Vancouver Olympics knit themselves a controversy

The 2010 winter Olympics, which begin about four months from now, will be held in Vancouver, B.C.

The local Olympic organizers have been working very hard to obtain the support of B.C.’s First Nation communities. The potential exists for international controversy because nearly the entire province is subject to unresolved First Nation land claims. (There are 203 First Nations in B.C., mostly quite small; fewer than 20 of them have treaties.)

Oops! The organizers have managed to offend the Cowichan nations by producing an Olympic sweater for Canada’s athletes to wear. According to the Cowichan, the sweater is a knock-off:

Authentic Cowichan Sweaters are produced by Canada’s West Coast Salish Natives in the Cowichan Valley. […]

No two sweaters are alike. The fleeces come in natural colors and shades of brown, black and white. As the black sheep matures, the wool changes from brown to gray with aging, like human hair. All of the dark shades in ‘Genuine Cowichan’ sweaters come from this unique black sheep and are not dyed. For over one hundred years Salish women have been knitting clothes and blankets for their families. The wool is carefully carded to prevent damage to the fibers and is still hand spun. The sweaters are hand-knitted with this pure, un-dyed, virgin wool. The natural oils are left in the wool of the authentic Cowichan Sweater to retain the water-resistant qualities of wool. […]

This is a gift that has been presented to royalty and heads of state.

2010 winter Olympics sweaterHere’s a photo of the offending sweater, modelled by one of Canada’s athletes. The geometric designs and the moose are typical of a Cowichan sweater. The Cowichan say that the colours are also typical of their designs (although the red is surely an exception).

Also relevant:  in 2005, Premier Gordon Campbell presented an authentic Cowichan sweater, adorned with the Olympic rings, to IOC president Jacques Rogge. It’s relevant because it establishes a pre-existing relationship between the Cowichan sweater and the 2010 winter games.

I don’t know whether the Olympic organizers, or The Bay, intended that anyone would mistake their sweater for a Cowichan. But it’s certainly true that corporations are not above the exploitation of traditional handiwork in pursuit of profit. (The sweaters may be worn by the athletes, but you can bet they’ll also be for sale at The Bay.)

This instance of transformation of a traditional practice offends me. In western terminology, we might label it “appropriation of culture”. It’s colonialism in a contemporary form.

“What would happen if Cowichan started marketing an Olympic lookalike sweater in response?” Hinkley wondered. “I imagine they would be all over us, spouting ‘trademark’ and ‘patent’ and all of this.” She asks anyone who feels snubbed by the Bay’s choice of sweater to wear their Cowichan sweater to Olympic events.

(Re)inventing tradition

Here’s an interesting piece of logic from Ezra Klein :

Things were different then, and because of that, they need to be different now.

The point is, society must adapt its established institutions to keep pace with other changes in the society.

I tend to agree with Klein’s logic, but I don’t think the proposition is inarguable. Maybe some institutions (or values, or principles, or mores) should remain constant, even while other elements of society are in flux.

Klein is commenting on what might be called a Founding Father fetish:

All the founder-worship is a bit bizarre. These guys kept slaves. They whored around. They loved France. They wore wigs. Some of them didn’t even believe in the divinity of Jesus Christ. For all that, they wrote an uncommonly concise and effective constitution, but they were men, not gods. America was not a superpower. It did not have 50 states or 300 million people. There was no Internet or lobbying industry. Senators did not have Twitter accounts. Women could not vote. Facebook did not exist. As such, Sarah Palin could not have been foreseen.

That’s where Klein interjects, “Things were different then, and because of that, they need to be different now.” In particular, Klein questions the arrangements that produce a federal government that is relatively weak (vis-à-vis state governments).

Lots of people think things are fine just as they are. If the federal government is weak, it’s because because the Fathers, in their great wisdom, designed the system that way. Maybe we shouldn’t tinker with the arrangement, even if “things are different now.”

That’s how conservatives tend to think — not least, religious conservatives. Religious conservatives have their own version of the Founding Father fetish, except the Fathers are people like Moses, Jesus, and Mohammed.

In my own, idiosyncratic way, I am a follower of Jesus. Nonetheless, I tend to agree with Klein’s logic. “Things are different now” implies that even if we keep on doing the same things, we’ll get different results.

For example, if I wear a swastika on my sleeve in India, I am making a cosmological statement, and bystanders will approve. If I wear a swastika on my sleeve in Jerusalem, I am making a political statement — and bystanders will be infuriated.

Same swastika, different social context, different result.

Klein’s statement offers a point of entry to a topic I’ve been meaning to discuss on the blog.

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:


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.”

Homeless hero

What do Faron Hall and Susan Boyle have in common? They both exceeded people’s low expectations of them.

You’ve probably heard of Susan Boyle, whose audition on Britain’s Got Talent shocked everyone. Who would have thought that a homely woman could have a beautiful singing voice?

Faron HallFaron Hall is a homeless, Dakota man who saved the life of a drowning teenager. Who would have thought that a homeless man would risk his own life to save the life of a stranger?

I’m not imagining this. People interviewed on TV were uniformly shocked that a homeless man would emerge as the hero of this life-and-death story. But why?

Aren’t homeless people human beings, the same as you and me? In a crisis, shouldn’t we expect a homeless person to respond as any other human being would respond?

Hall’s story, like Susan Boyle’s, is an example of the halo effect:

People seem not to think of other individuals in mixed terms; instead we seem to see each person as roughly good or roughly bad across all categories of measurement.

The halo effect occurs when our first impression of someone (e.g. a beautiful woman) is positive, and we assume good things about her in other respects. For example, she might impress a prospective employer and receive a job offer despite a weak resume.

The reverse halo effect occurs when our first impression of someone (e.g. a homeless man) is negative. Reflexively we assume there’s no good in him. In Mr. Hall’s case, that would be a big mistake:

Mr. Hall […] was sharing a beer with a friend, Wayne Spence, downriver from the bridge when he heard a loud splash. In a light-hearted mood after a long day of collecting cans, he remembers saying, “Damn, that must have hurt.”

But humour turned to shock when they spotted the teen screaming for help 40 metres out on the fast-moving river. Living life on the margins helped him decided what to do next. “People ignore me,” he says. “But I don’t ignore them. We look out for one another out here.”

He threw off his backpack, kicked off his old black dress shoes and jumped into the chilly water.

“When I got to the kid, he started fighting me,” says Mr. Hall, pointing to a bloody scar on his forehead where the teen socked him. “I had to smack him back, tell him, ‘Hey, I’m here to help you.'” He’d pulled the teen within 20 metres of shore when his adrenalin stalled and fatigue set in. “It’s too damn cold,” he remembers yelling to Mr. Spence, who was standing along the shore.

“You can’t let go, you can make it,” Mr. Spence yelled back, before wading up to his knees in the water to drag his friend and the petrified teen to the shore.


First Nations art: a hopeful development

Kent Monkman, Icon for a New EmpireKent Monkman, Icon for a New Empire


TORONTO.- From images of Apache kids with skateboards to traditional tribal graphics, Remix: New Modernities in a Post-Indian World explores the challenges of being indigenous and an artist in the 21st century.

Opening at the Art Gallery of Ontario on April 4 and continuing through August 23, Remix features the work of 15 artists from Canada, the United States and Mexico. This generation of artists doesn’t feel compelled to reflect a traditional tribal identity in their work. Instead, they are developing a post-Indian articulation of the aboriginal identity, one that features new ideas and challenges old perceptions.

Artists tend to be at the cutting edge of historical developments. Perhaps this generation of native Americans will take a novel, “remix” approach to the social challenges faced by their communities.

Where’s Waldo?

I see I haven’t posted anything new since March 7. That may be the longest gap between posts since I started blogging in April 2005.

I haven’t lost the will to blog. I’m just overwhelmed with work at the moment, and I’m too fatigued to write blog posts when I get home.

I’m in the final weeks of negotiations on a self-government agreement with a First Nation in Manitoba. That’s about as much information as I can provide, for reasons of confidentiality.

As we approach the point at which we can initial the final agreement, I’m suddenly negotiating on multiple fronts:  with the First Nation (of course), with the legal-technical working group (the lawyers who evaluate the text from a legal drafting perspective), and with the Department of Finance and other government departments. This means that I’m continually revising the agreement and then presenting the revisions to the other interested parties.

Sooner or later, there’s got to be an end to this “iterative” process. It only seems endless.

Ambitious for 2009

I don’t make New Year’s resolutions. I don’t remember ever making one — until this year. The resolution is to do some heavy reading on aboriginal law and (more generally) philosophy of law.

I’m a negotiator. My job is to negotiate self-government agreements with First Nations (aka Indian tribes) and Inuit groups. I don’t blog about work very often because the negotiations are confidential.

I’ve only been in my current position for one year. My earlier position was with a different department, Health Canada. There, I was still involved in self-government negotiations:  for example, I played a small role in the self-government component of the Labrador Inuit Association land claim negotiations. But the job at Health Canada mostly consisted of policy analysis. The face-to-face negotiations are always led by Indian and Northern Affairs Canada.

My first year at INAC has gone very well. I may soon have an opportunity to move into a senior negotiator position.

One of the quirks of my personality is that I like to study academic texts. I used to spend a lot of my spare time reading theology. I’ve lost some of my passion for that topic — since it doesn’t have much connection to my day-to-day life anymore — and I’ve never really found anything to replace it.

Until now. In my mid-forties, I’ve finally arrived at a job that seems to fit me to a “T”. And I like to know more than is strictly necessary in order to do my job.

I plan to study relevant court decisions, articles on aboriginal law, etc. But I also have some half-formed ideas percolating in my mind, and I plan to try to flesh them out. That would involve some reflection on the philosophy of law, with the goal of bringing some of the abstract theory into connection with my personal experience of negotiating actual legal texts.

Thus my New Year’s resolution is to spend less time poking about in the blogosphere and more time reading actual books.

It may reduce the number of posts I write here at [A]mazed and [Be]mused. But I’m ambitious to make the most of my new career:  not merely to skate across the surface of it, but to develop some modest expertise in my field.

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