AUTHORITY VERSUS POWER
What I am describing is not the fault of one government or another. You get a sense of how profound the problem is when you look back at the recent crisis and the insistence of the chiefs and of Idle No More on the importance of the governor general. Most Canadians were confused by this because they think the problem is one of government policy – of politics – and have lost a clear sense of how the governor general fits in. Is he part of the political process? A figurehead? Ceremonial? The answer is that the governor general is meant to be above politics.
Many non-Aboriginals thought that this desire for the presence of the effective head of state meant that there was something romantic going on – an impossible hankering after the past. They were wrong.
Most Canadians were not listening carefully to what Aboriginals were saying. Aboriginals were not surprised. The problem for more than a century has been that non- Aboriginals seem to have lost the ability to listen to exactly what is being said by indigenous peoples. We find it troubling, or simply not what we want to hear.
What’s more, many of us have forgotten, to the extent we have tried to understand, how our system of government actually works. We are not helped by politicians or journalists or, increasingly, academics who talk of government only in terms of power – either political or administrative – as if only power matters.
Power is certainly important, particularly in dictatorships, in places where constitutions, laws, unwritten rules, traditions and understandings don’t count. But in a healthy democracy, power is a surprisingly limited element. And the unwritten conventions, understandings, forms of respect for how things are done, for how citizens relate to government and to each other, are surprisingly important. Why? Because if democracy is only power, then what we are left with is a system of deep distrust. Why? Because if only power matters – even if it is the result of an election – then the government feels that it has a mandate to do whatever it wants; that the law is there principally to serve power. If democracy is only about winning power and using it, then it has been deformed into a denial of society and of the idea of responsible citizenship.
And that is the increasingly common characteristic of government, even in democracies. Only power matters. This is partly the outcome of government being de-intellectualized. Elections are now thought to be unsuitable moments for real debates over ideas. In between these elections the focus is on administrative problems – legalistic, managerial undertakings. In this case, real debates over ideas are unnecessary because the decision about power was taken on election night. There is nothing, therefore, to debate. Worse still, the efficient putting in place of programs to be administered can only be made inefficient by debate.
And so we are witnessing a growth in the Napoleonic or Mussolinian corporatist idea that when citizens vote in an election, it is actually an all-purpose referendum or plebiscite. It is then the winner’s job to get on with running things. First win an election, then administer as you wish. Omnibus bills are one of the ways you can speed things up; they are a great way to convert the deeply inefficient process of democracy, with all its thinking, debating and complex differences of opinion, into a sort of shop-floor system of utilitarian efficiency. Therefore, once elected, a government has broad, unlimited permission. Of course, during the Napoleonic era, or even the Mussolinian era, managerialism was in its early days. Today our universities are dominated by management schools. The manager is to today’s society what the lawyer once was, or before that the military officer and the priest. If you were to compare these four occupations by their qualities of education, of social purpose, of acting as agents of change, the profile of the manager would certainly rate below that of the lawyer, probably that of the priest and in many ways that of the officer. All things considered, the amorality of managerialism is more dangerous than the tension between morality and immorality, which is more typical of the legal, priestly and officer castes. In any case, today’s plebiscitary approach is both populist and anti-democratic. What it amounts to is this: We won the election. We have power. It is now a matter of administrative efficiency. We can do what we want.
No, you can’t. There are treaties. There is a Constitution. Just as important, there is an unwritten constitution. There are unwritten rules. This is worth restating. These rules, these structures, these understandings, written or unwritten, are just as important as simple power. Often they are much more important because power doesn’t last long and lacks the complexity of real societies.
Canada is now the oldest continuous democratic federation in the world, in good part because most of our leaders, and certainly the best ones, have respected most of these written and unwritten rules. Other countries – almost all our allies and friends – have suffered civil wars, coups, dictatorships, sharp breaks, because they could not maintain the flexibility and respect for the Other that these rules, in particular the unwritten rules, create.
As I began arguing in 1997 in Reflections of a Siamese Twin, one of our unwritten realities is that the country is built upon a triangular foundation – Aboriginal, francophone, anglophone. The ease with which Canada embraces diversity today has been made possible by our non-monolithic foundation. And that foundation worked to the extent it did largely because of the more complex ideas of belonging and identity in Aboriginal societies. What we call multiculturalism or interculturalism is constructed, and works because it is constructed, on those ideas. This isn’t about population numbers or financial numbers or race or power. Without that underlying complexity we would have found ourselves in the European nightmare – the delusional myth of one blood, one race, one people. And so if you undermine the complexity of our foundation, you undermine diversity as the Canadian model.
Now let me go back to the role of the governor general. If you look at how the country functions, you see that there has always been a clear difference between authority and power. This is partly written, partly unwritten. The governor general represents authority. The prime minister, through Parliament, represents power. Authority is the expression of profound legitimacy. In Aboriginal terms this is the authority and legitimacy represented in part by elders. We call this the legitimacy of the Crown or the state. The Crown is the people. The people are the guarantors of the state. The governor general is the protector of the Crown; that is, of the people. This is not about money or law or soldiers. It is about a role above power, a concept of the state above interests.
This concept, in various forms, has been adopted by almost all democracies: a head of the state separated from the head of the executive, the voice of authority separated from the voice of power. Head of state is a full-time, on-the-ground job. It is an approach with deep historic roots, yet it now seems to be particularly appropriate and almost postmodern.
And so, in the Canadian version, a meeting between the prime minister and the national chief is a meeting about power. A meeting with the governor general present automatically invokes the state, the Crown, the people. And the Crown automatically invokes the Honour of the Crown, a concept given its Canadian form in such historic Supreme Court decisions as Guerin in 1984, Sparrow in 1990 and, most recently, the Manitoba Métis case in 2013.
The Guerin case is one of those Aboriginal victories at the highest court that have shaped Canada over the last forty years. What is the Honour of the Crown? It is the obligation of the state to act ethically in its dealings with the people. Not just legally or legalistically. Not merely administratively or efficiently. But ethically. The Honour of the Crown is the obligation of the state to act with respect for the citizen.
And so the presence or role of the governor general in a meeting involving indigenous peoples and the government is not about undermining responsible government; that is, the governor general’s presence does not undermine the authority of Parliament. The Aboriginal peoples’ desire for that presence simply means they want to ensure that the conversation goes beyond raw power – a context in which they have been continually betrayed. They want the conversation to include the ethical authority of the state, the Honour of the Crown. In other words, they believe that the presence of the governor general will invoke the centrality of the state’s commitments made through the treaties. These treaties were signed not by the government but by the Crown, and therefore by the state, in the name of the people. And while our obligations are legal, they are first of all ethical.
This may seem, at first reading, a bit abstract or theoretical. After all, the governor general would not interfere in such a negotiation. Does that not mean his would be merely a ceremonial presence? And here you come up, once again, against the basic decline in how we tend to imagine governance. It must be real power or it is mere ceremony. The question is quite different when you alter the phrase to real power and real authority, and still more different when you understand that the point of authority is not interference. The governor general’s presence, many Aboriginals feel, would impose a certain respect due to the senior elder in the land. And that should be a guarantee of the Crown acting with honour.
You may think this is a long shot. But either you believe in the legitimacy of the structures of the state or you don’t. If you don’t, then that leaves only power, which is a form of absolutism.
The experience of Aboriginal peoples over the last hundred and fifty years has come down to working with governments – and in particular the Department of Indian Affairs, itself arm in arm with the Ministry of Justice – that use their power to betray the Crown’s obligations to respect and fulfill the treaties. Governments, one after the other, have acted as if they have the power to do whatever they want when it comes to indigenous peoples. As if they do not believe in the legitimacy of the structures of the state.
Here it is worth repeating the headlines: Residential schools. Limitations on religious freedom through the banning of ceremonies, of potlatches, of the right of spiritual leaders to travel. The bogus rule claiming that First Nations people needed permission to travel. Banning First Nations people from using lawyers. The underfunding of Aboriginal education. Interference in the use of their land. The steady removal of land by a variety of dubious methods. Etc. Etc. Etc.
In other words, governments, one after the other, have used their power to betray the Honour of the Crown.
That is why the Supreme Court in the Guerin case rebuked the federal government’s misuse of its power. On the surface it was a mundane case of local Indian Affairs officers using their power to cheat the Musqueam Band out of money for land leased to rich Vancouverites to build a golf course. The Musqueam live on the south side of the city, and the Shaughnessy Heights Golf Club is still there. Over the decades, how many times in how many places has something like this happened? Thomas King presents an accurate and depressing account of this history of land pilfering in his The Inconvenient Indian. In the Musqueam case, the local officials and their friends in the city did their deal within their technical rights. However, knowing themselves that it was unethical, the officials refused to share documents with the band. Chief Guerin persisted in a saga that nine years later ended up at the Supreme Court.
But the Court chose not to base its ruling on such utilitarian concepts as the efficient use or the legal use of bureaucratic power. It did not focus in on the reform of the Department of Indian Affairs. All of these can be seen as required outcomes of the ruling. But the core of the Court’s message was that the Government of Canada, in all its actions, was bound to respect ethical principles. These can be seen in two parts. First, Canada has a fiduciary duty or obligation to act in the best interests of Aboriginal people. This simple principle made Guerin one of the most important court cases of the twentieth century. Why? Because it took us back to the original principles of the Aboriginal–non-Aboriginal relationship. That relationship was developed in good faith, and therefore carried very real obligations. In the case of the Musqueam, the Crown had betrayed its obligations. And this led to the second, more basic understanding, which is now often seen as the broader outcome of Guerin. What is the basis of the fiduciary relationship? What is Canada’s obligation? It is contained in the Honour of the Crown. From that core, the rest would follow. And this concept is so solid that more Aboriginals are now using it in cases against the government. As they should. This reality of the Honour of the Crown is an important Aboriginal contribution to justice for all Canadians. In fact, I believe that non-Aboriginals could use it in many government-related cases.
Chief Delbert Guerin, who led this long and difficult fight, died in May 2014. He was one of the great figures of contemporary Canada. By formally reintroducing ethics into the core of public administration, he changed the way we must think of ourselves. We owe him a great deal.
In the more than decade-long Delgamuukw case, the Supreme Court tied its ruling to the trustworthiness of the First Nations’ oral interpretation of their rights rather than to the written version of officials. Again, there was a built-in assumption about the obligation of the Crown to act with honour.
There is a moving similarity in these cases, cases that are changing the nature of Canada. Delgamuukw involved two bands of the Skeena region in northwest British Columbia. They wanted to challenge the governmental and legal assumptions about land ownership. The case began in 1984 and ended at the Supreme Court in 1997. The two bands did not win ownership. However, they brought the standard European-derived assumptions about the nature of ownership to a halt and opened the way for what might be fair negotiations.
What is fascinating is that the government had all the written documentation it needed to win. But the court, led by Chief Justice Antonio Lamer, turned them back.
The Gitxsan and the Wet’suwet’en Nations had put forward an argument of oral memory in order to prove the land was theirs. They argued that oral memory is perfectly accurate, as it is passed on from one generation to the next via individuals charged with remembering, and with doing so accurately through a formalized process.
As in the Guerin decision, the Court chose to base its decision on principles far more important than any technical argument coming out of the Western tradition. The result was one of the most important rulings in the history of Canada. Alongside written proof, the Court would give equal place – and in this case what amounted to precedence – to oral memory. This argument for orality carries all of us out of the universal European narrative.
In the chief justice’s eloquent judgment, he said that oral histories would be “admitted for their truth,” that the laws of evidence must therefore be adapted, that “in the circumstances, the factual findings [of the government] cannot stand.”
His concluding sentences were a call for negotiations to achieve something that I can only imagine happening through a spatial approach: “… the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. Let us face it, we are all here to stay.”
The crisis of 2012–2013 is a depressing reminder that the governments of Canada – federal and provincial – have stubbornly refused to accept this Supreme Court recommendation. But at least the rules are there, carefully argued and laid out, constantly repeated and developed in case after case.
Guerin and Delgamuukw are two examples of the continuing ability of Aboriginal peoples to shape not just how Canada functions or will function, but how Canada imagines itself. The Court’s decisions demonstrate how Canada does not exist or function merely in the narrative of the British or French philosophy of governance. It is beside the point that our governments at all levels, along with the legal profession, are trying to pretend that these rulings do not exist. Sooner or later they will have to accept that the Supreme Court exists and has ruled. More important, these arguments make sense, here.
Let me put this another way. Each time the Supreme Court rules on an Aboriginal question, it seems to feel obliged to engage in original thinking. Why? Because it comes up against the originality of the Canadian reality, in which indigenous ways of thinking can be as important as the imported European methods. Or more important.
There is another reason why the Court is forced onto the grounds of originality and principle. For almost a hundred and fifty years, politicians and civil servants have repeatedly acted as if there were no principles at stake. As if there were no intentional relationship, carefully worked out in treaties agreed to by both parties. There was only power. And they could use that power to serve narrow interests.
Does this mean that today there are no good people working in the Department of Indian Affairs? Not at all. What it does mean is that this department, whatever its current name, has neither ethical nor moral credibility. And I doubt that it can be reformed in order to assume the necessary ethical and moral credibility. The department has had a reasonable number of very good ministers who have attempted to change the situation. None has succeeded.
Allow me to tell you a short story about a long saga, both of which illustrate what the government has been doing and what the indigenous peoples have been dealing with over approximately a century and a half.
St. Anne’s in Fort Albany on James Bay was opened in 1902 as a Roman Catholic mission. In 1904 it became a residential school. In 1970 the federal government took it over, closing it in 1976.
In the early 1990s, after widespread complaints of sexual and physical abuse against the children, Ontario Provincial Police detectives were assigned to investigate what had happened at the school. The result was several convictions. These came out of the massive investigations lasting five years and involving hundreds of survivors. Seven thousand pages of testimony and corroborated information were assembled. For example, there was an electric chair. Edmund Metatawabin, chief of the Fort Albany First Nation in the 1990s: “Small boys used to have their legs flying in front of them … the sight of a child being electrocuted and their legs flying out in front was a funny sight for the missionaries and they’d all be laughing … the cranking of the machine would be longer and harder. Now you’re inflicted with real pain. Some of them passed out.”
In 2003 the federal government asked for and received copies of these seven thousand pages.
Meanwhile the country was slowly developing a method aimed at reconciliation. It was formalized as the Indian Residential Schools Settlement Process. Victims were to register and then take part in a proceeding that was to be non-adversarial. It was, after all, supposed to be a healing process. The method was simple.
Our government – that is to say, you and I – admitted that wrongs had been committed. Victims were then to be listened to. Government and the churches were then to make a clean breast of what they had done. We know that this revelation/ listening stage is a central part of any reconciliation process. It goes without saying that the government was expected to act honestly, to produce all information in its hands.
Instead, our government withheld a great deal of essential information. There were, they said, “no known documents of sexual abuse at Fort Albany Indian Residential School. No known incident documents of sexual abuse at Fort Albany IRS.” This was a straight lie. Not only did they ignore a basic rule of our legal system – the duty to disclose – they ignored the specific requirements laid out in documents explaining the government’s responsibilities in this reconciliation process.
What’s more, they used the resulting lack of documented information to throw into doubt, in an adversarial manner, the victims’ stories. They converted a reconciliation process into an attempt to re-wound the wounded. They set out to humiliate the victims.
However, there was some knowledge that documents existed. The survivors asked for them and were rebuffed. Eventually they went to the courts and fought our government. In January 2014 the Ontario Superior Court forced our government to release the documents and so reveal that we – it is, after all, our government – had lied.
Justice Perell wrote that the government’s refusal to admit to the contents of the seven thousand pages or to release them “had compromised the process and denied the claimants’ access to justice.” He wrote of governmental non-compliance.
In a pitiful misrepresentation of reality, an individual was made to say, on behalf of Aboriginal Affairs Minister Bernard Valcourt, “We are pleased the court clarified we can disclose the documents.” Add to this an astonishing exchange of letters between the minister of justice, Peter MacKay, and an MP, Charlie Angus, and you begin to realize that our governmental attitudes have not fundamentally changed. Angus carefully points out the ministry’s improper behaviour and misleading activities. The minister replies as if nothing is wrong and avoids mentioning or dealing with the two central issues: for eleven years the government had had the information necessary for a fair process and intentionally hidden that fact or pretended they could not release it; the government’s lawyers had used this non-disclosure to undermine the First Nations victims. There is no suggestion from the minister of error. No contrition. No apology. Just a cold assertion that the department was doing its job.
In circumstances such as this I have no sympathy for myself as a citizen. It is my government, my civil service. Mine and yours. It has shamed all of us by prevaricating, lying, causing suffering to fellow citizens. In this case, the word shame must be used. We and those suffering are the Crown. We are the source of Canada’s fiduciary responsibility. And we, through our government, are cheating and humiliating citizens who have already been humiliated by our governmental education system.
Not surprisingly, the survivors wrote to the minister of justice asking that he withdraw the department’s lawyers from the process; they, the survivors, had “completely lost faith and trust” in them. “These lawyers, who are supposed to uphold the laws of Canada for all Canadians (including Aboriginal Canadians), have proved to be untruthful and unreliable.”
This is just one story. How many others are there?
Note the similarity to the Guerin case: members of the Department of Indian Affairs use their administrative power to mislead Aboriginal people. They betray the Honour of the Crown.
This is one of the reasons that the then national chief, Shawn A-in-chut Atleo, insisted during the winter of 2012– 2013 on a direct working relationship with the prime minister and the Privy Council. He knew that the First Nations must deal at that level because they are treaty partners, not wards of the state under the tutelage of a department. But he also knew that First Nations people must operate well above the corrupted systems of the Department of Indian Affairs as well as of Justice, systems originally created to destroy the department’s “wards” or, as they now put it, “clients.” The application of this commercial term to describe the relationship of citizens to the government they chose is both stupid and ignorant. The application of this term to indigenous peoples – treaty people – is, in addition, insulting. After all, what is a client? Someone who is buying goods or services based on the narrow self-interest of the seller on the one hand and of the buyer on the other. And so even this terminology is a constant reminder that Aboriginal peoples must rise above the paternalistic misuse of power on which the department has been built. They must negotiate at a higher level, as equals.