Indigenous Writes

by Chelsea Vowel

  Equality before the law will solve any problem.

  One way in which Western liberal thought attempts to address the reality of difference in modern democracies is through the notion of “equality before the law.” Sometimes, you will see people arguing that it is imperative all people are treated exactly the same under the law; but, of course, modern democracies do not actually function that way, and this position crumbles easily.

  Equality in this sense does not mean sameness. It does not insist all people are the same and are to be treated as such. In fact, accommodating differences is arguably a central tenet of modern liberal democracies.

  For example, legal equality as sameness would require people in wheelchairs to use the stairs, a patently ridiculous and unjust notion. Instead, building codes throughout Canada require a certain number of wheelchair ramps and elevators to ensure equal access to all people regardless of their level of mobility. Less obvious accommodations are also normalized. For example, the Quebec building code requires women’s bathrooms have more toilets installed to address issues with longer wait times experienced previous to these legislative changes. Neither wheelchair accessibility nor extra toilets in women’s bathrooms are held out by liberal progressives to undermine modern liberal democracy, so why then is acknowledging Indigenous differences so threatening?

  Many will argue there is no need for the category of Aboriginal, only Canadian, and equality before the law will address any accommodations needed via other individual categories (woman, wheelchair user, unemployed, single parent, and so on).

  It is at this point that the argument requires Indigenous peoples to assimilate completely, voluntarily giving up the category of Indigenous (because it can be legislated away, but it must also be collectively rejected). Here is where the outcome (complete assimilation) mirrors the overtly racist historical approach, despite the philosophies (we are all equal versus you are inferior to us) differing considerably.

  Canada has an official policy of multiculturalism, which would allow Indigenous peoples to exist as Canadians and celebrate surface culture (food/music/clothing) without existing as a separate legal category. Indigenous peoples would need to stop advancing their claims to Indigenous rights, and exist within a framework of Canadian rights. This can appear as completely nonproblematic to those who do not understand Indigenous sociopolitical orders continue to exist, and exist outside the context of any Canadian legislative or judicial sphere. Giving that up to become Canadian and to be folded into a Western liberal-rights framework is the definition of assimilation. No amount of frybread and community Cree classes can change that.

  The other option, if Indigenous peoples refuse to voluntarily assimilate into the Canadian body politic, is for Canada to stop recognizing the category of Aboriginal. Abolish the Indian Act, abolish recognition of Aboriginal status, and simply stop discussing the notion of Aboriginal rights entirely.

  Both of these options have been repeatedly called for since the beginning of Canadian politics. The rhetoric changes with the times, but the goal is still the same. Does it really matter if policies are outwardly racist or merely “progressive” if the outcome is the cultural destruction of Indigenous peoples?

  Equal citizenship requires erasure of differences.

  The underlying problem with this entire approach is that certain differences, or acknowledging certain differences, is seen as being inherently threatening to modern democracy. Further, the choice as to which differences threaten national cohesion is not value neutral, despite any possible claims to the contrary.

  Divisions between us already exist in myriad unavoidable ways, and we do not attempt to erase those differences in the name of “equal citizenship and equality before the law.” In fact, we constitutionalize many of those differences and legally require they be accommodated.6 We attempt to get rid of ways in which those differences are penalized legally or socially, unless those differences are actively harmful (e.g., pedophiles).

  For example, section 15 of the Charter of Rights and Freedoms acknowledges and protects differences based on the following enumerated grounds: race, nation or ethnic origin, colour, religion, sex, age, or mental or physical disability. Recognized analogous grounds have been found by the courts to include: pregnancy, sexual orientation, marital status, off-reserve Aboriginal status, and citizenship.

  It is very unlikely the same people arguing that Indigenous differences threaten democracy would argue that differences between able-bodied and disabled people hold the same threat (though they will certainly differ on what level of accommodation is appropriate). Yet, Clark states, “As long as natives are treated differently, it will perpetuate divisions and even breed resentment, neither of which is good for Canada.”7

  Replace the word natives with any other descriptor of difference that exists in Canadian society and is legally accommodated, and try to argue that this category of difference should be erased for the sake of unity or to avoid resentment. This argument only works when discussing how that category of people should not be specifically discriminated against (such as within the Indian Act), but the argument quickly falls apart when arguing accommodations should no longer be made – unless the category is actively harmful. And here we arrive at the crux of the argument: indigeneity is seen as actively harmful.

  The Indigenous danger is economic.

  The harm of discriminating against Indigenous peoples is clearly recognized by liberal progressives, so we don’t really differ on that account. The disagreement is rooted in the notion that accommodating Indigenous difference is actively harmful to a modern democracy.

  Accommodating Indigenous differences is not seen as harmful merely because it creates resentment. No doubt people resent all manner of accommodations provided to various categories of differences within the Canadian liberal democracy. This resentment is not called upon as justification for abolishing those other categories altogether or for moving backwards on advances that have been made. Imagine, for example, resentment being used as an actual, legal reason to abolish gay marriage in Canada.

  Rather, the danger lies in the fact that (1) of all groups in Canada, only Indigenous peoples (and possibly the Québécois, also mentioned by Clark) have prior legal claim to land and resources that are otherwise believed to belong to Canada, and (2) this prior legal claim is recognized by Indigenous law, and Canadian Aboriginal law is viewed as deeply problematic because it directly impacts Canada’s economic power. There is great fear the Tsilhqot’in decision – and the entire body of Aboriginal law that recognizes Aboriginal rights as burdens, or limits on Crown title – will damage Canada economically.

  That is exactly what Jeffrey Simpson argued a year after the Tsilhqot’in decision. To repeat:

  In this territory [of the Tsilhqot’in], with a few restrictions, the group [the Tsilhqot’in] now has de jure sovereignty, a precedent that, if extended over time, would leave B.C. pockmarked with little self-governing, largely sovereign aboriginal territories over which the Crown’s writ would barely run.8

  This quote evokes an image of a disintegrating Canada, a modern democracy rent asunder and scattered to the winds by egregious and unjust accommodation of Aboriginal title.9 Okay, but what is so terrifying about that exactly?

  Simpson then quotes Professor Dwight Newman who laments that due to recent Aboriginal law decisions, “it has become extremely difficult to get major infrastructure projects done in Canada.”10 Ah. So, that’s what this is really about.

  The test: economy vs human rights

  Notice that throughout, I have only been arguing within the Western liberal framework rather than from a position of Indigenous rights. I do this deliberately because I think the Western liberal approach needs to be self-critical, and these are the flaws I am seeing.

  If a modern democracy wishes to ensure “equality of citizenship and equality before the law,” then the law must become a tool to ensure equal access to rights and resources. That process is undermined when we ignore both a
group that has been historically disadvantaged and how that history results in contemporary lack of access to rights and resources.

  Engaging in this sort of blind-eye approach in the name of unity without admitting the real fear is economic is problematic enough, but the meat of the matter is people are suggesting a human-rights matter be overlooked for the sake of the Canadian economy.

  Liberal democracies engage in this sort of balancing act all the time, so this concept of tempering human-rights concerns with economic concerns is hardly new or antithetical. However, much is assumed in taking the position that economic concerns must in this case trump the human-rights issue of Indigenous peoples in Canada.

  It is assumed that abolishing the category of Aboriginal will be more cost-effective than acknowledging it. This is a major flaw in the argument that economic concerns should trump human rights. Billions of dollars are spent on providing Indigenous peoples with services such as health care, education, social services, infrastructure, and so on, not to mention the monies spent on court cases centred on Aboriginal rights.

  However, the vast bulk of these monies (flowing constitutionally from the federal rather than provincial government) are already provided to Canadians. Were we to abolish Aboriginal as a category, this cost would not disappear; it would simply shift onto the shoulders of the provincial governments. Making Indigenous peoples “Canadian” would not end their health care, education, social services, and infrastructure needs. In fact, given that Indigenous peoples are historically underfunded in all those areas, the cost would be higher once they were folded into the Canadian body politic, receiving funds equal to everyone else.

  It is also assumed that abolishing judicially created obligations toward Indigenous peoples would be more cost-effective than continuing to engage in them. This includes obligations like the duty to consult, or the court costs involved in not wanting to acknowledge Aboriginal rights, as well as all the time and money put into negotiating outstanding land claims and comprehensive claims. Maybe just dropping all of this in the name of equality would save some big time sôniyaws?11

  This ignores the well-studied economic and social impact that occurs when Indigenous peoples are denied Indigenous rights or not accommodated as a category of people. Whether the strategy is relocation from isolated communities to those with more accessible services, refusing to accommodate Indigenous peoples in the justice system, or ignoring how differences affect Indigenous children in the child-welfare system, it has been made very clear over the years that the social (and economic) cost of denial is shockingly high. In essence, abolishing Aboriginal as a category does not abolish the very real differences that exist, nor the social and economic costs associated with dealing with how those differences are manifested in Canadian society.

  One would have to engage in a very thorough cost-benefit analysis to determine whether the supposed economic benefit of abolishing the category of Aboriginal would be worth it. In doing so, one would have to become much more familiar with the issues than most people making this argument are; so, in that sense, I recommend it. Just don’t ignore data and skew your equation with preconceptions based on misunderstanding the situation.

  More important, those advocating these kinds of arguments need to take a hard look at whether using an economic cost-benefit analysis to determine when to trump human rights is consistent with one’s own beliefs. Is this really where people want “modern democracy,” even within a capitalist economic system, to go?

  Calling for a more honest discussion

  For many, the answer to the question above might still be yes, but I would rather have them say it outright than pretend the call to abolish Aboriginal as a category is about fairness and equality rather than about the economy. Let’s agree this conversation needs to become more honest.

  There does not exist today a level playing field upon which Indigenous peoples can benefit equally. Historical injustice did not cease at some magical moment to be replaced by contemporary fairness.

  There is no level playing field when it comes to the access of equal rights – not for Indigenous peoples, and not even within the wider Canadian public. A host of barriers exists preventing millions of Canadians from accessing the same rights and resources as other Canadians.

  There is no level playing field when it comes to equality before the law, in the sense that due to the recognized lack of access to equal rights, accommodations are specifically written into Canadian law. There is an attempt to create a level playing field by recognizing, not ignoring, differences.

  There is no level playing field when it comes to deciding which differences must be abolished for the sake of equal citizenship. Before gay marriage was legalized in Canada, did the exclusion of homosexual marriage threaten equal citizenship? Canada has now taken the position that, yes, it did, but, obviously, Canada did not take this position until very recently. Was it any less true when homosexual marriage was excluded? Recognition and accommodation are based on value judgments, and values shift over time. In an age where racism against Indigenous peoples is widespread and systemic, it is difficult to imagine someone arguing that weighing the decision to recognize or abolish the category of Aboriginal is a value-neutral, level-playing-field exercise.

  There is no level playing field when the discussion becomes about how the colonization of land and resources, as the source of Canadian wealth, cannot be allowed to be threatened by the human-rights issue of Indigenous peoples within Canada. The ultimate irony of the progressive liberal fearing Indigenous peoples will take Canadian land cannot be lost on any of us when this discussion is engaged.

  If you find yourself making these arguments, or you come across them, please do a little bit of digging to find the roots. I see too many surface arguments calling for unity without a shred of nuance to be found, and I think we ought to expect more from those who claim to be socially progressive.

  NOTES

  1.Tsilhqot’in Nation v. British Columbia, 2014, SCC 44.

  2.Delgamuukw v. British Columbia, 1997, 3 SCR 1010.

  3.Gordon Clark, “Gordzilla in the City: Native Court Rulings Perpetuate Unhealthy Divisions in Canada,” The Province (blog), July 7, 2014, http://blogs.theprovince.com/2014/07/07/gordzilla-in-the-city-native-court-rulings-perpetuate-unhealthy-divisions-in-canada/.

  4.Ibid.

  5.Jeffrey Simpson, “Confusion Reigns on Aboriginal Rights When Court Rulings Meet Reality,” The Globe and Mail, last modified July 11, 2015, http://www.theglobeandmail.com/globe-debate/confusion-reigns-on-aboriginal-rights-when-court-rulings-meet-reality/article25413801/.

  6.Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B Canada Act, 1982 (UK), 1982, c 11, s 15.

  7.Clark, “Gordzilla in the City.”

  8.Simpson, “Confusion Reigns on Aboriginal Rights.”

  9.Apparently, 149 years of a sometimes-functioning “Confederation” (really a decentralized federal state, but never mind) is much more important than tens of thousands of years of prior occupancy and the sociopolitical systems that arose prior to contact.

  10.Simpson, “Confusion Reigns on Aboriginal Rights.”

  11.A word for money in nêhiyawêwin, naturally.

  15

  The Myth of Taxation

  Well, nitôtêmitik, now that we’ve addressed some structural issues, it’s time to tackle some of the most widespread and pernicious myths out there – the kinds of myths that have become so rooted in the Canadian consciousness, they are taken as fact and rarely examined. Out of all the myths I have come across, the belief that Indigenous peoples do not pay taxes seems to be the most widespread. I’m here to tell you that you probably don’t know what you think you know.

  First off, let’s acknowledge the obvious: no one really likes to pay taxes. In fact, many people are downright resentful about them. However, there is a grudging understanding that paying taxes allows there to be a pool of funds that make all manner of things available that would othe
rwise not be. The idea that any group of people can get away with not contributing, when everyone else is forced by law to do so, raises indignant ire unmatched by pretty much anything else.

  So keenly is this injustice felt that identities are formed around whether one pays taxes or not. “As a taxpaying citizen” has been a standard starting point for all manner of arguments, apparently identifying the person who utters this formulaic phrase as hardworking, socially responsible, and worthy of being listened to. The corollary to this is the belief that people who do not pay taxes are lazy, socially parasitic, and unworthy of even the most basic human rights. If this feels like an exaggeration to you, stop by any comment section on an article about Indigenous peoples, and you’ll soon see I tell no lies. This is really how some people think.

  Tackling this myth is, therefore, fairly important. If some people out there justify their hatred of Indigenous peoples through the myth that we don’t pay taxes, and therefore do not deserve basic human rights, then exposing this myth means yanking out a foundation stone. Yank enough of those stones, and the whole structure of justifications collapses. We are left with the fact that a lot of this is just “I don’t like you” rather than “this is how you have failed to earn my respect.”

  So, let’s get down to it. Do Indigenous people pay taxes?

  The short answer first

  There is an Indian Act tax exemption for First Nations only that is very narrow and applies only to personal property and income located on a reserve.

  First Nations peoples pay all other taxes not covered by the narrow exemption.

  The tax exemption only involves about 192 005 First Nations peoples when you subtract the number of children aged 0–14 and people 65 and older from the potential tax-paying base.

  That number is actually even lower because a number of First Nations have exchanged tax exemptions for other benefits in self-governing Final Agreements, or have instituted their own taxation regimes.