Crescent Falls, a few minutes drive west of Nordegg, Alberta, is a deep gorge and waterfall in the foothills of the Rocky Mountains. Standing on the rocks above and watching the water rush over the ledge to the canyon floor, it is hard to think of anything but the magnificence of nature. A glance up-stream to the towering mountain range in the distance binds the imagination to pondering over the millions of years it took to shape such splendor. Mesmerized by the roar of waves dancing head-long into the stream below, the anxieties of daily life and the polemics of humanities relations seem transient and trivial against the back-drop of nature's apparent antiquity and immortality. Undaunted by the affairs of mankind, these waters have continued to flow along their course, day-after-day, since continental ice sheets contracted to expose an ice-free corridor from the Yukon to Montana some 12,000 years ago.
The perpetuity of this stream running through the wilderness is analogous to the sustained fluidity of transition that characterizes the history of civilization. During the same epoch that the waters at Crescent Falls have been pouring across the rocks, the ancient societies of Babylon, Rome, Greece, Prussia, the Ottoman Empire, the Kingdom of the Kongo, the Mayas, and the Aztec Empire all rose to prominence and then fell to impotence. Their individual eras are little more than fleeting moments in the life of a tributary, and they are only a small number of the societies and cultures that have come and gone.
The year is now 2017 A.D., and across the globe currents of change persist in their assaults on the complexion and organization of many other political communities. In our preceding twentieth century alone a host of distinct societies and political orders proved incapable of stemming the tides that threatened to erode their foundations. The once powerful British Empire succumbed to the demands of self-government asserted by colonial societies throughout the regions of its realm and transformed into the Commonwealth of Nations; a loose alliance of independent nation-states. German society was divided by a brick wall and barbed-wire fences after the defeat of Adolph Hitler's Third Reich in the Second World War, only to be reunited by the collapse of Communism and the crumbling of the Union of Soviet Socialist Republics. South Africa emerged from decades of Africana-minority rule under the Apartheid system of government to see the day when Nelson Mandela, one of the founders of the indigenous liberation movement, was elected as the first black President. In the 'Americas' a renaissance of indigenous cultural identities, suppressed by the ancestors and institutions of European imperial powers over the course of the past few centuries, underscores intensified quests for self-government and self-determination in First Nations' communities across both 'New World' continents.
The focus of this article, and subsequent ones to be posted on this blog, is the broad subject of claims to rights of self-government and self-determination by Aboriginal peoples in Canada. The challenge to the hegemony of Canada has become located within the articulation of legal rights that the Constitution Act, 1981 claims to protect for First Nations' peoples living within its borders. In Part II of the Act, Rights of the Aboriginal Peoples of Canada, Section 35.(1) states that, "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." The Act did not, however, define just exactly what rights it was referring to in the context of "...existing aboriginal and treaty rights..." Instead of defining those rights, the Act established a process of Constitutional Conference(s) in Part IV, Section 37., that were intended as a means to arrive at "...the identification and definition of the rights of those peoples to be included in the Constitution of Canada,..." Somewhat ass-backward, the idea was that the Constitution Act, 1981 would provide constitutional recognition for whatever rights it was that the Constitutional Conference(s) agreed upon; through the participation of the Prime Minister, the First Ministers of the provinces, and whatever "...representatives of those [Aboriginal] peoples..." the Prime Minister chose to invite participation from in the course of the discussions.
In approaching this field of study it is my intention to center my analysis around two specific ongoing debates. First, I will examine the debate between 'inherent' and 'contingent' rights approaches to the acceptance of an Aboriginal right to self-government and self-determination in Canada. Secondly, I will address the common perception that the Government of Canada possesses exclusive sovereign title over the territories that it has assumed, and the corresponding challenge being presented by Aboriginal peoples against this claim to unfettered title over lands that their ancestors have lived on since time immemorial. Drawing upon references from legal and historical scholarship dating back to as early as the thirteenth century and following right through to the twenty-first century, I conclude from my analysis of these two debates and the body of research behind them that Aboriginal people in Canada do possess an "inherent" right to self-government and self-determination; that such an inherent right encompasses an existing right to sovereign authority over their lands and peoples; and that the Government of Canada's sovereignty is not exclusive within the Canadian confederation of regions. I further assert that, coincident with the recognition of these rights, Aboriginal peoples in Canada and the governments of their making possess the right to establish whatever processes and institutions they deem necessary and desirable for the good and orderly governance of their communities - including the right to make laws and to establish independent justice systems for dispute and conflict resolution functions within First Nations' territories.
To the vast majority of Canada's population an argument made by a citizen of this country that brings into question the legitimacy of Canadian sovereignty might be perceived as tantamount to treason. On November 11th of each year, Remembrance Day, millions of people across this country gather at cenotaphs and/or wear red poppies to pay their respects to those men and women who have fought and died for the protection of the rights and freedoms of Canada's citizenry. To assert that the country these people died to protect may have been founded on a debasement and bastardization of International Law principles, and to suggest that other 'nations' may have equally legal and moral claims to this territorial region, is likely to be taken as a great insult by many war veterans.
My Grandfather and Father, as well as many other members of our family tree, served in the defence of Canada, and our family has roots in British North America that date back five generations. Many lives were lost so that I and the other children of my age could live in a future where ideas and arguments are expressed freely, and to live in a world where notions of peace, freedom, and respect for rights to life and liberty shape the idealism in international political pronouncements. Any who believe that I am somehow less committed to respecting and serving that legacy are sadly mistaken. However, there is a rapidly growing body of historical and legal literature emerging that stands in support of an existing Aboriginal right to sovereign title over the lands on which they live and on which their ancestral heritage is located, and 'justice' dictates that it cannot simply be ignored. There are also many Aboriginal families who lost the companionship of sons and daughters, brothers and sisters, uncles and aunts, as well as mothers and fathers to the battlefields of Europe during the 1940s, and it seems self-evident that their ancestors have an equal claim to ensure that articulations of Canada's historical evolution take into account the communal rights of First Nations' peoples.
Rather than presenting a threat to the hegemony of the Canadian state, as many might first be inclined to believe, I would assert that recognition and statutory articulation of such rights within our nation could have dynamic consequences that would serve to remind all in our society that, "...as Canadians we take our life from the fruitful collision and interpretation of many inheritances and thus, we grow."
Toward defence of this premise, in future articles on this blog I will support the argument that syncretism of 'distinct societies' within 'the Village' (Canada) can be achieved through the paradox of pluralism in governing bodies and institutions, by adopting and promoting a new 'Longhouse' paradigm of cohabitation.
There are a few points to make for clarification in reading of future articles on this blog. First, I have used italics, perhaps more frequently than readers my be acustomed to, in order to emphasize the specific legal paradigm that the reader should be considering while reflecting on the accompanying text. For example, at several points the reader may encounter the terms Canon Law, Natural Law, Positive Law, Roman Law, English Law, the Law of Nations and/or International Law within the same paragraph/page. Each of these titles refers to a specific legal paradigm or tradition and the transition from one body of legal theory to the next might be confusing unless emphasis is utilized to draw attention to the specific paradigm/tradition under consideration. I should also note that I do not pretend to be providing in these articles a comprehensive overview of these bodies of law. If the reader is not versed in these legal traditions it will be necessary to seek elsewhere for a detailed account of their constructs.
Secondly, throughout this work readers will find the terms indigenous, Aboriginal, and First Nations' peoples used interchangeably to identify those peoples whose societies and cultures possess an ancestral heritage on the American continents which precedes the arrival of European explorers, colonial representatives, and immigrant settlers from the 'Old World'.
Lastly, while I hope that this work will be easy enough for a reader of general interest to understand and appreciate, I do not present these articles as an introduction to the issues of First Nations' politics in Canada. This is a multi-article argument addressing a critique of historical and legal interpretations that have served to disadvantage First Nations' peoples in Canada, and its intended audience is most specifically those scholars and public policy formulators who, in my opinion, need to reconsider and reflect on the inaccuracies and injustices within the paradigms of legal rights and entitlements that they have hitherto been relying upon to guide their thoughts and actions.
In a multi-media age of fifteen second sound-bites it is frequently possible, and in some cases preferable, to make rapid judgments based on scant information. Many television news broadcasts now feature summaries of the top stories of the day within the first few minutes and the last few minutes of an hour-long broadcast; just in case members of their audience do not have the time or patience to stick around long enough to hear the whole story. I would implore my audience to discard such haste in drawing conclusions with respect to the 'existing aboriginal and treaty rights' of First Nations' peoples in Canada as they are presented in this and subsequent articles on this blog. Two points should be kept in mind. First, by acknowledging and articulating Aboriginal rights to self-government and self-determination in Canada's assumed territory it is not necessary to view the relationship as a dichotomy of rights or a zero-sum argument. Secondly, it is also not possible to achieve a thorough understanding of the merit within a call for their recognition by reading the Introduction and Conclusion. I ask that the reader suspend popularized understandings of Canadian history and hitherto common perceptions as to the legal rights of First Nations' peoples within it while absorbing the argument that is to be laid before you. Instructed by the maxim, "...it's easy enough to have a clear conscience - all it takes is a fuzzy memory," I propose that by doing so the experience will be made richer through the clarity that insight and objectivity can produce. I would also ask that the reader reflect on the words of Carl Schurz:
"Our country, right or wrong. When right, to be kept right, when wrong, to be put right."
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