaty rights in Canada and said section 35 constitutes a solid constitutional base for negotiations.
In the Delgamuukw case, 1997, the Supreme Court, elaborating on the nature and content of Aboriginal title first recognized in the 1973 Calder case, said that Aboriginal title is a proprietary right, which is constitutionally protected. It may be infringed, but not without addressing issues of consultation, consent and compensation. The Court moreover emphasized that the government has a duty to negotiate Aboriginal title.
The Marshall decision, which has caused the uproar in the Maritimes, was not a significant departure from the string of treaty interpretation cases that preceded it. The only change was that the Court found the Mi’kmaq were entitled to engage in commercial fishing under the treaty. And on this right the Court placed a severe restriction: they could only do so to obtain a “moderate livelihood”.
This string of legal documents (and there are quite a number of others) makes nonsense of the Alliance policy, which appears to violate Canadian law in almost every line. Manuel comments: “You can make some positive contribution to the debate, but you need to come out of the dark ages first. This means as the newly elected Leader of the Canadian Alliance, you should depart from your predecessor’s position and respect the legal, historical and constitutional basis of Aboriginal and Treaty rights and accept the Supreme Court of Canada’s decisions.”
Here is the Alliance policy, for those who haven’t read it. (As they say on TV: WARNING: some of the concepts in this policy are obscene, and may offend believers in the rule of law, and democracy):
“41. Our commitment to individual freedom and equality before and under the law is the key principle from which we will approach aboriginal affairs policy. We affirm the right of aboriginal Canadians to manage their own affairs subject to the laws of Canada and the provinces. Aboriginal self-government will be a delegated municipal level of government rather than a sovereign third order of government. We will not support race-based allocation of harvest rights to natural resources.
“42. Aboriginal Canadians should have the same rights and responsibilities as all other Canadians. Transfer of powers to aboriginal governments will include measures to ensure democratic accountability and the responsibility to fund services through the tax dollars of those being served.
“43. Our position in land claims negotiations will be to ensure respect for existing private property rights, affordable and conclusive settlement of all claims, and an open and transparent process involving all stakeholders. We will protect the democratic rights and freedoms of individual aboriginals, and establish their right to private ownership of property.”
In other words, as Duncan Campbell Scott said in 1920, when he was running Indian policy for the federal government: “Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department.”
And, of course, no Indians.