Indian Wars 1

Bruce Cockburn — one of my favourite songwriters — recorded a beautiful song about the ongoing “Indian Wars” back in 1991. That is, the music is beautiful; the words deliver a slap upside the head.

Here’s an excerpt from the middle of the song (click on the arrow) :

If it’s not breech-loading rifles and wholesale slaughter
It’s kickbacks and thugs and diverted water
Treaties get signed and the papers change hands
But they might as well draft these agreements in sand.

Noble Savage on the cinema screen
An Indian’s good when he cannot be seen
And the so-called white so-called race
Digs for itself a pit of disgrace.

You thought it was over but it’s just like before
Will there never be an end to the Indian wars?

I’m in the treaty business, more or less. I work for the Government of Canada, and I negotiate self-government agreements. The one I’m working on now is a contractual arrangement, not a treaty. But it’s entirely possible that, some day, I’ll be part of a team which negotiates a modern treaty.

(Treaties are constitutionally protected documents. More on this point below.)

Is Cockburn exaggerating when he sings, “they might as well draft these [treaties] in sand”? Yes and no.

Prior to 1982, the Government of Canada could, and did, extinguish aboriginal and treaty rights unilaterally. To conclude a treaty was like entering into a contract with a person who reserved the right to make changes to the contract without your consent, after both of you had signed it.

Thus Cockburn isn’t being grossly unfair when he speaks of agreements written in sand.

The legal landscape began to shift in 1973, when the Supreme Court of Canada brought down its ruling in the Calder case (Calder v. British Columbia (Attorney General)). The court ruled that aboriginal rights did not arise as a result of the negotiation of treaties. Aboriginal title — the most fundamental aboriginal right — is “derived from the Indians’ historic occupation and possession of their tribal lands.”1

In other words, the right was not bestowed by the legislature. It arises from a time prior to European contact.

The Supreme Court accepted Parliament’s authority to unilaterally extinguish aboriginal rights. Nonetheless, as a consequence of the Calder decision, the Government of Canada began to negotiate modern land claims agreements.

An even bigger development came about in 1982. Most Canadians are aware of the Constitution Act, 1982 primarily because it contains the Canadian Charter of Rights and Freedoms. But the Act also afforded constitutional protection to aboriginal and treaty rights:

PART II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
      (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
      (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
      (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The constitutional protection of treaty rights basically means, it is exceptionally difficult for the Government of Canada (or any of the provincial governments) to infringe upon or extinguish those rights. With ordinary legislation, Parliament can make changes just by passing amending legislation. That’s the process Parliament used to unilaterally extinguish aboriginal rights.

Now that aboriginal and treaty rights have been constitutionally protected, the Government of Canada must obtain the consent of a First Nation in order to extinguish that First Nation’s rights.2 Either that, or amend the Constitution:  which is much more difficult than merely voting new legislation into effect.

In the post-1982 environment, with respect to modern land claims agreements, I hope it is no longer true to say, “Treaties get signed and the papers change hands / But they might as well draft these agreements in sand.”

I plan to adopt the title of Cockburn’s song and turn it into an occasional series here at I, Pundit.

I can’t talk about the specifics of the negotiations I’m engaged in. But perhaps, without divulging information that might put my employment in jeopardy, I can share my perspective on aboriginal law and modern land claims and self-government negotiations. All under the rubric of the ongoing “Indian Wars” — unresolved conflicts which arise from Canadian history, and continue to bedevil us in the present.

Will there never be an end to the Indian wars?

I hope and pray there will be — though perhaps it won’t be possible to achieve the goal in my lifetime.

~~~~~~~~~~~~~
1The quote is from a later judgement, Guerin v. The Queen (1984). In the passage quoted above, Justice Dickson is summarizing the court’s ruling in Calder.

2Parliament can still infringe (without extinguishing) aboriginal and treaty rights by means of legislation. But even infringement has become more difficult. Since 1982, Parliament must be prepared to demonstrate that any infringement of aboriginal or treaty rights is justified. That was the ruling in another Supreme Court of Canada decision, Sparrow v. The Queen (1990):  “The Court discusses some factors that might be considered in the context of justification — factors such as the degree of impairment of the right, whether there has been compensation in situations of “expropriation”, and whether there has been consultation with Aboriginal peoples about the intent to regulate — but the Court is also careful to say that appropriate factors are to be developed on a case-by-case basis.”

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2 Comments (+add yours?)

  1. Zayna
    Jun 15, 2009 @ 17:52:37

    I too love Bruce Cockburn…

    Though I have to admit that my knowledge of his music comes from his most popular song from the 80’s when I was a teenager.

    “If I had a rocket launcher”

    And there was something that always appealed to my poetic spirit and passive aggressive nature about the following lyrics…

    “Some sonofabitch would die.”

    I was only in my early teens when I first heard them, but his lyrics struck me as being representative of the things we should be talking about.

    Thanks for the reminder.

    Reply

  2. Stephen
    Jun 15, 2009 @ 19:07:53

    Cockburn is a poet who happens to set his words to music. There are dozens of lines that I love in his lyrics.

    “Got to kick at the darkness ’til it bleeds daylight.” Lovers In A Dangerous Time

    “All the diamonds in this world / That mean anything to me / Are conjured up by wind and sunlight / Sparkling on the sea.” All the Diamonds

    “Little round planet / In a big universe / Sometimes it looks blessed / Sometimes it looks cursed / Depends on what you look at obviously / But even more it depends on the way that you see.” Child Of the Wind

    “Sometimes the best map will not guide you / You can’t see what’s round the bend / Sometimes the road leads through dark places / Sometimes the darkness is your friend.” Pacing the Cage

    Those come to mind after a moment’s reflection. And — not so profound, but a personal favourite nonetheless —

    “I watch the sway of skirts / Think of moist, spice forests.” Understanding Nothing

    Reply

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