“There is a darkness that exists in this country and I believe we are going to have to feel our way out of it.” — Chris Murphy, lawyer for the Boushie family
The verdict that found Gerald Stanley not guilty of any crime, not even manslaughter, in the shooting death of Colten Boushie leaves me stunned and mystified.
I don’t have the requisite knowledge or experience in criminal law to make insightful comments about the trial, nevertheless in anticipation of those who’ve sprung to Mr Stanley’s defence by arguing Mr Boushie was the author of his own misfortune, I would like to share some facts which illustrate how deeply rooted this “darkness” is and how difficult it will be to “feel our way out.”
(NOTE: this post relies heavily on an article by Doug Beazley, published in The National)*
Colonial law in the 21st centuryThere are 615 First Nations in Canada. They speak more than 50 distinct languages. More than 1.3 million Canadians identify as having FN heritage.
The law governing the Crown/FN relationship is the Indian Act. It is 141 years old and contrary to popular belief was not intended to shower FNs with wealth but to annihilate their culture.
Doug Beazley says the Act is “rooted in a 19th-century view of the inherent superiority of Western civilization”.
This bias is reflected in its purpose: containment and transformation. The Act broke down FN governance, replacing it with a fiduciary relationship with the Crown. It set up the reserve band system which allowed the Crown to control the movement, economic activity, and legal rights of Indigenous Canadians while residential schools were established to “kill the Indian in the child”.
Unlike other levels of government where those who govern are accountable to those who elected them, the Indian Act created a “federal municipality” where a “chief’s political constituency is the federal minister and the federal government, not the people living in the community”. The federal minister has tremendous power, including the right “to void the results of band elections and fire chiefs and council members for cause.”
Given this governance structure, it’s not surprising that members of FNs may feel powerless to address issues facing their community.
Beazley describes the Act as “a weird atavism of 19th century legal thinking, surviving into the 21st.”
He’s right, so why hasn’t it been changed or scrapped all together?
Policy makers have been trying to do something with the Act for decades.
Some argue for an incremental approach, fearing that reforming or repealing the Act at one go would be too disruptive because it’s become entrenched in “the fabric of First Nations over seven generations”.
Others disagree, arguing that piecemeal changes to the Act undermine Indigenous Peoples’ right to self-determination as set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
In 1969 Pierre Elliot Trudeau’s government made the first (and last) attempt to scrap the Indian Act. He wanted to abolish the Act and treaties and incorporate FNs under provincial jurisdiction. Indigenous Canadians soundly rejected this proposal, calling it an attack on their rights and an attempt to fast track assimilation.
The federal government has been tinkering with the Act ever since; the most recent effort being that of Justin Trudeau’s government which wants to reshape the Crown’s relationship with Indigenous Canadians by:
- Setting up a ministerial working group to examine “de-colonizing” Canadian law
- Reviewing funding arrangements
- Developing principles to guide the government’s relationship with Indigenous Canadians, including recognition of an inherent right of self-governance, and
- Dividing Indigenous and Northern Affairs into two departments, one responsible for service delivery in non-self-governing Indigenous communities and the other responsible for administering the Indian Act
Time will tell whether this effort is more successful than past attempts.
Just fix it all ready
The path to transferring federal power to First Nations is complex and difficult.
Former Conservative senator Lynn Beyak was wrong when she suggested all we needed was for each Indigenous man, woman, and child to take a payout and trade their status cards for Canadian citizenship (apparently not realizing they’re Canadian citizens already).
Anyone suggesting Colten Boushie, a 22 year old man from the Red Pheasant Cree Nation (a band with 1,893 registered members, 608 of whom live on the reserve) could have avoided being killed by Gerald Stanley if he just got his act together, needs to remember the 141 year history and impact of the Indian Act.
We have a long way to go to find our way out of the darkness. Let’s start by being honest about how we got here.
*“Decolonizing The Indian Act” by Doug Breazley, published in The National, Winter 2017