Tuesday, January 8, 2013

Daniels v. Canada

Seal of the Federal
Court of Canada.
The Federal Court of Canada today issued a ruling in the case of Daniels v. Canada.  This ruling, which finds in favour of the plaintiffs, is being hailed as a major victory for Métis and non-status Indians insofar as it declares that they do qualify as "Indians" under the 1867 Constitution Act.

This ruling is of peculiar interest to us because, as Justice Michael L. Phelan (and/or his law clerks), writing for the Court, explains: "The timeframe covered by this case commences with among the first interactions between French colonial government up to the very near past."  It's been a number of years, it seems to me, since historical evidence from the French Regime has been mustered before the courts in Canada (the divisive Sioui Case, which culminated in 1990, comes to mind). 

In the Daniels v. Canada ruling, the Court sums up the nature of the issue at stake and the relevance of historical evidence as follows: "Given the nature of this litigation, the Court was presented with over four centuries of history since first contact between European settlers and the indigenous population in what became Canada. It is not the purpose of this judgment to provide a survey course in Canadian history but to focus on the key events and circumstances relevant to the issue of whether non-status Indians and Métis are Indians under s 91(24). The pre-Confederation evidence was directed at what the term “Indian” meant at the time and thus likely was the meaning that the Framers of Confederation had in mind when it was inserted into the s 91 powers assigned to the federal government."

Among the "historical expert witnesses" who testified in the case were Bill Wicken, a well-respected ethnohistorian from York University, whose report focused on the pre-Confederation experience of Aboriginal peoples in Maritimes.  The Court "generally preferred" -- to borrow its own phrase -- the evidence submitted by Wicken over that submitted by Stephen Patterson, emeritus professor from the University of New Brunswick, and by Alexander Von Gernet, something of a professional expert witness.  Wicken, truth be told, is the better historian. 

The experts' perspectives diverged above all when it came to the history of the decades leading up to Confederation in 1867.  Their outlines of the early seventeenth and eighteenth-century relations between the French, then British government and Native peoples were generally consistent.  That said, it seems to me that as far as this early period is concerned, the Court's cursory reliance on Wicken -- through no fault of his own -- has resulted in some distortion.  The discussion of the pre-1763 history, indeed, is lumped under the rubric of "Atlantic Canada" (Wicken's field of expertise and the focus of his expert testimony).

The Court's survey of those years observes that "The French’s relationship with the natives was primarily of military alliance, of friendship and respectful co-existence of the respective communities. The relationship with the natives was not formalized or reduced to writing. It consisted of more informal visits by chiefs, the grant of military honours to the chiefs and gifts of guns, ammunition, clothing and food stuffs.  Although the natives became dependant on French goods (i.e. metal pots, guns), the Mi’kmaq, Maliseet and Passamaquoddy retained much of their autonomy and freedom of action.  Because of this dependence on trade for European goods, the natives of the area needed to maintain a relationship with a European power."  And that "Unlike the French, the British established formal ties with the Mi’kmaq, Maliseet and Passamaquoddy through treaties with the chiefs of tribes and through the policies of colonial governors acting on directives from Britain."

I'm giving the Court (i.e. Justice Phelan and/or his clerks) only a B- for this overview of the Franco-Aboriginal relationship, making allowance for today's grade inflation.  What of the St. Lawrence Valley and the Pays d'en Haut?  Might an expanded frame not challenge the trope of the "respectful" attitude of the French towards their Native foes and friends?  And what's with this opposition between the "formal ties" of the British and the "not formalized" relationships of the French and their Aboriginal neighbours?  And the reduction of Franco-Aboriginal diplomacy to "informal" visits by chiefs?  The French did conclude treaties with Native peoples last time I checked.  To be sure, these were not land cession treaties of the kind that came to predominate in the nineteenth century, but they were "treaties" nonetheless.  And the French governors too acted "on directives" from the metropole, not merely in a wishy-washy informal way.  Nice effort, Court, but there is much room for improvement.  B-

Admittedly, these are relatively minor qualms in the greater scheme of things.  The ruling hinges on the interpretation of mid-19th century developments, not on the interpretation of history before 1763.  As far as that is concerned, I think the Court got it generally right.  The Crown plans to appeal the ruling before the Supreme Court.  It'll be interesting to see what comes of it.

If I may depart from my beloved 17th and 18th centuries in closing, something which caught my eye was the repeated allusion to the "Framers of Confederation" in the Daniels v. Canada ruling.  "Framers of the British North America Act", viz. the law, is common enough in the literature, but this is a very unusual turn of phrase in relation to the phenomenon that was Confederation.  An uninspired explanation is burrowed deep in the document, according to which "Framers is used in this context as the gender neutral for the previously common term 'Fathers of Confederation'."  Gender neutral?  Seriously?  It seems to me that gender neutrality is a virtue when describing a mixed group, but when describing a group of thirty-six luxuriantly sideburned and whiskered dudes men it becomes a fallacy. 


1 comment:

  1. Great commentary. I am trying to imagine the citizens of the USA calling George Washington a "Founding Framer."