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Is patience still a virtue if, while waiting for justice, you die?
It is a question posed most poignantly by hunger strikers on Victoria Island and articulated in the frustration of Indigenous people across the country who see drastically shortened life expectancy, dramatically higher rates of terminal illnesses, and the federal government’s efforts at extinguishment take their toll every day.
It is a question to pose to the Harper government, its hired guns at the ironically named Department of Justice, and those who scream for the rule of law to be applied in only one direction.
Somewhat overlooked during the week of drama around #IdleNoMore, hunger strikes and a meeting with the Prime Minister, Justice Phelan of the Federal Court handed down a verdict of broad significance to more than a half million Indigenous people in Canada.
The decision is Daniels v. The Queen, where J. Phelan declared that “Métis and non-status Indians are ‘Indians’ within the meaning of the expression ‘Indians and lands reserved for Indians’ in s 91(24) of the Constitution Act, 1867.” This is hardly surprising. A decision of the Supreme Court of Canada, In Re Eskimo Reference, made essentially the same finding regarding the Inuit in 1939. The court did not grant the requested declaration on the federal government’s fiduciary duty, though it clearly states that one would likely flow from this decision, and implies that the same would be true of the declaration sought regarding the duty to consult when cases are brought on those subjects specifically.
The decision provoked the usual hand wringing and histrionics in certain media. Jeffrey Simpson of the Globe and Mail spent half his article on the subject worrying about how to define the term Métis, a question settled by the Supreme Court in R. v. Powley in 2003. Others joined him in worrying what it would cost to provide the services that First Nations receive to this new group. As someone who might fall under the effect of the Daniels decision, my first reaction was to wonder why I would want to accept federal services when the provinces serve me so much better. I suspect others feel the same way. They aren’t looking to send their kids to inferior schools.
What the Métis and non-status Indians sought and gained through this decision is the legal grounds to claw back some of what has been stolen from them. This will lead to many more years of trying to get the federal government to act in accordance with the law. Assuming that Canada acts as it always has, each of these steps will be appealed as far as possible. The Daniels decision, originally brought in 1999, will likely also be appealed to the highest level, taking even more time.
There is a legal maxim that justice delayed is justice denied. Harry Daniels died in 2004.
In 1962, President John F. Kennedy said, “Those who make peaceful revolution impossible will make violent revolution inevitable.” The comment has disturbing resonance at this point in Canada’s relationship with First Nations.
While there are a host of historical examples one might point to where similar conditions led toward such an inevitability, the recent Arab Spring may provide the freshest reminder of what can happen when states ignore the warning signs.
As in the Maghreb, the preconditions are clear to see. First Nations citizens are young; many have lost hope for a better future and faith in the political process. With more than half the population of First Nations under 25 and suffering rampant poverty, there are a large number of disenfranchised young people who have simply had enough.
But it is the history of illegality perpetrated by the Government of Canada against Indigenous rights that give President Kennedy’s warning its uniquely Canadian meaning.
Some will object to my characterization of Canada’s actions as illegal. To that, I could detail the ways in which this is historically true, but that was done in the report of the Royal Commission on Aboriginal Peoples in 1996. Direct proof exists in hundreds of court decisions where the federal government has been told as much. And if, like some “journalists” and many Conservatives, you object to implementing court decisions in support of Indigenous rights, then you object to the rule of law. It is that rejection that leads to a response in kind.
In 1982, Aboriginal and treaty rights were recognized and affirmed in section 35 of Canada’s constitution. This led to a bureaucratic process to ensure the legality of government decisions. That process includes a “section 35 analysis” where government lawyers examine proposals in the memoranda to cabinet that precede important decisions for compliance with the constitution. Successive Liberal and Conservative governments have ignored this responsibility.
As a result, there has been a host of legislative initiatives that are in clear violation of section 35, particularly the duties to consult and accommodate Aboriginal rights and interests. This is notably the case with Bill C-45 and the other legislation that have prompted protests. They are illegal acts by the Harper government against the Constitution of Canada.
One Justice lawyer, Edgar Schmidt, has blown the whistle on the government’s direction to fight cases that do not have a reasonable chance of success. Of course, the government suspended him and now are fighting him in court. If you are on the wrong side of these people, they’ll fight you too.
Therein lies the answer of escalating discontent among Indigenous peoples in Canada. Unwilling to be patient unto death, they choose to be idle no more.