The Matrimonial Right To Assimilation
Thomas Flanagan is an American-born senior fellow of the Fraser Institute, a member of the so-called “Calgary Group” of Prime Minister Harper’s neo-can advisors, and one of Harper’s most important strategists. But in Aboriginal circles, Flanagan is best known for “First Nations, Second Thoughts”, a vile little screed which argued explicitly that Aboriginal cultures are inherently inferior to European cultures; that Aboriginal people should be forced to assimilate into the mainstream of the Canadian population; and that Canada’s treaties should be abrogated.
“First Nations, Second Thoughts” is much beloved by conservative polemicists, most of whom haven’t actually read it, but all of whom are sure that it “tells the REAL truth” about those damned whining natives. Its fractured version of history has been thoroughly and thoughtfully debunked elsewhere.
During his first federal campaign as Conservative leader, Stephen Harper was asked point blank by the three national Aboriginal organizations whether he and his new party supported the program espoused by goals. Harper refused to respond. But a response wasn’t really necessary; Flanagan’s views are completely consistent with everything the government has actually done since January 2006.
Shortly after the Harper minority government was elected, I wrote:
The Tories have been fairly quiet on Aboriginal issues since the election, other than reneging on the Kelowna agreement.
I don’t expect they will announce their long term policy goals. If they remain consistent to the vision proposed by Tom Flanagan, those will include the abrogation of treaties and land claims, and the reduction of self-government for First Nations to something resembling municipalities. I doubt very much that Harper will be explicit about that. But I did expect to see a number of small, incremental steps that would set the stage for a gradual descent down that slope.
Some of the signs to look out for would be:
- measures to assert the supremacy of Canadian law over any existing agreements, especially in the area of property.All these will be wrapped up nicely and presented as initiatives that are really for the Good of “The Natives”, of course.
My emphases.
That prediction (one of my better ones) has been born out several times. And now – well, here we go again.
The issue, briefly, is about property that belongs to married couples, and what happens when a marriage breaks down and that property has to be divided. Provincial laws don’t apply on First Nations reserves, and the Indian Act doesn’t address the issue. So while First Nations have traditional law and practices dealing with these matters, many First Nations communities do not have laws that are recognized by the Federal government.
In 2006, responding to questions about its invisible Aboriginal policy, Minister Prentice announced that the Government was going to begin consultations with Aboriginal groups to address the problem. And the result is about to be tabled. According to the CBC,
The federal government has introduced legislation to ensure women on First Nations reserves have matrimonial property rights if their marriages dissolve, Indian Affairs Minister Chuck Strahl said Tuesday. Provincial laws governing the fair division of assets when marriages fail do not apply on reserves, and the federal Indian Act, which governs most aspects of life on reserves, does not address the subject.
The proposed legislation also includes a mechanism for First Nations communities to develop their own community-specific laws to deal with matrimonial property, Strahl said. It also offers similar protection to women and children on reserves as the laws available to those off-reserve, he added.
[snip]
The bill was drafted following widespread consultations over the past year with interested parties, including the Native Women’s Association of Canada and the Assembly of First Nations.
Wow. Who could possibly be against property rights for women? Especially since the bill was drafted following “widespread consultations” with the Native Women’s Association of Canada and the Assembly of First Nations?
So…what does the Native Women’s Association say about this fabulous new measure - you know, the one they were “consulted” on?
‘Consultative Partnership’ a Sham
Winnipeg, MB (March 4, 2008) – The Government of Canada has acted unilaterally in
trying to resolve the issue of a lack of matrimonial real property laws that apply on
reserve. Despite engaging in a discussion process with relevant National Aboriginal
Organizations, the federal government introduced legislation, The Family Homes on
Reserve and Matrimonial Interests or Rights Act, that does not have the support of the
Native Women’s Association of Canada (NWAC).
The angry NWAC press release points out that NWAC participated in the “consultations” in good faith, only to see their input ignored…except, of course, when the Minister needs to claim credit for “consulting”
And AFN, similarly cited in the INAC’s self-congratulatory press release?
The Government is planning to introduce the MRP legislation during the current session of Parliament – sometime between now and the end of March. AFN will continue to monitor this situation closely and provide regular updates.
In summary, the AFN is concerned that the proposed legislation will impact Aboriginal title and Treaty rights. This is completely unacceptable. This problem is made worse by the fact that First Nations have had no time and no opportunity to provide informed consent.
Got the picture? The Conservatives are intent on ramrodding through their Act on Matrimonial Real Property, ostensibly to protect the rights of Aboriginal women, despite the fierce opposition of both the Native Women’s Association of Canada AND the Assembly of First Nations.
To folks familiar with Aboriginal issues, there’s nothing new about government claiming to “consult” native people, then ignoring their input and doing precisely what they had planned to do in the first place. The previous Liberal government actually funded a brand new “native” organization, specifically in order to obtain the feedback they wanted to hear on a specific issue. But what makes this latest Conservative maneuver particularly vile is the way it packages Tom Flanagan’s assimilationist shit in a sweet, crunchy coating of pious sentiment.
“”Our government is taking concrete, practical action to fill an intolerable, inexcusable legislative gap that has existed for far too long,” Strahl said.
This sudden and tender concern for Aboriginal women is deeply moving, if a bit surprising. It’s reminiscent of the sudden and tender indignation some bloggers express at the plight of Muslim women in Afghanistan, while despising feminism at home and in every other corner of the world. That kind of extremely selective concern usually signals that something else is at play. After all, the Harperites haven’t taken action to fill any of the “intolerable gaps” identified by the Auditor General in their failure to honour claims and treaties…why this obsession with matrimonial property for Aboriginal women?
Well, as it happens, that’s a pretty easy question to answer. The issue of MRP provides a noble rationale for rolling back the clock on Aboriginal self-government.
The official basis of Canada’s Aboriginal, liberal and progressive conservative, has been based on a few legal and constitutional principles. These include:
- recognition and honouring of treaties;
- negotiation of Land Claims Agreements to define the nature of Aboriginal title on lands occupied by First Nations and Inuit.
- negotiation of self government agreements based on the interest and capacity of the FNs to assume powers, functions and authorities.
You’ll note that these goals are precisely the opposite of the Flanagan/Conservative strategy of assimilation, dissolution of the treaties, repudiation of claims, and establishment of “self-governments” with powers similar to those of a municipality.
So how does the proposed matrimonial property rights legislation further the goal of assimilation?
In a nutshell, the new Act says that the Federal government can simply ignore First Nation governments, overriding them with an imposed federal law. Any specific MRP provisions developed by a FN would have to be confirmed according to a government-defined process set out in the legislation. While no-one can argue against the goal of fairness for Aboriginal women, the Conservatives plan to achieve it by assuming full authority and brushing Aboriginal jurisdiction aside.
Now, that’s a very useful precedent to set. Heck, if Canada can unilaterally determine what aspects of self-government you’re going to ignore – ALWAYS out of concern for the poor Indians, of course – just THINK of all the things you can do.
You could transfer funding for Aboriginal education to the provinces, and then force native children to attend “real” schools. The provinces would love that, of course.
You could decide that you’re going to impose free market principles on first nations without allowing them to define the terms of property. Some bands may choose a collective or group/clan model for ownership of property rather than private property; this, of course, is anathema to Harperites. Wouldn’t it be great if reserves could SELL land now held communally? Just like in Alaska, where several boroughs on the North slope actually sold off ALL their peoples’ lands? Wouldn’t that solve a lot of problems?
To put it simply, the legislation is a Trojan Horse – an assault on First Nations collective rights, Aboriginal title and Treaty rights, piously and thinly disguised as a defense of women’s rights by a government of hypocrites that’s done as much as it can to dismantle women’s rights in every other quarter.
The challenge of matrimonial rights on reserve is huge, a complex tangle of systemic issues that lead to violence against women and the dissolution of marriages. This legislation, being advanced against the wishes of the people it’s supposed to serve, addresses the one aspect closest to the Conservative heart- property.
Not housing.
Not endemic poverty.
Not the government’s failure to honour its obligations under treaties and claims.
Nope, let’s deal with the one thing this government really holds to be sacred – property. And let’s do it by showing our contempt for the governments, the principles and the laws that Aboriginal peoples and Canada have worked for decades to build.
Gentlemen! Start Your Battlestar Galactica Predictions!
So, anybody think that this picture above is trying to tell us something about the upcoming season? Here’s more about this photograph (Hat tip to Boing Boing). A Pox on All Your Houses. I’m Voting Green Although it’s just…
Every time this subject comes up I must constantly defend (usually in the most inarticulate way) why this legislation is so frightening – now I can just send a link to your site.
Thanks Balbulican!
I can hear it all now – “we try to do whats right for you and you just choose to remain in your shit.”
Like it’s mine…
I’ve been scratching my head why this country just doesn’t get it. It has tried, and tried and tried for the past 150 years or so to eradicate indigenous cultures in Canada, sometimes by force, sometimes by coercion, often in violation of its own laws, and now breaking international laws and covenants. But these lunkheads just keep trying.
Resistance is futile. (nice Borg ship, btw. but it looks too much like CBC HQ in Toronto)
Read Duncan Campbell Scott’s ideas on Indigenous peoples, and those of his contemporaries from the turn of the last century, then compare them to the Federal Government’s positions of the past twenty years. the major difference is writing style and grammar.
Of course, they could follow the advice of a couple of the more obscene idiots on the URQ and recycle another bit from Canada’s ugly past — by handing out disease-ridden blankets.
Messy, but it might meet the bottom line mentality at work here.
What makes me nervous about this current lot, though, is the cleverness of the packaging. This latest is very neatly framed – so much so, in fact, that one of my very favourite bloggers, an informed and perceptive progressive dude, wrote a post praising this legislation as a positive measure. Ole Wolf-Eyes in sheep’s clothing.
As Wideye points out, the framing of the issue has its own defense built right in. “”Damn progressives – always yapping about how hard done by the friggin’ spoiled Indians are, and now they’re bitchin’ cuz we’re tryna DO sumpthin. Shows you where their heads are really at, eh?
How do you make it clear to folks what’s really going on here?
The problem with “progressive” policies is often one of perspective. Progressive solutions are usually prescriptive. Here is a problem and here is the way it will be solved. Many people who are “solving” the problem feel good — even righteous. The people who are being solved often feel differently.
I think a better mechanism would maximize self determination. Like other difficult problems there is no frictionless solution. With self determination comes ownership of the solutions and their inadequacies.
“I think a better mechanism would maximize self determination. Like other difficult problems there is no frictionless solution. With self determination comes ownership of the solutions and their inadequacies.”
Agreed. And you’ll note from the AFN and NWAC responses that’s exactly what they’re saying. A blunt force, imposed external solution simply doesn’t work.
Except, of course, it does what’s it’s actually intended to do – relegate self-government to the level of delegated authority, bestowed by a beneficent and loving Great Mother.
Except, of course, it does what’s it’s actually intended to do …
Is this government that clever? Probably some of them are. Probably more are trying to be helpful within a framework that often — perhaps usually — produces flawed solutions. It will likely have the effect whether it’s misguided helpfulness or calculated as you suggest.
“Is this government that clever? Probably some of them are. ”
Flanagan is, absolutely.
But don’t take my word for it. I respectfully suggest you review what INAC has actually DONE (as opposed to what they’ve announced they’re GOING to do) over the last two years, and ask yourself: does this initiative/policy promote self government, Claims implementation, and Treaty rights, or does it weaken them?
Flanagan’s no genius. Correct me if I’m wrong: During Samsom Cree court hearings on unpaid royalties in Alberta, Flanagan testified as the Crown’s “expert witness” that he had never actually spent time on a reserve. This, although he wrote a book condemning them. A reporter who covered the hearings said Flanagan could not explain why some of his “facts” couldn’t be referenced.
It’s what often happens when anyone, an academic or politician, decides on the “cure” even if the evidence doesn’t support it. It’s pseudo-science. It’s destructive and dumb. Think of Bush, weapons of mass destruction, and Iraq. There’s another aim here – and it ain’t the betterment of lives in Indian country.
I didn’t say “genius” – I said “clever”. His strength is not in his writing or his political thought (FN,ST betrays an astonishing ignorance of both Aboriginal history and the current constitutional basis of contemporary claims and treaty). I just mean he’s shown real skill at selling Calgary-school ideology in tiny, palatable packages.
The word you’re looking for is devious – not clever.
Thanks for the heads up on this Balb,
In essence this strikes me as just as dishonest as the Chretien/Nault failed FNGA suite of legislation, for many of the same reasons. The difference there was we were able to appeal to Paul Martin to defeat the legislation as it was a given at that point in time that he would be the next Prime Minister.
There is nobody to appeal to in this… I can only hope that the Liberals, NDP and Bloc will say that as soon as the Harper Government is defeated that the legislation will be rolled back – but I am not holding my breath.
That’s the only thing that I think can be done to stop this… if the Liberals will work with the other opposition parties…
I am disgusted by the liberals willingness to roll over and play possum while Harper’s government engages in the wholesale destruction of rights for women and aboriginal people.
And I’m pretty much a staunch pro-lifer – I just don’t believe government should be in the business of regulating reproduction in any capacity. It’s simply too complex and sensitive an issue for government to be involved.
In any case, thanks again for bringing this to my attention. BTW — I love the graphic. When I debated Flanagan on TalkTV back in 2001 I actually said that I thought the BORG plan was useless.
Flanagan didn’t know what I was talking about. He’s that out of touch with mainstream pop culture. Seamus O’Regan had to explain it to him.
Thanks for this post, balb. On the face of it, I’d have thought the legislation was a “good thing” if I hadn’t stopped by.
Thank, VM…I’m really glad you found the post. The whole point of the exercise was to smuggle a very, very dangerous precedent in under the radar, under the guise of progressive, pro-women legislation. And watch…the conservatives will be brandishing this as a sample of the wonderful things they’ve done “for the natives” – despite NWAC and AFN’s repudiation.
Oh, Christ. I would have completely missed this and probably would have thought this a good thing. I wonder if this is usurping the political narrative of the Sharia issue – Canadian Muslim feminists that I looked to for some guidance seemed to largely be against entrenching Sharia – and that’s where my brain went for comparison when reading the part you excerpted — even though there does not appear to be religious considerations in play here, it’s all about law and jurisprudence, and I wasn’t born yesterday.
I have a legal question: are folks on reserves protected by the Charter of Rights and Freedoms? They’ve got to be, yes?
No, they aren’t.. or weren’t last time I checked. However in practice most reserves will use Federal Govt HRC standards with respect to hiring and firing policy because most lawyers will advise the band that they are making themselves vulnerable if they don’t adhere to some practical standards while making decisions in this respect and acting upon them.
However, I think that getting an Indian Band to accept the ruling of a HRC tribunal would probably be a long drawn out battle… ( which is why the lawyers involved would advise not to get into the problem in the first place, as mentioned above.
[...] of course there’s the latest chapter of this sordid tale of deceit that’s being spun as “for [...]
>Heck, if Canada can unilaterally determine what aspects of self-government you’re going to ignore – ALWAYS out of concern for the poor Indians, of course – just THINK of all the things you can do.
Congratulations; you’ve just joined the ranks of us minarchists, complete with recognition of the concept of the legislative Trojan Horse. Progressives are always happy to unilaterally determine to what degree they will be meddlesome in the guise of “government”, always out of concern for others, always mindful of all the good things they can do.
There’s an easy solution; just ensure all people have the civil right to receive all the protections and obligations of provincial/federal rather than reserve law if they so choose. The provs/feds won’t need to be concerned with the equivalent reserve law at all.
You missed the point, lrC. Accepting Canada’s jurisdiction means abandoning nation-to-nation status.
I’m pleased to see at least one person come right out and draw the line. No more of that fence-sitting idealism that every born and naturalized Canadian citizen has a full slate of Canadian rights in addition to whatever other special privileges to which they might aspire?
I think we’ve already established that you need to do a bit of study in the area of Aboriginal/Canadian constitutional and legal relations. I guess you’ve been too busy. Get back to me when you’ve had a chance.
balbulican, this is the single best Canadian blogpost I have seen this year, and I’m sorry it took me so long to get here. The Trojan horse: that is definitely the Cons’ methodology, as so many women have been trying to argue.
Do we know where this bill is right now? Off to do more reading, but thank you for getting me started. So well set out and argued — well done.
Thanks, skdadl! There’s nothing new at this point, but there will be something soon. Watch this space, and I’ll send you a note when it happens.