Rewriting Canada’s Citizenship Oath to “Recognize Indigenous Peoples” is Wrong and Harmful

Commentary, Aboriginal Futures, Peter Best

On October 23rd, 2020, Immigration Minister announced that the Liberal government will soon introduce a bill to alter the Oath of Citizenship making it “more inclusive,” and the minister says that “this bill will serve as “one more vital bill step towards reconciliation.” This change was the last Call to Action (#94) in the Truth and Reconciliation Commission Report.

The present oath states: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty the Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.”

The proposed oath would repeat these words but would conclude with “I will faithfully observe the laws of Canada including the Constitution, which recognizes and affirms the Aboriginal and treaty rights of First Nations, Inuit and Metis peoples, and fulfill my duties as a Canadian citizen.” (the italicized words are hereinafter referred to as the “Indigenous addition”).

Changing the Citizenship oath is a bad idea.

Our citizenship oath is an affirmation of complete, politically neutral, objectively legal, civic responsibilities of the citizenry of Canada. It cannot be made legally “more inclusive” by referencing one particular law that newcomers swear to “faithfully observe.” All people are either fully included within the citizenry of Canada or they are not. There are no degrees of inclusivity in relation to the legal state of being a citizen.

The Indigenous addition is inherently political, and for this reason it has no place in the citizenship oath. Its legal meaning is unclear, contentious, and the subject of numerous ongoing lawsuits. 

Our elites view this addition as a means to “decolonizing” the country and developing “nation to nation” relationships with separate groups of “aboriginal peoples.” A substantial percentage of Canadians disagree that Canada can be composed of over 600 separate nations embedded within its borders  Many Canadians think that all of us should live under one set of laws. We all should be citizens and no one should be treated differently.

The Indigenous addition wrongly compels new Canadians to legally take one side–the elites’ side–in an ongoing political, philosophical, and legal debate. 

In fact, some Canadians newcomers (as well as many other Canadians) would likely object that there should be two classes of Canadians if the Indigenous addition were clearly explained. 

“Aboriginal rights” are based on exclusive hereditary rights. A newcomer from South Asia, for example, would liken this to the caste system, one of the debilitating realities they left behind to emigrate to Canada.

The Indigenous addition will lead to more legal uncertainty, the holy grail of lawyers. Section 35 (1) of the Constitution Act, 1982, states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) states that “aboriginal peoples” includes the Indian, Inuit and Metis peoples of Canada.” (emphasis added)

The Indigenous addition refers to the rights of “First Nations” rather than, as it should, the rights of the “Indian”, which is the correct legal name. “First Nations” is a legally meaningless term. It is neither in the Constitution nor in the Indian Act. This term is based neither in history nor in law.  It is merely a recent popular, trendy, term invented to assuage the modern, “progressive”, guilty sensitivity about the word “Indian”, which sounds so…racist. 

The Indigenous addition, if it is to be added to the oath, should repeat the exact words used in the Constitution. It’s a fundamental rule of legal writing that once a concept is legally defined, for consistency and clarity that definition must always be used. 

Obviously, new Canadians should not be required to swear an oath that contains a legal mistake or a misrepresentation, which this proposal addition to the oath contains. 

The Indigenous addition will do nothing to promote “reconciliation,” which is a domestic political goal a newcomer to Canada may know very little about.

Finally, there are numerous Indigenous compensation and land claims cases against the federal Crown–meaning in effect against the Canadian taxpayers–working their way through the Canadian courts. The specific reference to “aboriginal rights” in the proposed citizenship oath, the only particular substantive Canadian law specifically referred to in it, can be reasonably interpreted as an endorsement by the federal government’s “nation to nation” interpretation. 

This interpretation, of course, could be used by a court to favour Indigenous claimants against the Crown, which means that the oath will be used to go against the financial and legal interests of Canadian taxpayer. In the highly volatile Indigenous-non-Indigenous legal environment that exists, it is imprudent to include the Indigenous addition in the Canadian citizenship oath.

Our citizenship oath should be left in the neutral, apolitical state in which it currently exists. It should not be revised.

The typical new Canadian oath swearer will obviously be from a foreign country, usually with a completely different history and culture than Canada. Most will have little knowledge of the nuances and complexities of Canadian history, especially that relating to our Indigenous peoples. The Indigenous addition presumes an unrealistic level of specialized knowledge in this regard. Most people who would swear this new oath would have no idea whatsoever what the Indigenous addition was about. It is not right to have new Canadians swear an oath that they wouldn’t and couldn’t fully and easily comprehend. That would be legally insincere and phony and would debase the profound significance of the oath. Oath swearers should understand everything they are swearing to. 

In fact, regarding the latter, as it is playing out our elites’ interpretation of “aboriginal rights” has become something of an orthodoxy. “The nation to nation” interpretation referred to above and the unique, preferential mention of “aboriginal rights” in the proposed citizenship oath which strengthens that orthodoxy suggest that our elites think that history has hardened in this regard and that no further public discussion of it need be had. This wrongly fetters freedom of speech about and the imagining of beneficial alternatives to this orthodoxy, both on the part of Canadian newcomers and Canadians already here.  History can never harden. There can never be an End of History. “The unripe grape, the ripe, and the dried. All things are changes, not into nothing, but into that which is not at present.” (Marcus Aurelius, Meditations, quoted in George Eliot’s Daniel Deronda.) The proposed Indigenous addition to the citizenship oath wrongly goes against the grain of this fundamental historical truth.

 

 

Peter Best is a Research Associate with the Frontier Centre for Public Policy.

Photo by Jeremy Zero on Unsplash.

Republished from The Epoch Times.