Poverty, Indigeneity and the Socio-Legal Adjudication of Self-Sufficiency

by Connor O'Callaghan | 25 Jul 2017

A man who has a language consequently possesses the world expressed and implied by that language.”
— Frantz Fanon, Black Skin, White Masks

In 2013, Darlene Necan, a homeless First Nations woman from northern Ontario, Canada, began the construction of a modest one-room cabin on an off-reserve Saugeen territory in Savant Lake — land formerly occupied by her parents, and passed down through a verbal agreement recognized by the Anishinabek Nation. The Ministry of Natural Resources and Forestry, however, insisted the ‘Township of Savant Lake’ to be Crown land. Consequently, Necan faced potential charges of thousands of dollars when the Ministry of Natural Resources and Forestry considered her actions in breach of the Ontario Public Lands Act. Subsequently, the government dropped the charges and Crown counsel Scott Dunsmuir, in the spring of 2015, wrote to Necan’s lawyer stating “the public expense of a lengthy trial does not appear to be justified when weighed against the gravity of the offence”.¹

Crown Dunsmuir’s recommendation signified an unbridled defense of the taxpayers of the province of Ontario, while maintaining that Necan’s actions, in constructing a heatless cabin without running water or electricity, constituted a potentially punishable offence. In a brisk calculation of crude utility, Dunsmuir lent a degree of cursory support to the plight of an Indigenous woman living in dire poverty. The significance of Necan’s right to title as per an oral legal history guaranteed by what Indigenous legal scholar John Burrows has referred to as a reclaiming of sui generis rights — the historical concession of the Crown to Indigenous title claims in Canada — was ignored. Despite this, Necan was permitted to finish construction of her cabin nearing winter’s end, and Dunsmuir’s rationale for ‘permitting her offence’ wasn’t met with any substantial public scrutiny.

The persistence of colonial poverty ought to be understood as a form of state violence. This claim is reinforced by the notion that poverty, especially in Canada, and particularly as it concerns Indigenous communities, is subsumed by expectations of individual self-sufficiency that forego Canada’s own colonial haunting. The same can be said for many other countries that share a Commonwealth tradition. The treatment of Indigenous communities in Canada and Australia, for instance, is strikingly similar. In 2014, George Henry Brandis, 36th Attorney General for Australia, attempted to repeal section 18C of the Racial Discrimination Act (pertaining to “offensive behaviour because of race, colour or national or ethnic origin”) by asserting, “people have the right to be bigots”.² What Brandis would have you believe to be a classic contention between the ability to differentiate hate speech from freedom speech, I see as an effort to guise normative claims under the auspice of a ‘rights discourse’.

The Government of Canada has failed to adequately address poverty in relation to systemic inequality, particularly with respect to our First Nations and Indigenous communities. Indigenous communities experience exceedingly high and disproportionate rates of impoverishment. The apparent lack of political urgency expressed by Canadian governments is reinforced by historical attempts to refuse history, primarily in denying the temporal effects of colonialism through attempting legal amendments to Indigenous status. While the assimilationist rhetoric of the 1960s is perhaps the most immediate example for most, it’s not difficult to find contemporary transpositions of this same rhetoric.

In Canada, the treatment of Darlene Necan is particularly interesting to me because it best exemplifies a lawyer’s choice in choosing to ignore grounds for Aboriginal title. Just as the Australian constitution was drafted without adequate involvement of Indigenous peoples, and without the inclusion of Indigenous peoples’ as land owners, Crown Dunsmuir’s rhetoric (here in Canada) demonstrates the blatant rejection of John Burrow’s scholarship on sui generis rights and the significance of those rights (again, conceded to historically by the Crown) for title claims.³ In Canada, historical policy efforts to do away with First Nations status have often accompanied a professed urgency to secure the sanctity of self-sufficiency. These stories of individual performance and progression curiously found placement in Canadian reports on poverty, particularly in co-operative efforts between the Federal and Provincial Governments in the mid to late 1960s, delineating poverty as both a ‘disease’ (or social ailment) and equally the consequence of individual failure.

Despite subsequent advances in anti-poverty legislation, the historical anticipation of a future society free from ‘identity politics’ is reinforced by similar political sentiments in various countries that share a Commonwealth tradition. Crucially, poverty is still rendered an acceptable consequence of individual failure and (almost paradoxically) collective difference, thereby excusing processes of social, economic and political exclusion, underscored by white-settler colonialism. Late liberalism inherits the spirit of a classical liberal regime that recalls its own authority to justify its apparatus, but this commitment to unbridled individualism is quite unique to western political projects, and in best case, results in a weak legal pluralism ultimately failing to respect indigenous legal histories which are often written in speech and story, as opposed to the privileging of textual traditions.

Similarly, the modus operadi that has underscored the Canadian discursive approach to poverty, historically, has relied upon a (in some cases subliminal) rhetoric of responsibility, guilt and future competence (the hope of ‘tolerability’ as something that requires an active earning). This discourse impedes the possibility of a multifarious approach to understanding poverty because, in part, it presupposes progression out of poverty as something of a rational process (i.e., the individual is poor out of choice/failure). The real failure is the failure of lawyers to acknowledge the uniqueness and profundity of varied experiences of poverty — and namely, that the Indigenous experiences of poverty are often the greater consequence of colonialism.

The failure of law is the failure to acknowledge the profundity of a “prior” violence that encompasses and envelops contemporary late liberal society. The urgency to end Indigenous poverty is in no way limited to the Canadian context, either. To reiterate, Indigenous poverty has historically been compounded by efforts to legally ‘absolve’ (as if to pardon and relinquish simultaneously) Indigenous, First Nations or Aboriginal status. Looking again to Australia, we observe how this phenomenon is in no way limited to a particular jurisdiction, geographic context, or time. Australia has yet to recognize Indigenous status in the constitution, insofar as sections 25 and 51 (xxvi) can be used to permit racial discrimination.

Attempting to absolve⁴ Indian status, the Trudeau Sr. government in Canada intended to create a society free from forms of preferential treatment, but by positing the “Indian people” as “non-participating members of provincial society”.⁵ Consequently, the White Paper was an attempt to relieve Aboriginal communities of their status. In this sense, the rhetoric accompanying this political aim would demarcate ‘rights’ as a corollary of (un)belonging. By doing away with forms of status, the White Paper posited equality as the outcome of assimilation, a goal which was articulated as having to “spring from the Indian community itself [while] the government can create a framework from which all persons and groups seek their own goals”.⁶

The White Paper, in seeking to provide a framework from which all “persons and groups can seek their own goals”, also proposed that reservations would become municipalities, and that residents would become subject to the same provincial and territorial laws that applied to settler Canadians.⁷ In summary, the official objectives of Trudeau’s White Paper included cultural assimilation, the eradication of legislative recognition, the neutralization of constitutional status, the imposition of taxation, the elimination of Aboriginal land titles and reserve lands and the dismantling of formal treatises.⁸ Many of the paper’s underlying intentions can be summarized by the specific passage suggesting, “the Indian people, by and large, have been non-participating members of provincial society”.⁹ While Trudeau’s liberals formally retracted the White Paper, more recent political manoeuvres by Stephen Harper’s Conservative government echoed similar anxieties over ‘special interests’. Over 40 years later, and Stephen Harper’s Conservative government would attempt to terminate constitutionally protected treatise rights under the guise of a “results based approach” which would cut over $1 million in funding, thereby legitimizing Canada’s colonialism.¹⁰ More recently, Canadian Prime Minister Justin Trudeau (Jr.) would make himself present during a ceremony in which First Nations community leaders would acknowledge Canadian musician Gord Downie for his own vocal support of First Nations communities, and yet Trudeau remains politically inactive (to say the least) on the state of missing Indigenous women in this country — let alone in lending any support to matters of Indigenous sovereignty more broadly.

Pointing out the assimilationist rhetoric of the White Paper is nothing new, but the underlying sentiment emphasizing assimilationist rhetoric to encourage individual liberty and self-sufficiency cuts across historical boundaries of time and place. While the White Paper didn’t address poverty per se, it reflected this political sentiment in Canada emphasizing the perceived sanctity of the individual rather than communities or bands. Similarly, the 1969 Ontario Economic Council report on Poverty and Institutional Reform assumed poverty to be a problem of individual behavior, performance and socialization. In short, OEC’s report employed similar language to that of the White Paper, and certainly followed the same logic. In a section titled The Problem of Definition, OEC’s Poverty and Institutional Reform asked, “…how did this subculture of poverty develop and what can be done to bring the people in it into the mainstream of our society?”.¹¹ Just as the White Paper wanted to abolish Indian status by creating a “framework from which all persons and groups can seek their own goals”, OEC’s summary of poverty sought to explain why some people simply chose to not be responsible, or self-sufficient. To explain hundreds of years of economic history and accompanying developments in the human condition, OEC stated that (relative) poverty was a revolutionary phenomenon.¹² In short, OEC claimed that “the existence of poverty amid plenty can best be explained in terms of the failure on the part of individuals [emphasis added], industries and regions to adjust to the technological, economic and social imperatives of change”.¹³

The many tensions in liberalism, specifically with regards to tolerance and (un)belonging, negative and positive liberty, and a classical regime that recalls its own authority to deny formal legal commitments (in this case, the right to an adequate standard of living, or, in the case of Darlene Necan, the blatant rejection of already established legal claims to title), function to render contemporary consequences of colonialism acceptable. In part, too, it is the late liberal repackaging of the concept of poverty as a social (and individual) rather than economic ailment which posits a political understanding of poverty detached from legal obligation. This point is particularly salient if we consider the profundity of poverty as compacted by legacies of colonialism and the historical privileging of western legal customs. The tensions and contradictions which manifest in late liberalism, consequently, formulate poverty as form of violence, and as a violation of human rights.

Connor O’Callaghan is a PhD student in Social and Political Thought, York University, Toronto, Canada.

1
For full article, please see http://www.cbc.ca/news/canada/thunder-bay/ontario-withdraws-charges-against-homeless-woman-who-built-her-own-cabin-1.3001523
2
For full article, please see Emma Griffith’s ‘George Brandis defends ‘right to be bigot’ amid Government plan to amend Racial Discrimination Act, accessible at http://www.abc.net.au/news/2014-03-24/brandis-defends-right-to-be-a-bigot/5341552
3
See J. Borrows, Recovering Canada: The Resurgence of Indigenous Law, (Toronto, University of Toronto Press, 2002)
4
I use the word absolve in the sense that being Indian was perceived as being a lesser citizen — for the Trudeau government to relinquish Indian status was simultaneously a laden and problematic tactic to pardon this status and the history it signifies.
5
See White Paper original text, Statement of Government of Canada on Indian Policy, 1969, pg. 15
6
Ibid., 6-7.
7
Ibid., 15.
8
Ibid., 7.
9
Ibid. 15
10
See Russell Diabo, “Harper Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize Canada’s Colonialism,” First Nations Strategic Bulletin, June 2012
11
See Ontario Economic Council, Poverty and Institutional Reform, 1969, Ottawa, ON, pg. 5
12
Ibid., 6-7.
13
Ibid., 6.

1 Comment

Joseph Wade on 25 July 2017 at 3:53 pm
MARKING THE LAUNCH BY THE COBUQUA PEOPLE OF THE EASTERN CAPE OF THEIR BLOG: https://cobuqua.wordpress.com, 23 March 2017: SPEAKING OUT FOR JUSTICE, REDRESS and RECOGNITION
The Wild Coast – home of the Cobuqua people, a Khoi-San nation in the Eastern Cape
There has been a long history in Southern Africa of the issues of Khoi-San people being deliberately erased by successive political regimes in the country. This is despite the extensive archaeological evidence of the existence of the “strandlopers”. the ancestors of today’s Khoi San people, who have been genetically identified in the African Genome Project as bearers of the oldest DNA in the world.
The history of the erasure of the identities, origins and lifestyles of the Khoi San people, has been extraordinarily costly, especially to the Cape Khoi who lived a nomadic existence of small connected groups who harvested seafood from the ocean and from the rocky shorelines of the coast. Their’s was a sustainable lifestyle that is much sought after in the context of today’s climate change challenges.
The people who lived along the coast of the former Transkei homeland, the Cobuqua people, continue to suffer the impacts of dispossession and impoverishment that saw them forcibly removed from their ancestral lands as recently as 1976, under the regime of then Chief Minister of the Transkei, Chief Kaiser Matanzima.
The Cobuqua people have never forgotten their origins and have remained connected despite their displacement to five regions of the Eastern Cape – around Mthatha, Buffalo City, Matatiele, Aliwal North and Queenstown. There is a deep hunger amongst the youth of the Cobuqua people to recover their sense of identity and purpose. This is the powerful hope of the future as international actions to recognise indigenous peoples gain traction across the world.
Today, the Cobuqua people begin to SPEAK OUT to introduce all readers and concerned persons to their stories and their aspirations as they struggle to access their human rights and social, political, economic and cultural justice.
We invite you to sign up on their new blog and to follow their stories as they struggle for a recognition that meets the requirements of the United Nations Declaration on the Rights of Indigenous Peoples. The contestations are huge in this important struggle as they rise to end the continuing suppression of their struggles for justice, redress and recognition.
Our freedom remains incomplete without the achievement of freedom for all in South Africa.
The blog address is https://cobuqua.wordpress.com/2017/02/21/introducing-the-cobuqua/
Contact person: Chief Joseph Wade: Cell: 073 683 1104; 082 971 1478 and 073 055 4639
Email : khoisanpeople@yahoo.com
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