Friday, January 17, 2014

Race-Based Laws

For the past while I've noticed every here and there statements to the effect that Canada needs to end "race based laws". "Race-Based Laws" is a fairly soft target. Nobody should be prejudiced against based on race, or given special favours under the law based on the concept of "race" - a concept that academically and as a society we have rejected as being the outgrowth of darker times than ours. Why should we continue to sanctify racism in our legal code? It seems that it should be something that obviously needs to be changed, perhaps starting with the abolishment of the Indian Act.  But it's not that simple.

The problem with this whole argument doesn't lie in the "correctness" of having race based legislation, the problem lies with the assumption that the agreements between the Canadian, British, and Provincial governments and various First Nations were race-based, or had anything to do with race.

Treaties are a fact of life today.  We have NAFTA, BAFTA, various tax treaties, extradition treaties, you name it we have it.  We even have treaties that protect foreign businesses from nasty changes in Canadian law. What do these treaties have in common? None of them are based on race - they're political, between nations, between communities - not between races.

Looking back in Canadian history, at the various political factions that made up much of the political landscape of eastern Canada, the Iroquois confederacy, the Huron and their allies, well many of these treaties cut across linguistic and "racial" lines, with different communities speaking the same language often finding themselves on opposite sides.  Further west, one of the greatest collaborations between groups, that of the Blackfoot and (if I remember right) the Peigan? - was between two communities with vastly different languages, who then found themselves often in conflict with the Cree, who were much more closely related to the Blackfoot than the Sarcee.  What I'm getting at is that in historically, both amongst western nations, and amongst First Nations groups, treaties have not been examples of race-based laws.  They have been political and economic agreements between communities.

So why are they so often perceived as being race-based? Well, because to my understanding, while the treaties and the obligations entailed in them were not race-based, in many ways the Indian Act is.  It was an act and run by men who had no interest in maintaining relations between different communities, but instead wanted to ensure that a many hundreds of communities that they lumped together as an "Indian race" gave way to the new "Canadian" race they were intent on creating. It was to that end that they created the various blood or marriage-based definitions of what constituted an "Indian", redefining treaties as instead being agreements between "races".  This explains in part why the Canadian government has since been so unwilling to deal with "communities" that didn't make it into the treaties, such as the Lubicon Cree.

I guess this take me to where I have to make a conclusion of some kind - i.e. here's the hard part.  What's the path forward? I think obviously we do have to get rid of "race-based laws" - or if the laws aren't actually race-based, we have to get rid of the perception that they are and deal with the system that led us to that conclusion - but "dealing with race-based laws" should not be allowed to be a euphemism for getting rid of various communities' right to exist and live lives differently from the Canadian mainstream. Indeed, when I look at the various political movements within first nations as they seek to establish their rights to maintain a relationship to the land, to each other, and to other communities as they see fit, I think that this is something that as Canadians we should be supporting, and not just for First nations, but for the rest of us as well. I do know that one component of moving forward will be the recognition that treaties and the rights held by First Nations communities are not race based, that instead it is the government's approach to dealing with those communities that is race-based, and that the change needs to be on the part of the government (at least initially). It also means we have to be willing to allow communities the right to determine membership, without dictating it via what is clearly the most race-based part of Canadian law.

That's my two cent contribution to the million dollar question about how we can all get along while still making a better country for all of us, despite all being different. There.