Indian Culture in Canada
The official Indian societal response to the Rest of Canada is based on racism - not racism towards Indians, but racism directed against everyone else. The closest approximation of this in the Rest of Canada (and this time it does include Quebec) is Quebec. Any critical thought expressed in public related to Quebec is instantly branded as racism and dismissed as without merit. Likewise with respect to Canadian Indians. One might recall the egregiously stupid response of the Parliament of Canada some months ago to MacLean's magazine's 'amazing' revelation that Quebec is a terminally corrupt society. Now, in light of the ongoing inquiry into corruption at the highest levels in Quebec society, mayors of cities are resigning, civil servants are being outed as crooks, yet the establishment has yet to deal with the situation by admitting it exists. The idiots in Parliament are, of course, unwilling to acknowledge their stupidity and complicity. I doubt they can even recognize it.
As author James Clifton, in his work, 'The Invented Indian'. notes - "one of the most stringently observed canons governing the behaviour of those who work among Indians is "Thou shalt not say no to an Indian".
As stated by Widdowson and Howard: "Any body who does not abide by its associated 'norms and taboos of deferential conduct' is immediately labelled as an enamy of aboriginal peoples. In Canada, "racism", 'colonialism" and "insensitivity" are the usual accusations that constrain debate, but Clifton provides a multi-page appendix of the verbal sanctions that have been deployed over the years" - page 46 and Clifton. ibid.
On page 47 of their book, W and H say further: "Due to a generally sympathetic attitude toward the plight of aboriginal peoples, Canadians lean to the romanticization of native culture as a way of righting past wrongs and thus have not challenged these dubious (and racist) assertions. But romanticization does not help the romanticized; it isolates them from rational thought, giving an unrealistic assessment of their abilities and place in the world. Condescending attitudes have doubly victimized aboriginal people - first by a government that justifies non-intervention, and secondly by consultants and aboriginal leaders who increase their wealth by maintaining the dependency that comes with the retention of aboriginal peoples' undeveloped cultural characteristics.'
They go on to add: "Aside from keeping aboriginal peoples in a time-warp of isolation and despair, the romanticization of aboriginal culture has harmful consequences for non-natives as well. The creation of a separate legal category for aboriginal peoples under the guise of 'preserving their culture' has led to increasing social conflict. Aboriginal peoples, because of their 'status', receive privileges and immunities to which others with similar circumstances are not entitled, as epitomized by the legal directives to Canadian courts to treat aboriginal offenders differently than others. On the basis of the historical injustice committed by one group's ancestors, economically disadvantaged aboriginals and non-aboriginals have come to view each other as enemies instead of people with common political interests. What must be understood is that it is not the Aboriginal Industry's interminable quest for compensation but a government strategy for aboriginal cultural development that is currently needed."
Today any financial benefits received by or aimed at Indians gets swallowed up in various forms of corruption without benefiting the ordinary Indian. This cannot lead to a resolution of the problem.
Sunday, December 2, 2012
Important Aboriginal Title Decision A Travesty
Like Rip Van Winkle, after a long sleep, here we go again.
I just re-visited the well-researched 2008 book - Disrobing The Aboriginal Industry - The Deception Behind Indigenous Cultural Preservation, Frances Widdowson and Albert Howard. Of course, despite the extremely damning revelations in this tome, they don't come as a surprise. The research is thorough and largely unassailable (I am not aware of any errors, but the authors are human, after all).
To me, as a lawyer and a judge, the role of the institutions of the law in Canada - the legal profession, the courts (particularly the Supreme Court of Canada) and senior governments - in the creation and institutionalization of the deception mentioned in the sub-title is particularly disgusting and disturbing. No doubt there are many lawyers and judges who privately believe that a supreme travesty has been perpetrated on Canadians, but few have had the courage to speak out against it. It takes more couraqe than most people have to stand and be counted against the expected charges of racism, elitism, colonialist attitudes, etc., that are certain to be part of the counter-attack by the Indian Industry.
I have not mentioned the role of the media in all of this, but suffice it to say that without the eagerness of the often ignorant, lazy and frequently dishonest reporters of media, the deceptions of the Indian Industry would not be as powerful or damaging to Canada.
At the outset I repeat the 1997 words of Justice Antonio Lamer of the Supreme Court of Canada in the Gitksan Wet'suwet'en case relating to the admission of and reliance on oral histories recited by Indian elders as proof of historical facts adequate to found important decisions about so-called 'aboriginal title' to Canadian land:
'Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.'
What Lamer is really saying is that hearsay 'evidence', for hundreds of years known and recognized by our courts and judges as unreliable, likely to be tainted by faults and tricks of memory and influenced heavily by subjective desires and perspectives, should, in the case of Indian stories of events and circumstances well beyond the memories of living persons, be accepted as reliable evidence. This is tantamount to turning evidentiary rules, developed over centuries for good and valid reasons, on their heads and turning a blind eye to the problems with relying on such non-evidence. Why was this done? It is obvious to any moderately objective observer that it amounts to replacing law and evidence with political expediency to achieve a desired result. In reaching such a decision the Supreme Court has not only made itself a laughing stock, but done great damage to Canada, for huge tracts of land and major 'rights' have been given over to Canadian Indians, to the detriment of Canadians as a whole.
Alexander von Gernet, an anthropologist who has analyzed the use of oral histories in court cases, has said that the Supreme Court's view "will almost certainly be regarded sy some not as merely as an effort to level the field or lower the standard, but as an outright abandonment of the rigorous scrutiny that is essential to any fact-finding process. When taken to its logical conclusion this would seem unworkable in conflict resolution and, as others have noted, it would open the way for a radical re-invention of the law itself.' This was taken from an article by von Gernet entitled "What My Elders Taught Me", 22, quoted in Flanagan, First Nations, 159.
Interestingly, the reliance on such false evidence has resulted in challenges to the Supreme Court's decision, with new lawsuits coming from other Indian groups who assert that their historical memories are the true 'facts', not the ones asserted by the Gitksan. As Widdowson and Howard say, this is: 'Because the memories of elders have no corrobating evidence, they are open to challenge from competing "oral histories".'
Why was and is there such a powerful force resulting in such a judicial travesty? Noel Dyck, an associate professor of anthropology at Simon Fraser University in Vancouver, B.C., states that not only do most anthropologists ignore or give short shrift to awkward but pressing social and political problems at the reserve or settlement level, but that "moral and ethical constraints" are at the roots of the discipline's failings, since anthopologosts are reluctant to compromise the political agenda of those whom they study, and that they are expected to identify personally with the people they study and to protect their 'subjects' interests. It is pretty clear that the testimony of anthopologists has gone far in influencing the Supreme Court to overthrow centuries of good and valid legal protections against false or unreliable evidence.
I just re-visited the well-researched 2008 book - Disrobing The Aboriginal Industry - The Deception Behind Indigenous Cultural Preservation, Frances Widdowson and Albert Howard. Of course, despite the extremely damning revelations in this tome, they don't come as a surprise. The research is thorough and largely unassailable (I am not aware of any errors, but the authors are human, after all).
To me, as a lawyer and a judge, the role of the institutions of the law in Canada - the legal profession, the courts (particularly the Supreme Court of Canada) and senior governments - in the creation and institutionalization of the deception mentioned in the sub-title is particularly disgusting and disturbing. No doubt there are many lawyers and judges who privately believe that a supreme travesty has been perpetrated on Canadians, but few have had the courage to speak out against it. It takes more couraqe than most people have to stand and be counted against the expected charges of racism, elitism, colonialist attitudes, etc., that are certain to be part of the counter-attack by the Indian Industry.
I have not mentioned the role of the media in all of this, but suffice it to say that without the eagerness of the often ignorant, lazy and frequently dishonest reporters of media, the deceptions of the Indian Industry would not be as powerful or damaging to Canada.
At the outset I repeat the 1997 words of Justice Antonio Lamer of the Supreme Court of Canada in the Gitksan Wet'suwet'en case relating to the admission of and reliance on oral histories recited by Indian elders as proof of historical facts adequate to found important decisions about so-called 'aboriginal title' to Canadian land:
'Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.'
What Lamer is really saying is that hearsay 'evidence', for hundreds of years known and recognized by our courts and judges as unreliable, likely to be tainted by faults and tricks of memory and influenced heavily by subjective desires and perspectives, should, in the case of Indian stories of events and circumstances well beyond the memories of living persons, be accepted as reliable evidence. This is tantamount to turning evidentiary rules, developed over centuries for good and valid reasons, on their heads and turning a blind eye to the problems with relying on such non-evidence. Why was this done? It is obvious to any moderately objective observer that it amounts to replacing law and evidence with political expediency to achieve a desired result. In reaching such a decision the Supreme Court has not only made itself a laughing stock, but done great damage to Canada, for huge tracts of land and major 'rights' have been given over to Canadian Indians, to the detriment of Canadians as a whole.
Alexander von Gernet, an anthropologist who has analyzed the use of oral histories in court cases, has said that the Supreme Court's view "will almost certainly be regarded sy some not as merely as an effort to level the field or lower the standard, but as an outright abandonment of the rigorous scrutiny that is essential to any fact-finding process. When taken to its logical conclusion this would seem unworkable in conflict resolution and, as others have noted, it would open the way for a radical re-invention of the law itself.' This was taken from an article by von Gernet entitled "What My Elders Taught Me", 22, quoted in Flanagan, First Nations, 159.
Interestingly, the reliance on such false evidence has resulted in challenges to the Supreme Court's decision, with new lawsuits coming from other Indian groups who assert that their historical memories are the true 'facts', not the ones asserted by the Gitksan. As Widdowson and Howard say, this is: 'Because the memories of elders have no corrobating evidence, they are open to challenge from competing "oral histories".'
Why was and is there such a powerful force resulting in such a judicial travesty? Noel Dyck, an associate professor of anthropology at Simon Fraser University in Vancouver, B.C., states that not only do most anthropologists ignore or give short shrift to awkward but pressing social and political problems at the reserve or settlement level, but that "moral and ethical constraints" are at the roots of the discipline's failings, since anthopologosts are reluctant to compromise the political agenda of those whom they study, and that they are expected to identify personally with the people they study and to protect their 'subjects' interests. It is pretty clear that the testimony of anthopologists has gone far in influencing the Supreme Court to overthrow centuries of good and valid legal protections against false or unreliable evidence.
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