First Nations in Canada – Equality as a Measure of Canadian Democracy
An empirical case analysis as background for my talk: “A Philosopher Reflects on Governance in Canada: Is Democracy in Decline?” to be presented to the noon hour series for Senior Fellows at Massey College on September 23rd. Note, for purposes of brevity, this case refers only to First Nations and not to Métis or Inuit Indigenous peoples.
Section 15 of the Canadian Charter of Rights and Freedoms reads:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Those equal rights accrue to natural individuals and apply to racial and gender issues, physical and mental disabilities and could be said to mirror the equal protection clause of the Fourteenth Amendment in the US Constitution, except equality was expanded from equality before the law to equality under the law thereby referring to outcomes and not just opportunities, to equal benefits and not just equal access. The response to this insistence on equality was that although equality did not mean equality of endowments, it meant something more than simply equality of opportunities. Equality could include affirmative action to ensure that systemic disadvantages did not preclude equality of opportunities. This is even more important if equality is a measure of the degree of success of a democracy rather than a precondition of its attainment.
Jody Porter is a CBC/Radio Canada Fellow at MasseyCollege this coming year. She is based at CBC Radio in Thunder Bay, Ontario and specializes in aboriginal issues. She is the editor of the 2011 volume Strength and Struggle: Perspectives from First Nations, Inuit and Métis Peoples in Canada published by McGraw-Hill. She has been my informant on aboriginal issues. Needless to say, the interpretations of what she said, my empirical explorations inspired by them and philosophical reflections on them are strictly my own responsibility.
From my interview with her, I derived three issues to discuss equality as a measure of democracy in Canada with respect to First Nations:
a) the law, particularly property law, as applied to aboriginal issues and the impact on equality;
b) federal government policies and the allocation of funds to reserves, particularly for the education of children;
c) the complicity of successive governments in the charge of cultural genocide, or genocide by attrition against aboriginal peoples.
On the first issue, I had some vague knowledge but it was not focussed. On the second policy issue, I was blissfully but inexcusably ignorant. On the third issue, where I should have been knowledgeable, I have no excuse. I was one of the five co-editors of the encyclopaedia on genocide and have written extensively on the topic. In the encyclopaedia, we did discuss what happened to the aboriginals in Newfoundland and to the policies and practices of relocation of native tribes in the United States, but gave no attention to the issue of cultural genocide or genocide by attrition in Canada, particularly as focused on residential schools as well as policies that have followed.
a) The Law of the Land and Land Under the Law
This is old hat to lawyers and political scientists and even real estate agents, but a quick recap of the premises of property law is helpful. Property law in Canada is rooted in the English civil law tradition. While that law has been changed in many respects, particularly with respect to the registration of ownership in accordance with the Torrens system of registration, it has not been changed in its fundamental tenets. The most fundamental precept is, whatever the language used: land is not owned by individuals. English law deals with possession. Only the crown has true ownership. Individuals with a right to possession are entitled to exercise specific proprietary rights with respect to the land in which they have title – they have an estate in land, that is, the owner has a bundle of rights called an estate. In accordance with ownership of that estate, an owner can exercise specific rights over the land. Like any right, an estate has no tangible existence. It is about rights, possession, use and disposal. There is no need here to go into the differences between fee simple estates, those rights in property most common to every Canadian, and interests in land less than estates, namely life estates and estates per autre vie. The implications of the concept of estate ownership are simple. The rights to possession only include air rights above to the extent the possessor can make use of them. Subsurface rights usually exclude mineral, petroleum and water rights. Even surface rights have encumbrances and restrictions – the government retains certain rights to construct rights of passage such as highways.
Except in British Columbia where First Nations only concluded a small number of treaties in the nineteenth century and earlier and three modern comprehensive treaties have been concluded relatively recently with the Nisgaà, Tsawwassen and Maa-nulth First Nations, lands not subject to treaty remain Federal reserve lands. Reserve land under treaty, as specified by the Indian Act, is a “tract of land, the legal title to which is vested in Her Majesty that has been set apart by Her Majesty for the use and benefit of a band.” Aboriginal peoples do not have title to the land, only a collective right of possession, use and benefit. Like the vast majority of Canadians, aboriginal peoples do not have mineral or petroleum rights or even water rights except that since the 1970s, particularly since Henriques & 2004, First Nation Reserves under the 1999 Environmental Protection Act, have the right to monitor pollutants and water quality. Hence, the documentation that the Aamjiwnaang First Nation in Sarnia, Ontario had `the highest load of air pollution` and the publicity that many reserves have had boil-water advisories — the Kwickstaineuk First Nation since 1997 — but this latter issue will be dealt with in part when I write on the pipeline debate and, a bit when I write on obligations to deal with weapons of mass destruction.
The effect of the law, whether in the dispute in Caledon, Ontario, or in the dispute over mineral rights by the Ontario First Nation of Kitchenuhmaykoosib Inninuwug (KI) (about 1200 people) in the far north on the shores of BigTroutLake on the margins of the Hudson Bay lowlands, hinges on these premises. (Jody sent me an article by David Peerla entitled, “No Means No,“ and subtitled, “The Kitchenuhmaykoosib Inninuwug and the Fight for Indigenous Resource Sovereignty.“) Essentially, the Government of Canada (and the Province of Ontario) in accordance with Canadian property law denies First Nations property rights owned by the Federal Government, but the province ends up buying mineral rights gained by mining companies back from the company. Thus, when KI denied access to mineral rights to a company in 2006, KI was sued for $10 billion. In the suit, the Court found the band in contempt and sent the band leaders to prison. The Ontario government eventually paid the mineral company $5 million to go away. In the background of Caledon, this case has set a precedent for mineral companies gaining access to explore for minerals and then, in effect, blackmailing different levels of government to buy those rights back in response to First Nation protests. This problem has been greatly exacerbated by the recent resource boom.
The immediate context for these struggles in Ontario was the free entry regime, a legislative framework where so-called Crown lands are open for mineral exploration entry, unless they are specifically withdrawn. Free entry is a neo-liberal fantasy. There was no legislative requirement under the Mining Act that government consult First Nations or other land users, prior to opening lands for mineral exploration. There was no prior planning to establish which tracts of Crown land are culturally sensitive, or serve as critical habitat for endangered species, or are valued ecosystem components. In the words of lawyer Kate Kempton, “The problem is this is called a free entry system and it allows anybody and their dog basically to go out there and stake a claim to the land, which is often traditional territory of First Nations, without any consideration at all of their rights”. (Kempton 2007) (Peerla “No Means No“)
The law of the land does not recognize that for First Nations, the land is sacred; community cultural survival depends upon regarding that land in terms of cultural survival and not simply as a disposable asset divided among the different rights holders. The legal case cost the already impoverished band $700,000. The reality is that the law makes the First Nations inherently unequal and denies their national rights in favour of property rights inherited from English civil law. So plaintiffs can win in court even if they lose in the market place of public support. But the material costs and the six months spent in jail are borne by First Nation leaders and bands. Further, the premise and critiques of even human rights and religious supporters are always framed within the law and demand adequate consultation and good faith negotiations when consultation cannot resolve the dispute when the legal system has stacked the deck against First Nations. In effect, the Charter of Rights and Freedoms guarantees equality before and under the law when the law itself does not give equality to the culture and history of First Nations.
The result is compromise in practice rather than in premises so that the Ontario government in July 2008 announced that it would protect 50% of land under the Mining Act and require early consultation and accommodation of Aboriginal communities, a recipe for shifting the problem down the line at great legal and administrative expense to everyone, particularly impoverished First Nation bands. There is no requirement of free and prior formal consent of First Nations for Canadian governments are unwilling to surrender their sovereign property rights. Governments simply want to bring resistance under the law of the land.
As Peerla wrote, “The Canadian law of consultation was a shield against the uncontrolled access to First Nation territories by resource developers or the arbitrary decisions of government, but it was not a sword to gain a First Nation veto over resource development or recognition of their own Indigenous laws or the right to the economic benefits of the minerals in their homelands. Consultation gave the First Nation a “collective agreement” with a mining company, but it did not give the First Nation “the right to say no” and community control of lands and resources and the economic benefits that would flow from the resources.“
Under the law of Kanawayandan D’aaki, the band has a duty and sacred responsibility to look after their land, not land shared with and ultimately owned by the Canadian state.
b) Federal government financial allocations, particularly Educational Allocations
Jody alerted me to another problem of which I had been blissfully ignorant – the promise of providing services of all kinds, but particularly educational services to First Nations on reserves, has been systematically undermined by federal government economic policies. Children of First Nations are allocated roughly 25% less funding per student than other children in Canadaand the disparity has grown worse over the last ten years.
According to Stats Canada figures, “Covering all levels from pre-primary to upper secondary education, average expenditure per student in Canada was $11,044 in 2008/2009 (Table B.1.1.1). The numbers were much higher in the territories: $22,784 in the Northwest Territories, $19,499 in Yukon and $15,428 in Nunavut. Elsewhere, the highest expenditure was seen in Alberta ($12,751), and the lowest in Prince Edward Island ($9,817). In the chart below used for international comparisons, the figures are in $US.
Annual expenditure by educational institutions per student in primary and secondary education, by type of services, 2008/2009
Notes: All figures are in US dollars, converted using purchasing power parity (PPP).
The OECD figures include primary, secondary and postsecondary non-tertiary.
Source: Table B.1.2.2.
In contrast, the average expenditure for First Nations children is about 25% lower than the Canadian average. Yet, as indicated above, the costs of educating students in remote areas of Canada is significantly higher than educating children in the large urban cities with the majority of the Canadian population. Further, the ratio of young people to adults in the community has the highest growth on Canadian reserves. Third, the completion rates of aboriginal children are much lower than for other children in Canada – there is a 40% drop out rate whereas in the rest of Canada the dropout rate has declined over the last decade by about 5% to 14% so that the situation of First Nations children has experienced a relative decline. Fourth, small bands and First Nations lack the tools and means to develop quality educational materials geared to their needs and this is used to reinforce an approach to integrating the reserve schools with the provincial and territorial systems. One possible effect is that First Nations children are about two years behind in educational achievements.
Three core issues seem to be evident all related to the above reality – the absence of educational goals to help revise underlying premises and current practices, the legal premises for allocating resources and the policies and practices for allocating those resources. In the public mantra, educational expenditures are key necessary investments to foster individual development and enhance the equality of opportunities and, at the same time, enhance productivity growth and reduce social inequality. However, this rhetoric does not seem to have any impact on Canadian legal premises or policy practices.
As Michael Mendelson wrote in “Improving Education on Reserves: A First Nations Education Authority Act,“ (Caledon Institute of Social Policy, July 2008), the Indian Act governing education on most reserves (sections 114-122) require First Nations children to attend schools but does not empower or require the Minister to enter into agreements with Band Councils to fund schools, let alone fund them at a level commensurate with funding in the provinces or territories where the schools are located and let alone sets standards that the education is intended to achieve. Within this legal vacuum, repatriation of the schools rooted in the National Indian Brotherhood publication of Indian Control of Indian Education [Matthews 2001) and the previous Royal Commission on Aboriginal Peoples 1996, never squared the circle. For obligations were imposed on bands to see that children attended schools, but no equivalent policy was imposed on the Federal government to fund those schools on a comparable basis to the provinces in which those schools were located. Obligations ran only one way.
Though there is no legislative basis for guaranteeing comparability, comparability is a condition set out in the terms and conditions of providing federal funding. But not only is there no legislative basis to provide for comparability, criteria in policy and practice do not prescribe real comparability in funding and programming. In other words, the bands are required to provide a comparable education, but the federal government is not required to provide the funds and systems to achieve comparability.
In practice, a cap was placed on funding of 2% to deal with the excessive budget shortfalls in the nineties when Paul Martin was finance minister. That cap has not been changed since, in good times and bad. As a result, funding for aboriginal children has fallen further and further behind as the number of children in aboriginal children has increased at a faster rate than in comparable other jurisdictions. Further, since most First Nations children attend provincial high schools and since reserves have to reimburse Provincial costs, and since costs of sending students to municipalities often require additional residential costs, effectively, of the monies allocated, an even smaller proportion goes to fund students in primary schools. The results are predictable..
As stated above, students on and from reserves are perceived to be two years behind the students in non-reserve schools and the dropout rate has meant that 40% do not graduate from secondary school – a more or less constant over the last decade – whereas the dropout rate from comparable non-reserve schools has fallen from 19% to 14%. In effect, the differential dropout rate has grown. Where additional special needs funding should be provided in this area, the pattern of cutbacks has meant an absence of significant support in this area.
The 2011 June Status Report of the Auditor General of Canada in Chapter 4 dealing with Programs for First Nations on Reserves offered four explanations for the lack of progress in educational achievements – in effect, actual decline on reserves. The first pointed to structural factors – the failure to define the type and level (range and quality) of service to be provided, in this case educational services; there was also a corresponding failure to spell out the allocation of roles and responsibilities. The second indicated the absence of a legislative foundation. The third was an absence of appropriate funding and the fourth was a lack of adequately funded educational services to support the education of aboriginal children.
In sum, educational comparability on reserves has not only stagnated, it has fallen further behind and the underlying causes have not been addressed.
c) Cultural Genocide or Genocide by Attrition
What the above two probes into land issues and into education indicate, let alone the myriad of other issues such as the quality of water on reserve land, is that the situation of the Residential Schools may have radically changed but the underlying premises and practices that created the problem have not been altered significantly. The federal government may have offered an official apology for the residential school travesty as one of the early means to assimilate Aboriginal Peoples (cf. Roland D. Chrisjohn, Tanya Wasacase, Lisa Nussey, Andrea Smith, Marc Legault, Pierre Loiselle and Mathieu Bourgeois (2002) “Genocide and Indian Residential Schooling: The Past is Present,`in Canada and International Humanitarian Law: Peacekeeping and War Crimes in the Modern Era, eds. R.D. Wiggers and A.L. Griffiths, Dalhousie University Press), whereas Section 35 of Canada`s Constitution guarantees aboriginal children a comparable education to other non-aboriginal children and one that ostensibly respects the unique culture and traditions of aboriginal peoples, and while the 2007 UN Declaration on the Rights of Indigenous Peoples condemns forced integration, and most reports and studies support self-determination in educational matters, polices and practices have, in fact, worked towards further assimilation.
An article in Macleans Magazine by Stobo Sniderman (8 August 2012) told the story of the Rossburn Collegiate and high school on the Waywayseecappo reserve with more or less increasingly unequal outcomes although the schools were within an hour walking distance from one another, differential outcomes that could be correlated with falling revenues for aboriginal reserve schools given the persistence of the 2% cap on funding even though student enrolment was increasing. The government agreed to a specific guarantee of equal funding, entailing a significant increase in funding, when the Reserve school board voted to place its school under the Rossburn educational jurisdiction. Class sizes fell from an average of 30 to 17. Unused school capacity was taken up. In other words, the message is that comparable funding is available if assimilation is followed by a new route of self-legislated integration.
Indeed, in spite of tons of good will, in spite of numerous reports, including the Senate Report on “Reforming First Nations Education: From Crisis to Hope,“ of December 2011, proposing a separate First nations Educational Act and the corresponding appropriate funding, there is little sign of hope and every sign of pessimism and a continuation of decline. Raphael Lempkin who singularly pushed the genocide convention failed to get cultural genocide included in the genocide convention. In 2007, The UN Declaration on the Rights of Indigenous peoples originally made the effort to include the concept, but the idea was dropped. Nevertheless, the concept of cultural genocide or genocide by attrition continues to exist and haunt current policy makers. It means killing off a culture while assimilating a people into the dominant culture. Land and educational policies indicate that cultural genocide is still progressing apace and far too few Canadians are aware of this as government rhetoric seems to support First Nations self-determination and retaining their culture.
The law of real property inherently discriminates against aboriginal cultures and nothing in the Charter of Rights and Freedoms redresses that inequality. Where the Charter does have effect – in the education of First Nations children – Government fiscal policies have increased the discrimination against First Nations children and allowed them to fall further behind the situation of other Canadians. Given the above two pieces of evidence and the exceptional cases when exemptions were made to provide equal funding, it is not too far fetched to suggest that, in spite of the apologies for the Residential School system, the underling trend of official cultural genocide or genocide by attrition against First Nations continues to be the pattern.