Friday, 28 December 2012

The Chief and the Prime Minister: Competing Conceptualizations of Sovereignty and the Canadian State

**Disclaimer** This post deals with an incredibly sensitive issue and, as is often the case, there is the potential for misunderstanding or, more often, blind misinterpretation. My intention here is not necessarily to take sides but to understand each of the sides in turn. There is more involved than simply the personalities of leaders. Rather there are fundamental differences between two conceptions of the Canadian state and the relationship between governments. This post merely attempts to elucidate these historic positions as a way to explain the reluctance of the Prime Minister to meet with Chief Theresa Spence and of the Chief to meet with the Minister of Aboriginal Affairs.These are differences which are fundamental yet, I think, entirely overlooked by both sides and the media.

There is much hyperbole explaining the reasons why Prime Minister Stephen Harper has – continuously – refused to meet with Chief Theresa Spence. The facile response has been to hurl invective or to make broad accusations of racism. This is entirely unhelpful. Certainly the Prime Minister operates within a political system resting on a foundation of colonialism and racism. These structures cannot simply be torn down. Moreover, there are more fundamental and practical reasons. Not everything can be reduced to racism. Indeed, it is not a sufficient factor. There is more going on here.

The major hurdle is a conflict between two vastly different conceptualizations of the Canadian state. For the government of Canada, First Nations exist within the state with Canadian sovereignty as the overarching imperative. For many First Nations, their communities exist alongside the existing Canadian state, with sovereignty never having been ceded. This has a direct bearing on how each side engages – or attempts to engage – with the other.

For the Government of Canada it is the Constitution Act, 1867 (the former British North America Act) that articulates this relationship. This is the ‘supreme law of Canada’ and makes room for only for two levels of sovereignty, those of the federal and provincial governments. Aboriginals may constitute a ‘third order’, but from this perspective it is not on an equal footing with the established orders. Additionally, the document creates a paternalistic and hierarchical relationship between First Nations and the federal government, with the Government of Canada retaining responsibility for “Indians and lands reserved for the Indians”.

While the patriated Constitution Act (1982) made specific references to respecting and upholding existing treaties and the principle of self-government, these sections have largely been aspirational and, indeed, window dressing. Self-government is not, in the Canadian conceptualization, synonymous with sovereignty. This is a crucial distinction. Important Supreme Court of Canada cases have also upheld both broad understanding of self-government and resource rights – for instance, the expansive nature of the Marshall decisions – while simultaneously narrowing the scope by essentially granting the federal control over extinguishing some aspects of Aboriginal title.

This is at odds for with the Aboriginal understanding of their relationship with the Canadian state which sees the relationship as one essentially of international relations, as sovereign to sovereign exchanges. Indeed – and there is much practical and moral weight behind this – only nations can enter into treaties and, as such, Aboriginal peoples represent sovereign nations. The problem, of course, is what happens when claims of sovereignty compete with one another, both within an entrenched constitutional order and, additionally, from recognition.

The Canadian state is widely recognized – within its own Constitutional order and in the international community – as sovereign over the entire geographic area known as Canada. This is why – to answer the one of the Chief’s questions - the Prime Minister will meet with the leader of a foreign country but not with individual Aboriginal leaders and certainly not on equal footing as sovereign entities.

Additionally, this explains why the Prime Minister sees the appropriate interlocutor as the Minister of Aboriginal Affairs and not himself. While Harper has been reluctant to respect basic precepts of responsible government, this, in fact, shows due deference, at least from a Parliamentary perspective. The Minister has direct purview over this file and it is reasonable – just as the finance minister would coordinate with his provincial counterparts – for the Minister responsible for the file to, at least in the initial stages, be the first point of contact. Again, this speaks to a fundamental disjuncture between views of the Canadian state and its relationship with First Nations.

Part of this problem relates to the often ambiguous status and inconsistent interpretations of Canada’s first written constitutional document: the Royal Proclamation of 1763. First Nations look to that document – quite rightly – as affirmation of the existence of title and self-government. The Courts too have interpreted the document as such. However, two problems arise from this document. The first, and it is clear in the wording, the document asserts, quite directly, the sovereignty of the British Crown over the newly acquired territories of North America. First, the proclamation establishes that the Nations in question are under ‘Our protection’ and, secondly, that only the Crown can mediate the exchange of land from Aboriginal to settler control.

The second problem is that there has been a massive transformation in the nature of government and, in particular, the nature of the Crown. First Nations look to the Royal Proclamation as a continuation of a direct relationship between their (sovereign) nations and the sovereign British Crown. While the document is, it is important to note, still in effect, there has been massive changes in one of the parties.

When the Royal Proclamation was issued, King George III – and the British Crown – still operated with considerable latitude in its affairs. By the 19th century, however, the British Parliament had firmly asserted its dominance – Parliamentary sovereignty became ascendant – and eventually a responsible government would become institutionalized. In short, the personal power of the monarch, and his place in public affairs, was drastically curtailed. By the late 19th century and, more firmly in the 20th, the monarch was essentially reduced to the apolitical dignified functions associated with Bagehot’ The English Constitution. Political power had shifted irrevocably to a responsible ministry.

This transformation – echoed by developments in Canada – has important implications for the relationship between First Nations and the Crown. In short, the responsibility for the political functions once undertaken by the Crown – including foreign relations – have been democratized in the form of a Cabinet responsible to an elected assembly. As such, there is no longer a direct relationship with the person of the monarch or her representative – which is why it is inappropriate and pointless to insist on a meeting with the Governor General – since those functions have been brought under the control of the functional executive. Again, these developments explain why the Prime Minister insists that the Chief should first meet with the minister responsible for Aboriginal Affairs.

First Nations are, in large part, working with an outdated understanding of the Canadian state and their relationship to it, particularly as it relates to the Crown. The authority and power of the Crown – with the exception of a few residual powers of the Governor General relating to government formational and dissolution – are exercised exclusively by the Governor in Council – that is a Prime Minister and the Cabinet.
This problem is, for several reasons, quite intractable and, since neither side is likely to bend, will likely result in deadlock. First Nations continue to assert their sovereignty, demand a relationship based on equality of nations and be met with rejection by a state that sees itself as the ultimate sovereign authority. Indeed, this is an uphill battle for First Nations, confronting dominant constitutional structures constructed in ways which keep them marginalized and reject their claims to a third constitutionally sovereign order. Moreover, the courts have – while taking a broad view of Aboriginal Title, land and resources rights – stopped short of recognizing sovereignty or conflating it with self-government.

The Canadian state has considerable resources behind it - including constitutional and legal authority and the recognition of the world’s other sovereign states – resources which bolster and give credence to its conceptualization of itself and its relationship with First Nations. With those resources, however, comes a clear fiduciary responsibility to First Nations extending from the ‘Honour of the Crown’. (Indeed, even this is problematic as it stems from the same paternalistic understanding of the Constitution and its relationship with Canada’s First Nations).

The federal government has been historically loath to set precedent, to make moves which may have unintended consequences. This is likely a factor in the Prime Minister’s calculus as he attempts to avoid giving credence – even if it’s only moral – to the Aboriginal view of an equal relationship between sovereign governments.

The federal government and the Crown – in the form of the Cabinet – have a fiduciary responsibility to First Nations. Part of this stems directly from existing treaties – which state responsibilities explicitly – but it also stems from a responsibility to provide basic services under the Constitution specifically and to Canadians generally.  The record of the Harper government has been heavy on the symbolic – the Residential Schools apology, for instance – but light on substance apart from expediting claims – a move likely linked more closely to economic development on Aboriginal lands, particularly in oil and mineral rich areas. Indeed, the relationship has been one of neglect and disinterest. In truth, while Harper is reticent to acknowledge Trudeau, his own position is likely close to that of the failed White Paper of the 1960s.

I agree wholeheartedly with many of the claims made by First Nations. They do indeed have a special relationship with the Government of Canada stemming from historic proclamations and treaties.  The government has a fiduciary obligation and a responsibility to engage with First Nations on a more consistent and thoughtful basis. The Canadian government, as the inheritor of the British Crown in North America, also bears moral responsibility for economic and social changes brought about by contact and subsequent centuries of exploitation, abuse and marginalization. The structures of Canadian governance, both constitutional and practical – from federalism to the courts – are structured against Aboriginal Peoples and their claims. The framework is clearly a colonial one. It is also fixed and largely immovable. Even the statutory Indian Act – although it is ‘quasi-constitutional’ – will take years to repeal.

The fundamental problem is that these claims require mutual recognition. That is not forthcoming from the federal government. The two worldviews could not be further apart. Unfortunately, these have come to stand in the way of tangible developments. Over twenty years ago the government initiated the Royal Commission on Aboriginal Peoples, which, for whatever its faults, laid out a plan for altering the relationship between First Nations and Canada. It has in subsequent years left largely unimplemented.

The Government should arrange a meeting with First Nations leaders – it should be doing so regularly as a function of good government, regardless of being compelled. Chief Spence should meet with the Aboriginal Affairs Minister rather than rejecting to meet outright. How can a dialogue be begun in good faith with such a rejection? She can continue or end her strike following the outcome of that meeting as she chooses. 

Sovereign nations cannot negotiate under threat, even if the threat comes in the form of a hunger strike.
Neither conceptualization is tenable. Barring a seismic shift in Ottawa, the federal government is unlikely to recognize the full sovereignty of Aboriginal nations. These are large issues which potentially devastating ramification – not the least of which is the tenuous place of Quebec within Confederation. The Aboriginal position ultimately rest on a moral proposition and an interpretation of historic documents which contemporary courts have recognized, but with important limits. Expansive claims to sovereignty uttered in the language of (neo)colonialism with accusations of racism are unlikely to bring the government to the negotiating table while armed rebellion will – as in the past – be quickly put down. 

The focus instead should remain on tangible demands, highlighting the persistent poverty and marginalization of Aboriginal peoples. Those needs are immediate and they provide the first semblances of a bridge to bring the sides together. First Nations and Canadians are all treaty people; the challenge is to find a way for a mutual recognition of that fact. Unfortunately, constitutional realities and competing conceptualizations of the Canadian state – unitary or fractured, two orders or three – stand firmly in the way.

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