Me, watching the Pike swim upstream. Earlier that day we had also seen, up-close, a beautiful Beaver. Ah the north
Friday, July 6, 2007
Spring 2007 Moose River Trip
Me, watching the Pike swim upstream. Earlier that day we had also seen, up-close, a beautiful Beaver. Ah the north
Picnic
Took this one in Moose Factory, Ontario, 2007
Doesn't this just remind you of those wonderful summer days of yester-year?
(Photo by Tom Marshall)
An Essay concerning Radicalization in Canada’s Aboriginal Communities
‘See No Evil, Hear No Evil’
An Exploration of Radicalization in Canada’s Aboriginal Communities
By Thomas D Marshall
In the post-9/11 era it is easy to forget that Canada’s democracy has problems. Salafi Jihad, or the Long War against international terrorism grab nearly every headline of our provincial and national press – and in the ‘dog-eat-dog’ world of newsprint, you give the people what they want – the comfort that the struggle is out there, not here. And to be sure this coverage no doubt reflects our conception of Canada as a largely peaceful, quiet nation. Yet, Canadians have, in so many ways, come to believe that Canada has fulfilled the greatest promise of western democracy without a hitch. We have come to believe that all Canadians are endowed with the power to affect the circumstances of our lot in a meaningful and peaceful way. To be sure, for most people, to a great extent, this is no doubt the reality: That through democratic institutions like representative government we can and often do seek meaningful redress to most grievances, and failing that, we can seek redress through an impartial and rights-protective judicial system. This image however, masks the burdensome reality that even within this flagship of a First-world nation there are those who no longer believe in the promise of western democracy. There are those who feel collectively alienated, ridiculed, and politically impotent by a system that fails to represent them. They are tired of fighting for rights in courtrooms where little is resolved, and much is lost. These few want radical change, by whatever means necessary. That is a problem.
This reality is most markedly the case for Canada’s least well off group, its Aboriginal communities. The reasons for this are many. Colonization, attempted assimilation and inaction on the part of the Canadian Government have left deep wounds that have served to separate mainstream Canadian society from Aboriginal peoples. They have become a minority in their own land and fit oddly into, and seem out of place in, Canada’s Eurocentric modernity.
Such situations are, of course, not conducive to peace and stability on the homefront. Anyone who remembers the Oka crisis of 1990 knows that if these domestic problems are not dealt with in a timely and fair manner the potential for disaster exists. But, more recent events and trends suggest that it is not simply violence that Canada should take caution against, but also the changing ideological and philosophical movements that are taking hold in Canadian Aboriginal communities: The radicalization of thought, which precedes action. Writers like Taiaiake Alfred express the essence of this change perfectly. He states, for example, that “conventional and acceptable approaches to making change are leading us nowhere.” (Emphasis Added) Alfred, a member of the Mohawk Nation, is one of many suggesting “intensive and profound resurgence…not moderation…[and] grounded defiance…agitation…[and the] development of a collective capacity for self-defence.” The resurgence of ‘Red Power’ and Warrior movements and steady rise in the sometimes-violent confrontations between Aboriginal communities over the past 40 years will eventually turn Government attention to domestic potentials for radicalization. It must.
Radicalization then, so common in the far-flung corners of the globe, should not distract Canadians from its potential to become a problem here. ‘We’ have collectively forgotten that radicalization is a process not confined to any particular place. It is not the sole province of Islam, or the product of psychopathic logic, but a response to real stimuli that can be fostered through both poor foreign and domestic policy decisions alike. As Edward Muller rightly suggests, “people who take part in acts of civil disobedience or political violence are discontented about something. That is a truism.”
This paper will therefore attempt to address this developing Canadian situation and make the argument that the time for neglecting the rise of radicalism in Aboriginal communities has past. This will be accomplished through the amalgamation of different knowledge bases that will help illustrate this thesis. Firstly, this paper will delve selectively into the historical legacy of interactions between Aboriginal communities and the Canadian government to illustrate the progenitors of underlying frustrations nascent in aboriginal communities. In line with this, this paper will then outline how Canada’s Aboriginal population fairs today, as a result of this historical legacy. Secondly, it will focus on the rise of Aboriginal political and legal confrontation since the 1960’s and explore how Political Science theories of radicalization can help us understand these now shifting tactics. Specifically, this paper will look into Depravation and Alienation Theories in order to show how these events have helped change the character of Native struggle away from one merely for civic inclusion and recognition. In the third and concluding section, this paper will highlight some of the problems of inaction and suggest alternative courses for resolution. The essay will conclude that if left lingering and unresolved, the Aboriginal struggle has the potential to develop into a full blown radical movement, where confrontation, and more violent episodes are likely to occur. We have, it will be shown, reached the tipping point.
1) “The Noble Savage”
(This paper begins with a selective recount of Canada’s history of Native-European dealings. The hope is to convey to the reader a sense of the injustice suffered by Canada’s Natives over the past four centuries. Though this is a well-worn method for exploring the ‘Aboriginal Question’ it is still the best route to understand the genesis of our current difficulties. For, as Margaret Atwood recently stated, “when you lose your narrative, you become lost, stuck in the present, disconnected… Memory is everything.”)
1.1) History: “Our Complete Humanity”
By the mid 19th century Natives in Canada had, to put it bluntly, outlived their usefulness. They were no longer needed in the ‘earthy’ fur trade or as ‘allies’ against other nations as a rapidly industrializing post-Victorian society took shape. As Michael Ignatieff suggests, “As soon as…settlers…expanded to sufficient size to compete effectively with aboriginal tribes, the settlers claimed exclusive titles to land, ignored treaty agreements, and pushed Native(s) into the hinterlands.” Indeed, by the mid 19th century Aboriginals could find few reflections of their traditional lives in anything that now surrounded them.
As Dickenson states in her book, Canada’s First Nations, “the imperial civil administration (of the 1850’s) for British North America was dominated by two ideas concerning Amerindians: that as a people they were disappearing, and that those who remained should be either removed to communities isolated from Euro-Canadians or else assimilated.” (Emphasis added) As ‘good Christians’ it was further thought that there was incumbent upon Europeans a duty to ‘civilize’ and ‘protect’ this “helpless race”. As ‘targets of an official assimilation policy’ natives would soon be forced into a state-managed regime bent on displacing, and then replacing, their culture and history.
In 1876 the first Indian Act was passed by the then newly formed Canadian Government as a means of centralizing control over Canada’s Native population. The Act was meant to “encourage the gradual civilization of the Indian Tribes in the Canadas…(and)…gradually remove all legal distinctions between (Indians) and Her Majesty’s other Canadian Subjects.” Through the Act, Native people would receive a registration number and be assigned to a ‘Band’ and reserve. The Band Council of each reserve would be uniform and councilors would be chosen by way of election – thus hastening the extinction of their tribal and inherent (and therefore uncivilized) systems of governance. The reserve lands themselves would remain under Crown control so that it could be occupied but never really owned by the Band or individual Native inhabitants.
These initial measures however soon developed into a full frontal assault on all-things Native. For example, the Aboriginal tradition of the Potlatch, a yearly event where Natives would exchange their possessions, was banned as “inimical to the concept of private property.” Totem Poles were similarly found to be opposed to Christian civilized values. Sun Dances - equally viewed as ‘uncivilized - soon too became prohibited activities.
By the turn of the last century Natives had become the most highly regulated people on the continent under a regime in which their input had not even been sought. To illustrate the repressiveness of this racist regulation one need not look very far. No Native could leverage capital, for example, against fixed assets because Natives were effectively banned from owning reserve lands. Passes were required of Natives who wished to venture off their reserve or even to visit another. This had the dual effect of stifling grassroots movements amongst Aboriginals and of hindering parents from visiting their offspring in off-reserve residential schools. Residential schools too, are an interesting phenomena (with which Canada has only recently come to terms). These schools were to be places of learning for Native children, away from the ‘backward’ cultures and languages of their extended families: They were in reality centers for abuse at the hands of state and church officials and places designed to alienate a new generation from their cultural lineage. And perhaps worst of all, from a legal and social justice perspective, Natives who wished to challenge the legality of their subjugation under this foreign regime, or challenge the abhorrent conditions in which they were forced to live, were barred from raising funds - to hire a lawyer for example - to aid in their defense. (This policy, initially implemented in 1927, was not repealed until 1951.)
By the turn of the 20th century the regulation of every aspect of Aboriginal life was complete, even if it had not ‘fully’ achieved its twin goals of isolation and assimilation. Many blamed the regime itself for failing to do either well. Others, of course, blamed the Aboriginals. Nonetheless, the comprehensive mishmash of rules, systems, political regimes, passes, bans, and ‘re-education’ (and resettlement) had indeed led Canada’s Aboriginals to the edge of society. The decision to “establish reserves with the aim of civilizing” these now largely landless and degraded peoples, as a “prelude to integration”, had largely failed to do the latter at all. Marginalized, destitute, and de-cultured, it is little wonder that these once proud masters of this entire continent now found themselves alienated, ridiculed, and politically impotent.
1.2)‘The trail of Tears:’
Canada’s First Nations Today
(I have chosen only to focus here on Reserves, Health and Education with good reason. While there are several issues in which the current disparity might be illustrated adequately, outlining ‘where one lives,’ ‘how one lives’, and how effectively one is ‘tooled in life’ encapsulates, I believe, the key progenitors of political unrest.)
Reserves:
The legacy of European colonization is plain to see for anyone who has ever visited a reserve. Almost without exception, they are islands of overt poverty in a sea of relative wealth. As Professor Morse of the University of Ottawa suggests, “the poverty and despair that grips…First Nations in Canada…is blatant, tragic, and depressingly (too) well documented.” (Emphasis Added)
One of the reasons for this is that reserve Aboriginals now inhabit (they most often do not own the land) a mere 0.48% of Canada’s total land mass. Often this renders persons living on such reserves a great “distance from markets and population centres…leaving the vast majority of First Nations in which the standard engines of economic self-sufficiency…are simply not viable.” Many of these reserves are also sparsely populated, with over half of Canada’s total reserve population inhabiting communities of less than one thousand persons. In 1990 the percentage of registered Aboriginals on social assistance was 42%; that is over two hundred times the overall Canadian average. In some reserve communities, employment is as low as a mere 10% - that is – 90% do not, or cannot find work.
Health:
Aboriginals are more often sick than other Canadians. On reserve Natives are six times as likely to develop Tuberculosis when compared to the overall Canadian population. Sexually transmitted diseases are ten times the Canadian average, while suicides are three times the national rate. Infant mortality, overall mortality rates, AIDS, Alcohol, Fetal alcohol syndrome, (SIDS), and gasoline fume abuse – all these factors plague remote Aboriginal communities at many times the rate of Canada’s population as a whole. To make matters worse still, almost all of these factors are not ‘diseases’ but symptoms of systemic failures in providing quality healthcare and preventing the social degradation and malaise that fosters such things as alcohol abuse and high suicide rates. Many of these ‘symptoms’ are, as the Royal Commission on Aboriginal Peoples suggested, an expression of “collective anguish” through which “a significant number of the Aboriginal people of this country [have come to] believe they have more seasons to die than to live.”
Education:
In education too, there continues to be great disparity. For example, fewer qualified teachers are available in outlying reserve communities, when compared to cosmopolitan areas. Many are also not representative of the Native children they teach. This leaves students in larger classrooms where frustration and disinterest in school are rife. Curriculum is another on-going problem. As Pauline Comeau suggests, “bureaucrats decide that an education program designed for a student in Toronto [is] adequate for an Indian child” in remote parts of the province. Given these facts however, it is not surprising then to find that nearly 40% of registered Natives have finished only grade nine (or below) as compared to just over 10% for non-Aboriginals. And while almost 15% of non-Aboriginals have completed university training, “only 3% of Indians…receive university degrees.”
2) Radicalization as a Process
The question, no doubt, that everyone should be asking at this point is; how does all this lead ideological radicalization? Or, how does this lead to Oka - or to calls for “radical Change” and an end to co-optation? How do we go from discussing reserves and healthcare policy to a current discussion of grassroots radical movements with unknown aims? It is true that many factors can contribute to the spawning of such things – and yet, the same factors at another time, or another place, might lead to nothing. How is one to know whether what we are dealing with is a lamb, or a wolf? This is, of course, the crux of the problem: Predicting where the ‘perfect storm’ will erupt, and where it will merely blow by.
At this point in our discussion, we now have a basic understanding of the frustrations that still plague Native communities. These are, as Professor Morse suggests, ‘blatant’ and all too well documented. But what this paper is interested in is what has turned this situation into the ‘perfect storm’. What other conditions have arisen in the past 40 years that are crucial, in this place, and at this time, to fomenting radicalism in these communities?
It is suggested here that there are three important factors that can be discerned from recent historical events. Firstly, there is the continuing presence of the underlying frustrations discussed above. Secondly, there have arisen greater expectations, through access to the justice and political systems, for hopes of more civic advancement than is realistic to expect from the dominant society, policies, and institutions. This has in turn led to a cycle of expectation and disappointment which has engendered collective feelings of alienation and contempt for modes of seeking justice through ‘the system.’ And, thirdly, that as a result of the above two factors, Canadians have witnessed over recent years a change in the aims of the Aboriginal struggle from one for civic inclusion and social justice, to one increasingly radical and separatist in its outlook. Since we have already discussed the first factor, this paper will now focus on the remaining two.
2.1) ‘Great Expectations’
(Alex De Tocqueville once stated that “it is not always when things are going from bad to worse that revolution breaks out.” For him, experience taught that the most ‘perilous’ moment was when a government sought to mend its ways. This theory has come to be known in many circles as the “de Tocqueville Paradox.”)
2.2) The Theory
Before discussing what has occurred “on the ground” over the past 40 years to both raise and crash Native expectations repeatedly, it is best to first outline why this investigation is important at all. Many political science ‘buffs’ are no doubt well aware of the “J-Curve” and other such similar theories, but the basic tenets and rationale are worth repeating – if only to highlight the past’s relevance to radicalization today and provide a theoretical framework through which we can better understand current trends.
In the wake of the 1960’s social upheaval there arose in the political science field a need to explain such phenomena. One theory that quickly gained widespread acceptance and variation was ‘Relative Deprivation’ (or similarly named: It has assumed several aliases over the past 40 years). Building on de Tocqueville’s ‘Paradox’ this theory stated that people revolt when their expectations exceed their achievements – or in other words – when one’s expectations are elevated but cannot be met. This theory hypothesized that people who undergo such events, experience ‘systemic frustration’ when an ‘intolerable gap’ exists between what they believe is deserved, and what actually results. Redress for the apparent ‘intolerable’ discrepancy is then channeled through political upheaval – both violent and non-violent.
In the 1970’s this basic theoretical perspective underwent many changes with some questioning whether other factors might be more relevant to determining the likelihood for radicalization or political violence. In 1973 Bernard Grofman, after looking over nearly a decade of research and study in relation to the J-Curve, proposed that what was more important than one sheer drop in expectation (the J-Curve) was the presence of persistent peaks and troughs in expectation and gratification (a V-Curve). This tugging back and forth of people’s hopes (in the present) produced, his experiments told him, greater frustrations than one single drop.
A short while later the J-curve again underwent minor surgery through the influential work of Abraham Miller. In his study of the J-Curve and the Black urban riots of the previous decade Miller added to Grofman’s findings by highlighting the importance of prolonged “extreme fluctuation and ambiguity” of expectations in affected communities. Radical fluctuations, he found, engender “stress” which leads to “frustration” which in turn leads to “aggression”.
Six years after Miller, Edward Muller proposed yet another twist to the J-Curve saga – each theorist building on the work of the previous. His research, in part, rejected much of the dogma of the previous twenty years in Relative Deprivation Theory. Instead of peaks and troughs, or sheer drops, Muller suggested that what was in fact happening was relatively simple – people who radicalized simply felt alienated. (This hypothesis, in many ways, confirmed Both Miller and Grofman’s proviso’s to the original J-Curve theory.) As he stated, “alienation stands out among all the explanatory variables as the strongest correlate of aggressive Political Participation across the general Public…” What Muller meant by alienation however, was not simply disinterest or individual-specific disaffection, but rather diffuse collective alienation – a clear perception of a lack of “trustworthiness, competence, and integrity (and unresponsiveness) [on the part of] political authorities.”
2.3) The J-Curve and Aboriginal Radicalization
When we amalgamate the above theories of radicalization into one overarching framework then, we find that the process for radicalization can be, at certain times, and at certain places, relatively simple: People will, when ‘conventional and acceptable’ approaches to making change lead nowhere, embark upon…radical step[s].” The question, indeed, then becomes: does this apply to the Aboriginals of Canada? To a selective look at this we now turn.
2.4) Peaks, Troughs and their Results: The Aboriginal Context
The challenge in this section is not to simply illustrate to the reader that the path towards the radicalization of thought follows a logical and perceptible trajectory (though no doubt that is also an important aspect of this paper) but to also demonstrate how, in the broader context, Government and Court decisions and Royal Commissions have helped foster this shift in thinking. It is submitted that it has been the singular failure of both the Courts and Government of Canada to live up to its commitments, to achieve what it promises, that has led us to the result that some feel alternatives to acceptable modes of redress are necessary.
Peaks:
It is relatively easy to find collective ‘peaks’ (in expectations for civic inclusion) with correlative troughs within the contemporary Aboriginal community. In fact, though it reads as somewhat of a laundry list, these events highlight the tempo and current that has driven legitimate expectation and fostered concurrent disillusionment. We might, for example, conveniently begin with the 1951 groundbreaking removal of restrictions for raising funds for pressing Native causes against the federal government. Natives in Canada became enfranchised federally shortly after, in 1960, thus giving them a truly democratic voice in the branch of government responsible for their affairs. The 1966 Hawthorn Report, A Survey of Contemporary Indians in Canada, suggested that more was needed from the Federal Government in areas such as education and health, while less emphasis was needed on assimilation. It suggested that Indians be regarded as ‘Citizens-plus’ – that is a “group with rights beyond other Canadians” due to their status as original inhabitants. Throughout the years 1968 and 1969 Canada’s Federal Government conducted widespread consultations with Native leaders across Canada for input on proposed changes to the Indian Act. For many Aboriginals, these consultations were the “first time a minister had ever sat and talked with them”. In 1970, Aboriginal groups, (many of which had been the product of the consultative grassroots forums for the 1969 proposal) succeeded in forcing the Canadian Government to abandon a 1969 Whitepaper that urged the government to do away with the Indian Act. Some of these groups, “grounded in the philosophy and tactics of the American rights movement,” became increasingly empowered, and staged sit-ins and rallies and even, briefly, armed resistance against Quebec Police at Kahnawake in 1973. Aboriginal title to land was that same year recognized in Calder as a legal right derived not from European law, but from the fact of prior occupation. This helped pave the way for Aboriginal land claims based not on legal doctrine, but on proof of historical occupation. In 1982, Aboriginal groups such as the National Indian Brotherhood (NIB) succeeded in forcing into the Canadian constitution a provision recognizing ‘existing’ aboriginal treaty rights. In line with this victory, Prime Minister Trudeau also offered “Native peoples inclusion in a series of First Ministers Conferences (FMC’s)…” in which, some years later, the provinces and Prime Minister of Canada signaled their willingness to recognize the inherent right of Natives Self-Government. In 1990, the Sparrow case purported to restrict governmental infringements of Native land rights to “compelling and substantial” legislative objectives. This, it contended, would protect Native lands from illegitimate infringements and promote Aboriginal control over reserve lands. In 1996 the epic, and long-awaited Royal Commission on Aboriginal Affairs (RCAP) submitted its findings and recommendations – among them the recommendation that there be created an Aboriginal parliament as Canada’s third level of government. The RCAP also suggested such things as the redistribution of massive swaths of Canada’s land-base. This would, it was thought, facilitate Aboriginal economic self-sufficiency. Then, in the 1997 case of Delgamuukw Canada’s Supreme Court once again further refined its conception of Aboriginal title and noted the encompassed right to exclusive use and occupation of reserve lands. In 2000 the Canadian government ratified the Nisga’a Land Claims Agreement that led to the creation of a municipal-style government for the Nisga’a – it was the first such land claims agreement in British Columbia. The agreement included self-governing control over 1,900 square kilometers and delivered nearly 200 million dollars in compensation for the Nisga’a. It further devolved signifacant powers to the local Aboriginal government over local many matters.
Through the above selection of monumental historical events and decisions one is left with little wonder that expectations run high. Through this well-groomed ‘spin’ of understanding, it appears that Aboriginals in Canada are enfranchised “citizens-plus” who have constitutionally protected rights and judicially recognized claims to potentially vast swaths of Canada’s landscape. This view is backed by a legion of Royal Commissions that suggest that a fundamental restructuring of Canada’s political and governmental structure is imminent and needed. And Government officials confidently point to successes like the Nisga’a (or James Bay, or Nunavut) that its recognition of the inherent right of self-government is indeed translating into concrete results. (This, of course, is the image many Canadians like to project; it is theangelic image that we see in our reflection. But there can be no mistake about it – it is mere illusion, and many know it.)
Troughs:
Without more detail, it might simply be stated here that one of the greatest ‘troughs’ experienced by Natives (despite what appears to be the case above) is the tenacity of the Status Quo. As Michael Ignatieff suggests, many are “making a good living out of rights talk. But, are things getting better in Davis Inlet and Burnt Church?” The facts expressed in this paper in section 1.2 also speak volumes in favour of this conclusion - but the unapologetic resilience of the status quo plays itself out through concrete examples as well as in the abstract. For example, in regards to self-government, much remains the same today as it was 40 years ago. The right of self-government, fostered in the Proclamation of 1763, and affirmed in constitutional talks by all levels of government during the 1990’s, has yet to become widely implemented. The “tiny percentage” of traditional lands now under a municipal-style form of self-government, such as is exercised in through the Nisga’a land claims agreement, should hardly be considered a victory for the forces of change. Royal Commissions similarly lay plain the stunning rein of the status quo. For example, the 1966 Hawthorn Report, the 1983 Penner Report, and the nearly 4000 page 1996 RCAP report all say essentially the same thing: “the notion of integration and assimilation [are] not reasonable avenues to pursue” – “that Indian First Nations…[should] be recognized and treated as equal to the provinces in all respects” – and that “Aboriginal Peoples…are unique and…have a right to governmental autonomy.”
But if the politicians seem bad, it is worse when Natives seek redress from courts only to find their rights pontificated away. For example, though Delgamuukw helped refine the legal meaning of Aboriginal title, the case also largely destroyed the gains made in other cases like Sparrow. In Sparrow the court appeared to narrow the range of justifications governments could use in seeking to infringe Native title. But in Delgamuukw, Lamer C.J.C. wrote:
“In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad…In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and settlement of foreign populations to support those aims…(among more would justify infringement).” (Emphasis added)
Given the Chef Justice’s ‘opinion’ it did not take long for this single Aboriginal victory to turn into a resounding, and far-reaching, defeat for the long-term protection of Aboriginal rights.
2.5) The Results
The result of these peaks and troughs is that today Canada’s Aboriginal communities are a “tinderbox.” These communities have become “politicized and politically-conscious” through the process of raising (and real) expectations - and yet remain places in which its members feel politically “muted” because of a lack of “genuine redress”. This is a dangerous mix - one where the democratic political institutions that normally provide “opportunities for citizens to bring about peaceful change” are viewed as largely blocked. This view has, as suggested through the J-curve analysis , propelled many Native elites to shift tactics, “from articulating grievances to pursuing an organized…political battle…[which will] overthrow [their] unlivable existence [in favour of] decolonization.” It has, in other words, propelled many disaffected Aboriginals to seek alternatives because of the perceived failings of institutions and “legalist strategies.” This has in turn led to an increase in the prevalence of, and belief in the viability of, Aboriginal protests that fall outside the normal and widely accepted routes for redressing grievances. In this area the work of Howard Ramos is particularly interesting; his survey of the rates of Aboriginal protest incidents over the past 40 years confirms that “the first dramatic increase in the number of Aboriginal protests…occurs in the late 1960’s…followed by an explosion of contention in 1989 and then again in 1990…” Aboriginals are increasingly resorting to occupations, blockades, and other acts of civil disobedience because, as suggested by the J-Curve, Government and Court decisions and Royal Commissions have unwittingly helped foster this shift in thinking by failing to live up to what it promises to deliver. Indeed, this is the result: “After…years of federal inaction…Canada is at a crossroads between co-operation and conflict.”
Conclusions
Alex de Tocqueville was exactly right in his observations about the causes of the French Revolution. His suggested that the “most perilous moment for a bad government is when it seeks to mend its ways” - when it seeks to extend, piece by piece, to previously disenfranchised members, a voice and stake in the continuity of the ‘old regime.’ It no doubt becomes a high-stakes game when government promises to do this because what is often at risk is the greatest promise of liberal democracy: That all of us be endowed with the power to affect the circumstances of our lot. That through democratic institutions like representative government we might seek peaceful redress, and, failing that, that we might alternatively find redress through the courts: That impartial body which is charged with the duty of shielding us from injustice and capable of striking down those who would seek to dispossess us of our power.
If this paper is correct that the fulfillment of this promise has largely been denied, and if Tocqueville is right, then it is both easier to understand the problem, and yet more difficult to find a solution to the ‘Aboriginal question.’ According to this ‘de Tocquevillian paradox’ Canada now finds itself in the position of having extended this lofty promise to many who no longer believe in its worth. Does this mean then that Canada has surpassed the ‘tipping point’ and waded into the unchartered and dangerous waters the J-Curve suggests exists on the other side of the ‘intolerable gap’? That is more difficult to predict. While maintaining the status quo will undoubtedly “result in [a] faster deterioration of the overall situation of Aboriginal people and relations between them and other citizens” there are hopeful signs that it is still not too late. Even many Aboriginal leaders and elite advocating radical change still refrain from legitimizing violence as a means to an end. Indeed, more often than not the question left unanswered is not why Aboriginals protest, but why they remain largely committed to non-violent peaceful means of resistance. As Richard Powless tells us, “terrorism has always been an option for First Nations…we do not have much political power…[but] we haven’t chosen that option. Of course, the answer to that question may be succinctly captured in the comments of Chief Justice Lamer: “Let's face it, we're all here to stay.”
But, if Chief Justice Lamer is right, and getting along seems the only answer, it is clear from the above that Canada has much to learn. One great part of the problem is, clearly, that Canada has failed to understand the ‘Native problem’ from the viewpoint of Aboriginals. Overwhelmingly, Canada’s government has signaled through its words, and at times through its actions, a desire to include Aboriginals in sharing the fruits of this democratic nation. But if belonging means being understood, sharing a common and linked memory, and having a stake in this not-so ancient regime, Canada must be prepared to implement its promises in full. It is the presupposition of belonging that we all share some sense of ‘common condition’ but Canada can hardly admit to this when there remain those who feel legitimately alienated, ridiculed, and politically impotent.
This situation is, of course, not conducive to peace and stability. That is why the ‘road’ has been so bumpy thus far. The resurgence of Red Power and Warrior movements and the steady rise in confrontations between Aboriginal communities over the past 40 years will eventually turn Government attention to domestic potentials for radicalization, but it should not be wait until we have crossed this Rubicon and cannot turn back. The J-Curve suggests that the relationship between expectations and reality is real and perceptible, and we ignore this at our own peril. That is why radicalization, which is so common in the far-flung corners of the globe, should not be distracting Canadians from its potential to become a problem here. ‘We’ have collectively forgotten that radicalization is a process not confined to any particular place. It is not the sole province of Islam, or the product of psychopathic logic, but a response to real stimuli that can be fostered through both poor foreign and domestic policy decisions alike. It is time to act now, before it becomes too late.
An Exploration of Radicalization in Canada’s Aboriginal Communities
By Thomas D Marshall
In the post-9/11 era it is easy to forget that Canada’s democracy has problems. Salafi Jihad, or the Long War against international terrorism grab nearly every headline of our provincial and national press – and in the ‘dog-eat-dog’ world of newsprint, you give the people what they want – the comfort that the struggle is out there, not here. And to be sure this coverage no doubt reflects our conception of Canada as a largely peaceful, quiet nation. Yet, Canadians have, in so many ways, come to believe that Canada has fulfilled the greatest promise of western democracy without a hitch. We have come to believe that all Canadians are endowed with the power to affect the circumstances of our lot in a meaningful and peaceful way. To be sure, for most people, to a great extent, this is no doubt the reality: That through democratic institutions like representative government we can and often do seek meaningful redress to most grievances, and failing that, we can seek redress through an impartial and rights-protective judicial system. This image however, masks the burdensome reality that even within this flagship of a First-world nation there are those who no longer believe in the promise of western democracy. There are those who feel collectively alienated, ridiculed, and politically impotent by a system that fails to represent them. They are tired of fighting for rights in courtrooms where little is resolved, and much is lost. These few want radical change, by whatever means necessary. That is a problem.
This reality is most markedly the case for Canada’s least well off group, its Aboriginal communities. The reasons for this are many. Colonization, attempted assimilation and inaction on the part of the Canadian Government have left deep wounds that have served to separate mainstream Canadian society from Aboriginal peoples. They have become a minority in their own land and fit oddly into, and seem out of place in, Canada’s Eurocentric modernity.
Such situations are, of course, not conducive to peace and stability on the homefront. Anyone who remembers the Oka crisis of 1990 knows that if these domestic problems are not dealt with in a timely and fair manner the potential for disaster exists. But, more recent events and trends suggest that it is not simply violence that Canada should take caution against, but also the changing ideological and philosophical movements that are taking hold in Canadian Aboriginal communities: The radicalization of thought, which precedes action. Writers like Taiaiake Alfred express the essence of this change perfectly. He states, for example, that “conventional and acceptable approaches to making change are leading us nowhere.” (Emphasis Added) Alfred, a member of the Mohawk Nation, is one of many suggesting “intensive and profound resurgence…not moderation…[and] grounded defiance…agitation…[and the] development of a collective capacity for self-defence.” The resurgence of ‘Red Power’ and Warrior movements and steady rise in the sometimes-violent confrontations between Aboriginal communities over the past 40 years will eventually turn Government attention to domestic potentials for radicalization. It must.
Radicalization then, so common in the far-flung corners of the globe, should not distract Canadians from its potential to become a problem here. ‘We’ have collectively forgotten that radicalization is a process not confined to any particular place. It is not the sole province of Islam, or the product of psychopathic logic, but a response to real stimuli that can be fostered through both poor foreign and domestic policy decisions alike. As Edward Muller rightly suggests, “people who take part in acts of civil disobedience or political violence are discontented about something. That is a truism.”
This paper will therefore attempt to address this developing Canadian situation and make the argument that the time for neglecting the rise of radicalism in Aboriginal communities has past. This will be accomplished through the amalgamation of different knowledge bases that will help illustrate this thesis. Firstly, this paper will delve selectively into the historical legacy of interactions between Aboriginal communities and the Canadian government to illustrate the progenitors of underlying frustrations nascent in aboriginal communities. In line with this, this paper will then outline how Canada’s Aboriginal population fairs today, as a result of this historical legacy. Secondly, it will focus on the rise of Aboriginal political and legal confrontation since the 1960’s and explore how Political Science theories of radicalization can help us understand these now shifting tactics. Specifically, this paper will look into Depravation and Alienation Theories in order to show how these events have helped change the character of Native struggle away from one merely for civic inclusion and recognition. In the third and concluding section, this paper will highlight some of the problems of inaction and suggest alternative courses for resolution. The essay will conclude that if left lingering and unresolved, the Aboriginal struggle has the potential to develop into a full blown radical movement, where confrontation, and more violent episodes are likely to occur. We have, it will be shown, reached the tipping point.
1) “The Noble Savage”
(This paper begins with a selective recount of Canada’s history of Native-European dealings. The hope is to convey to the reader a sense of the injustice suffered by Canada’s Natives over the past four centuries. Though this is a well-worn method for exploring the ‘Aboriginal Question’ it is still the best route to understand the genesis of our current difficulties. For, as Margaret Atwood recently stated, “when you lose your narrative, you become lost, stuck in the present, disconnected… Memory is everything.”)
1.1) History: “Our Complete Humanity”
By the mid 19th century Natives in Canada had, to put it bluntly, outlived their usefulness. They were no longer needed in the ‘earthy’ fur trade or as ‘allies’ against other nations as a rapidly industrializing post-Victorian society took shape. As Michael Ignatieff suggests, “As soon as…settlers…expanded to sufficient size to compete effectively with aboriginal tribes, the settlers claimed exclusive titles to land, ignored treaty agreements, and pushed Native(s) into the hinterlands.” Indeed, by the mid 19th century Aboriginals could find few reflections of their traditional lives in anything that now surrounded them.
As Dickenson states in her book, Canada’s First Nations, “the imperial civil administration (of the 1850’s) for British North America was dominated by two ideas concerning Amerindians: that as a people they were disappearing, and that those who remained should be either removed to communities isolated from Euro-Canadians or else assimilated.” (Emphasis added) As ‘good Christians’ it was further thought that there was incumbent upon Europeans a duty to ‘civilize’ and ‘protect’ this “helpless race”. As ‘targets of an official assimilation policy’ natives would soon be forced into a state-managed regime bent on displacing, and then replacing, their culture and history.
In 1876 the first Indian Act was passed by the then newly formed Canadian Government as a means of centralizing control over Canada’s Native population. The Act was meant to “encourage the gradual civilization of the Indian Tribes in the Canadas…(and)…gradually remove all legal distinctions between (Indians) and Her Majesty’s other Canadian Subjects.” Through the Act, Native people would receive a registration number and be assigned to a ‘Band’ and reserve. The Band Council of each reserve would be uniform and councilors would be chosen by way of election – thus hastening the extinction of their tribal and inherent (and therefore uncivilized) systems of governance. The reserve lands themselves would remain under Crown control so that it could be occupied but never really owned by the Band or individual Native inhabitants.
These initial measures however soon developed into a full frontal assault on all-things Native. For example, the Aboriginal tradition of the Potlatch, a yearly event where Natives would exchange their possessions, was banned as “inimical to the concept of private property.” Totem Poles were similarly found to be opposed to Christian civilized values. Sun Dances - equally viewed as ‘uncivilized - soon too became prohibited activities.
By the turn of the last century Natives had become the most highly regulated people on the continent under a regime in which their input had not even been sought. To illustrate the repressiveness of this racist regulation one need not look very far. No Native could leverage capital, for example, against fixed assets because Natives were effectively banned from owning reserve lands. Passes were required of Natives who wished to venture off their reserve or even to visit another. This had the dual effect of stifling grassroots movements amongst Aboriginals and of hindering parents from visiting their offspring in off-reserve residential schools. Residential schools too, are an interesting phenomena (with which Canada has only recently come to terms). These schools were to be places of learning for Native children, away from the ‘backward’ cultures and languages of their extended families: They were in reality centers for abuse at the hands of state and church officials and places designed to alienate a new generation from their cultural lineage. And perhaps worst of all, from a legal and social justice perspective, Natives who wished to challenge the legality of their subjugation under this foreign regime, or challenge the abhorrent conditions in which they were forced to live, were barred from raising funds - to hire a lawyer for example - to aid in their defense. (This policy, initially implemented in 1927, was not repealed until 1951.)
By the turn of the 20th century the regulation of every aspect of Aboriginal life was complete, even if it had not ‘fully’ achieved its twin goals of isolation and assimilation. Many blamed the regime itself for failing to do either well. Others, of course, blamed the Aboriginals. Nonetheless, the comprehensive mishmash of rules, systems, political regimes, passes, bans, and ‘re-education’ (and resettlement) had indeed led Canada’s Aboriginals to the edge of society. The decision to “establish reserves with the aim of civilizing” these now largely landless and degraded peoples, as a “prelude to integration”, had largely failed to do the latter at all. Marginalized, destitute, and de-cultured, it is little wonder that these once proud masters of this entire continent now found themselves alienated, ridiculed, and politically impotent.
1.2)‘The trail of Tears:’
Canada’s First Nations Today
(I have chosen only to focus here on Reserves, Health and Education with good reason. While there are several issues in which the current disparity might be illustrated adequately, outlining ‘where one lives,’ ‘how one lives’, and how effectively one is ‘tooled in life’ encapsulates, I believe, the key progenitors of political unrest.)
Reserves:
The legacy of European colonization is plain to see for anyone who has ever visited a reserve. Almost without exception, they are islands of overt poverty in a sea of relative wealth. As Professor Morse of the University of Ottawa suggests, “the poverty and despair that grips…First Nations in Canada…is blatant, tragic, and depressingly (too) well documented.” (Emphasis Added)
One of the reasons for this is that reserve Aboriginals now inhabit (they most often do not own the land) a mere 0.48% of Canada’s total land mass. Often this renders persons living on such reserves a great “distance from markets and population centres…leaving the vast majority of First Nations in which the standard engines of economic self-sufficiency…are simply not viable.” Many of these reserves are also sparsely populated, with over half of Canada’s total reserve population inhabiting communities of less than one thousand persons. In 1990 the percentage of registered Aboriginals on social assistance was 42%; that is over two hundred times the overall Canadian average. In some reserve communities, employment is as low as a mere 10% - that is – 90% do not, or cannot find work.
Health:
Aboriginals are more often sick than other Canadians. On reserve Natives are six times as likely to develop Tuberculosis when compared to the overall Canadian population. Sexually transmitted diseases are ten times the Canadian average, while suicides are three times the national rate. Infant mortality, overall mortality rates, AIDS, Alcohol, Fetal alcohol syndrome, (SIDS), and gasoline fume abuse – all these factors plague remote Aboriginal communities at many times the rate of Canada’s population as a whole. To make matters worse still, almost all of these factors are not ‘diseases’ but symptoms of systemic failures in providing quality healthcare and preventing the social degradation and malaise that fosters such things as alcohol abuse and high suicide rates. Many of these ‘symptoms’ are, as the Royal Commission on Aboriginal Peoples suggested, an expression of “collective anguish” through which “a significant number of the Aboriginal people of this country [have come to] believe they have more seasons to die than to live.”
Education:
In education too, there continues to be great disparity. For example, fewer qualified teachers are available in outlying reserve communities, when compared to cosmopolitan areas. Many are also not representative of the Native children they teach. This leaves students in larger classrooms where frustration and disinterest in school are rife. Curriculum is another on-going problem. As Pauline Comeau suggests, “bureaucrats decide that an education program designed for a student in Toronto [is] adequate for an Indian child” in remote parts of the province. Given these facts however, it is not surprising then to find that nearly 40% of registered Natives have finished only grade nine (or below) as compared to just over 10% for non-Aboriginals. And while almost 15% of non-Aboriginals have completed university training, “only 3% of Indians…receive university degrees.”
2) Radicalization as a Process
The question, no doubt, that everyone should be asking at this point is; how does all this lead ideological radicalization? Or, how does this lead to Oka - or to calls for “radical Change” and an end to co-optation? How do we go from discussing reserves and healthcare policy to a current discussion of grassroots radical movements with unknown aims? It is true that many factors can contribute to the spawning of such things – and yet, the same factors at another time, or another place, might lead to nothing. How is one to know whether what we are dealing with is a lamb, or a wolf? This is, of course, the crux of the problem: Predicting where the ‘perfect storm’ will erupt, and where it will merely blow by.
At this point in our discussion, we now have a basic understanding of the frustrations that still plague Native communities. These are, as Professor Morse suggests, ‘blatant’ and all too well documented. But what this paper is interested in is what has turned this situation into the ‘perfect storm’. What other conditions have arisen in the past 40 years that are crucial, in this place, and at this time, to fomenting radicalism in these communities?
It is suggested here that there are three important factors that can be discerned from recent historical events. Firstly, there is the continuing presence of the underlying frustrations discussed above. Secondly, there have arisen greater expectations, through access to the justice and political systems, for hopes of more civic advancement than is realistic to expect from the dominant society, policies, and institutions. This has in turn led to a cycle of expectation and disappointment which has engendered collective feelings of alienation and contempt for modes of seeking justice through ‘the system.’ And, thirdly, that as a result of the above two factors, Canadians have witnessed over recent years a change in the aims of the Aboriginal struggle from one for civic inclusion and social justice, to one increasingly radical and separatist in its outlook. Since we have already discussed the first factor, this paper will now focus on the remaining two.
2.1) ‘Great Expectations’
(Alex De Tocqueville once stated that “it is not always when things are going from bad to worse that revolution breaks out.” For him, experience taught that the most ‘perilous’ moment was when a government sought to mend its ways. This theory has come to be known in many circles as the “de Tocqueville Paradox.”)
2.2) The Theory
Before discussing what has occurred “on the ground” over the past 40 years to both raise and crash Native expectations repeatedly, it is best to first outline why this investigation is important at all. Many political science ‘buffs’ are no doubt well aware of the “J-Curve” and other such similar theories, but the basic tenets and rationale are worth repeating – if only to highlight the past’s relevance to radicalization today and provide a theoretical framework through which we can better understand current trends.
In the wake of the 1960’s social upheaval there arose in the political science field a need to explain such phenomena. One theory that quickly gained widespread acceptance and variation was ‘Relative Deprivation’ (or similarly named: It has assumed several aliases over the past 40 years). Building on de Tocqueville’s ‘Paradox’ this theory stated that people revolt when their expectations exceed their achievements – or in other words – when one’s expectations are elevated but cannot be met. This theory hypothesized that people who undergo such events, experience ‘systemic frustration’ when an ‘intolerable gap’ exists between what they believe is deserved, and what actually results. Redress for the apparent ‘intolerable’ discrepancy is then channeled through political upheaval – both violent and non-violent.
In the 1970’s this basic theoretical perspective underwent many changes with some questioning whether other factors might be more relevant to determining the likelihood for radicalization or political violence. In 1973 Bernard Grofman, after looking over nearly a decade of research and study in relation to the J-Curve, proposed that what was more important than one sheer drop in expectation (the J-Curve) was the presence of persistent peaks and troughs in expectation and gratification (a V-Curve). This tugging back and forth of people’s hopes (in the present) produced, his experiments told him, greater frustrations than one single drop.
A short while later the J-curve again underwent minor surgery through the influential work of Abraham Miller. In his study of the J-Curve and the Black urban riots of the previous decade Miller added to Grofman’s findings by highlighting the importance of prolonged “extreme fluctuation and ambiguity” of expectations in affected communities. Radical fluctuations, he found, engender “stress” which leads to “frustration” which in turn leads to “aggression”.
Six years after Miller, Edward Muller proposed yet another twist to the J-Curve saga – each theorist building on the work of the previous. His research, in part, rejected much of the dogma of the previous twenty years in Relative Deprivation Theory. Instead of peaks and troughs, or sheer drops, Muller suggested that what was in fact happening was relatively simple – people who radicalized simply felt alienated. (This hypothesis, in many ways, confirmed Both Miller and Grofman’s proviso’s to the original J-Curve theory.) As he stated, “alienation stands out among all the explanatory variables as the strongest correlate of aggressive Political Participation across the general Public…” What Muller meant by alienation however, was not simply disinterest or individual-specific disaffection, but rather diffuse collective alienation – a clear perception of a lack of “trustworthiness, competence, and integrity (and unresponsiveness) [on the part of] political authorities.”
2.3) The J-Curve and Aboriginal Radicalization
When we amalgamate the above theories of radicalization into one overarching framework then, we find that the process for radicalization can be, at certain times, and at certain places, relatively simple: People will, when ‘conventional and acceptable’ approaches to making change lead nowhere, embark upon…radical step[s].” The question, indeed, then becomes: does this apply to the Aboriginals of Canada? To a selective look at this we now turn.
2.4) Peaks, Troughs and their Results: The Aboriginal Context
The challenge in this section is not to simply illustrate to the reader that the path towards the radicalization of thought follows a logical and perceptible trajectory (though no doubt that is also an important aspect of this paper) but to also demonstrate how, in the broader context, Government and Court decisions and Royal Commissions have helped foster this shift in thinking. It is submitted that it has been the singular failure of both the Courts and Government of Canada to live up to its commitments, to achieve what it promises, that has led us to the result that some feel alternatives to acceptable modes of redress are necessary.
Peaks:
It is relatively easy to find collective ‘peaks’ (in expectations for civic inclusion) with correlative troughs within the contemporary Aboriginal community. In fact, though it reads as somewhat of a laundry list, these events highlight the tempo and current that has driven legitimate expectation and fostered concurrent disillusionment. We might, for example, conveniently begin with the 1951 groundbreaking removal of restrictions for raising funds for pressing Native causes against the federal government. Natives in Canada became enfranchised federally shortly after, in 1960, thus giving them a truly democratic voice in the branch of government responsible for their affairs. The 1966 Hawthorn Report, A Survey of Contemporary Indians in Canada, suggested that more was needed from the Federal Government in areas such as education and health, while less emphasis was needed on assimilation. It suggested that Indians be regarded as ‘Citizens-plus’ – that is a “group with rights beyond other Canadians” due to their status as original inhabitants. Throughout the years 1968 and 1969 Canada’s Federal Government conducted widespread consultations with Native leaders across Canada for input on proposed changes to the Indian Act. For many Aboriginals, these consultations were the “first time a minister had ever sat and talked with them”. In 1970, Aboriginal groups, (many of which had been the product of the consultative grassroots forums for the 1969 proposal) succeeded in forcing the Canadian Government to abandon a 1969 Whitepaper that urged the government to do away with the Indian Act. Some of these groups, “grounded in the philosophy and tactics of the American rights movement,” became increasingly empowered, and staged sit-ins and rallies and even, briefly, armed resistance against Quebec Police at Kahnawake in 1973. Aboriginal title to land was that same year recognized in Calder as a legal right derived not from European law, but from the fact of prior occupation. This helped pave the way for Aboriginal land claims based not on legal doctrine, but on proof of historical occupation. In 1982, Aboriginal groups such as the National Indian Brotherhood (NIB) succeeded in forcing into the Canadian constitution a provision recognizing ‘existing’ aboriginal treaty rights. In line with this victory, Prime Minister Trudeau also offered “Native peoples inclusion in a series of First Ministers Conferences (FMC’s)…” in which, some years later, the provinces and Prime Minister of Canada signaled their willingness to recognize the inherent right of Natives Self-Government. In 1990, the Sparrow case purported to restrict governmental infringements of Native land rights to “compelling and substantial” legislative objectives. This, it contended, would protect Native lands from illegitimate infringements and promote Aboriginal control over reserve lands. In 1996 the epic, and long-awaited Royal Commission on Aboriginal Affairs (RCAP) submitted its findings and recommendations – among them the recommendation that there be created an Aboriginal parliament as Canada’s third level of government. The RCAP also suggested such things as the redistribution of massive swaths of Canada’s land-base. This would, it was thought, facilitate Aboriginal economic self-sufficiency. Then, in the 1997 case of Delgamuukw Canada’s Supreme Court once again further refined its conception of Aboriginal title and noted the encompassed right to exclusive use and occupation of reserve lands. In 2000 the Canadian government ratified the Nisga’a Land Claims Agreement that led to the creation of a municipal-style government for the Nisga’a – it was the first such land claims agreement in British Columbia. The agreement included self-governing control over 1,900 square kilometers and delivered nearly 200 million dollars in compensation for the Nisga’a. It further devolved signifacant powers to the local Aboriginal government over local many matters.
Through the above selection of monumental historical events and decisions one is left with little wonder that expectations run high. Through this well-groomed ‘spin’ of understanding, it appears that Aboriginals in Canada are enfranchised “citizens-plus” who have constitutionally protected rights and judicially recognized claims to potentially vast swaths of Canada’s landscape. This view is backed by a legion of Royal Commissions that suggest that a fundamental restructuring of Canada’s political and governmental structure is imminent and needed. And Government officials confidently point to successes like the Nisga’a (or James Bay, or Nunavut) that its recognition of the inherent right of self-government is indeed translating into concrete results. (This, of course, is the image many Canadians like to project; it is theangelic image that we see in our reflection. But there can be no mistake about it – it is mere illusion, and many know it.)
Troughs:
Without more detail, it might simply be stated here that one of the greatest ‘troughs’ experienced by Natives (despite what appears to be the case above) is the tenacity of the Status Quo. As Michael Ignatieff suggests, many are “making a good living out of rights talk. But, are things getting better in Davis Inlet and Burnt Church?” The facts expressed in this paper in section 1.2 also speak volumes in favour of this conclusion - but the unapologetic resilience of the status quo plays itself out through concrete examples as well as in the abstract. For example, in regards to self-government, much remains the same today as it was 40 years ago. The right of self-government, fostered in the Proclamation of 1763, and affirmed in constitutional talks by all levels of government during the 1990’s, has yet to become widely implemented. The “tiny percentage” of traditional lands now under a municipal-style form of self-government, such as is exercised in through the Nisga’a land claims agreement, should hardly be considered a victory for the forces of change. Royal Commissions similarly lay plain the stunning rein of the status quo. For example, the 1966 Hawthorn Report, the 1983 Penner Report, and the nearly 4000 page 1996 RCAP report all say essentially the same thing: “the notion of integration and assimilation [are] not reasonable avenues to pursue” – “that Indian First Nations…[should] be recognized and treated as equal to the provinces in all respects” – and that “Aboriginal Peoples…are unique and…have a right to governmental autonomy.”
But if the politicians seem bad, it is worse when Natives seek redress from courts only to find their rights pontificated away. For example, though Delgamuukw helped refine the legal meaning of Aboriginal title, the case also largely destroyed the gains made in other cases like Sparrow. In Sparrow the court appeared to narrow the range of justifications governments could use in seeking to infringe Native title. But in Delgamuukw, Lamer C.J.C. wrote:
“In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad…In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and settlement of foreign populations to support those aims…(among more would justify infringement).” (Emphasis added)
Given the Chef Justice’s ‘opinion’ it did not take long for this single Aboriginal victory to turn into a resounding, and far-reaching, defeat for the long-term protection of Aboriginal rights.
2.5) The Results
The result of these peaks and troughs is that today Canada’s Aboriginal communities are a “tinderbox.” These communities have become “politicized and politically-conscious” through the process of raising (and real) expectations - and yet remain places in which its members feel politically “muted” because of a lack of “genuine redress”. This is a dangerous mix - one where the democratic political institutions that normally provide “opportunities for citizens to bring about peaceful change” are viewed as largely blocked. This view has, as suggested through the J-curve analysis , propelled many Native elites to shift tactics, “from articulating grievances to pursuing an organized…political battle…[which will] overthrow [their] unlivable existence [in favour of] decolonization.” It has, in other words, propelled many disaffected Aboriginals to seek alternatives because of the perceived failings of institutions and “legalist strategies.” This has in turn led to an increase in the prevalence of, and belief in the viability of, Aboriginal protests that fall outside the normal and widely accepted routes for redressing grievances. In this area the work of Howard Ramos is particularly interesting; his survey of the rates of Aboriginal protest incidents over the past 40 years confirms that “the first dramatic increase in the number of Aboriginal protests…occurs in the late 1960’s…followed by an explosion of contention in 1989 and then again in 1990…” Aboriginals are increasingly resorting to occupations, blockades, and other acts of civil disobedience because, as suggested by the J-Curve, Government and Court decisions and Royal Commissions have unwittingly helped foster this shift in thinking by failing to live up to what it promises to deliver. Indeed, this is the result: “After…years of federal inaction…Canada is at a crossroads between co-operation and conflict.”
Conclusions
Alex de Tocqueville was exactly right in his observations about the causes of the French Revolution. His suggested that the “most perilous moment for a bad government is when it seeks to mend its ways” - when it seeks to extend, piece by piece, to previously disenfranchised members, a voice and stake in the continuity of the ‘old regime.’ It no doubt becomes a high-stakes game when government promises to do this because what is often at risk is the greatest promise of liberal democracy: That all of us be endowed with the power to affect the circumstances of our lot. That through democratic institutions like representative government we might seek peaceful redress, and, failing that, that we might alternatively find redress through the courts: That impartial body which is charged with the duty of shielding us from injustice and capable of striking down those who would seek to dispossess us of our power.
If this paper is correct that the fulfillment of this promise has largely been denied, and if Tocqueville is right, then it is both easier to understand the problem, and yet more difficult to find a solution to the ‘Aboriginal question.’ According to this ‘de Tocquevillian paradox’ Canada now finds itself in the position of having extended this lofty promise to many who no longer believe in its worth. Does this mean then that Canada has surpassed the ‘tipping point’ and waded into the unchartered and dangerous waters the J-Curve suggests exists on the other side of the ‘intolerable gap’? That is more difficult to predict. While maintaining the status quo will undoubtedly “result in [a] faster deterioration of the overall situation of Aboriginal people and relations between them and other citizens” there are hopeful signs that it is still not too late. Even many Aboriginal leaders and elite advocating radical change still refrain from legitimizing violence as a means to an end. Indeed, more often than not the question left unanswered is not why Aboriginals protest, but why they remain largely committed to non-violent peaceful means of resistance. As Richard Powless tells us, “terrorism has always been an option for First Nations…we do not have much political power…[but] we haven’t chosen that option. Of course, the answer to that question may be succinctly captured in the comments of Chief Justice Lamer: “Let's face it, we're all here to stay.”
But, if Chief Justice Lamer is right, and getting along seems the only answer, it is clear from the above that Canada has much to learn. One great part of the problem is, clearly, that Canada has failed to understand the ‘Native problem’ from the viewpoint of Aboriginals. Overwhelmingly, Canada’s government has signaled through its words, and at times through its actions, a desire to include Aboriginals in sharing the fruits of this democratic nation. But if belonging means being understood, sharing a common and linked memory, and having a stake in this not-so ancient regime, Canada must be prepared to implement its promises in full. It is the presupposition of belonging that we all share some sense of ‘common condition’ but Canada can hardly admit to this when there remain those who feel legitimately alienated, ridiculed, and politically impotent.
This situation is, of course, not conducive to peace and stability. That is why the ‘road’ has been so bumpy thus far. The resurgence of Red Power and Warrior movements and the steady rise in confrontations between Aboriginal communities over the past 40 years will eventually turn Government attention to domestic potentials for radicalization, but it should not be wait until we have crossed this Rubicon and cannot turn back. The J-Curve suggests that the relationship between expectations and reality is real and perceptible, and we ignore this at our own peril. That is why radicalization, which is so common in the far-flung corners of the globe, should not be distracting Canadians from its potential to become a problem here. ‘We’ have collectively forgotten that radicalization is a process not confined to any particular place. It is not the sole province of Islam, or the product of psychopathic logic, but a response to real stimuli that can be fostered through both poor foreign and domestic policy decisions alike. It is time to act now, before it becomes too late.
Essay concerning the Reference Re Secession of Quebec [1998] 2 S.C.R. 217
Secession Reference
By Thomas D Marshall
It could hardly have been obvious to those fighting at the Plains of Abraham in 1759 that their battle would not be decisive. Though some years later Quebec would indeed play a pivotal role in the creation of the Dominion of Canada, its place within this union persists as an open-ended question. Canada is, according to many, in a state of “perpetual paralysis” over the perennial question of French secession. What Justice Bora Laskin once termed the “French Fact” continues to dominate federal politics. But ameliorative attempts to reconcile this politically ‘thorny issue’ have in recent history merely culminated in a series of defunct accords and ultimately a 1995 referendum where separatists lost only by the slimmest of margins. With that near-defeat of the “no vote” the Federal Government sought to clarify its position and that of the legal effects of a future vote for separation. In February of 1998 the Supreme Court of Canada responded to three questions addressed to it by the Canadian Government. Only the first two are relevant to this paper; these were:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. Does international law give [Quebec] the right to [succeed] from Canada unilaterally? [I]s there a right to self‑determination under international law that would give [Quebec] the right to effect the secession…from Canada unilaterally? (Emphasis added)
This paper will first seek to give an overview of the Secession Reference, and the courts response to these two questions. Then, greater attention will be given to the legal and determined effects of a referendum. Thirdly, this paper will address the rights of self-determination, noted in the second question to the Supreme Court, and explain how the court felt that such a right had no application to Quebec secession. Lastly, this paper will address the principle of “effectiveness” as outlined by the court, and how, since the decision, the federal government has responded to these answers from the Supreme Court through the clarity Act 2000.
Overview
The Supreme Court interestingly sought not to ground their unanimous decision in the literal text of the Constitution but rather in certain “underlying principles” which they felt “infuse [it] and breathe life into it.“ From these principles the Court purported to find the answers to the reference questions. These principles were, “federalism, democracy, constitutionalism and the rule of law, and respect for minority rights.” In identifying these principles, and using them to answer in the negative both questions, the court effectively usurped the arguments of the amicus curiae that had largely based its argument in support of sovereignty on the “supremacy of the sovereign will of [Quebec referendum voters]” Though this style of interpretation has been the source of some criticism for “Positivist” scholars as “making constitutional rules, as opposed to merely applying them” this is not the first time the Courts have felt compelled to “fill in the gaps.”
-Federalism
According to the Court, federalism is the “lodestar” and “dominant principle of Canadian constitutional law.” By “distributing power to the government thought…most suited to achieving the particular societal objective…the principle recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”. “The social and demographic reality of Quebec,” stated the Court, thus “explains…one of the essential reasons for establishing a federal structure.”
- Democracy
The principle of democracy, felt the Court, is more than mere majority rule. When coupled with the principles of federalism, constitutionalism et al democracy encapsulates a “continuous process of discussion” whereby we become committed not only to considering, but rather protecting and acknowledging “dissenting voices”.
- Constitutionalism and the Rule of Law
The rule of law, and the notion of an entrenched constitution allow, according to the Court, for all persons to plan their future course in the knowledge that state action will comply with these proscribed rules. They are, in essence, the rules upon which this nation has contracted and planned its intimate and orderly union. Constitutionalism therefore, is not intended to frustrate the will of majorities, but is itself a decision by the founders of this nation to proscribe the necessary majority that must be attained to effect constitutional change. Constitutionalism and the rule of law thus facilitate a “democratic system of government [that] is committed to considering those dissenting voices…in the laws by which all in the community must live.”
- Protection of Minorities The protection of minorities was the head of argument given the least attention by the Court, but interestingly they felt it necessary to point out that the Canadian Constitution and federal structure of government both encompass such a tradition. In this way Canada ensures through its commitment to federalism, constitutionalism and the rule of law that minorities, who look to Canada to protect their rights, are not “submerged and assimilated.”
These heads of argument above formed the basis of the Court’s decision to answer in the negative both reference questions. As regards question one, the Court began by stating that the Constitution contains no right of unilateral secession. This, according to the Court, meant that any move by a province towards secession would “perforce [require] negotiation” since any such action would require a constitutional amendment. (This is however, a point of contention among many legal scholars, since it is not altogether clear where any such ‘duty to negotiate’ was fashioned from by the Supreme Court. ) Since the principles articulated by the Court all inferred an element of negotiation, compromise, and respect for those within this dominion, the Court felt that neither explicitly, nor implicitly, could one purport to find a rational and legal basis for a “unilateral” right to secede within the Canadian Constitution.
Referendum
The first reference question begged another more direct question: What is the legal effect of a referendum vote for secession by a majority of Quebecers? In answering this it is worth noting nearly the entire text of paragraph seventy-five of the Reference.
“The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a…referendum is superficially persuasive, in large measure because it seems to appeal to…the same principles that underlie the legitimacy of the Constitution.”
The Court then continued at paragraph eighty-seven by stating that “a referendum, in itself and without more, has no direct legal (constitutional) effect, and could not in itself bring about unilateral secession.” However, though a positive referendum result might lack legal force, it would give rise to an obligation to negotiate. The Court stated;
[I]t would confer legitimacy on the efforts of the government of…[a] clear repudiation of the existing constitutional order and [a] clear expression of the desire to pursue secession…would give rise to a reciprocal obligation on all parties to…negotiate constitutional changes to respond to that desire.” (Emphasis added)
Again however, it is here that the Court is not entirely clear about what a duty to negotiate really entails. According to the Court the constitution dictates the rejection of two “absolutist” propositions – “that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession” and that “Quebec could…(simply) purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties.” Some have suggested that such a position taken by the Supreme Court may have merely been an attempt to seek an “old fashioned Canadian compromise” or simply get the Court out of “a political bind into which the government awkwardly and unjustifiably put it.”
Right of Self-Determination of Peoples
In respect to the second question addressed by the Court, its legal reasoning appeared much less based on theoretical deduction then on a simple rejection of Quebec’s status as that of an oppressed peoples devoid of a political voice.
The amicus curiae felt that the issue of a legal right to self-determination ultimately found legal footing in international law; for example within Article one of both the U.N.'s International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 Article one states “All peoples have the right of self-determination.” But the Court broke this argument into two separate types of self-determination. On the one hand, while international law (usually) recognizes a right to self-determination within an existing state, what the amicus curiae sought was a distinct right to “external” self-determination. This the Court determined did not normally exist at international law – largely because such international agreements, while recognizing a right to self-determination, are equally careful to preserve the territorial integrity of sovereign states. An external right however, might be exercised by “(colonial or oppressed peoples, or peoples under an external and oppressive regime) based upon the assumption that (such) classes make up entities that are inherently distinct from the colonialist Power.” Since the Court felt Quebecers do have a “meaningful” avenue for the exercise of their right to self-determination internally, it could hardly be sustained that they might also access external self-determination to effect such rights. At paragraph one hundred and thirty-six the Court stated:
“The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world.”
Effectiveness
This section of the judgment is, academically speaking, the most interesting since it attempts to delineate between de facto and de jur secession and how a court should respond to an illegal secession. “As a court of law, we are ultimately concerned only with legal claims. If the principle of "effectivity" is no more than that "successful revolution begets its own legality it necessarily means that legality follows and does not precede [a] successful revolution.” The Supreme Court, while recognizing that a de facto secession could one day “acquire legal status as a matter of empirical fact” the principle of effectivity by itself could not lead the Court to hold that such action could be considered to have been effected through legal means at the time of secession.
Clarity Act
One of the most frustrating aspects of the Reference for some legal scholars is that no guidance was given as to what would be a “clear question” and “clear majority” necessary in a referendum to trigger a ‘duty’ to negotiate. While this phraseology is used countless times throughout the text of the judgment, it never becomes “clear” who would in fact determine these issues. Would it be for the Canadian Federal Government? The Quebec Government? Two thirds of the provinces and the Federal Government?
In response to the Reference and its internal ambiguities, the Federal Government soon after enacted the “Clarity Act” which, true to its name, sought to provide a legally clear framework for secession. (Whether doing so encourages, or discourages future attempts at secession remains a source of contention among many, and whether the Act in fact provides clarity also remains questionable. ) It is now clear via this Act that the Federal government will be the final arbiter on issues of secession. For example Section one of the Act states; “the House of Commons shall…consider the question and, by resolution set out its determination on whether the question is clear.”(Emphasis added) Section one subsection six similarly addresses another aspect of the judgment, as construed by the Federal Government. It provides that there is no duty to negotiate if the question is not clear. But, according to some writers, such as Daniel Turp, the Clarity Act, far from providing clarity, “casts doubt” on the traditional democratic rule of fifty plus one as demarcating a “clear majority.” As he suggests, Section two subsection four, by suggesting the potential need for a “super-majority,” could possibly “contravene the fundamental principle of equality of voters.”
Conclusion
It may seem odd that the Supreme Court would have felt it their proper role to foray so deeply into “political questions” territory – referendums, majority rule, and the break up of a nation being as they are, the distinct purview of politics. One would have thought that, having found no right to secession within the text of the Constitution and none in international law, the justices would have stopped there. Was this ‘judicial activism’ in matters left best to democratically elected officials? Was this perhaps an attempt to ‘help Canada out’ where politics, for all its versatility, had failed us at the worst time possible? Whatever the case may be, the justice’s accent to the use of abstract principles, such as democracy and federalism, to underpin persuasive (even if illusory) arguments contra a right to secession helped ‘beat’ secessionists at their own ‘game.’ However, by continuing on, and evolving duty to negotiate and by stipulating the “clear majority and clear question” guidelines, the Court obfuscated and couched its decision in significantly unclear terms - not to mention the fact that such duties are in themselves political facts that hardly needed to be articulated by the courts. It seems that, had the Court simply declined to answer the reference questions a convincing argument might have been made by the Federal Government that no right to secession existed. Today, given the Quebec Secession Reference, and the Clarity Act, this cannot be sustained without the substantial interference of the Federal Government in a future Quebec referendum. And that can only lend fuel to the fire of Quebec nationalists who, since 1759, have believed that too much was lost on the Plains of Abraham on that fateful day.
Works Cited
Canadian Cases
Reference Re Secession of Quebec [1998] 2 S.C.R. 217
Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
United States Cases
Marbury v Madison 31 U.S. (6 Pet.) 515 (1832)
Books and Texts
Brodie, Janine, et al Reinventing Canada: Politics of the 21st Century Prentice Hall, Toronto: 2003
Laskin, Bora. Canadian Constitutional Law 3rd Ed. Carswell Co. Pub. Ltd. Toronto: 1966
Marbury v Madison 31 US (6 Pet.) 515 (1832), See also, Leyland, Peter. Textbook on Administrative Law 4th Ed Oxford University Press, London 2002
Masters. Donald C. A Short History Of Canada Van Nostrand Rienhold Co, Toronto: 1958
Turp, Daniel. The Right to Choose: Essays on Quebec’s Right of Self-Determination Les Editions Themis Inc. Montreal: 2001
Journals
Choudhry, Sujit, Robert Howse, “Constitutional Theory and the Quebec Secession Reference” Canadian Journal of Law and Jurisprudence vol. XIII, No.2 (July 2000)
Kreptul, Andrei. “The Constitutional Right of Secession in Political Theory and History” Journal of Libertarian Studies Vol. 17 no. 4 Ludwig von Mises Institute (September 2003)
Guibernau, Montserrat. “National Identity, devolution and secession in Canada, Britain and Spain” Nations and Nationalism Queen Mary University of London, (Political Science) 12 (1) 2006, 51 - 76
Usher, Dan. “Profundity Rampant: Secession and the Court II” Policy Options (September 1999
Usher, Dan. “The New Constitutional Duty to Negotiate” Policy Options (January/February 1999)
Articles
Bryden, Joan. “The Separatist Curve Ball” The Walrus, February 2006
By Thomas D Marshall
It could hardly have been obvious to those fighting at the Plains of Abraham in 1759 that their battle would not be decisive. Though some years later Quebec would indeed play a pivotal role in the creation of the Dominion of Canada, its place within this union persists as an open-ended question. Canada is, according to many, in a state of “perpetual paralysis” over the perennial question of French secession. What Justice Bora Laskin once termed the “French Fact” continues to dominate federal politics. But ameliorative attempts to reconcile this politically ‘thorny issue’ have in recent history merely culminated in a series of defunct accords and ultimately a 1995 referendum where separatists lost only by the slimmest of margins. With that near-defeat of the “no vote” the Federal Government sought to clarify its position and that of the legal effects of a future vote for separation. In February of 1998 the Supreme Court of Canada responded to three questions addressed to it by the Canadian Government. Only the first two are relevant to this paper; these were:
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. Does international law give [Quebec] the right to [succeed] from Canada unilaterally? [I]s there a right to self‑determination under international law that would give [Quebec] the right to effect the secession…from Canada unilaterally? (Emphasis added)
This paper will first seek to give an overview of the Secession Reference, and the courts response to these two questions. Then, greater attention will be given to the legal and determined effects of a referendum. Thirdly, this paper will address the rights of self-determination, noted in the second question to the Supreme Court, and explain how the court felt that such a right had no application to Quebec secession. Lastly, this paper will address the principle of “effectiveness” as outlined by the court, and how, since the decision, the federal government has responded to these answers from the Supreme Court through the clarity Act 2000.
Overview
The Supreme Court interestingly sought not to ground their unanimous decision in the literal text of the Constitution but rather in certain “underlying principles” which they felt “infuse [it] and breathe life into it.“ From these principles the Court purported to find the answers to the reference questions. These principles were, “federalism, democracy, constitutionalism and the rule of law, and respect for minority rights.” In identifying these principles, and using them to answer in the negative both questions, the court effectively usurped the arguments of the amicus curiae that had largely based its argument in support of sovereignty on the “supremacy of the sovereign will of [Quebec referendum voters]” Though this style of interpretation has been the source of some criticism for “Positivist” scholars as “making constitutional rules, as opposed to merely applying them” this is not the first time the Courts have felt compelled to “fill in the gaps.”
-Federalism
According to the Court, federalism is the “lodestar” and “dominant principle of Canadian constitutional law.” By “distributing power to the government thought…most suited to achieving the particular societal objective…the principle recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”. “The social and demographic reality of Quebec,” stated the Court, thus “explains…one of the essential reasons for establishing a federal structure.”
- Democracy
The principle of democracy, felt the Court, is more than mere majority rule. When coupled with the principles of federalism, constitutionalism et al democracy encapsulates a “continuous process of discussion” whereby we become committed not only to considering, but rather protecting and acknowledging “dissenting voices”.
- Constitutionalism and the Rule of Law
The rule of law, and the notion of an entrenched constitution allow, according to the Court, for all persons to plan their future course in the knowledge that state action will comply with these proscribed rules. They are, in essence, the rules upon which this nation has contracted and planned its intimate and orderly union. Constitutionalism therefore, is not intended to frustrate the will of majorities, but is itself a decision by the founders of this nation to proscribe the necessary majority that must be attained to effect constitutional change. Constitutionalism and the rule of law thus facilitate a “democratic system of government [that] is committed to considering those dissenting voices…in the laws by which all in the community must live.”
- Protection of Minorities The protection of minorities was the head of argument given the least attention by the Court, but interestingly they felt it necessary to point out that the Canadian Constitution and federal structure of government both encompass such a tradition. In this way Canada ensures through its commitment to federalism, constitutionalism and the rule of law that minorities, who look to Canada to protect their rights, are not “submerged and assimilated.”
These heads of argument above formed the basis of the Court’s decision to answer in the negative both reference questions. As regards question one, the Court began by stating that the Constitution contains no right of unilateral secession. This, according to the Court, meant that any move by a province towards secession would “perforce [require] negotiation” since any such action would require a constitutional amendment. (This is however, a point of contention among many legal scholars, since it is not altogether clear where any such ‘duty to negotiate’ was fashioned from by the Supreme Court. ) Since the principles articulated by the Court all inferred an element of negotiation, compromise, and respect for those within this dominion, the Court felt that neither explicitly, nor implicitly, could one purport to find a rational and legal basis for a “unilateral” right to secede within the Canadian Constitution.
Referendum
The first reference question begged another more direct question: What is the legal effect of a referendum vote for secession by a majority of Quebecers? In answering this it is worth noting nearly the entire text of paragraph seventy-five of the Reference.
“The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a…referendum is superficially persuasive, in large measure because it seems to appeal to…the same principles that underlie the legitimacy of the Constitution.”
The Court then continued at paragraph eighty-seven by stating that “a referendum, in itself and without more, has no direct legal (constitutional) effect, and could not in itself bring about unilateral secession.” However, though a positive referendum result might lack legal force, it would give rise to an obligation to negotiate. The Court stated;
[I]t would confer legitimacy on the efforts of the government of…[a] clear repudiation of the existing constitutional order and [a] clear expression of the desire to pursue secession…would give rise to a reciprocal obligation on all parties to…negotiate constitutional changes to respond to that desire.” (Emphasis added)
Again however, it is here that the Court is not entirely clear about what a duty to negotiate really entails. According to the Court the constitution dictates the rejection of two “absolutist” propositions – “that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession” and that “Quebec could…(simply) purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties.” Some have suggested that such a position taken by the Supreme Court may have merely been an attempt to seek an “old fashioned Canadian compromise” or simply get the Court out of “a political bind into which the government awkwardly and unjustifiably put it.”
Right of Self-Determination of Peoples
In respect to the second question addressed by the Court, its legal reasoning appeared much less based on theoretical deduction then on a simple rejection of Quebec’s status as that of an oppressed peoples devoid of a political voice.
The amicus curiae felt that the issue of a legal right to self-determination ultimately found legal footing in international law; for example within Article one of both the U.N.'s International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 Article one states “All peoples have the right of self-determination.” But the Court broke this argument into two separate types of self-determination. On the one hand, while international law (usually) recognizes a right to self-determination within an existing state, what the amicus curiae sought was a distinct right to “external” self-determination. This the Court determined did not normally exist at international law – largely because such international agreements, while recognizing a right to self-determination, are equally careful to preserve the territorial integrity of sovereign states. An external right however, might be exercised by “(colonial or oppressed peoples, or peoples under an external and oppressive regime) based upon the assumption that (such) classes make up entities that are inherently distinct from the colonialist Power.” Since the Court felt Quebecers do have a “meaningful” avenue for the exercise of their right to self-determination internally, it could hardly be sustained that they might also access external self-determination to effect such rights. At paragraph one hundred and thirty-six the Court stated:
“The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world.”
Effectiveness
This section of the judgment is, academically speaking, the most interesting since it attempts to delineate between de facto and de jur secession and how a court should respond to an illegal secession. “As a court of law, we are ultimately concerned only with legal claims. If the principle of "effectivity" is no more than that "successful revolution begets its own legality it necessarily means that legality follows and does not precede [a] successful revolution.” The Supreme Court, while recognizing that a de facto secession could one day “acquire legal status as a matter of empirical fact” the principle of effectivity by itself could not lead the Court to hold that such action could be considered to have been effected through legal means at the time of secession.
Clarity Act
One of the most frustrating aspects of the Reference for some legal scholars is that no guidance was given as to what would be a “clear question” and “clear majority” necessary in a referendum to trigger a ‘duty’ to negotiate. While this phraseology is used countless times throughout the text of the judgment, it never becomes “clear” who would in fact determine these issues. Would it be for the Canadian Federal Government? The Quebec Government? Two thirds of the provinces and the Federal Government?
In response to the Reference and its internal ambiguities, the Federal Government soon after enacted the “Clarity Act” which, true to its name, sought to provide a legally clear framework for secession. (Whether doing so encourages, or discourages future attempts at secession remains a source of contention among many, and whether the Act in fact provides clarity also remains questionable. ) It is now clear via this Act that the Federal government will be the final arbiter on issues of secession. For example Section one of the Act states; “the House of Commons shall…consider the question and, by resolution set out its determination on whether the question is clear.”(Emphasis added) Section one subsection six similarly addresses another aspect of the judgment, as construed by the Federal Government. It provides that there is no duty to negotiate if the question is not clear. But, according to some writers, such as Daniel Turp, the Clarity Act, far from providing clarity, “casts doubt” on the traditional democratic rule of fifty plus one as demarcating a “clear majority.” As he suggests, Section two subsection four, by suggesting the potential need for a “super-majority,” could possibly “contravene the fundamental principle of equality of voters.”
Conclusion
It may seem odd that the Supreme Court would have felt it their proper role to foray so deeply into “political questions” territory – referendums, majority rule, and the break up of a nation being as they are, the distinct purview of politics. One would have thought that, having found no right to secession within the text of the Constitution and none in international law, the justices would have stopped there. Was this ‘judicial activism’ in matters left best to democratically elected officials? Was this perhaps an attempt to ‘help Canada out’ where politics, for all its versatility, had failed us at the worst time possible? Whatever the case may be, the justice’s accent to the use of abstract principles, such as democracy and federalism, to underpin persuasive (even if illusory) arguments contra a right to secession helped ‘beat’ secessionists at their own ‘game.’ However, by continuing on, and evolving duty to negotiate and by stipulating the “clear majority and clear question” guidelines, the Court obfuscated and couched its decision in significantly unclear terms - not to mention the fact that such duties are in themselves political facts that hardly needed to be articulated by the courts. It seems that, had the Court simply declined to answer the reference questions a convincing argument might have been made by the Federal Government that no right to secession existed. Today, given the Quebec Secession Reference, and the Clarity Act, this cannot be sustained without the substantial interference of the Federal Government in a future Quebec referendum. And that can only lend fuel to the fire of Quebec nationalists who, since 1759, have believed that too much was lost on the Plains of Abraham on that fateful day.
Works Cited
Canadian Cases
Reference Re Secession of Quebec [1998] 2 S.C.R. 217
Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
United States Cases
Marbury v Madison 31 U.S. (6 Pet.) 515 (1832)
Books and Texts
Brodie, Janine, et al Reinventing Canada: Politics of the 21st Century Prentice Hall, Toronto: 2003
Laskin, Bora. Canadian Constitutional Law 3rd Ed. Carswell Co. Pub. Ltd. Toronto: 1966
Marbury v Madison 31 US (6 Pet.) 515 (1832), See also, Leyland, Peter. Textbook on Administrative Law 4th Ed Oxford University Press, London 2002
Masters. Donald C. A Short History Of Canada Van Nostrand Rienhold Co, Toronto: 1958
Turp, Daniel. The Right to Choose: Essays on Quebec’s Right of Self-Determination Les Editions Themis Inc. Montreal: 2001
Journals
Choudhry, Sujit, Robert Howse, “Constitutional Theory and the Quebec Secession Reference” Canadian Journal of Law and Jurisprudence vol. XIII, No.2 (July 2000)
Kreptul, Andrei. “The Constitutional Right of Secession in Political Theory and History” Journal of Libertarian Studies Vol. 17 no. 4 Ludwig von Mises Institute (September 2003)
Guibernau, Montserrat. “National Identity, devolution and secession in Canada, Britain and Spain” Nations and Nationalism Queen Mary University of London, (Political Science) 12 (1) 2006, 51 - 76
Usher, Dan. “Profundity Rampant: Secession and the Court II” Policy Options (September 1999
Usher, Dan. “The New Constitutional Duty to Negotiate” Policy Options (January/February 1999)
Articles
Bryden, Joan. “The Separatist Curve Ball” The Walrus, February 2006
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