My Log 642 Sept 9 2018: Chronicles from the Tenth Decade: 78 The recent court judgment about the TransMountain pipeline is correct: the federal government has never taken seriously their obligation to “consult” with native peoples, and it is time for that to change

To anyone with even a slight knowledge of the federal state’s relationship with indigenous people in Canada, the recent unanimous decision by the Federal Court of Appeal that the government’s ”consultation” process with the indigenous in relation to the Trans Mountain oil pipeline was totally inadequate must have rung a familiar bell.

The Court wrote, wonder of wonders, that a ”consultation” had to mean more than a civil servant just scribbling notes, and then going away to make the decision they would have made before the “consultation.”

Because in my half century of experience in dealing with this subject, that is exactly the impression I always had of the federal government’s attitude towards their trusteeship for Indian affairs, as they were once called: they would, if their noses were pressed to the grindstone by some external force, turn up, listen, scribble notes, and go away.

I began to take in interest in this subject early in 1968, a time at which the 34-year-old Jean Chrétien had just been appointed to a ministerial post in which he quickly began to make waves. Part of his responsibility was overseeing National Parks, and in the four years of his stewardship he created more new parks than had been created in the previous 50 years. Similarly in relation to the native people he was a man in a hurry, taking his cue from his leader, Pierre Elliott Trudeau, who believed that one part of society could not have a treaty with another part. In other words Trudeau was ready to consign the many treaties concluded over the centuries with the native people to the dustbin, their totally inadequate  reserved lands along with them, and Chretien went along with this radical, and grossly mistaken approach.

In fulfilment of this, Chrétien had dispatched his under-minister, Robert Andras, formerly a car salesman in Thunder Bay, around the country to “consult” the native tribes as to their wishes. Andras was a man of goodwill towards the Indians, and after meeting him, native leaders had some hopes for a change that might begin to set them on a new path.

Embarking on my examination of a group of Ojibwa reportedly living in perilous conditions in a small town called Armstrong, north-west of Lake Superior, a town accessible only by rail, I was directed by a friend who worked for Andras to drop in on him en passant. He suggested it would be helpful if I reported as positively as possible on the native people.  When I returned from Armstrong I reported that the Indians I had just met were living in conditions that reminded me of the Lower Depths of the Russian novelist Maxim Gorki. Later, when I turned up at the Indian Affairs Office in Ottawa, they showed me a big pile of exercise-style books with red covers in which were contained reports of the many consultations that had  been done around the country. I asked if I might have a copy of them: they gave me an armful of the 30 or 40 studies that contained the collected desires of the native people of Canada.

The civil servants told me later they never expected me to read them, but I did read them. And what they showed was that in not a single meeting of the dozens they had held did any native person suggest any of the policies that a few months later were proposed in the white Paper issued under the names of Trudeau and Chretien:

·      Elimination of Indian status as its own distinct legal status within Canada.

·       all special programs available to indigenous peoples because of their Indian status be removed as no citizen of Canada should receive special or individualized treatment based on ethnicity

·      abolition of the Department of Indian Affairs within five years

·      abolition of the reserve system

·       converting reserve land into private, sellable property owned by the band or Aboriginal landholders

·      a commissioner to investigate outstanding land claims and terminate treaties

·      Transfer of jurisdiction for Aboriginal affairs from the federal government to the provinces

·      Cutting  specialized programs  created specifically for indigenous peoples in order to cut  costs, and ensure equality amongst peoples.

I really don’t know if Andras went along with these proposals or not. He was transferred to other jobs within government --- became for a short time Minister for Urban Affairs, a newly-created post that quickly ran into jurisdictional problems with other ministers. His occupancy of this ministry was also marked by revolutionary new thinking: a huge study of Urban Canada was undertaken by various academics, which was published eventually and then totally ignored. I had been writing a lot about urban problems across the country, and the new ministry asked me to go to Ottawa to talk with them about these problems: I remember it solely because it was the first time in my life I had ever been paid the extravagant sum of $200 for a day’s work.  I couldn’t believe they got their money’s worth out of me, since my knowledge was rather sketchy. Andras spent only two years in that job before moving on to others within the government during the following ten years.

I had plenty of other experiences which showed how fleeting were “consultations” the federal (and other government) officials held with community, indigenous and other lowly groups.  When the James Bay Hydro project was announced in 1971, for example, the Feds were determined not to do anything that would upset the government of Quebec, which had not long before gone through the political crisis caused by the violent actions of the Front de Libération du Québec. Associated with the National Film Board at that time, I worked with some other people to convince a studio there to train a team of native people in the use of the newly-invented video cameras, to enable them to  travel from one Cree village to another so that the people could compare their opinions and attitudes about what lay before them.  A couple of weeks later I returned to inquire how the scheme was coming along: oh, I was told, we have had to cancel that one. On orders from Ottawa. To me, this represented  the real level of consultation that the federal government was willing to embark on when tribal groups were threatened with possibly life-threatening challenges: in other words, no consultation at all.  

Eventually as the Cree people whose lives would be affected by the Hydro project began to get themselves together, they at last embarked on a legal challenge to the Quebec government’s action in planning this project in their hunting grounds.

When the  lawyers for the Quebec government entered the courtroom, they were convinced they had no case to answer, that the whole concept of aboriginal rights was so nebulous, so ill-defined and so ambiguous that it could not possibly amount to a right. But the Crees, with their dogged, meticulous, stubborn lawyer James O’Reilly conducting their case, fought through a nearly six-month hearing to a triumphant victory in the judgment of Mr Justice Malouf that the Quebec government should stop trespassing on the land of the native people.  This was a judgment unheard of before in Canadian law, whose normal purpose is, generally speaking, to defend private property rights, But the judgment made it impossible for the federal and Quebec governments to continue to ignore the dilemma of the Cree people, as they had been so studiously doing.  Under pressure of the Malouf judgment, the Feds financed a long negotiation with the tribal group that the Crees had formed during this process, the Grand Council of the Crees, and with a similar group formed by the Inuit of northern Quebec.  This laborious negotiation, at the time probably the most unequal in the history of Canada, in which a group of young men and women in their twenties, with minimal education, confronted a $16 billion corporation established by Quebec to build the project, eventually led to the James Bay and Northern Quebec Agreement, in which certain rights in land were given to the native people, along with some sums of money.  But this was by no means a fair and equal negotiation, but was an Agreement forced on the native groups because already the James Bay Project was being built around their ears. They either signed or they got nothing.  

This is how it has always been in Canada in relation to “consulting” the native people. It is not before time that the Courts have finally come up with a stern admonition that this “scribbling notes, and leaving” form of consultation does not represent  even a step towards that clear and unambiguous process of indigenous peoples having the right to “free, prior and informed consent” to any developmental work undertaken in their traditional territories that is envisaged in the UN Declaration on the Rights of Indigenous Peoples, that has slowly, and rather reluctantly been fully accepted by the Canadian government.  

The meaning of this provision is still a matter for debate. It is unlikely to mean that the indigenous peoples will have a veto over any work proposed in their lands --- and there will always be debate of what is meant by “their lands” ---, but it is also, as the recent court judgment says, much more than the customary position in which a parcel of indifferent officials turn up for a “consultation”, scribble some notes, and leave.