The Charter, a good deal or not?

Friday, May 20, 2005 11:10 AM

In my last column I mentioned the Charter of Rights and Freedoms and it’s clarity on the freedoms of opinion, expression, beliefs, including the use of the press and other media. Although we question many instances where these freedoms may be in jeopardy, we must continue to use the Charter to its full capacity to assure the continuance of these freedoms. Our society must be thankful that we have a means to discuss our basic freedoms.

Having said that, the author also believes the Charter of Rights and Freedoms has created many disparities that have resulted in much animosity between cultures and regions of the country. I may discuss some of these inequities in more detail in future issues. What I would like to do here is raise some questions that may invite your views on the topic.

Was the Charter a well-researched and written document or was it hurriedly assembled by Prime Minister Trudeau and the Liberals to establish a legacy for his period in office?
What were his real motives for repatriating Canada’s Constitution?
Were there any real benefits for Canada, or just portions of the country and sections of our society?

We still have a Governor General that represents Canada’s allegiance to the monarchy. Many reservations again arise as to the effectiveness of this dignitary and the hefty costs associated with it and the entire office. Therefore, was it a compromise to repatriate the constitution from Britain quickly in an attempt to save our confederacy, or was it to appease the Anglophones and their heritage within the country?

There were, are, and will be for decades, benefits for those persons involved in the legal business. The Charter has created a huge industry with the intention of attempting to interpret each section of the Charter and how it pertains to us within the vast land mass and also the many cultures that have become the basis of our society. The legal profession is now graduating students that will devote their entire career to constitutional law. They potentially are the huge winners in Trudeau’s legacy. Along with them we must include all the support staff for the lawyers, judges, court employees, and researchers. What is the cost? A probable safe assumption would be to declare it in the billions of dollars (luckily not US dollars).

A consequence of this legal resolve is the fact that so many issues are caught in the courts that those decisions which are urgently required today will be delayed for years. We only have to look at British Columbia. The single matter of the reference to native right entrenchment has placed an indefinite hold on many future development plans in the resource and tourism domains. This discourages many developers from establishing in B.C. and only helps to depress our economic development. Instead our natives should be exposing and sharing this heritage with great pride within the tourism industry.

Another matter of great expense to the public is the right to use either of the two official languages. Not only does Bill 101 in Quebec create a lot of animosity in Canada, the Federal Liberals seem quite content not to solve the issue and hope that it will go away on its own. At the same time many areas of the country that have no French heritage could become points of conflict by persistent radicals who could demand the use of French. This has added unnecessary costs to the operations of government buildings in these areas. If I were to move to Quebec or New Brunswick, I would accept the fact that I would have to learn the French language and do my best to become proficient in its use. If this were reciprocal the language debate would be reduced to a very minor nuisance? French in the French speaking quarters, English in the remainder, and the many other cultural clusters mostly in the larger urban centers that use mainly their native tongue.

In closing this article, I hope I have revived some points of interest and anticipate reading arguments of opposing views. After all it is our right to have opinions and express them. Perhaps the Charter of Rights and Freedoms could have been reduced to one sentence. ALL CITIZENS OF CANADA ARE CONSIDERED EQUAL AND WILL ABIDE BY THE SAME GOVERNING SET OF LAWS.

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Posted on Friday, May 20, 2005 11:10 AM in Views by Jack deWit

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Comments

Posted by: ammonra on May 20 2005 3:19 PM

I think we are much better off with a charter than without. It came about as a consequence of replacing the a parliamentary bill of rights, which is really easy to change, with a constitutional charter which is much more resiliant to political winds. That is a good thing, I believe.

I also believe that the problems we have in BC arising from first nations issues go much further back into the past than the creation of the single reference in the Charter. They come from the refusal of past governments of BC to negotiate treaties. Even without a charter we would still have those problems, and they would still have to be settled to all parties satisfaction.

Finally, your proposal of a single line declaration of rights would still lead to major court cases. I immediately detected several. First, you begin, "All citizens of Canada". Is this to say that landed immigrants do not have rights and are not equal? Secondly, what is the difference between "are considered equal" and just plain " are equal". If citizens (but not non-citizens) "Will" obey laws, what happens if they won't (of course, you mean "are subject to"), but those three comments serve to illustrate that writing a charter of freedoms is not easy. Simplistic terms lead to confusion, and the most basic law of the land deserves to be as clear as possible. That is why it needs be wordy, to reduce misunderstanding as much as possible.

Posted by: Chadermando on May 20 2005 11:46 PM

#1 The Charter of Rights was never voted on by the people of Canda and is therefore not on very strong legal ground.

#2 The natives are our ally IMO and they have a right to royalty collections from their traditional territory. The natives are not however self governing, and can only chose between what their price is and what is the law of British Colubia. They can not however make up their own laws and apply them to the people of British Columbia.

#3 As for the arguement that non-citizens have the same rights and privilages of Canadian citizens. I don't buy that arguement. No they are not equal before our government and courts and no they do not have the same rights. Citizenship is a right and not a privilage.

Posted by: ammonra on May 21 2005 7:39 AM

1. There was a general election in which bringing Canada's constitution under Canada's was the main item. Trudeau won and we got the Charter. The law bringing the constitution to Canada was passed by the UK Parliament as the law required. I think the Charter is quite safe as no referendum was required to make it law. It is now a done deal, like it or not.

2. Of course first nations can be self governing. The Nisga certainly are. Their laws only apply to a specified area, certainly, but everyone in that area must follow those laws. That's the case in the Prince George self governing community, so why should it be different anywhere else?

3. There may well be differences in the rights that citizens and non citizens have, but a Charter must specify what those differences are. A simplistic one line statement as in the article is not good enough and causes far more problems than it solves, that is the point. As an example, should non citizens vote? Probably not. Should non citizens have the right to free speech? Probably yes. A declaration of rights has to cover those things.

Posted by: Chadermando on May 22 2005 1:44 AM

Ammona,

I hope you are not a person who is anti-democratic?

#1 As far as I’m concerned a constitution has to be voted on by its people directly. That was what the Charlottetown Accord was all about. Trudeau did not have a real majority.

#2 The Nisga agreement is an apartheid agreement in our own back yard. It does not respect the voting and property rights of not only the non-Nisga whites, but also the non-Nisga natives in the area of the Nisga agreement. This is wrong and was opposed in a referendum by 96% of the voting public in Northern BC. This agreement passed because the infamous Jean Chretien and Glen Clark needed photo opportunities for short-term politics. I would much rather see agreements like the community self-government agreement of the McLeod Lake people that is not race based in its governing policies.

You should be ashamed for opposing the overwhelming majority will in promoting a racist based political framework as is in the Nisga deal.

Again altering our constitution was not giving the respect of the approval by the majority will of this country

#3 I agree that visitors should have rights. You are correct in that those rights should not be the same as those of citizens. The level of rights could be debated. Should they have the same level of free speech as a Canadian citizen? I would argue that that is questionable if it involves enciting the public for political action. That said no question about it a Canadian citizen has the right to call treason where s/he sees treason. A guest is a guest and as a guest they have certain privileges that they are not yet entitled too.

IMO

Posted by: forum observer on May 22 2005 7:43 AM

Although we recognize the value of law in regards to constitutinal rights and freedoms, this is, a perverse way in which to influence.

If one does not take this into consideration, you leave your self open to rote words, without meaning, other then, "I am this way because I am."

Investigative reporting and research brings information to the surface. Allows you to weight, what one had assumed? Allows you to be more then, "sheep lead?"

So how has "corporate zeal" influenced your decisions?

Posted by: ammonra on May 22 2005 7:49 PM

No, I am not anti-democratic. Quite the opposite, I extremely pro-democratic. I believe very strongly that openly stated strong disagreements, as we have here, is the foundation of a strong democracy. I believe that you questioning my committment to democracy is an underhanded, and rather feeble, attempt to inhibit that free speech. Shame on you.

1. While your political opinion on the desirability of having a referendum on the Charter is perfectly valid, it is not relevant to the Charter's validity. Your initial comment was that "legally" it was on shaky ground. It is not, "legally" it is on very solid ground. Whether it was, or still is, desirable to ratify it in a referendum is a political question about its political acceptability, but it is not a legal requirement. The Charter is valid, referendum or no.

2. There was NOT a referendum on the Nisga agreement. What you call a referendum, and dishonestly so, was a **PRIVATE** straw poll conducted by a group adamantly opposed to the treaty. It was boycotted by nearly all those who were in favour of finally reaching an agreement with a group that had been discriminated against for over a hundred years. It meant precisely nothing. The figure of 97% in favour is on a par with the 97% who always voted for the communist governments in the old Soviet Union, i.e., laughable. The Nisga agreement fulfilled all the legal requirements for a treaty and is not only valid, it is just.

I most certainly am not ashamed of promoting just treatment of first nations of this province in an ethical and considerate manner. I recognise the right of all nations, including them, to self determination to whatever degree is possible within the Canadian democracy. If you want a vote in what goes on in Nisga territory, then go live there and become a nisga citizen. You approve of non Citizens living in Canada not having equal rights with Canadian citizens, so why do you want a different set of rules for non-Nisga citizens living among the Nisga? Good for the goose, good for the gander.

3. I don't disgree particularly with your third point. That's why I was so annoyed when Charleton Heston came up here and stuck his interfering nose into our political discussions about gun registration and/or control. (No, I am not in favour of either. The whole thing should have been left as it was.)

Posted by: Chadermando on May 23 2005 1:17 AM

Ammonra, you're a good debater, but I can't let you get away with this.

Ammonra writes, "You approve of non Citizens living in Canada not having equal rights with Canadian citizens, so why do you want a different set of rules for non-Nisga citizens living among the Nisga?"

I approve of all Canadian Citizens having equal rights no matter where they live in Canada.

I do not approve of race based rights as there is in the Nisga treaty.

No a non-Nisga Native (or white man) can not just join the Nisga nation. It is a race based right bestowed to the Nisga people. This goes against the Charter of Rights you are so adamant about defending. This aparthide race based treaty is a violation of the neighboring non-Nisga nations who have yet to bargin their own treaty.

That said I do not approve of the bulkinization of British Columbia for some utopian race based dreams of paradise on behalf of some manipulative power hungry chiefs that wish to have a protected extortion racket. For me that is the polticial reality.

I think the utopians would be far better off promoting the BC STV citizens based electoral reform in BC that is politically neutral if they wanted to do something good for the province.

Time WIll Tell

PS Why no comments in favor of the more democratically compatible McLeod Lake treaty?

Posted by: ammonra on May 23 2005 9:01 AM

I don't know what STV has to do with treaties, but I voted in favour of it.

Whether you like it or not, First Nations in Canada have Aboriginal Rights. That's the law. These rights come from the fact they were here first and exercised control over the land. First Nations in BC welcomed Europeans as guests in their countries, but they never voluntarily gave them up, nor were they defeated in war. The courts have made it clear that First Nations have property rights to their land, and a further right to manage their own affairs, just like non Indians do. The proof that they exercised those rights before Europeans came here is very clear from verbal and archaeological evidence.

You say that the Nisga agreement is"race based". Sir, the creation of British Columbia itself was "race based". When Europeans came here they cheated Indians out of their property, then stole what they couldn't get by fraud. The Indian act is "race based", because only Indians are covered by it. If you truly wanted to avoid "race based" solutions you would want to get rid of it and give Indians their property back. White people can sue for recovery of stolen property, so why this "race based" distaste when Indians do the same, or reach an out of court settlement to get back a small part of what they had 100 years ago?

Answer me this, why are American First Nations treated so differently from other colonised Nations? India was given back to Indians, Africa was given back to Africans, Malaya was given back to Malays, so why do you object so strongly when a small part of America is given back to Americans?

The McLeod Lake agreement (an extension to Treaty 8) is "race based" to the same degree as is the Nisga Treaty, because only Indians come under it. Why do you tout one "race based" treaty, but condemn another treaty with the same underlying basis? If one is wrong, then all are wrong, because all treaties are based on the acceptance and recognition of the fact that First Nations were here first, and owned the land. Get the point, sir, treaties, and that includes the Nisga Treaty, are not about race. Your acceptance of one and not the other proves that beyond a shadow of doubt. The Nisga Treaty is about recognition of the property and political rights of a group that have been subjected to racist bigotry and discrimination for more than a century in BC. Yet when they finally get to be treated with some dignity, people like you condemn them and twist the facts around to make them appear at fault, using personal and pejorative attacks on the motives of their leaders. That, sir, is the real disgrace here!

Posted by: Chadermando on May 23 2005 5:45 PM

Ammonra writes,

"If you truly wanted to avoid "race based" solutions you would want to get rid of it and give Indians their property back."

I think that would be good. I have no problems with that and actually think that would be beneficial for all in our society. I'm not sure where you get an arguement against that from?

As for what I mean by race based treaties, I am talking about the rights of non- say Nisga in the Nisga region under the law. Under the law is key here.

Under the law non-Nisga have no rights under the Nisga treaty. Under the law a non-native living in McLeod Lake have a right to vote and participate in the governance of the McCleod Lake region. I know non-natives that live in McLaod Lake and they have the same rights, other than compensation for past wrongs, as all the original McLeod Lake natives. This is not the case in the Nisga treaty.

To answer your question it simply comes down to right of birth. I was born here, and my ancestors have lived in BC for nearly 130 years so even thought I am not 100% native I have a right to my homeland as much as anyone else. That is why I do not see the merit in giving my home away for historical considerations, as do you since you also live here I persume.

BC is not a race based government as much as you would like to spin it as such. Historical wrongs were made, yes, but looking forward that is not the case today. We in BC are trying to reach an agreement that addresses all who have an interest and I don't think this should be done on a race based plateform simply because it was done that way in the past.

As for the chiefs that are corrupt, why don't you surrender the title to your home to these chiefs and move around like musical chairs next time there is a power shift in the band council and tell us how justified this situation is? I suspect you would prefer the Charter you so adamantly defend after a taste of losing your home simply because you fixed it up and your chief didn't do the same to his own.

Not a lot of time to argue, but good luck, sounds like you'll need it.

Posted by: Chadermando on May 23 2005 5:51 PM

Ammora, quick note of a false statement,

"The courts have made it clear that First Nations have property rights to their land, and a further right to manage their own affairs, just like non Indians do."

Natives do not have a right to homeownership under most treaties. The treaties are collective and do not give rights to individuals. that is what makes the McLeod Lake treaty superior to all others. They have the rights to their own home and land as well as the collective rights of the band. This is the way forward for the native people.

Ever tried to get a business loan with no personal collateral?

If only they had personal property rights under these agreements then your arguement would have some merrit to it.

Posted by: Chadermando on May 23 2005 5:54 PM

Ammora please stop your attempts to retard the development of the native individuals of this province towards self sufficiency. I know many native people who consider those with your view points as their biggest enemy for a fair future.

Posted by: ammonra on May 23 2005 7:46 PM

My last post on this issue.

Chaldermando said,"I suspect you would prefer the Charter you so adamantly defend after a taste of losing your home simply because you fixed it up and your chief didn't do the same to his own."

I don't understand this. I am not Indian. I have no chief. Even so, if they have corrupt chiefs, then they must take care of that themselves just like we would take care of our corrupt politicians. That is what **self** government is all about.

The McLeod lake treaty likely is superior for the First Nations who voluntarily chose to come under it. For the Nisga, the Nisga treaty is superior, because that is the treaty they voluntarily chose to come under. Who are you to dictate the form that property rights are to take for another people. That is their concern and their choice, not yours. That is their expression of democracy. Compelling the Nisga to live under your personal preference for the form of property rights they must have is just another typical example of the cultural domination that led to this situation in the first place and which the Nisga treaty was supposed to end.

Posted by: Chadermando on May 24 2005 12:04 AM

Ammonra, I could care less how they conduct their culture. I agree that they should exercise that right as a community.

The issue was over Nisga self-governance having an effect on those who are not members of the Nisga ethno-centric community. In effect an exclusionary and ethnocentric rule of and application of law towards Canadian citizens in our own 'multicultural' country.

Posted by: Chadermando on May 24 2005 12:19 AM

Ammonra you say that you do not understand, and then go on to advocate the collective culture as a concept that we should support as a 'native' culture.

What you are then advocating is a system where their homes are owned by the band. The people strongest in the band who are in the leadership pick which houses the others will live in. On the Indian reserve you have no property rights. If you fix up a nice house and your Chief decides he likes it, then he can take it for his own. If you go to the bank to get a loan to start a business you are not allowed to use that home as your collateral because of the lack of title transferability.

Advocating the Nisga like treaties is worse than Communism. Empowering little Stalins everwhere. They say its easier to control a dictator rather than a democracy.

I see nothing wrong with individual land title and home ownership. I also think every Canadian in his or her community should have equal voting rights before the law of that community as members equal under the law.