Authors: Glen Sean Coulthard
Tags: #SOC021000 Social Science / Ethnic Studies / Native American Studies
For example, regarding the comprehensive claims process, although
Gathering Strength
states Canada’s “willingness to discuss its current approach with Aboriginal, provincial, and territorial partners in order to respond to concerns about the existing policy,” the “alternatives” that have since been pursued are even more restrictive than was the original policy.
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At the time of
Gathering Strength
’s publication in 1998, the “concerns” alluded to by the federal government involved more than two decades’ worth of First Nations’ criticisms regarding the comprehensive claims policy’s “extinguishment” provisions, which at the time explicitly required Aboriginal peoples to “cede, release and surrender” all undefined Aboriginal rights and title in exchange for the benefits clearly delineated in the text of the settlement itself. The state has pursued two alternatives to formal extinguishment: the so-called “modified” rights approach developed during negotiations over the Nisga’a Final Agreement (2000), and the “nonassertion” approach developed during negotiations over the Tlicho Agreement (2003).
With respect to the former, Aboriginal rights and title are no longer formally “extinguished” in the settlement but rather “modified” to include
only
those rights and benefits outlined in the claim package. The provisions detailed in the settlement are the only legally binding rights that the signatory First Nation can claim after the agreement has been ratified. Regarding the latter, in order to reach a settlement a First Nation must legally agree to not “assert”
or “claim” any Aboriginal rights that are not already detailed in the text of the agreement. Again, the provisions specified in the settlement exhaust all claimable Aboriginal rights. Although the semantics of the comprehensive claims policy have changed, the legal and political outcomes remain the same.
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Peter Kulchyski suggests that these alternative approaches to formal extinguishment may be even worse than the original policy, given that the latter at least left open the possibility of making a claim for an Aboriginal right that was originally unforeseen at the time of signing an extinguishment agreement. “Leave it to the state,” Kulchyski concludes, “to find a way to replace one of its oldest, most outdated, ineffective and unjust policies—the extinguishment clause—with something worse.”
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A similar colonial trend can be seen in
Gathering Strength
’s stated commitment to implementing an Aboriginal right to self-government. Here the federal government simply reaffirms its previous 1995 policy position on the matter, which claims to “recognize” the “inherent right of self-government for Aboriginal people as an existing Aboriginal right within section 35 of the
Constitution Act, 1982
.” The use of the term “inherent” here is nonsense when considered in light of the scope of the policy, as there is really nothing “inherent” about the limited range of rights that Canada claims to recognize. The stated purpose of the federal government’s position is to clearly establish the terms under which Aboriginal governments might negotiate “practical” governing arrangements in relation to their own communities and with other governments and jurisdictions. In setting out these terms, however, the state unilaterally curtails the jurisdictional authority made available to Aboriginal nations through the so-called “negotiation” process. As a result, Indigenous sovereignty and the right of self-determination based on the principle of equality between peoples is explicitly rejected as a foundation for negotiations: “The inherent right of self-government
does not
include a right of sovereignty in the international law sense.” Instead, what the state grants is recognition of an Aboriginal right “to govern themselves in relation to matters that are
internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions
.”
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One should recognize a familiar pattern here. Instead of proceeding with negotiations based on the principle of Indigenous self-determination, Canada’s policy framework is grounded in the assumption that Aboriginal rights are subordinately positioned within the ultimate sovereign authority of the Crown. On this point, Michael Asch has suggested that the policy clearly takes its cues
from recent Aboriginal rights jurisprudence: “All court decisions rest on the presumption that, while it must be quite careful to protect Aboriginal rights, Parliament has the ultimate legislative authority to act with respect to any of them.”
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This restrictive premise coincides with the Supreme Court of Canada’s own articulation of the meaning and purpose of “reconciliation” outlined in
R. v. Van der Peet
in 1996. As the court states, “what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the Crown. The substantive rights that fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.”
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And how, might we ask, does the court propose to “reconcile” the “pre-existence of Aboriginal societies with the sovereignty of the Crown”? Or, stated slightly differently, how does the court propose to
render consistent
Indigenous nationhood with state sovereignty? By refusing that the “aboriginal societies” in question had anything akin to sovereignty worth recognizing to begin with. Instead, what the court offers up is an interpretation of Aboriginal rights as narrowly construed “cultural” rights that can be “infringed” on by the state for any number of legislative reasons—ranging from conservation to settlement, to capitalist nonrenewable resource development, and even to protect white interests from the potential economic fallout of recognizing Aboriginal rights to land and water-based economic pursuits. Like all Aboriginal rights in Canada, then, the right of self-government is not absolute; even if such a right is found to be constitutionally protected, it can be transgressed in accordance with the justifiable infringement test laid out in
R. v. Sparrow
in 1990 and later expanded on in decisions like
R. v. Gladstone
in 1996,
Delgamuukw v. British Columbia
in 1997 and
R. v. Marshall (No. 2)
in 1999.
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When all of these considerations are taken into account it becomes clear that there is nothing “inherent” about the right to self-government recognized in Canada’s “Inherent Right” policy.
At least in
Gathering Strength
the federal government acknowledges that Canada has a colonial past. The same cannot be said about the state’s next major gesture of reconciliation: the federal government’s official 2008 “apology” to Indigenous survivors of the Indian residential school system. Informed by a similarly restrictive temporal frame, the 2008 “apology” focuses exclusively
on the tragedy of residential schools, the last of which officially closed its doors in 1996. There is no recognition of a colonial past or present, nor is there any mention of the much broader system of land dispossession, political domination, and cultural genocide of which the residential school system formed only a part. Harper’s apology is thus able, like
Gathering Strength
before it, to comfortably frame reconciliation in terms of overcoming a “sad chapter” in our shared history. “Forgiveness” and “reconciliation” are posited as a fundamental step in transcending the painful “legacy” that has hampered our collective efforts to “move on”; they are necessary to “begin anew” so that Indigenous peoples can start to build “new partnerships” together with non-Indigenous peoples on what is now unapologetically declared to be “our land.”
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Thus, insofar as the above two examples even implicitly address the problem of settler-colonialism, they do so, to borrow Patrick Wolfe’s useful formulation, as an “event” and not “a structure”: that is, as a temporally situated experience which occurred at some relatively fixed period in history but which unfortunately continues to have negative consequences for our communities in the present.
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By Wolfe’s definition, however, there is nothing “historical” about the character of settler colonization in the sense just described. Settler-colonial formations are
territorially acquisitive in perpetuity
. As Wolfe explains, “settler colonialism has both negative and positive dimensions. Negatively, it strives for the dissolution of native societies. Positively, it erects a new colonial society on the expropriated land base—as I put it, settler colonizers come to stay: invasion is a structure not an event. In its positive aspect, elimination is an organizing principle of settler-colonial society rather than a one-off (and superseded) occurrence.”
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In the specific context of Canadian settler-colonialism, although the
means
by which the colonial state has sought to eliminate Indigenous peoples in order to gain access to our lands and resources have modified over the last two centuries—ranging from violent dispossession to the legislative elimination of First Nations legal status under sexist and racist provisions of the Indian Act to the “negotiation” of what are still essentially land surrenders under the present comprehensive land claims policy—the
ends
have always remained the same: to shore up continued access to Indigenous peoples’ territories for the purposes of state formation, settlement, and capitalist development.
Identifying the persistent character of settler-colonialism allows us to better interrogate the repeated insinuation made in both
Gathering Strength
and the
federal government’s 2008 apology about how the “legacy” of Canada’s troubled history has injured Indigenous subjects so deeply that many of us are now unable or unwilling to put the events of the past behind us. This returns us to our previous discussion of
ressentiment
. If
ressentiment
is characterized by a pathological inability to “get over the past,” then according to the state-sanctioned discourse of reconciliation, Indigenous peoples would appear to suffer from
ressentiment
writ large. We just cannot seem to get over it. However, for most critics what makes
ressentiment
so problematic is that it is also an
irrational
attitude. “
Ressentiment
, by definition, is an irrational and base passion,” writes Jeffrie Murphy, “It thus makes no sense to speak of rational or justified or honourable
ressentiment
.”
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This has led moral philosophers like Murphy and Brudholm to distinguish between irrational expressions of
ressentiment
, on the one hand, and more righteous expressions of “resentment,” on the other. This distinction is useful for our present purposes. In the context of Canadian settler-colonialism, I contend that what gets implicitly represented by the state as a form of Indigenous
ressentiment
—namely, Indigenous peoples’ seemingly pathological inability to get over harms inflicted in the past—is actually a manifestation of our
righteous resentment
: that is, our bitter indignation and persistent anger at being treated unjustly by a colonial state both historically and in the present. In other words, what is treated in the Canadian discourse of reconciliation as an unhealthy and debilitating incapacity to forgive and move on is actually a sign of our
critical consciousness
, of our sense of justice and injustice, and of our awareness of and unwillingness to
reconcile
ourselves with a structural and symbolic violence that is still very much present in our lives. Viewed in this light, I suggest that Indigenous peoples’ individual and collective resentment—expressed as an angry and vigilant
unwillingness to forgive
—ought to be seen as an affective indication that we care deeply about ourselves, about our land and cultural communities, and about the rights and obligations we hold as First Peoples.
Conclusion
Prime Minister Harper’s 2008 “apology” on behalf of the Government of Canada to Indian survivors of the residential school system was delivered under the shadow of the 2007 Indian Residential School Settlement Agreement. The settlement agreement was negotiated in response to more than twelve thousand abuse cases and more than seventy thousand former students
represented in numerous class-action lawsuits against the federal government and church organizations that ran the schools. The settlement, which is currently being implemented under court supervision, includes money allocated for “common experience” payments to students who attended residential schools; a compensation process for students who can demonstrate that they suffered sexual or serious physical and/or mental abuse while attending a residential school; a health support system for survivors and their families; a residential school commemoration project; and the creation of a Truth and Reconciliation Commission to research, document and preserve the testimony and experiences of residential school survivors.
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The specific commemorative and educational goals outlined in the Truth and Reconciliation Commission of Canada’s (TRC) mandate are important and admirable. However, many of the shortcomings that plagued both
Gathering Strength
and the 2008 apology also plague the mandate’s terms of reference. In particular, the TRC temporally situates the harms of settler-colonialism in the past and focuses the bulk of its reconciliatory efforts on repairing the injurious legacy left in the wake of this history. Indigenous subjects are the primary object of repair, not the colonial relationship. These shortcomings have produced many critics of the TRC. Taiaiake Alfred, for example, warns that genuine reconciliation is impossible without recognizing Indigenous peoples’ right to freedom and self-determination, instituting restitution by returning enough of our lands so that we can regain economic self-sufficiency, and honoring our treaty relationships. Without these commitments reconciliation will remain a “pacifying discourse” that functions to assuage settler guilt, on the one hand, and absolve the federal government’s responsibility to transform the colonial relationship between Canada and Indigenous nations, on the other.
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