Idle No More demonstrators blocking Canadian National Railway, Portage La Prairie, Jan. 16, 2015. John Woods/The Canadian Press/Associated Press
April 06, 2015
Allow me to frame my comments by presenting two contrasting quotations at
the outset, one from Canada’s current prime minister and one from the prime
minister who immediately preceded him. I’m not going to refer to them further
in my essay; rather I invite you to read them now and then to return to them
once more at the end. Each presents a strikingly different constitutional
narrative of Canada, even though spoken by a prime minister. This essay unpacks
the remarkable tension between them and tries to explain the work that each
narrative does for Canadian self-understanding today. I conclude that the
constitutional story we tell has a tremendous impact on the quality of citizenship
we hold. Here we go:
We should not, you know we’re
so, we’re so, humble isn’t the word, but we’re so self-effacing as Canadians
that we sometimes forget the assets we do have that other people see. We are a
very large country, with a well-established, you know, we have one of the
longest-standing democratic regimes, unbroken democratic regimes, in history.
We are one of the most stable regimes in history. There are very few countries
that can say for nearly 150 years they’ve had the same political system without
any social breakdown, political upheaval, or invasion. We are unique in that
regard. We also have no history of colonialism. So we have all of the things
that many people admire about the great powers, but none of the things that
threaten or bother them about the great powers. We also are a country,
obviously beginning with our two major cultures, but also a country formed by
people from all over the world that is able to speak cross-culturally in a way
few other countries are able to do at international forums.¹
—Canadian Prime Minister Stephen Harper,
addressing the G20 in Pittsburgh, 2009
The history of the
indigenous populations of the world is a book most people have never read. This
is certainly true of Canada. And unfortunately when we do read the book of the
First Nations, the Métis Nation and Inuit, it begins with the European
explorers who, after they figured out this wasn’t India or China, believed they
had discovered a new continent where no one of any consequence lived. It starts
with Canada’s beginnings when the European settlers believing that native
culture had no value, the settlers who followed made no attempt to understand
it because they assumed its people had nothing to say. Thus began the tradition
of dismissing indigenous knowledge in order to impose the European settler’s
mono-cultural point of view on everything they saw, touched, or heard in the
so-called new world. From the start, the newcomers’ message to North America’s
First Peoples was the mantra used by colonial powers the world over. We told
them, and we told ourselves, that all that we believed was good, and that all
they believed—their history, their traditions—was irrelevant.²
—Former
Prime Minister Paul Martin, address in Saskatoon, 2014
Most would agree that until recent years, Canadians have
long enjoyed a strong reputation internationally for our commitment to global
welfare and for the living conditions we sustain at home. Probably less known,
Canadians are awfully proud of it. We don’t like to own up to it—I sometimes
feel as if there’s a sense of joint enterprise in keeping our pride on the down
low. Most of us wouldn’t want to be caught in public feeling so upbeat about
ourselves. Doesn’t jibe with our reputation for getalongability and
easygoingism. But make no mistake, we’re proud of what are seen as Canada’s
remarkable social, political, and economic successes. We’re proud of the
tremendous quality of life we have. We’re immensely proud to be Canadian. We see our country as
embodying the progressive politics but neither the external open imperialism
nor the internal casual indifference toward others of our neighbors to the
south. We understand ourselves as international exemplars of lives lived
valuing and experiencing freedom, justice, and equality and all of this without
adopting an American ethos of we’rebestism.
This
is a caricature of course. Many critical-minded Canadians do not feel this way
at all; some rail against this view. But my experience across a wide array of
spaces is that beyond the academy, beyond activist communities, and beyond
identifiable minorities, most Canadians subscribe to a version of it (as do
hordes of academics, activists, and minorities). In our ordinary capacity as
citizens we complain of course—about policies we don’t like, about the identity
of the government of the day, about how out of touch their values are with the
heart of our collective being—but we don’t call into question the quality of
our citizenship itself. No, Canada and membership in it are taken as unambiguously
good. That’s always presented as a settled answer, not
an open question. It’s the invisible claim upon which all self-reflexive
political judgment may issue, not a premise within the purview of debate.
On
the surface, of course, this sense of certainty has to do with the immense
privilege that citizenship in Canada bestows. But not far beneath this secret
self-love has to do with a rather obvious, important and permanent feature.
Travelling on the back of citizenship, it finds its foundation in our constitution.
All of the citizenship goods that empower the caricature find their (effective)
first cause in the set of documents and unwritten conventions that bind our
political community together. Statements about pride in Canadian identity are
ultimately statements about the domestic structural conditions that authorize
and shape it.
That
structure is deeply (although as the Supreme Court of Canada’s Quebec
Secession Reference³
made clear, not classically) liberal, and has been given great force judicially
through the metaphor of “a living tree.” As Western liberal democracies grew, a
deep constitutional divide emerged as to how (and whether) a constitution could
allow its government to recognize changes in the society it governs. That is, a
divisive question arose as to how the settled legal and political
superstructure could account for dynamic social, economic, and (though liberals
are loath to admit its existence in public life) moral sensibilities formally
beyond, but in reality shot through, law and politics.
For
Canada the debate was settled in 1929 by the Judicial Committee of the Privy
Council, Canada’s then-final legal arbiter, in Edwards
v. Attorney General for Canada, better known as the Person’s Case.⁴ Speaking for
the Council, Lord Sankey delivered his famous statement that, “The British
North America Act planted in Canada a living tree capable of growth and expansion
within its natural limits.”⁵ That’s the metaphor for Canadian constitutionalism
and thus the home of our private self-confidence. The fact that the tree is
specified as living underscores Canada’s constitutional commitment to growth
and change; ours is not a constitutional order forever determined by our
originator’s intent. Rather, where existing legal disadvantage has in contemporary
contexts come to be seen as prejudicial, the relevant law will be reformed.⁶
Violence of Erasure
The
choice of a tree over other life forms is apt because the structure of branches
suggests that the tree can accommodate (there’s the liberal move) a wide
variety of directions for growth all at once and none of the branches are
expected to look alike. Subject to what the trunk may bear, each has a space of
its own in which to thrive. But of course everything turns on the reality of
the trunk. All branches find roots and hence nourishment only through it. And
this is precisely as Lord Sankey intended with the insufficiently discussed
last half of his statement that the growth (and imperially, his use of the
language “expansion”) of the living tree was always to be constrained “within
its natural limits.”
“Aha,”
anti-imperial skeptics like me will exclaim.
For
anyone concerned about power, the constraining condition necessarily raises the
rather important questions of 1) what those limits are, 2) how they are
justified, and 3) whether the justificatory standard invoked is the right one.
And from the perspective of the status quo, those are dangerous questions for
their effect is to topple the constitutional story Canada tells of itself, and
thus call into question citizen confidence in the goodness of their national
identity. Those questions, in like metaphor, are the lumberjack’s ax.
First,
let us be clear: the limits contemplated are the hard edges of liberalism—a
political community built on an anthropological premise that each of us exists
independently before we exist in groups and the resulting valuation of
individual autonomy as the primary political good even where other political
goods are taken as being of vital importance; the concomitant problem of
individuals needing certainty of security from one another’s capacity for open
physical violence and for the violence of liberty deprivation; the need to
vindicate the right where such transgressions occur; and a resulting necessary,
shared orientation to justice. To accomplish all of this the living tree has
its roots clutching a social contract struck between settler⁷ peoples at
confederation in which the rule of law was sanctified and marshaled to police
a hard line between public and private life. Within this story, that contract
is the seed for Canada’s entire constitutional enterprise.
Question
two: all of this is said to be justified because the sovereign—vested with a
monopoly on the legitimate exercise of violence to enforce compliance with the
right—finds its authority in this contract, the product of autonomous citizens
having delegated their power upward and centrally to it.
That
just leaves the third question: whether the justificatory standard of
autonomous settler citizen authorization is the right one. Use of the descriptor
“settler” in posing the third question is not out of place because in the
contract story Canada tells, only settler peoples were invited to participate
in the dialogue. Which is already to state the beginning of my answer to the
question.
A
necessary condition of the contract is the violence of erasure. The living tree
draws up through its roots strength and support from the contract story, in
which indigenous peoples do not appear: folks already present can’t feature in
a story of beginning. We were not party to confederation. Although we may now
vote (and many of us do), we are not retroactively made subjects of popular
sovereignty: Canada is still not ruled with our consent. And guess what? Many
of us would steadfastly refuse to legitimize a shared political community bound
within a liberal constitutional framework even if we were offered
authorization/non-authorization over it: we already have stories that explain
how we constituted ourselves as political communities on our traditional lands.
And as folks who were already here, organized in vibrant political communities,
indigenous peoples’ foundational political claim is not to fit in with, or be
tolerated by, the rest of Canada, but rather to have our own ways of
being—legal, political, economic, social, spiritual, and ecological—stand in
the world that gives them life and meaning.
Let’s
sideline all of that for a moment and reflect on Canada today. We have the
metaphor of the living tree and considerable citizen pride in the real-world
impacts it conditions and empowers. But how are the benefits of Canadian
constitutionalism distributed across citizens? Who feels that pride? And more
pointedly, how’s the living tree working out for the indigenous peoples whose
political communities on Turtle Island preceded and—albeit colonized,
disempowered and thus rendered largely ineffective in practice—survive despite
Canada?
The
question is no question at all. I have no interest here in inventorying the
causes of the incalculable suffering that indigenous persons, peoples, and
lands have experienced because of institutionalized state depredations against
them. Accounts of both the distant past and ongoing violence have been and are
being widely reported and are readily available for those interested in educating
themselves. Although it has its own problems, the five-volume report of the
Royal Commission on Aboriginal Peoples released in 1996 is a good starting
point.
Alternatively,
to learn more one could simply check out the headlines of Canada’s national dailies
(not for the quality of coverage—which is widely biased against indigenous
interests—but for an identification of national issues regarding indigenous
suffering). We recently had the Idle No More movement in Canada which brought
tens of thousands of people, indigenous and settler, from across all corners of
Canada into the streets, public squares, malls, and highways in recognition of
indigenous suffering and in support of change. Support rallies broke out in
various cities in the United States and in other countries. Second, the Truth
and Reconciliation Commission of Canada is currently wrapping up its inquiry
into the federal government’s Indian Residential Schools’ ethnocide program.
The government was compelled to create the process through a settlement
agreement that resolved litigation, and it has fought the process throughout
it, including, perhaps most importantly, denying the commission access to
critical documents and information needed to deliver on its mandate. Third,
affected families and many sections of civil society have long been voicing
concern over the massive-scale murder and abduction of indigenous women in
Canada. Although the Royal Canadian Mounted Police released “Missing and
Murdered Aboriginal Women: A National Operational Overview,” a report
documenting 1,181 cases of missing and murdered indigenous women in Canada
between 1980 and 2012 (and these are just the cases the RCMP had documented),
Canada’s federal government refuses to take targeted action. In particular, it
continually rebuffs calls for a national inquiry on this issue specifically in
favor of general tough-on-crime legislation. I once had a settler man in his
50s tell me he missed “the good old days when you could dump a squaw back in
the ditch when you were done with her” as casually as if commenting on the
weather, while driving me down the TransCanada highway. He even smiled. Not
smugly; as if in fond remembrance.
Those
are just a handful of contemporary reference points, which for many indigenous
peoples reflect the experience of life under Canada’s imposed constitutional
order. If you’re a Canadian citizen who happens to be indigenous and who thus
resides on the boot end of Canadian constitutionalism, you might well feel no
pride in Canada at all. On the contrary, many indigenous persons voice deep
anger, hurt, and frustration at Canada for its total disinterest in reckoning
its genesis with indigenous existence and for its ongoing quiet disinterest in
drawing out the connection between its contemporary constitutional practice and
our suffering today.
Stunning Apathy
Yes,
to be sure many indigenous persons and peoples in Canada are suffering but that right there—the
reaction—is the real story: that it’s possible for Canada’s disinterest in
indigenous suffering today to be quiet, that Canada is so far removed from
claiming any sense of responsibility for the living conditions it has imposed
on indigenous peoples, that its disinterest could register as quiet instead
of shocking, deafening silence to the average citizen’s ears. The real story is
about why Canada feels no need to claim responsibility.
The real story is about why so many settler Canadians are mystified when
confronted with indigenous peoples’ absence of pride in Canadian
constitutionalism and even offended by indigenous non-identity with Canadian
citizenship. The real story is about the stunning apathy so many Canadians
demonstrate to indigenous suffering today and their sustained commitment not to
educate themselves about it. The real story is about the dynamic that allows
for Canadians’ righteous indignation at human suffering in other parts of the
globe—enough so that governments of different political stripes continually
find public support for the allocation of funds and troops in support of
peacekeeping and military interventions abroad—while generating little more
than exasperated sighs about indigenous suffering at home. I have yet to see a
Canadian federal election in my lifetime where citizens decided that indigenous
suffering was a matter of Canadian governance and hence a voting issue.
Many
Canadians go further still and are actively angry with us for suffering. Many
Canadians, including some of Canada’s most highly regarded print journalists,
consistently argue that we bear the primary responsibility for our own
suffering. Liberal constitutionalism has done us the good service of working
out for us the conditions that will allow us to thrive and those conditions, we
are told, are universal; we’re thus at fault if we don’t accept the offer of
constitutional transformation. On this popular account, a need to inquire into the
actual causes
of indigenous suffering isn’t taken as necessary to address it. Let me repeat
that astounding perspective: knowing the cause of indigenous suffering
is not taken as necessary or even important to address it. Indigenous peoples
enjoy a unique cultural quality of timelessness so special that so far as our
interests are concerned, public policy need not attend to the trivialities of
cause and effect. The question of cause either doesn’t arise or answers are
simply presumed. In the latter case, the answer proffered is always a version
of “they aren’t willing participants in our liberal constitutional order.” One
of the strongest moments of this latter form of imperialism I’ve personally experienced
was in March 2011. I was an invited
speaker at a forum on indigenous-Canada reconciliation in Canada’s province of
Ontario. It was held in the Native Canadian Center, in Toronto. Sitting in the
audience and waiting for my panel, I was stunned to hear our keynote’s core
message. A former premier of Ontario shared with easy confidence and certain
conviction that indigenous peoples in Ontario need to join the twenty-first
century: that was the central impediment to our having a successful relationship.
It was such an unbelievable statement coming from someone with as much
constitutional authority as he had that I kept waiting for the punch line. Then
slowly I realized he really is that ignorant and that his presence at this
event was the (albeit unintended) joke.
In my comments, shaking I was so angry, I stated that his prehistoric
view works directly against reconciliation and in the interests of division.⁸
So
much for getalongability. So much for easygoingism. On home soil—where
Canadians are inescapably confronted with indigenous suffering—the national
disposition wavers instead between privileged confusion (those who have
continually refused to educate themselves) and angry judgment (those who always
already know the answer). Either way, it’s an orientation of open imperialism
that follows from unquestioned, unjustified, and unjustifiable settler
privilege: never having to justify how it is one came to inherit the
considerable benefits of life in Canada; as if no disadvantage has been borne
for what appears through the filter of settler privilege as a marvelous,
costless, constitutional windfall.
Colonialism
is not reducible to a historical process of European settlement and indigenous
displacement. That’s but one phase of what is, properly understood, a
mode of relation.
Today it’s exercised through the imperial imposition of a liberal
constitutional order over pre-existing indigenous ones: the living tree refuses
to acknowledge the forest around it and stubbornly, selfishly, proceeds to draw
up as many resources as it can for itself, oblivious to the needs of all
others. The question Canada poses to the indigenous peoples it colonizes even
today is “liberty or unfreedom?” but this is a false dichotomy which serves the
purpose of (thinly) concealing Canada’s constitutional commitment to violence.
The real question is always “freedom or unfreedom?”: there are logics of
freedom beyond liberty. This is not a sophisticated insight. One simply needs
to be willing to ask the third question raised by Lord Sankey’s constraining
condition for it to be disclosed.
This brings us to the heart of the problem of
contemporary Canadian colonialism and our starting point of the pride so many
Canadians feel by virtue of the constitutional order in which they claim citizenship.
Through the lie that liberty represents the whole of freedom, Canada’s greatest
constitutional feat has been to hide domination within the shadows of freedom.
The Honorable Frank Iacobucci, retired Puisne Justice of the Supreme Court of
Canada, recently concluded an inquiry into the systematic exclusion of
on-reserve indigenous peoples from the jury rolls in Ontario, Canada’s most
populous province. Consider the following quotation from his final report:
One of the biggest
challenges expressed by many First Nations leaders and people is with respect
to the conflict that exists between First Nations’ cultural values, laws, and
ideologies regarding traditional approaches to conflict resolution and the
values and laws that underpin the Canadian justice system. The objective of the
traditional First Nations’ approach to justice is to re-attain harmony,
balance, and healing with respect to a particular offense, rather than seeking
retribution and punishment. First Nations observe the Canadian justice system
as devoid of any reflection of their core principles or values, and view it as
a foreign system that has been imposed upon them without their consent.⁹
The
real story is not the one Canada tells.
As
this quotation reveals, it is not the case that on northern Turtle Island, what
many of us now call Canada, a single constitutional order occupies all the
constitutional space. Liberty is not the only foundation for political
community, nor is it the only face of freedom. Long before early Europeans
showed up (much less the hordes of immigrants from every country imaginable who
are still arriving), the indigenous peoples of Turtle Island not only lived in
political communities, but did so according to constitutional frameworks
reflective of their own ways of being and knowing in the world and of their own
conception of value.
Indigenous Forbearance
Canadian
imperialism stands on the unforgivably arrogant assumption that before
Europeans showed up, indigenous peoples had no constitutional order; that we
were autonomous units roaming randomly about, occasionally bumping into one
another, which is the cause of our cultural diagnosis of civilizational failure
to thrive. But the real story is about conflicting constitutionalisms. The real
story of indigenous resistance to Canadian constitutionalism—the reason we
refuse the offer of liberal transformation—is because there is freedom beyond liberty;
because it is not the case that all we need is a shot of liberal
constitutionalism to set us straight; because we are not scaling ourselves against
the liberal metric of success; because despite centuries of dispossession and
violence, we have not forgotten who we are; because we know that we claim
citizenship in our own constitutional orders which are premised on an
ontological claim of interdependence, not one of individual autonomy and which
are pointed toward harmony (understood not as non-conflict, but as right
relation), not justice; because we know that submission to liberty and the
privileging of the individual it requires over the relational mode of being
required of an interdependent self will alienate us, too, from the conditions
of earth which sustain our lives, and will make us, too, complicit in the
violence that has ushered in the Anthropocene and climate crisis.
The
real story is about indigenous forbearance. Despite repeated state-sanctioned
violence taking physical, mental, economic, ecological, and social forms, we
have not adopted a responsive course of violent confrontation. Of how many
other places in the world where peoples live under conditions of
domination—precisely because of who they are as peoples—can this be said? The
real story is about indigenous peoples staying true to their own teachings,
which have to do with guiding those who behave harmfully into right relation. This
is a story of unimaginable patience. It is a story of giving to those who do
not deserve the gift, but who, despite their commitment to violence, are also
part of creation. It’s a story about the daily practice of indigenous
constitutionalism under conditions determined to stamp it out.
Finally,
the real story—about violence, imperialism, education, forbearance, and hope—is about treaty. Canadian
constitutionalism brings a treaty within the liberal logic of distributive
justice. It says that treaties are contracts which distribute settled rights
between parties, which are then enjoyed by each party’s respective membership.
As such, treaty rights are expressed within the forms of Canadian
constitutionalism and thus speak under, not to, its power.
Although
they all use different language to express the idea, most indigenous peoples I
know think of treaties instead as a framework for right relationships. That is,
the work of a treaty is not to distribute rights under the authority of
Canadian constitutional power, but rather to coordinate distinct constitutional
orders. Often this is described as a “nation-to-nation” relationship. It is an
intersocietal practice indigenous peoples engaged one another in long before
settlers arrived and into which settler peoples were welcomed.
This
has been a long answer to the third question, but my view will be plain: from
no space could settler peoples legitimately authorize a constitutional contract
on Turtle Island without the express consent of indigenous peoples, and for
reasons of conflicting ideas about the foundations of healthy political
community, that consent would not, is not, and will not be given. But that
isn’t the end of the story. We are not to draw from widespread indigenous
refusal of the contract and the resulting violence upon which Canadian
constitutionalism is necessarily predicated that settler citizens can never
claim legitimacy here. The replacement story for settlers is not a choice
between acknowledged domination or insufferable guilt and the resulting
deliberate ignorance and animosity it breeds.
Instead,
we could all choose education and the connection it allows for, together.
Indigenous peoples could volunteer to teach settlers about our own
constitutional orders and about the treaties that invoke these constitutional
forms to make a home for settler peoples here. Many have already been working
hard at this for a very long time. We could all accept that treaties serve the
end of bringing us into political community together, and thus legitimize settler
presence on Turtle Island. We could all accept that treaties are also the
constitutional means: our difference is not a
tension to be resolved once and for all; rather settler presence is forever to
be contingent on compliance with the earth-first treaty order. If this were the
constitutional story we told, our lives would all change. Thankfully, we would
no longer enjoy the unsustainable pace of earth-destroying modes of economic
development which are responsible for the Anthropocene, and all of us, settler
and indigenous, would be able to claim citizenship in our shared political
community knowing that violence is not the foundation of our link. And that’s a
community I’d be proud to be part of.
Aaron Mills (Anishinaabe name: Waabishki Ma’iingan) is a Bear Clan
Anishinaabe from Treaty #3 Territory, Canada. He is a doctoral candidate,
Vanier Scholar and Trudeau Scholar at the University of Victoria, Faculty of
Law. He serves on the board of directors of the Indigenous Bar Association. He
completed his J.D. at the University of Toronto in 2010, during which time he
was the editor-in-chief of the Indigenous Law Journal and served on the board of directors of Aboriginal Legal Services of
Toronto.
1.
Aaron Wherry, “What he was talking about when he talked
about colonialism,” Macleans, 1 October 2009. Online: http://www.macleans.ca/politics/ottawa/what-he-was-talking-about-when-he-talked-about-colonialism/.
2.
Paul Martin (The Rt. Hon.),
“Wâhkôhtowin 2014: Indigenizing Practice in Post-Secondary Education: Linking
Kindred Spirits,” Keynote Address, Saskatoon, Saskatchewan, 19 September 2014. http://www.witbn.org/APTNFinalSmallTypeJune19.pdf. To be clear, although I contrast Martin's statement with Harper's, I am not intending to hold it out as representative of an ideal constitutional story. Martin, too, is a committed contractarian of the sort I argue against in this essay, but he's able to see some colonial impact, both contemporary and historical.
3.
Reference re Secession of Quebec [1998] 2 S.C.R. 217., in
which the Supreme Court of Canada addressed three reference questions on
whether and under what conditions the Province of Quebec could unilaterally
secede from Canada.
4.
Edwards
v. Canada (Attorney General) [1929] J.C.J. No. 2,
[1930] A.C. 124. (J.C.P.C.). Five women sought to prove that they were
“persons” within the meaning of s. 24 of the British North America Act, 1867, which regards senate appointments.
5.
Edwards at 136.
6.
“Seen by whom” of course remains a live and
contentious question. I note also that this generous characterization of the
doctrine of the living tree denies the possibility that some legal disadvantage
may have been intentionally prejudicial (and indeed in my opinion, was so) from
the outset.
7.
I don’t intend my use of the descriptor “settler” to reduce the political identities of non-indigenous Canadians to the fact of
colonization. However, in an argument where our respective political status on
Turtle Island is the very thing at issue, centring settler and indigenous
locations is critical.
8. Symposium on Reconciliation in Ontario: Opportunities and Next Steps, University of Toronto / National Centre for First Nations Governance Symposium, Native Canadian Centre, Toronto, 10 February 2011.
9.
The Honorable Frank Iacobucci, First Nations Representation
on Ontario Juries: Report of the Independent Review Conducted by The Honourable
Frank Iacobucci (Government of Ontario, 2013) at 210.