One Law for All

Commentary, Aboriginal Futures, Brian Giesbrecht

In his new book, There is no Difference, Ontario lawyer Peter Best begins a long-repressed national conversation about Canada’s legal and social relations with its Indigenous peoples. Mr. Best asks:  Why can not Nelson Mandela’s goal and vision of “one set of laws for all” be the goal in Canada? Why keep and even extend the demonstrably-failing, “separate but equal”, apartheid-like status quo? Instead, he promotes complete legal equality for all Canadians, non-Indigenous and Indigenous.

Best makes a strong case for Canada to not just “talk” Nelson Mandela, but emulate him. There Is No Difference makes a compelling argument that the ill-conceived and harmfully interpreted section 35 of Canada’s Constitution, which protects “existing Aboriginal rights”, should be legally curtailed. This, in order to take back the Crown sovereignty that the Supreme Court, with their “consult and accommodate” rulings, recklessly devolved onto Indian bands.

As to the result, we now witness the economic carnage of failed pipelines and communities. Best convincingly argues that, with his proposed legal change in place, our Indigenous reserves, the Indian Act, and all other race-based special rights and entitlements of Canada’s Indians, would be phased out. His argument revisits late Prime Minister Pierre Trudeau’s 1969 White Paper- updated cogently.

It’s a widely accepted fact that, overall, Canada’s Indigenous peoples are at the bottom of every performance-measuring social and economic indicator. The suicide rate, the poverty rate, the rate of alcoholism and drug dependency, the rate of criminality and incarceration, the rate of educational and economic achievement, the rate of incest and child neglect- all such grim rates of human health and welfare- clearly show that the status quo, which is centered on the reserve system, inflicts Indugenous Canadians with a tragic and unconscionable amount of suffering.

As Best has written, non-Indigenous elites appear to be prepared to continue to ‘drive by’ this ongoing ‘car crash’ and keep looking the other way. This, while Canada’s Indigenous elites are unable to meaningfully respond to the urgent needs of their people. Best asserts that Indigenous elites are, generally, shortsighted leaders inadequate to address the tragedy of their peoples and the tasks facing them. Best notes that whether locked in their urban offices, one of their newly-franchised marijuana plantations, or on a road blockade, the leaders of “sovereign nations” do nothing but talk in expensive, big-city hotels, accusing  everyone but themselves, while their people, on faraway, remote, violence-prone reserves, suffer and die.

Best observes that Nelson Mandela was not the only inspired and courageous leader who saw clearly and advocated strongly that all citizens of a nation should have exactly the same set of rights and responsibilities. That is, if that country and its citizenry are to be successful and avoidable tragedies brought to an end. Think of Lincoln, Gandhi,  King, as Best writes, and ponder on the life of Saskatchewan’s pioneer moral hero, Indigenous lawyer and AFN co-founder William Wuttunee. Wuttunee’s his brave 1971 book, Ruffled Feathers, advocated the way forward for his people could be found in Trudeau’s White Paper and Nelson Mandela way forward.

In apartheid South Africa citizens carried status cards denoting their race. Mandela campaigned for years from inside his jail cell against these loathsome, racist symbols. Eventually, the western world responded  and recognized the moral truth of what he was saying. Status cards, and the entire rotten regime they represented, came tumbling down. Canada’s political leaders, including AFN leader Shawn Atleo, all honouring what Mandela stood for, travelled to his funeral. Yet these same leaders, back in Canada, continue to insist that Indian Act status cards, which serve the essentially same illiberal function as the past South African ones, remain. And Canada’s Supreme Court, in the recent Daniels case, piled on with more unintentionally racist “Indian blood” reasoning – adding 600,000 “Metis” as new candidates for these purely race-based, dependency-assuring status cards.

Best prefers that instead of continuing with laws that bind us together with race-based conduct, dividing us, creating resentment, and preventing true reconciliation between Indigenous and non-Indigenous Canadians, we should move to real equality.

With our present laws, the situation in Canada is getting worse, not better. In Best’s There Is No Difference, he convincingly points the only true way forward is found in true reconciliation – one set of laws for all.