The Kahnawake Problem

The decision of the Kahnawake band council to cast non-aboriginals off the reserve has been in the paper for the last few weeks and is likely to continue to cause smoke for the next little while (it will be interesting to see if the Council actually enforces the eviction order). There is a curious thing about this affair however, why have the Conservatives not used this event as one of their usual occasions to condemn special race based rights for aboriginal people joined with a promise to reform the Indian Act? Lysiane Gagnon comments on this point in her column today where she frames the problem this way:

Why would Quebec and Canada tolerate the trampling of people's basic individual rights by a policy based on bloodline? The Quebec government is looking the other way on the pretext that Indian affairs is under federal jurisdiction, and no one raised a question in the National Assembly. Last week, Indian Affairs Minister Chuck Strahl lamely said that, even though he didn't like the band council's decision, he couldn't do anything since the move is legal and the first nations are “sovereign” on their lands.

The answer is actually easy in the case of the Federal government. The Federal government is busily entrenching exactly the same concept in the Indian Act for a much wider range of matters and cannot be seen to even suggest that there is a Charter or Human Rights problem. Last year the British Columbia Court of Appeal ordered the Federal to bring the definition of status in the Indian Act into compliance with the Charter. In doing so it identified a very narrow problem and skirted the much broader problem that the Indian Act incorporates a definition of Indian status which is a classic "blood quantum" approach -- that is, if you have enough non-Indian ancestors in the last two generations you are off the list.

This rule is draconian. It does not matter how culturally "Indian" you are or how connected to your community you are, if your momma or your poppa is not status and your parents are similarly "impure" -- you are off the list. You could have spent every day of your life on reserve but you are not an Indian. If you have a white dad but your sister has an Indian dad, she is on the list and you are off the list -- even if you lived on the reserve and she lived off. You could feel entirely a part of the community and be entirely engaged with the community but in the eyes of the Federal government you are no more an Indian than I am.

Being off the list means a number of things -- it means no a tax exemption, no automatic rights of membership and -- and this is why the Federal government is so circumspect about this issue -- no federal funding for medical, dental or education. You are officially the Province's problem and the Federal treasury is relieved off any issues related to you whatsoever. Likewise the funding levels for the band as whole can be cut back and treaty settlements can be made smaller as there are fewer Indians to deal with.

Thus Chuck Strahl cannot speak out about this because Chuck Strahl needs this. Despite requests by many aboriginal people to do away with the blood quantum rules and move toward rules based upon community membership, the Federal government has consistently (and this is true of Liberal governments as well) turned a deaf ear. To actually act on this problem would mean that the Federal government would not be able to look forward to the "Indian Problem" being solved by romance. Instead it would have to address its own race based discrimination in the status provisions of the Indian Act.

This issue, contrary to what Ms. Gagnon says, does not go back to just 1981. In fact, when one of the very first predecessors to the Indian Act was passed in the 1800's there were two Indian Acts passed -- one for Upper Canada and one for Lower Canada and each had a different definition for Indian. In Upper Canada it was a wider, community based definition that did not discriminate on the basis of sex. In Lower Canada it was similar to the present definition in the Indian Act with the old marrying out rule built in (that is, a woman who married out lost their status). Why the difference? Because the Mohawks at Kahnawake were unhappy about the number of non-Mohawks on their land.

Insite Goes to the Supreme Court

The Federal government has announced that it is seeking leave to appeal the decision of the British Columbia Court of Appeal that let the Insite safe injection site stay open. This is actually not that surprising a decision on the part of the Federal government since the rationale of the case strikes at the heart of substantial chunk of the body of federal law governing psycho-active drugs and their management. The Court of Appeal in a 2-1 decision held that the Federal government was out of bounds in regulating Insite because it crossed the line into provincial jurisdiction over health. The Supreme Court of Canada is there to hear issues of national importance and this qualifies on almost any understanding of that term.

What is more interesting is the inevitable cross-appeal that will come on the Charter issue that was raised in this case, that was effectively left unresolved in a 1-1-0 split between the three judges. This attack squarely raises the question "can you effectively criminalize addiction if it is in fact an illness rather than a moral failure?" From a certain perspective, the criminalization of drug use in various ways is very much akin to the idea of criminalizing fast food to fight obesity. This challenge will put the Supreme Court of Canada in a tight spot given some of its rulings over the last decade.

John Gunter -- Back to 1776

John Gunter, a columnist for the National Post and former editor of the now defunct rag known as the Alberta Report, recently gave insight into what the Canadian Taxpayer crowd harken back to. In a column for the National Post (the home for many refugees from failed right wing rags) he evoked the happy taxtation levels of the Americans in 1776 as measure of what we should view as outrageous. He made this observation in commenting on how we have too much government:

The American colonists, by comparison, felt they were groaning under a crippling tax burden. Many of their staples, they felt, were onerously taxed while they received little from England in return and had no say in how large the levies against them would be.

My point was: Quebec, a net beneficiary of Confederation, was chomping at the bit to break up Canada, while, compared to the 13 colonies, they had little to complain about.

So out of curiosity, I asked the historian what the level of taxation was in 1776 that caused the U.S. to declare its independence.

I will always recall his answer: "the equivalent today of about 5% to 7% of their income."

Let's see Lorne, what would you like to give up and go back to from that time?

Let's get rid of a few things that your pals on the right really like, say like, a standing army and regular police forces. Surely we can just stay home, unengaged in international affairs and let the gangs police themselves rather than spend all those lovely tax dollars on such wasteful things. I guess you would be happy to dismantle the prison system by bringing back hangings for trivial offences.

How about we get rid of a few of those other post-Revolutionary frills that we have picked-up, like sewer systems, water treatment facilities and public landfills -- we could save a bundle on muncipal services if we ditched those. Public highways as well -- if anyone really wants pavement they can pay for it themselves. Public education -- surely every child's parents can pay for a proper education and if they can't, well the child didn't deserve or need to be educated anyway. Railways and airports -- pshaw -- it is madness that so many public supports were given to building that all that infrastructue. Things would be so much better if the Crown just waited for the highest bidder to step-up and buy public lands at fair market value and deal with providing such things themselves. We also would not have to pay for all that nasty airport security then -- we could just have differential airfares for people who wanted to fly on airlines that screened for highjackers and those that did not (perhaps we could also offer people in tall buildings a chance to pay a special charge to divert highjacked planes to buildings who were unwilling to pay).

I have no doubt that the real programs Mr. Gunter would like to cut are those that he sees as only helping the undeserving -- you know, the unemployed and those who cannot pay for their own doctors. Let's get rid of all those expensive public hospitals and if rural areas end up with no doctors -- well, you can always pick where you live. Heck, for that matter, since we have gotten rid of public education, public hospitals and public sewers, we might as get rid of all those public health offices too and stop forcing vaccinations on families. Sure we will lose herd immunity pretty quickly but the diseases that should be going around after our first round of cuts finish people off pretty quickly anyway so they will not have that much of a chance to spread to the upper classes, right?

We won't have to worry about retirement costs since we should be able to get life expectancy down to well below 65 on this scheme and there will be few people who will ever become eligible for retirement and pensions in any event. Without public education (think of all those savings in teachers' salaries) we will see a marked drop-off in university attendance and we will be able to scale back public expenditures on professors, students and research within a few years. If all goes according to plan we should be able to cut out public subsidies for universities in about twenty years.

Muddy, smelly, dirty, disease ridden and ignorant -- the wonderful world of John Gunter and the Canadian Taxpayers Federation.

Supreme Court of Canada Cops Out

The Supreme Court of Canada has started doing an odd thing -- it has been finding that the Government has either broken its own laws or the constitution but then saying it will do nothing about it except leave it to the government to figure out how to address its own wrongdoing.

In the Miningwatch case the Supreme Court of Canada restored an lower court decision that had been overturned by an appeal court. The Court found that the Federal Government has deliberately set about redescribing a mining project so as to avoid having to an indepth environmental assessment (as opposed to a destop once over lightly). But then the Court held that since the poor mining company (which had been involved in the case after all) should not be made to suffer further. What about the poor public who actually expect that proper environmental assessments are being done in accordance with the law.

In the Khadr case the Court said that the Government of Canada had breached Omar Khadr's rights. Effectively Canada participated in the process of torturing Mr. Khadr who -- odious as he may be -- is entitled under the law not to be tortured. After finding this the Court effectively said "international affairs are too delicate and complicated for us so we'll just leave it up to the government to figure out how to do the right thing." I would like that kind of approach to my potential wrongdoings.

There is another side to this -- perhaps the court would not point out wrongdoings at all if it had to determine the conseuqences of holding the governmemt to account. However, I wonder if there is really that much difference given the present government's contempt for the idea of judicial review and being held to account.