What is the Aboriginal Question?

What is the Aboriginal question? On the one hand, it is about how to lift Canada’s indigenous people from the posture of being the losing parties – strategically speaking – in Canadian history to one of being co-equals in Canadian governance this century. On the other hand, it is about ensuring that the Canadian state remains coherent and governable even as this transition to Aboriginal co-equality takes place.

(As a long sidenote, let me sincerely commend to colleagues everywhere Douglas Sanderson’s Feature article in GB’s Fall 2015 issue, entitled “Aboriginal Grand Strategy – After Reconciliation.” The article is, plainly, very difficult to read because the story it tells of the history of Aboriginal residential schools in Canada, on the strength of the recent summary report of the Truth and Reconciliation Commission (TRC), is so painful and, to be sure, unfamiliar to most Canadians. I quote from Douglas’ article:

“The TRC report quotes one survivor as saying that he was never comforted; no one was, ever. Children sat crying until they stopped. Affection was foreign. There was systemic physical and sexual abuse. Children were, in this way, taught to abuse others. In one Ontario school, evidence in a criminal trial revealed that residential school staff had constructed an electric chair. It is reported that school officials laughed as small brown legs shot rigid in the chair as electricity coursed through a child’s body – a child whose legs were too short to touch the floor.

These repeated degradations did not destroy Aboriginal people as a collective, but individuals who endured the residential schools left dehumanized. Human beings learn to be parts of a family by being parts of a family. They learn to be brothers and sisters, parents and uncles, aunts and grandparents by existing in these relationships. Survivors of the residential schools learned none of this. The familial bonds of Indigenous families were torn asunder, and virtually nothing has been done to heal these wounds. Parents of my mother’s generation raised my generation without ever having had the experience of being parented, let alone being loved. They struggled, and my own generation, taking our cues from the generation that raised us, struggles again against pain and anger and humiliation that, while distant in time, are ever-present. Our family homes and communities are haunted by memories of unspeakable depravity and neglect. Is it any wonder that suicide rates and alcoholism in Indigenous communities are among the highest in the world?

And here we are. What happened to generations of Indigenous children was carried with them into adulthood, and the lessons learned in residential school were then passed to their children.

It is often very difficult for settler Canadians to understand that the horrors outlined in the TRC report really took place, and still more difficult for settler Canadians to understand the causal links between what happened to my mother’s generation – and the many generations before hers – and what happens and will happen with existing and future generations. What the TRC report does is to make clear that the horror is not a nightmare, but rather a cold hard reality that Canadians must all face together.”)

Returning, now, to the Aboriginal question: how do we make indigenous people co-equals in Canadian governance? Canada has already largely accomplished this with our French-Canadian minority, which enjoys full legal, political, cultural, educational and linguistic rights and opportunities in a land of general prosperity. Historically defeated («Je me souviens»), the French Canadian in Canada – and in Quebec especially – today walks with his or her shoulders held high, properly self-respecting and in turn respected by the English-speaking majority as politically equal and as hailing from a culture that is just as prestigious as the Anglo-Saxon culture of the historical victors in North America. The French language is today not only studied in all of the schools of English-speaking Canada, but is held in equally high regard in official national institutions and in the minds of most Canadians.

Part of the push to co-equal status in Canada for the Aboriginal people will involve making the binational logic at the heart of Canadian constitutionalism far more porous for purposes of Aboriginal representation, control of territory, and governing responsibilities. This will involve reimagining the internal borders and identities of Canada in ways that are more eclectic and indeed promiscuous than the very Cartesian ten provinces-plus-three territories mental map that most Canadians currently have of our country. As I have written in GB, a pivotal aspect of this push must also be the revival and mainstreaming of certain Aboriginal languages, including major ones like Cree, Ojibwe, Inuktitut and Michif. If one or more of these languages were, as with the Maori language in New Zealand, made official, this would lend sudden prestige to Aboriginal cultures that were relegated to the peripheries of Canadian society. (21CQ has been actively arguing for a national languages strategy in Canada – one that necessarily passes through English-French bilingualism, but which then presses for fluency in a third or fourth language, including possibly an Aboriginal language.)

And yet if the vision of Aboriginal Canadians being resuscitated from strategic defeat into political and cultural co-equality is morally compelling, it nonetheless comes with significant risks to the efficacy and legitimacy of the Canadian political project. The courts, which have over the last four decades laid the jurisprudential foundations for eventual policy and statutory pushes by our executive and legislative branches, have had precious little to say about these risks.

What are these risks? The first one concerns the very legitimacy of Ottawa over time to govern over, pass laws for, and enforce these laws in, all parts of Canada – including parts where increasingly well-educated First Nations enjoy significant degrees of self-government or are contesting title to land or treaty rights. Expanded Aboriginal claims to land, vindicated by litigation, coupled with improvements in Aboriginal economic and spiritual well-being through affirmation of constitutional rights and important political reforms, will doubtless help to right the ship of justice, but they will also put great centrifugal pressure on Ottawa to justify its role as the political centre of Canadian life.

The second, growing risk concerns Canada’s ability to exploit natural resources and to deliver on major infrastructure projects of national consequence. Growing lack of clarity on the Crown’s duty to consult and fiduciary requirements, extremely long turnaround times, regular threats of litigation (and even threats of physical blockades and confrontation) will make governments and industry alike increasingly diffident in betting on Canadian resources and undertaking large-scale national building. Just as worryingly, foreign companies and investors will be incorporating these risks into their investment calculus and may turn to simpler theatres for greater returns.

As Canada begins to address the enduring moral dimension of the Aboriginal question, it will be confronted by it, with growing regularity and intensity, at a strategic level. The capacity of the federal and provincial governments to move decisively on a host of strategic fronts will be significantly blunted. Aboriginals might before long have effective or even constitutional-legal veto powers in many aspects of Canadian governance that are critical to the advancement of core Canadian strategic interests, including rapid and efficient development and marketing of natural resources (including in the North and the Arctic), population and settlement patterns for Canadians and new Canadians, control of specific territories (say, for purposes of national sovereignty or territorial integrity), and various species of infrastructure projects, including transport infrastructure, needed to continue to build, bind and modernize the country.

As I note in The Strategic Constitution (2014), there is almost no scholarly or policy literature on the growing relationship between Aboriginal questions and foreign policy (or strategy, more broadly) in Canada. And yet this relationship will, in practice, become increasingly plain and more complex in the coming decade. Let me quote from the conclusion of the book, at p. 174:

“[I]t is increasingly clear that, while most strategically consequential federal law, programs, and moves will be “compelling and substantial” (to meet the first stage of the justificatory part of the Sparrow test in respect of the infringement of Aboriginal rights, including title), the second stage, relating to Crown fiduciary duty, supplemented later by the Haida decision (indeed by the entire “consultation trilogy”) and by a line of recent cases speaking to the importance of the honour of the Crown, will tend to blunt the capability, constitutionally speaking, of the federal government to move directly and independently (and decisively) on a host of strategic fronts. Algorithms for dispatching the consultations and accommodation imperatives with Aboriginal parties […] will need to be refined and iterated and, to be sure, calibrated against the importance of the various strategic interests and ends being advanced by Canada – from Arctic sovereignty to peace and war.”

Bref, the federation, with Aboriginal people more than ever at its core as equals, will become internally grander, more complicated and more interesting. But it will also become more difficult to manoeuvre with great purpose and for great purposes. The management of this vexing paradox will have to take place in the political branches, not in the courts.