First Nations in Canada – Equality as a Measure of Canadian Democracy

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.



Howard Adelman




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.

Chart B.1.1
Annual expenditure by educational institutions per student in primary and secondary education, by type of services, 2008/2009

Description for Chart B.1.1

Notes: All figures are in US dollars, converted using purchasing power parity (PPP).
The OECD figures include primary, secondary and postsecondary non-tertiary.
SourceTable 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. 

In Memorium: Sam Mallin


                                                      SAM MALLIN




                                                       Howard Adelman

Yesterday afternoon I went over to Ward’s Island off the Toronto waterfront to attend a memorial service for Sam Mallin who had died at the age of 72. Typical of me, I missed the hourly departure of the ferry by five minutes. I had a choice. Either wait almost an hour for the next run or take the Centre Island ferry leaving in ten minutes and walk to Ward’s Island. Even though it was raining, I chose to walk. I had not been to the islands for decades and forgot how long the distance was between the Centre Island ferry terminal and Ward’s Island. Though I regained a renewed appreciation of what a wonderful resource Toronto has across from its waterfront, I arrived a half hour later, very drenched (as usual, I had not bothered to bring an umbrella) and very out of breath for I had tried to walk rapidly – good for my heart I thought.

However, I was in good time to hear his son, friends, colleagues and students testify to their love and appreciation of Sam. I could have signed up on the posted list for speakers and also said something, but I did not. Though I probably knew Sam longer than the vast majority who were there, I decided not to say anything since I had really lost contact with Sam over the last decade. Though we had been colleagues in the same department for 34 years, we were not close friends.

But I woke up this morning feeling rather empty. I had been moved a great deal by the readings, poems – especially a poem by my other colleague, Claudio Duran, and the comments and reading from Sam’s diaries that Samantha read at the end. She was Sam’s partner and a former student of both Sam and myself. I felt I should have said things, not because I knew Sam better or had much to add, but because I had experienced Sam in a different way than they had. I could, I believe, have filled out the picture even more. I found the memorial service to be not only very moving but very informative for I learned a number of things about Sam that I had not previously known. However, I felt I had let Sam down by not contributing my bit of recollection to the memories of the others who were there. So I am writing this to share with Samantha and with Claudio and with Esteve and with others with whom they may want to share this, and for my other friends and correspondents who did not know Sam just to indicate that he was worth knowing.

Sam was diagnosed with terminal lung cancer in May. He died on the 2nd of August. He had rejected palliative treatment for it would have bought a bit of time, but at great cost to the lucidity of thought and the clarity of his sensibilities. I completely identified with his decision. I learned of Sam’s death after the fact. I arrived home from attending the wedding of one of my sons on Vancouver Island on the 18th of August and had received a message from Chile. Claudio, who had also not known that Sam was terminally ill, phoned to tell me the news. Sam had kept the information on his illness close to his chest that had betrayed him and only informed those most intimately close to him. Claudio said that he would be back for the memorial service. I quickly wrote a few other colleagues and Esteve wrote me back telling me the time and place. Originally intended to be in Sam’s home on Ward’s Island, the service had to be moved to Shaw House on the island to accommodate the large number who had indicated that they planned to attend and who did attend.

Walter Carter had been the chair of the department when I was hired by York in 1966. Sam joined us in 1969. Sam was very different than I was. He had gravitas. He came from a small town in northern Ontario and had started in medical school as I had, but had terminated that effort long before I did in pre-meds and had not gone onto medical school as I had. Though he studied philosophy at the University of Toronto, I had not known him there. The fact that he was a few years behind me is an excuse rather than an explanation. When we first went out to lunch together, we compared notes on why each of us had abandoned medicine as a career. We had both been seduced by philosophy. We also talked about our Jewish background, but I talked far more than he. He seemed to have only the most tangential relationship to his Jewish background and seemed eager to leave it behind. We never broached that subject ever again. Certainly, no one mentioned it in the memorial service. That in itself said a great deal.

We also talked philosophy. He shared with me his thinking about Merleau-Ponty and, as a colleague, let me read his thesis which was published as a book by Yale University Press in 1975. I thought it was a very good thesis and book and, though I had also read and studied Merleau-Ponty, I had never undertaken Sam’s careful examination and learned a great deal from it. We also shared a mutual love of Nietzsche’s writings. We also argued about Heidegger whom he admired and I despised long before we had all learned about Heidegger’s Nazi past. I thought Germany’s alleged greatest contribution to philosophy in the twentieth century was a mystical and dogmatic brilliant blowhard who exhibited the worst traits of philosophy as a mode of intellectual seduction. He had seduced Hannah Arendt both physically and intellectually, probably intellectually first as a method of physical seduction, and I despised him most for that for I held him to be the primary source of Hannah Arendt’s limitations who otherwise was such a wonderful and original thinker. Sam defended Heidegger and never lost his love and appreciation for his thought. Henceforth, we bracketed Heidegger in our mutual discourse and had no other arguments in all the years we were colleagues.

That is not quite true. Arguments had been replaced by mutual teasing. However, he never did give up in trying to get me to attend to the minutiae of experience. Most of all, he tried to teach me to appreciate and sense and revel in every morsel of food I put into my mouth instead of wolfing my food as I was prone to do. His body hermeneutics extended to the immediate experience of everyday life. Though I was a terrible student in this sphere, I did appreciate his writings on prehistoric cave art which he shared with me and learned a great deal on a subject of which I knew nothing.

Most of all, however, we were faculty colleagues rather than explorers of the philosophical world together. As it became clear that Sam loved administration and was attentive to the details of the department and AtkinsonCollege, I gladly left those matters to Sam’s good judgment as he repeatedly agreed to take on the responsibilities as Chair. He sat on many committees and would frequently seek me out, keep me briefed, ask for my input, but I very rarely offered him advice for he had mastered the detail and the issues and pursued his perspective with a zealous energy that I could never muster over administrative issues which he treated in the same way he attended to the sensuous experiences of food.  The immediate body politic was as important to him as art and its immediate appreciation and reflection in thought, whereas I was obsessed with destruction and disasters, with refugees, wars and genocides in which the immediate experience of mass graves in Rwanda left me with tactile and olfactory experiences that I would gladly leave behind but have never been able to.

So we lived in different phenomenological worlds, but what we did share was trust. I trusted him 100% with his care and attentiveness. He seemed also to trust me about university politics for he briefed me and consulted me often even though I never felt I had much to add. So it is that attribute of trust that I would like to celebrate in Sam and which was not mentioned by anyone else. The other additional trait I want to mention is tolerance. Although we lived in different philosophical worlds, we not only tolerated one another as colleagues but respected each other. I attribute that to the original chair of the department, Walter Carter. Walter was not a productive scholar, but he was a scholar’s scholar. He read widely and thoroughly and could always be counted on to be familiar with a reference far flung from his own field of interest. Further, he had imbued the department with a core value – tolerance of differences. In all the years in the department until I left for Princeton in 2003, I cannot recall as single case of the noted disease of many if not most academic departments – petty political fights. Sam carried on Walter Carter’s tradition superbly and I have always appreciated him for that.

A last word on gravitas! When others talk of Sam’s solitary reflections on his rock at Ward’s Island as he watched the sun rise, I recognize Sam. He was a very serious thinker whereas I considered our job to be the cleaning women of the intellectual enterprise. We were not philosopher kings but philosopher servants. What I had not recognized and, frankly, had never observed, was Sam’s playfulness, a trait that his son and a number of his friends mentioned. I was delighted to hear that and very much regretted that I had not known that side of Sam. I am the lesser for it. 

When I got up this morning, the first thing I did was open a folio of poems that has sat for years on my side table that Claudio Duran had written and had kindly given me in 1988. It is an exquisite set of poems beautifully illustrated and printed on hand made paper with a dark grey cardboard binding. It is tied with a cord with a small bell that tinkles rather than rings. Since the poems are in Spanish, I have never been able to read them and always forget to ask my son, who is fluent in Spanish, to read and translate them for me. Because Spanish is so close to Latin, I get some sense of the subject matter, but miss the beauty. But I do sometimes look at the numerous illustrations, two of his lovely wife, Marcella, to whom he has always been devoted. The central subject matter of all the poems that go back to the seventies was of love. Claudio loved Sam and was devastated by the news of his death. He read a beautiful poem at the memorial service. And he exhibited the same sense of playfulness in the illustrations that Sam evidently had and that I had never gotten to appreciate.

Sometimes when we miss someone who dies, we miss what we failed to appreciate in life as well as what we imbibed from that life.