America the just ... 2 of 5 articles on Canadian misapprehensions of the US

National Post ^ | November 14, 2005 | David Frum

[NorthOf45]

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[NorthOf45]

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[notfornothing]

Jurors who voted against Merck said much of the science sailed right over their heads," said the Wall Street Journal. " 'Whenever Merck was up there, it was like wah, wah, wah,' said juror John Ostrom, imitating the sounds Charlie Brown's teacher makes in the television cartoon. 'We didn't know what the heck they were talking about.'

The next time you spend $150 for a bottle of pills, think of this fine gentleman.

[F14 Pilot]

Bump!

[beaver fever]

"But Canada has enshrined permanent racial preferences into Canadian law:

- Canadian citizens of native origin, for example, may hunt and fish when other citizens cannot. (R. v. Marshall, 1999.)"

Frum is seriously distorting the issue of fishing and hunting rights on native land. Natives enjoy this rights by the existence of treaties with the British government that precede Confederation.

Those natives who have not signed treaties are deemed to possess those rights by oral tradition but more importantly, continuous occupancy of native people on their lands, also preceding Confederation.

The Dene have occupied their lands by oral traditions and the opinion of linguists, ethnographers and archaeologists for ten thousand years.

[NZerFromHK]

Of course this is none other than David Frum. He already lives in the States and worked one time as one of the associate speech writers for Bush.

Well, to many Canadians' eyes he is already a CINO (Canadian in name only).

[Nicholas Conradin]

Well, to many Canadians' eyes he is already a CINO (Canadian in name only).

Canada's loss, America's gain.

I used to enjoy listening to Barbara Frum (Dave's mother) on CBC Radio's "As It Happens" and I was sorry to hear of her death. (I would place CBC Radio ideologically somewhere between the BBC and Radio Havana. Barbara Frum was neither overtly nor covertly political, just a great interviewer.)

I spent a couple years in Toronto until my application for permanent resident status was denied. I returned to the USA (Petersburg VA), bringing with me my lovely and precious Canadian wife.

Canada's loss, America's gain.

[NZerFromHK]

The BBC used to be quite sensible when compared with the lunatic leftism that permeates the CBC or the US's PBS, their comparable equivalents. But no longer - just last month even the PBS has raised the issue of whether the BBC is overtedly biased.

[GVnana]

He makes his point better with the next sentence:

- British Columbians of native origin may claim lands on the basis of oral evidence that would be thrown out of court if offered by a non-native.

In other words, the right to claim land based on oral evidence creates a separate class of citizen.

[SirJohnA]

Frum worked for George W. Bush.

'nuff said. Hardly a voice without an agenda.

[beaver fever]

No he makes a point that is patently false by stating that oral evidence would not stand up in a US court.

Native land claims are settled in Canadian courts which have ruled that oral traditions and continuous occupancy have the same status as a formal treaty. So how a US court would rule is irrelevant.

Canada has not instituted special rights for natives or a separate class of citizen. It has ruled that those rights have always existed and are prior to subsequent legislation.

[GVnana]

No he makes a point that is patently false by stating that oral evidence would not stand up in a US court.

No. He doesn't say that.

The difference is that Native American rights in the US are established by treaty -- written law -- and the fact of their US citizenship, another written law. How, exactly, this diverges from Canadian practice I couldn't say.

[GVnana]

Canada has not instituted special rights for natives or a separate class of citizen. It has ruled that those rights have always existed and are prior to subsequent legislation.

Interesting. Another possible difference. In the US, the English crown surrendered all sovereignty with the Treaty of Paris. Rights of citizenship were established by the constitution. Land rights are established by deed or treaty, and I don't believe there's any acting principle in US law for rights that have "always existed".

[beaver fever]

"Take principle one, equality before the law. That principle has been bent in the United States by affirmative action and racial preferences, but it has not been utterly discarded. In her majority opinion in the 2004 case of Grutter v. Bollinger, which upheld racial preferences at the University of Michigan Law School, U.S. Supreme Court Justice Sandra Day O'Connor opined that preferences should be seen as a temporary deviation from the enduring principles of equal justice."

Compare this to: "But Canada has enshrined permanent racial preferences into Canadian law:" (as apposed to US law)

So Frum is comparing the American affirmative action/racial preferences decision under Grutter v. Bollinger in the US Supreme court with native rights rulings in Canadian courts and implies that Canadian rulings are racially prejudicial because of a precedent in a US court.

The decisions in Canadian courts are not based on racial preference/prejudice or affirmative action. These are concepts grounded in precedents set in US law.

Frum is saying that oral evidence should not have precedent over a legal contract in a society where everyone is equal before the law. So he is comparing the Canadian legal system with the US and finds the Canadian system wanting.

The fact is the political and legal traditions are fundamentally different. He didn't come right out and say,

"Oral evidence would not stand up in a US court."

But he is saying it I you follow the development of his argument.

The rhetorical slight of hand lies here. "Canadian citizens of native origin, for example, may hunt and fish when other citizens cannot. (R. v. Marshall, 1999.)"

The reason natives can fish when non-natives can't is that natives have never relinquished their right to fish unrestricted by treaty or natural right.

It's not that natives have special rights it is that non-natives have no claim to historical right and therefor are subject to legislation.

This was never an issue until the salmon runs became depleted and it was non-natives that depleted those resources.

[beaver fever]

"I don't believe there's any acting principle in US law for rights that have "always existed".

Yes you are right that is a fundamental difference. Canadian natives gave up the right to ownership of their land in exchange for the right of continuous occupancy and the right to hunt and fish in perpetuity.

They did this because they did not recognize the concept of ownership of land and valued the trade opportunities with the British.

Later when the reservation system was imposed and their traditional right to hunt and fish were being curtailed they began to understand the idea of "gradual encroachment" where they were put on small reserves which effectively restricted access to lands for hunting and fishing.

Add to that the abomination of sexual abuse at residential schools. Native kids were removed forcibly from their families and moved hundreds of miles away only to be physically and sexually abused by priests and nuns.

In Canada natives are now regaining those lost rights and I say all power to them.

[GVnana]

Interesting that you and I have such different takes on Frum's writing, although I think his arguments would benefit from better development.

Frum is comparing the American affirmative action/racial preferences decision under Grutter v. Bollinger in the US Supreme court with native rights rulings in Canadian courts and implies that Canadian rulings are racially prejudicial because of a precedent in a US court.

I think you're stretching the point beyond Frum's intention.

Canadian courts are not based on racial preference/prejudice or affirmative action. These are concepts grounded in precedents set in US law.

Yes. Frum is pointing out the exceptions to his thesis.

Frum is saying that oral evidence should not have precedent over a legal contract in a society where everyone is equal before the law. So he is comparing the Canadian legal system with the US and finds the Canadian system wanting.

Not so much that the oral evidence has "precedent", but the fact that one group of citizens has this right where another group doesn't. The concept doesn't exist in US law.

The reason natives can fish when non-natives can't is that natives have never relinquished their right to fish unrestricted by treaty or natural right. It's not that natives have special rights it is that non-natives have no claim to historical right and therefor are subject to legislation.

To an American mind, that IS a special right.

Concerning fishing rights, in the US, treaty tribes have the right to petition the US government for protection of waterways, fish populations, etc. – basically treaty enforcement.

Can a native in Canada encroach on individual property rights by verbal claim?

[beaver fever]

"Not so much that the oral evidence has "precedent", but the fact that one group of citizens has this right where another group doesn't. The concept doesn't exist in US law."

and.....

"Not so much that the oral evidence has "precedent", but the fact that one group of citizens has this right where another group doesn't. The concept doesn't exist in US law."

This is part of the sleight of hand in Frum's argument. If you look at the actual treaties signed by US natives and Canadian natives you will find the same rights to access to the land 'in perpetuity'. The difference is that during the Indian Wars in the late 1860's these rights were abrogated due to the claim of native insurrection answered be President Grant with the US 7th Cavalry.

In Canada native treaties were undermined by magistrates and rum merchants. The effect was the same except that military was not did not intercede, except in two cases, the Metis Rebellion and the Slocan uprising in BC which involved three natives how killed a police officer.

Again the issue is not a question of special rights but rights denied.

As for the last issue, "Can a native in Canada encroach on individual property rights by verbal claim?"

This is a complicated issue that is in the process of being arbitrated.

So far the most important precedents are being settled by the Treaty 8 Dene nation in the Yukon. The Dene have agreed to withhold any claim to private land held in good title for the sovereignty over unregulated Crown land deemed to fall under traditional title. Even in these cases the Dene nation is claiming only a small portion of their original territory.

They have made these agreements in exchange for complete sovereignty over the land they maintain.

[ccmay]

Natives enjoy this rights by the existence of treaties with the British government that precede Confederation.

Moreover, Indians in the US enjoy many similar rights, whether it's salmon fishing, whaling, or running a gambling casino. I don't think the two countries are as different in this regard as Frum implies.

-ccm

[ccmay]

Land rights are established by deed or treaty, and I don't believe there's any acting principle in US law for rights that have "always existed".

The U.S. signed many treaties with the Indian tribes long after the Treaty of Paris. Those do still pertain.

Moreover, treaties are of equal status to the Constitution; it says so in the Constitution itself. There are a lot of conservatives who bitch about the Indians having rights that whites don't have, but as a matter of settled law, this is not violating anyone's Constitutional rights.

The privileges granted to the tribes by treaty supersede the "equal protection" clause of the 14th Amendment and anything else that is found in the text of the Constitution, Bill of Rights, or subsequent amendments. True conservatives should realize and accept this, if the rule of law and respect for tradition and precedent are to mean anything.

-ccm

PS. I'm not an Indian-- we supposedly have a few drops of Indian blood dating back to the 1600s, but of course I am never going to get any of these tribal treaty rights myself. I just think fair is fair, and this is the way the law and the treaties were handed down to us from our forefathers, and we ought to honor those commitments.