Assertion of Crown Sovereignty (2017)

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Assertion of Crown Sovereignty in Canada

Note: This essay is based upon a paper submitted for the course Indigenous Peoples and The Past in the Indigenous Learning Department of Lakehead University in the fall of 2017.

Introduction

This paper considers the assertion of sovereignty by the Crown in Canada and its ongoing significance in the treaty relationship between First Nations and the Canadian colonial settler society and the Canadian colonial settler state. The plan is to present an overview of possible candidate events for such an assertion, from the first arrival of Europeans, through the fur trade society of the Two Row Wampum, the railroad-settler society of the BNA Act, 1867 and the Indian Act, 1876, and up to the present day.

I will be attempting to develop meaningful periodizations around significant relevant events which allows for both i) an accurate historical framing of such events, and ii) self-identifying narratives. These self-identifying narratives will be presented as competing, if not contradictory, stories of legitimacy and self-actualization.

Historical Periods & Self-Identifying Narratives

It is perhaps important to make explicit the distinction between historical periods and self-identifying narratives. We are attempting to consider both.

Here is a typical definition of periodization in history:

A period of history is a specific time frame containing common characteristics.1

Such a framing device will likely be organized by an historian’s topic of interest. Standardized periodization will typically respond to topics of interest organizing “common characteristics” which are widely shared by historians.

Self-identifying narratives may respond to similar analytical motivations, however, in addition, for our purposes, self-identifying narratives will be understood as gathering agency, events and evidence around the idea of self-determining and self-actualizing historical subjects. For example, the concept of collective self-determination will need a self-identifying collective actor to pursue self-determining and self-actualizing objectives.

It is in precisely this sense that we want to ask: what is the Crown and how is the Crown assertion of sovereignty presented as a true and intelligible historical story? For example, are we freely invited, involuntarily coerced or deceptively manipulated to actualize the historical story of the self-actualizing Crown as essential to our own self-actualizing story?

In other words, we can not evaluate the intelligibility of an historical self-identifying narrative unless we consider the historical subject of that narrative. Such historiographical distinctions could easily form the basis of a lengthy discussion, however, for our purposes here, we will simply attempt to discern them by employing them and leave the task of explaining them in greater detail to another task.

In order to elaborate this idea of a self-identifying narrative of a collective historical subject, I would like to introduce the idea of symbolic historical representations, ex., symbolic agency and symbolic events. Symbols function differently than facts although they often merge with them.

Symbolic agents and events function not merely as facts in a chronological outline, perhaps organized in periods of “common characteristics”, but rather as motivating representatives within a narrative with which self-identifying participants seek multi-generational, self-actualization. This is where facts become representative motivating elements in someone’s own story. For example, individuals today, as members of a shared collective identity, may representationally identify with Cartier or Donnacona, Brulé or Champlain, Wolfe or Montcalm, Riel or Macdonald. I think the term symbolic representations, rather than simply facts, may help draw us into a better understanding of this kind of psychological and cultural, representational self-identification. So while we will attempt to understand historical facts and periods, we will also attempt to understand the symbolic significance of such facts as motivating representatives in narratives of collective self-actualization.

The Crown as an Historical Subject

We will begin by simply noting a standard definition of “sovereignty” which denotes the supreme authority in a territory.2 With regard to “the Crown” in Canada we will use Duhaime’s legal definition: “The English Monarch, where she is the symbolic head of state.” 3 At the same time, we will offer for the term “Monarchy”, again with Duhaime, “a form of government in which law-making power is given to a single person, usually holding such authority by birthright and not by merit.” 4

On the one hand, based upon such definitions, the Crown might be construed as representing an individual, however, clearly, this is a collective, “symbolic head” of the state, and thus, of the society in which this state is embedded. Nevertheless, we have here a working representation of the Crown as the “supreme authority” within a territory as an institutionalized monarchy which embodies that authority as a “law-making power”.

The French Period

In our first periodization, we will loosely organize our historical account into three periods: French, British and Confederation.

To initiate our discussion of the Crown in Canada as an historical subject, we are going to follow the account by the Canadian Senate, which is itself an expression of that historical subject, and thus this account can be considered a self-actualizing narrative of that historical subject. The Senate account begins by considering the overall role of the Crown in Canada as a Constitutional Monarchy:

Under the Crown, Canada developed first as a colony of two empires, originally the French and subsequently the British, then as an independent dominion, and now as an entirely sovereign nation…the Crown embodies the continuity of the state and is the underlying principle of its institutional unity. The Crown heads all three branches of government: the Executive…the Legislative…the Judiciary…5

So, here, the Crown embodies the “continuity” and the “institutional unity” of the state which, as we noted above, involves the supreme, law-making authority in a territory. However, the Senate account describes Canada as a colony of two empires before becoming a sovereign nation. How does this account of the “continuity” and the “institutional unity” of the assertion of sovereignty unfold, as it is often characterized, from colony to nation?

Canada and New France

The detailed history of the Senate account begins with François I of France:

In 1533, he signed a treaty with Spain and Portugal that gave France the right to navigate in all unmapped territories. Particularly interested in the quest for a route to China, François I personally financed the voyage of Jacques Cartier, a sea captain from Saint-Malo. In April 1534, Cartier landed in Gaspé, where he was welcomed by the region’s Aboriginal people, and took possession of Canada in the name of the King. Initial attempts by the French at settling in Québec (1541–43) were unsuccessful. The severe winters decimated the settlers until the Aboriginal peoples came to their rescue. In September 1543, the first Viceroy of Canada, Jean-François de la Roque, Sieur de Roberval, returned to France. A direct passage to China remained undiscovered.6

This account is fascinating in that it introduces many conflicting, if not contradictory, elements as it attempts to develop a self-identifying narrative for the Crown in Canada, a self-identification linked here to the Senate itself. The key element for our discussion about the assertion of Crown sovereignty is that Cartier “took possession of Canada in the name of the King”. Yet we are told that settlement attempts were unsuccessful and, furthermore, even that the initial tentative attempts only avoided complete disaster through the intercession of the Aboriginal people who rescued them. What kind of possession is being asserted by Cartier according to this contemporary account of the Canadian Senate?

Finally, despite the description that Cartier was “welcomed by the region’s Aboriginal people”, that welcoming, we know, was characterized by deceit, misunderstanding and treachery. There is certainly no indication that any assertion of Crown sovereignty was accepted by the Aboriginal inhabitants themselves. Yet, the French Crown is claiming “possession”, a possession here viewed as continuous with the current Canadian state according to this account by the Canadian Senate. And presumably this act of possession implied the assertion of the “supreme authority in a territory” but where the representatives of this supreme authority can not even survive without the assistance of the inhabitants? What kind of “supremacy” can be intelligibly conferred here?

Clearly we have a narrative with competing historical subjects. We have, in this account, the monarchical Crowns of Europe: France, Spain and Portugal. We also have the original inhabitants of Canada. We seem to have an attempted or claimed assertion of sovereignty, but do we have a successful and intelligible assertion of sovereignty?

To follow this line of questioning let’s turn to another Government of Canada source, Heritage Canada, and their description of the origin of the name “Canada”. Under the heading “Aboriginal roots”, here is their account (it is worth quoting at length):

The name “Canada” likely comes from the Huron-Iroquois word “kanata,” meaning “village” or “settlement.” In 1535, two Aboriginal youths told French explorer Jacques Cartier about the route to kanata; they were actually referring to the village of Stadacona, the site of the present-day City of Québec. For lack of another name, Cartier used the word “Canada” to describe not only the village, but the entire area controlled by its chief, Donnacona.

The name was soon applied to a much larger area; maps in 1547 designated everything north of the St. Lawrence River as Canada. Cartier also called the St. Lawrence River the “rivière du Canada,” a name used until the early 1600s. By 1616, although the entire region was known as New France, the area along the great river of Canada and the Gulf of St. Lawrence was still called Canada.

Soon explorers and fur traders opened up territory to the west and to the south, and the area known as Canada grew. In the early 1700s, the name referred to all French lands in what is now the American Midwest and as far south as present-day Louisiana.

The first use of Canada as an official name came in 1791, when the Province of Quebec was divided into the colonies of Upper Canada and Lower Canada. In 1841, the two colonies were united under one name, the Province of Canada.7

So how do we assess this historical account of this new historical subject called “Canada” by the federal department of the current Canadian state responsible for such things? I say this keeping in mind the notion of self-identifying narratives of self-identifying subjects. So what is the relationship between the historical subject called “Canada”, referenced above, and the current Canadian state?

First, the word “Canada” is assumed to have an Aboriginal origin. Furthermore, we are told it was initially used by Cartier to refer to the Aboriginal village of Stadacona and to the territory “controlled by its chief, Donnacona”. Maps and usage went on to apply the word “Canada” to an entire region also referred to as “New France”. With the fur trade, “the area known as Canada grew” to reference “all French lands” including territories now in the United States. The first official use comes in 1791, in the British period, with the division into Upper and Lower Canada, and again, in 1841, when the two colonies are united into the Province of Canada.

What is the relationship between the unofficial and official uses of the term “Canada”? How can a territory acknowledged to be under the control of an Aboriginal chief have the French king as its “supreme authority”? Apparently Cartier both takes possession of Canada for the French king while at the same time acknowledging it is controlled by someone else. Again, the notion of possession as representing the supreme authority in a territory seems to be at odds with the facts of Cartier’s account.

Furthermore, this account indicates that there is a duality at work here between what the names “Canada” and “New France” reference. Throughout the French period this terrritorial ambiguity, I will argue, demonstrates a contradiction at the heart of the story, the self-identifying narrative, of the contemporary Canadian state and its claim to continuity regarding the assertion of Crown sovereignty. “Canada” remains throughout tied to its Aboriginal roots as an Aboriginal homeland, whereas “New France” designates the construct of the monarchical administrative society in France. I will argue that “Canada” remains, throughout the French period, an ambiguous and unassimilable reality for the French colonial monarchy, and thus, for the “continuity” of the current Canadian colonial state and society.

So to reiterate, my argument will be that the entire story of the new historical subject, called “Canada”, during the French period is one of an unassimilated and porous socio-economic and cultural-political reality over which the French colonial administration is never able to assert “supreme authority” and must be at all times contrasted with what that administration characterizes as the colony of New France.

Champlain, Les Canadiens and the Great Peace of 1701

If we return to the Senate account, we learn of other historical representatives of the French Crown who, through royal edicts, were mandated to “appropriate” land or “build fortresses”, but that such efforts “fell short of success”. Nevertheless, the French Crown persisted in promoting “exploration and development” by granting “privileges over fishing, fur trading and mining in New France”. Finally, in 1604, in Acadia, and in 1608, in New France, Champlain established permanent colonies.

Nevertheless, the Senate account continues:

Champlain understood that successful settlement would be impossible for the new Canadians without the support of the Aboriginals. He signed peace agreements with them and took part in their expeditions.8

What clearly emerges at this point is the idea of the “colony” as a legal, political and military expression of the French monarchical state. This is what I understand to be “New France”. However, we have, at the same time, another historical subject(s), “Aboriginal people” who are clearly not subjects of this colony or this state. Thus, peace agreements are signed.

And almost a century later, after the colony evolves under direction from the French Crown, we are told:

In 1701, the Great Peace of Montréal was signed in the King’s name with the Iroquois Six Nations Confederacy to end the incessant fighting with the Aboriginal nations. In April 1713, Louis XIV signed the Treaty of Utrecht, under which he surrendered a great portion of Acadia to Great Britain in return for the Spanish throne for his grandson, the Prince Royal.9

What becomes clear is that European monarchies are making and swapping territorial ‘claims’, while they are still engaging in peace treaties with Aboriginal people living in those same territories. Clearly these Aboriginal people are not the de facto subjects of European colonies. So how can these European monarchs claim to be the “supreme authority in a territory” if there are large populations of people not subject to that authority in that territory?

The Great Peace of Montreal, 1701, is abundant enough evidence of the distinction between “Canada” and “New France”, insofar it does not represent any kind of subjugation of Aboriginal peoples under French sovereign authority. Rather it is a treaty which assumes the political and territorial independence of its participants regarding territories which remained meaningfully Aboriginal for those self-identifying participants.

Furthermore, I will argue, the term “les Canadiens” will always refer to, in contrast to “les Français”, folks born in “Canada” with unique social and cultural identities heavily indigenized by their Aboriginal relatives and allies. It is the constant enterprise of colonial administrations to assimilate this “Canadien” reality under the control and authority of the French Crown and, later, the British Crown. However, I will argue, they are never successful. “Canada” remains, geographically, culturally, politically and spiritually, a symbolic representative reality, with its Aboriginal and Canadien roots, independent of all Crown attempts to assert legal sovereignty over it.

What is at stake in this discussion is the legal and political idea of a “colony” and of colonial citizenship. The principle idea is that the colony represents a territory and a population under the effective authority of a Crown administration in another country. However, if that authority is not “supreme” but in fact a site of successful contestation, repudiation or simply of effective indifference, is this notion of the assertion of Crown sovereignty essentially a false, fictional or, at least, over-extended notion? Is the claim of continuous sovereignty, which is being asserted by the Canadian Senate on behalf of the Confederation Crown, a fictitious idea or a de facto reality? And what are the implications if this claim of “continuity” is false?

The Fall of New France

This brings us to the fall of New France, in the Senate’s account of the Crown in Canada.

Under the Treaty of Paris signed on February 10, 1763, by England, France, Spain and Portugal, France definitively surrendered the Canadian colonies to Britain. It was the end of France’s colonial empire in North America.10

So we have a definitive claim of a shift in Crown sovereignties according to the Canadian Senate’s self-identifying narrative. Colonial territories are being swapped amongst European monarchies. “New France” is no more. But what does this mean for the historical and symbolic story of “Canada”, with its deep Aboriginal roots and its large population of indigenized “Canadiens”, who called themselves and were called “les Canadiens” (and later la nation canadienne)?

The British Period

The British period, in the Senate account, begins with the 1763 Treaty of Paris. However, to address the British Crown presence in “Canada” we need to look back, at least, to the founding of the Hudson’s Bay Company in 1670.

Hudson’s Bay Company

The Hudson’s Bay Company [HBC] charter, granted by King Charles II of England gave an “exclusive trading monopoly over the entire Hudson Bay drainage basin”. The charter included “the right to exploit mineral resources and the obligation to search for the Northwest Passage”. Furthermore, we are told, that “In 1868, the Rupert’s Land Act paved the way for the surrender of most of Hudson’s Bay Company’s lands to the British Crown and their subsequent transfer to Canada”. 11

So does the HBC charter and its affirmation of territorial control under the Governorship of the company represent a successful assertion of Crown sovereignty, which would be successfully transferred, in 1870, to the Confederation state?

In 1670, no one is living in the drainage basin of Hudson’s Bay except Indigenous Peoples who knew nothing of this claim of control in the HBC charter penned in faraway England. Furthermore, as the trading company evolved, settlement was discouraged in favour of trading posts. How can this qualify as “supreme authority in a territory”, if the vast majority of inhabitants conduct themselves largely independent of that law-making authority.

In effect, the charter is simply an agreement, among British Crown subjects, and, in this case, trading companies, that this company has a monopoly, in British eyes, versus counter claims by other trading companies. Even this claim of monopoly will be contested by the Northwest Company until the merger of 1821. And how do such facts support the claim of continuity regarding the idea that the new Confederation state of 1867 purchases Rupert’s Land from the HBC in 1870. Simply to say, here, you can not buy the United States from Walmart, so what did the Confederation government purchase in 1870 from the HBC? A British trading monopoly?

Royal Proclamation 1763, Treaty of Niagara 1764

To return to the Senate account:

Once Canada became a British possession, the Royal Proclamation of 1763 recognized the Aboriginal peoples’ rights as the first inhabi­tants and granted them royal protection. 12

Once again, we are at the centre of the ambiguity in the story of “Canada”. As we have noted, we make a strong distinction, in the French period, between “Canada” and the colony of “New France”. The Treaty of Paris ended the role of the French Crown in North America. It was the French Crown which conceded defeat and territorial dispossession in the 1763 treaty. Thus, it is the colony of “New France” which is defeated and conceded. As Indigenous leaders were keen to point out to the British at the time, Indigenous Peoples were not defeated. What does this mean for the self-actualizing story of “Canada”? The Treaty of Paris, 1763, did not have Indigenous Peoples on one side of that treaty table. So any account of the continuity of Crown sovereignty is going to have to take into account the continuity of Indigenous Peoples’ independence of such claims.

The Royal Proclamation, as noted in the above Senate account, is often construed as a document which asserts the British possession of “Canada” when in fact, what was “possessed” was the French claim to the monarchical colony of “New France”. Is the claim of “protection” of Aboriginal peoples, through the Proclamation, in fact, a successful assertion of Crown sovereignty over them?

Such a claim is abundantly contradicted by the British actions of the following year, 1764, with the Treaty of Niagara which incorporates the Two Row Wampum, utilizing Indigenous symbols of non-interference and autonomy. Furthermore, the Treaty of Niagara will also incorporate the Covenant Chain which will form the basis for Indigenous participants on the side of the British, as allies and not as subjects, in the American Revolutionary War and the War of 1812.

Peace, Friendship and ‘Doodem Doodles’

The history of treaties between Indigenous peoples and the various historical manifestations of the Crown in Canada is fraught with disagreements. Generally, on the one hand, there is a story of Indigenous Peoples coming to the treaty table seeking protection, through alliances, and willing to share the land. They always do so as autonomous historical and political actors. On the Crown side, there is a story of taking possession of the land through the claim of a successful assertion of Crown sovereignty. However, despite this fundamental dispute between Crown sovereignty and Indigenous independence are there any undisputed elements in the treaties?

Well, one thing is agreed by all parties, that the treaties involved the traditional territories of Indigenous Peoples. No one disputes that because that’s the underlying reason treaties are being undertaken at all.

The stories of taking possession or of ceding and surrendering the land to the Crown is, in essence, the colonial story, whereby the colonial state and society claims a universal and exclusive sovereignty over those traditional territories. It is here where the legitimacy of the Confederation Crown intersects with the traditional territories of Indigenous Peoples.

So if there is something fundamentally wrong or successfully disputable about the colonial story regarding those treaties, then there is potentially something fundamentally wrong about the legitimacy of the Confederation Crown’s claim of continuity to an exclusive and universal sovereignty.

So what are the implications for the claim of Crown sovereignty and the legitimacy of the Confederation state in the conflict over interpreting the treaties as treaties of alliance, protection and sharing versus treaties of ceding and surrendering land, extinguish rights and the assertion of a universal and exclusive Crown sovereignty?

Symbols of identity in treaties

Here, I have juxtaposed two images.

The lower image is the coat of arms of the Governor General of Canada. It is a combination of the crowned lion, the symbol of the British Monarchy, and the maple leaf, the symbol of Canada. Note that the maple leaf is very firmly in the grip of the British monarchical lion. Thus, we have the central symbolic representation in the self-actualizing narrative of the Crown in Canada.

The image above the coat of arms is of a treaty from the era of peace and friendship. Notice the little drawings.

I like to call them doodem doodles.

If you read the treaties of this era, they are rich with the terminology of European legalese, diplomacy and international relations. They often incorporate legal patterns and templates. In other words, the written documents are very much a reflection of one side of the treaty table and what the folks on that side of the treaty table thought, believed and imagined. If you read the text, you have very little idea of who the folks on the other side of the table are, of what they thought, believed and imagined.

Except for those doodem doodles.

The doodem doodles represent our one and only glimpse, inside such documents, of the folks sitting on the First Nations’ side of the treaty table.

The little drawings represent the clan symbols (doodem in Anishnabemowin) of the signatories. And thus they bring to the treaty table something of what the First Nations signatories understood about who they were, how they lived their lives and, we might suggest, the symbolic representations which expressed their self-actualizing narratives.

So my tentative contention will be, we do not understand the folks on the First Nations’ side of the treaty table, and thus, of the agreement the document represents, until we fully appreciate the significance of those doodem doodles. Just as the signatories on the British side of the treaty table invoked the authority of the Crown, seated in another country on the other side of an ocean, so the First Nations signatories invoked a commensurate source of symbolic significance: the Spirit Animals of their clans.

And so, just as the understanding on the British side of the table was that First Nations were doing their deal, ultimately, with the British monarch through a representative, so First Nations signatories may be seen as indicating that the Europeans were doing their deal with their Spirit Animals whom the signatories were invoking and affirming through their symbolic representations and in keeping with their symbolic narratives of self-actualization.

A very interesting book, by Michael Pomedli, touches on this subject: Living with Animals: Ojibwe Spirit Powers.13

And so, just as we can not understand the legalese of the European text, without understanding the symbols, practices and institutions that the English text expressed, so we can not understand what was agreed to on the First Nations’ side until we understand the meaning of the clan system and the symbols, practices and institutions which those clan symbols expressed and invoked as a form of Indigenous political agreement embodied in the treaty.

Finally, regarding treaties, symbols and swearing oaths of allegiance, of collective self-identification and shared agreement, to whom do contemporary officials of the Canadian state, to whom do new immigrants into the contemporary Canadian colonial society, swear their oaths of allegiance? To a person living in another country on the other side of an ocean? Whose story is that? And how does that story fit into the treaties? And how does it relate to those Spirit Animals who abide in the traditional territories of Indigenous Peoples, and in the indigenized ancestral territories of les Canadiens called “Canada”, and in the treaties the settler immigrants and their legal authorities agreed to abide by? Did those treaties turn those Spirit Animals into subjects of French, then British, then Confederation Crown sovereigns offering allegiance to their liege lords? Or do those Spirit Animals, and those dodem doodles as symbolic representatives of self-actualizing historical subjects, tell a very different story?

American Revolution & British Loyalists

Let’s return to the Senate account.

During the reign of George III, Britain had to cope with the American Revolution and the independence of the United States in 1783…The American army then attempted to take Canada in 1775…With the crucial support of the French Canadians and the Aboriginal peoples, the invasion was driven back. Thousands of Americans who wished to remain faithful to the King (“Loyalists”) took refuge in British North America, thereby markedly increasing the population of the Maritimes and of Upper and Lower Canada. 14

So let’s just note some of the historical subjects acknowledged in this excerpt during this period: Britain, French Canadians, Aboriginal peoples, American “Loyalists”, British North America, Upper and Lower Canada. How are these historical subjects related to the British Crown and to each other?

Aboriginal Peoples are not British subjects. American “Loyalists” will become British North Americans fleeing the United States. French Canadians are seen by the British as British subjects. However, as we have noted, la nation canadienne has a unique and historical relationship with First Nations within the Aboriginal territories called Canada as a shared territory, as a symbolic self-actualizing reality in les pays d’en haut (the high country), in the land and forests of the fur trade society, which, we argue, remains outside the effective control of monarchical authority. So which territory is successfully defended here, British North America or Canada, the territory of claimed Crown sovereignty or the territory of Aboriginal autonomy and the shared symbolic reality of their Canadien allies and relatives?

The Senate account continues.

The Québec Act, passed by the British Parliament in 1774, recognized among other things that French Canadians were entitled to their language, their civil law and their religion. The Constitutional Act of 1791 granted to both Upper and Lower Canada an elected House of Assembly. The use of French was also recognized in the debates of the Assembly of Lower Canada. 15

What did the British Crown recognize in the Québec Act, 1774: the social and political reality of la nation canadienne? Why? Because it represented an indissoluble ancestral, national reality within the territory claimed as colonial British North America?

Perhaps, the remarkable part of this story is that, after less than 10 years in British North America, the new English-speaking Loyalists successfully petitioned for independence from their French-speaking compatriots by the creation of Upper Canada and Lower Canada in 1791. Here is, perhaps, the first group of ‘separatists’ in Canada. This division would portend important consequences for the cultural alliance between First Nations and la nation canadienne forged throughout the fur trade society. It represented the resurgence of competing, if not contradictory, self-actualizing narratives into the story of the Crown and Canada, and we will argue, with the potential to rupture the intelligibility of the Crown’s claim to continuous territorial supremacy.

War of 1812

As noted above, many First Nations sided with the British in the War of 1812 based upon the Treaty of Niagara of 1764. Here is the Senate account:

In 1812, when the American Congress declared war on Britain, a second attempt was made to invade Canada, this time via the Great Lakes and the border with Québec. This attack was driven back by Major-General Isaac Brock, Lieutenant-Colonel Michel de Salaberry (leading the Voltigeurs, a French Canadian militia), and Tecumseh, Chief of the Shawnee, with Aboriginal support…In the Treaty of Ghent…Canada and the United States officially recognized their pre-war borders. Despite their differences in origins, languages and religions, the inhabitants of Canada fought together to defend their country.16

Again it is important to recognize that First Nations fought as allies and not as subjects of the British Crown. So how are we to understand the statement, “the inhabitants of Canada fought together to defend their country”? Do First Nations, French Canadians and the British all inhabit the same “country” from the point of view of self-actualizing narratives?

The Senate and the Crown have one story.

Are les canadiens (French-Canadians), here, simply the historical subjects of the British Crown narrative or do they legitimately represent an independent and self-actualizing nation? La nation canadienne is, arguably, defending its ancestral territories of many generations, called Canada (not to be confused with “New France”, the defeated French colony, or Lower Canada, the British colony.)

Finally, as noted, First Nations are not subjects, so what “country” are they defending? This is an even more potent question, if we keep in mind that First Nations had been promised a buffer zone of Indigenous territory by their British allies to encourage First Nations to fight on the British side in 1812. In any case, why would the First Nations relationship to their ancestral territories be mediated or dominated by the British narrative of British North America and its claim of Crown sovereignty? Were First Nations defeated in the War of 1812? How does the story of continuous Crown sovereignty remain intelligible over such an episode regarding these historical subjects and their competing stories of self-actualization?

Rebellion and Reform

The Senate account glosses over the rebellions of 1837 as largely animated by a desire for internal democratic reforms. However, is such a gloss really just the particular narrative of self-actualization by one historical subject, a narrative contradicted by the self-actualizing stories of other historical subjects?

William IV’s reign was marked by a fundamental change of the electoral system in Great Britain, when the Great Reform Act, 1832, extended the right to vote to a substantial portion of the middle classes. This reform had a decisive influence on Canada’s political evolution. Rebellion broke out in 1837, led in Upper Canada by William Lyon Mackenzie, and in Lower Canada by Louis-Joseph Papineau. Both these popular movements sought to free the Houses of Assembly from the grip of the governor and his councillors, and to take real control of the government and of the management of public funds for the bene­fit of the people. The British army had to intervene in order to restore order. The Constitution was suspended and the leaders of the rebellion found refuge and support in the United States.

To capture the sense of collective identity of les canadiens, and whether the objective of democratic reform as British subjects is the primary objective of the rebellion in Lower Canada, consider the following account regarding one British governor prior to the rebellion in Lower Canada.

Francophone Legislative Assembly members were a homogenous bloc, with their own party—Le Parti canadien—and their own newspaper—Le Canadien, started in 1806…when he was displeased with the elections, Governor James Henry Craig dissolved the Assembly and seized Le Canadien. He was exasperated that francophones talked constantly of the “Canadian nation” and its freedoms: “They seem to want to be considered a separate nation. They are constantly going on about la nation canadienne.”17

And as the era of rebellion approached, here is another example.

In its May 21, 1831 issue Le Canadien wrote,

There is not to our knowledge a French people in this province, but a Canadian people, a religious and moral people, a people at all times loyal and freedom-loving, and capable of delighting therein; this people is neither French nor English, Scottish, Irish, or Yankee, it is Canadian. 18

And it is important to understand how the word Canadian was used at this time.

Throughout this period, anglophones did not yet consider themselves “Canadians.” They proudly called themselves Britons—meaning English—and bore loyalty only to the British nation, not the “Canadian nation.” The term “Canadians” was only used condescendingly to refer to French-speaking Canadiens.19

So it is important to appreciate the distinct self-actualizing narratives and the self-actualizing collective historical subjects which are co-existing at this time with distinct identities and distinct aspirations. So their relationship to the British Crown is not the undifferentiated democratic aspiration suggested by the Senate’s gloss.

So we have Aboriginal peoples, who are not British subjects. We have la nation canadienne, with distinct collective aspirations, ultimately rooted in the ancestral, indigenized territory called Canada. And we have the British Crown of the “Britons”, as an historical subject attempting to claim the ambivalent loyalties of this diverse population around the self-actualizing narrative of the Crown in British North America.

Robinson Superior Treaty 1850

The Robinson Superior Treaty of 1850 is the treaty which applies to the territory within which the city of Thunder Bay, a post-Confederation Ontario municipality, resides. It is the first of the land secession treaties, as opposed to the older, peace and friendship treaties between independent allies. Did the Robinson Superior Treaty turn, for example, Fort William First Nation into subjects of the British Crown?

The text of the treaty begins with two words: “This agreement…”

Robinson Superior Treaty: “This agreement…”

When presenting the treaty, I always ask the question, to what do the words “this agreement” refer, the text we are reading or an event which the text presumes to provide the record?

Note that interpreters’ signatures are included in the text of the treaty, an indication of their role in the process. If one looks closely at the treaty document, the handwriting is difficult enough to read for a fluent English reader, never mind someone who did not speak or read the language.

Furthermore, if you look closely at the signatures, you will see that those grouped on the bottom left, the British representatives, show the variation in style and weight of penmanship one would expect from different individuals.

Robinson Superior Treat: ‘signatures’

If one looks over to the column of signatures on the bottom right below that of the commissioner, those of the First Nations signatories, one can not help but be struck by the remarkable penmanship. However, on closer inspection, its clear that all the names were written by the same hand. Furthermore, the Xs which appear next to the First Nations’ signatures show a remarkable consistency, as well, suggesting that even the Xs were executed by the same hand.

All of which suggests that the written text was not in fact what could have possibly been agreed to given that the First Nations participants did not, because they could not, read it. Furthermore, their signatures were forged and, thus, are not legal signatures at all. Rather, at best, they simply represent an attendance list of who was present at the event.

So we must conclude that the words, “this agreement”, must refer, not to the document itself, but a separate event, which the document purports to record.

Here we have two excerpts from the Robinson Superior Treaty.

…the said chiefs and principal men do freely, fully and voluntarily surrender, cede, grant and convey unto Her Majesty, Her heirs and successors forever, all their right, title and interest in the whole of the territory above described…

…allow the said chiefs and their tribes the full and free privilege to hunt over the territory now ceded by them, and to fish in the waters thereof as they have heretofore been in the habit of doing…

The first excerpt is a clear indication that we are dealing with a land secession treaty, of the cede and surrender variety, for it incorporates the standard legalese the British incorporated into such treaties. Take, for example, an expression such as “surrender, cede, grant and convey.” For a non-lawyer, even if a fluent English speaker, it would be rather difficult to understand just what the words “grant and convey” exactly mean regarding the disposition of your traditional territory. Nevertheless, it is an exact and precise legal intent that such words are meant to communicate. The same can be said for the expression “right, title and interest”.

What’s important for our discussion is that this language could not possibly have communicated much to the souls who were neither legally trained nor fluent in the English language. So what we have to appreciate is, the text of the treaty is better understood to be a letter home to the lawyers in London, England, which said, hey guys, we got what we wanted, here is the text and here are the signatures.

If we look at the second excerpt, which I will paraphrase as, the First Nation Peoples will be able to hunt and fish in their traditional territories just as they always have. It is not too difficult to appreciate that in an oral conversation some such construction could sound like sharing rather than cede and surrender. You get to keep doing what you’ve always done, in the way you’ve always done it, where you have always done it, but we would like to come here and do our thing also, is that ok?

Remember, this is a treaty in 1850, in territories which for almost 250 years of the fur trade society involved partnerships and alliances. There were relevant precedents with which to anticipate and interpret the meaning of the treaty and the relationships it supposed. Cede and surrender and the extinguishment of rights were not the practices upon which the fur trade society had been built. The fur trade society was built on economic partnerships, military alliances, intermarriage and cultural exchange.

Recall the principles of non-interference and autonomy in the Two Row Wampum and the Covenant Chain agreements. In fact, symbols and ceremonies from the fur trade society were often incorporated into these treaty negotiations. So were the British colonials, in fact, through such fur trade society symbols, implicitly agreeing to such fur trade society concepts, the significance of which was not recorded in their written documents?

So how am I to interpret this treaty? Because this is my treaty, for example, it applies to me, born and made in the traditional territory of the Anishnaabeg. How am I to read this story of the Robinson Superior Treaty as a self-actualizing story?

Is it sharing and protection or is it cede, surrender and the extinguishment of rights? And what are the implications of these conflicting interpretations for the sovereignty and legitimacy of the Canadian state and its local manifestations in the land of the Anishnaabeg?

Remember, there is no dispute about whose traditional territory this is. The shared understanding that this is traditional Indigenous territory is precisely why treaties are being undertaken. There is, however, a dispute about the legitimacy of the Canadian state and its exclusive and universal claim to sovereignty in these traditional territories based upon the disputes over the interpretation of treaties.

Treaties which begin with the words “this agreement” must mean that the true interpretation of the treaty requires, as a minimum condition, the actual agreement and consent of both parties. If one side has perpetrated a fraudulent interpretation, violating the consent of the other party, what would that mean for the legitimacy of the Crown’s claim of a continuous, universal and exclusive sovereignty? Does the Crown’s claim of sovereignty, in fact, require the informed consent of Indigenous Peoples? And has this consent, this agreement to a universal and exclusive Crown sovereignty, ever, in fact, been granted by Indigenous Peoples?

Residential Schools 1880-1996

In May, 2015, the chief justice of the Supreme Court of Canada gave a remarkable speech regarding residential schools. The essence of her speech was that Canada, the Canadian state and Canadian society, committed an act of “cultural genocide” against Indigenous Peoples in the systematic, church-state co-ordinated project called residential schools. Residential schools lasted from 1880 until the last school closed in 1996. Thus, this policy and project of “cultural genocide” lasted for over a century and is essentially contemporaneous with the life of the Canadian colonial state established in 1867, known as Confederation.20

In a nutshell, the Canadian state, under the legislative authority of the Indians Act and through the service of Indian agents representing colonial authority over Indian reserves, gathered up young Indigenous children and sent them to residential schools, often many hundreds of miles away from home.

The simplest way to describe residential schools, beyond the stated government objective of “killing the Indian in the child”21, is as an attempt to destroy Indigenous languages, cultural practices, social and family relationships, economic self-sufficiency and political decision-making institutions. That, in a few words, is what is meant by “cultural genocide”. Is cultural genocide what Indigenous Peoples signed up for and agreed to in those treaties?

How are these events and objectives, systematically institutionalized, ultimately, to be integrated into the self-actualizing narrative of the successful assertion of Crown sovereignty in Canada?

I can not help but consider, given the chief justice’s remarks, how would old John A. do, if he had to stand up before the Supreme Court of Canada in the early 21st century and make the case for his “national dream” of railroads and settlers under a colonial regime that stretched right across “the lands reserved for Indians.” And how this dream would include reserves and residential schools necessary to “protect” the Indians from the changes that were coming? Would the Justices come back and say:

No, I’m sorry sir, that would be cultural genocide, what you propose is immoral and unconstitutional, it violates the fundamental principles of our sacred treaty relationship with Indigenous Peoples, it violates their rights and their persons as self-determining and self-governing peoples.

Might they also add,

It would violate our sacred promises to the Animal Spirits and to the ancestors with whom we promised to share and protect this land.

So why did the Canadian government founded in 1867 believe it had the legitimate right and authority to do the Indian Act, the reserve system, residential schools, the 60s Scoop, and to interpret treaties as the extinguishment of rights and the surrendering of land?

Was all of this really covered by those treaties? By those “agreements” between self-actualizing, independent allies? If First Nations did not agree to become subjects of the Crown, then is the Confederation Crown, in fact, the supreme authority in “Canada”? The Crown can not unilaterally dictate to what it was First Nations agreed. That is simply not the logical, semantic or legal condition for the meaning of the concept of agreement, which implies informed consent, to be successfully applied.

If reconciliation requires agreement and consent is it nullified by fraudulent, unilateral impositions. As a matter of first principles, First Nations have a veto over interpretations of their own intent, and thus, of their consent, and thus, of their agreement. Agreement without a possible veto is coercion, and therefore is not, in fact, an agreement.

Without agreement, Cartier does not “take possession” of Canada for the French Crown. Without agreement the treaties do not validate the British Crown’s claim to the “continuity” and “institutional unity” of Crown sovereignty in Canada. Without agreement, is the assertion of Crown sovereignty by the Confederation state nothing but a state of delusion of the colonial mind?

Confederation Period

BNA 1867: Section 91 (24)

So to cut through the thicket of history’s many trails and tributaries, here is the key to the Confederation colonial kingdom: Section 91 (24), 1867.

  1. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada…the exclusive Legislative Authority of the Parliament of Canada extends to…24. Indians, and Lands reserved for the Indians…22

Once we understand the fuller meaning of this claim, we will understand how Confederation attempted to assert an exclusive and universal sovereignty in the territory it chose to officially call Canada in 1867.

The British North America Act basically confederated four British colonies into one federated colony: the Upper and Lower Canadas, Nova Scotia and New Brunswick. When they got together in Charlottetown and later Québec City in 1864, they came up with a division of powers between the new federal government and the provincial governments formed out of the four separate colonies. Section 91 simply lists the areas of jurisdiction of the federal authority. Item 24 indicates the inclusion of “Indians, and lands reserved for Indians” in that list.

With this stroke of the pen, does the new colonial government successfully claim exclusive and universal authority over “Indians, and lands reserved for Indians”? The details of what this means will be spelled out in the Indian Act, 1876. For now, it is simply a statement of the constitutional principle that “Indians, and the lands reserved for Indians” fall under the exclusive legislative authority of the Parliament of Canada.

We will argue that this is the constitutional embodiment of the colonial principle, the claiming of political control over “Indians, and land reserved for Indians”. But is this claim of sovereignty over Indigenous Peoples consistent with the treaty relationships with Indigenous Peoples?

Please note the reference to the “land reserved for Indians”. How did the fathers of Confederation gain the right to claim the land that was, according to the British rule book since the Royal Proclamation 1763, (keep in mind also the promise made to allies in 1812) recognized as reserved for Indians? If, by the British rule book, it’s reserved for Indians, how could the colonials just come along and claim legislative authority over it? Granted, the Constitutional Act 1867 was an act of the British Parliament, nevertheless, recall that behind the treaties are distinct sovereignties and traditional territories. If the British Crown has told its colonial subjects and the Indians in question that the land is reserved for Indians, what’s the “Indian” position in all this? Have they ever agreed to give up their status as independent allies?

Recall European Crowns have been making, sometimes farcical, claims of sovereignty over Indigenous territory ever since Cartier and the HBC. At what point could they become successful claims? Are such claims possible without effective First Nation consent?

Here we will turn to historian Christopher Moore, who references Confederation historian Peter Waite’s description of the bright and bubbly moment when the Confederation idea truly took hold.

For Peter Waite, “the beginning of confederation” could be precisely dated. It happened when the Canadians began pouring from their plentiful stores of champagne aboard the Queen Victoria on Saturday, September 3, after the second day of their presentation. They were celebrating, he wrote, “the heady discovery of a national destiny.”23

Colloquial translation? They got drunk and just made s**t up.

Question: from our perspective, guess who was not invited to this party?

Answer: the folks whose land was about to be carved up by the folks at the party.

Was this all covered by those treaties?

We will argue that the colony of British North America suffers the same fate as New France. Just as New France, as a colony, was a political expression of the French monarchical administration, so British North America, as a colony, was a political expression of the British monarchical administration. And neither successfully asserts its authority over the spiritual and symbolic, ancestral reality called Canada. This Canada is the spiritual home First Nations, of les canadiens and of the Spirit Animals of their Indigenous relatives and allies, the place called Canada with its Aboriginal roots, which even Heritage Canada’s self-actualizing narrative acknowledges.

Constitution 1982, Section 35

So let’s leap ahead to 1982, a century or so after that Confederation party where the giddy colonials began carving up the land reserved for Indians and asserted exclusive, sovereign authority over Indians and the lands reserved for them. This is the Constitution Act, 1982, very much associated with Pierre Trudeau, prime minister of the day. The same prime minister, who along with Jean Chrétien, as minister of Indian Affairs, attempted to eliminate Indians constitutionally in 1969 through the White Paper of assimilation. There was a backlash.

As a result, in 1982 we got (along with a homegrown amending formula and a Charter of Rights and Freedoms) Section 35 (1), whereby the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed24. Well, well, well, guess who finally got to crash that party of colonial privilege the fathers of Confederation threw for themselves back in 1864?

So here is our fundamental question:

Is Section 35 (1), 1982 compatible with Section 91 (24), 1867?

Section 91 (24) claims that Indians and the land reserved for them fall under the exclusive legislative authority of the federal government. Whereas, Section 35 (1) says the existing aboriginal and treaty rights of Aboriginal Peoples in Canada are recognized and affirmed.

So is Section 35 (1) affirming and invoking the Spirit Animals of Indigenous sovereignty affirmed and invoked by those doodem doodle treaties of the era of peace and friendship? Are we in fact seeing here in section 35(1) the assertion of the treaty sovereignty of Indigenous Peoples? How is this possibly compatible with the assertion of Crown sovereignty as extinguishing Indigenous rights and surrendering Indigenous lands universally and exclusively to the federal colonial authority, according to the colonial principle of Section 91 (24) of 1867?

Are we in fact staring directly into the foundational contradiction at the heart of the colonial constitution and the incompatible founding stories of New France, of British North America, of Confederation, of the ancestral territories of Indigenous Peoples and of la nation canadienne and the symbolic reality called Canada?

There is one fundamental truth about treaties, sovereignty and subjects: you do not do treaties with subjects!

So how are we to interpret aboriginal and treaty rights? According to the understanding that Indigenous peoples remain independent allies or some colonial fiction that has turned Indigenous Peoples and their indigenized allies and relatives into subjects of the Crown of British North America?

As we have noted, the colonial story of sovereignty requires Indigenous consent. Why does the colonial government believe it has the authority to unilaterally provide that consent? Is this an intelligible story? And what are the consequences if it is not? Do we have a coherent, self-actualizing narrative with an intelligible historical subject incorporating the Crown and Indigenous Peoples and la nation canadienne as subjects of that Crown?

Conflicting Historical Narratives

What we want to argue is that what lies behind this constitutional contradiction are competing and incompatible stories of Canada advanced by competing and incompatible historical subjects.

The history of Europeans in the northern half of North America can be analytically organized, as we have done, into the French, British and Confederation periods. However, we will argue it can also be illuminating to organize that history into two broad eras, 1) the fur trade society and 2) the colonial settler-railroad society, which helps to tell the stories of self-actualization of their different historical subjects.

The Fur Trade Society

The fur trade society is the era of peace and friendship treaties, of military alliances, of economic partnerships and cultural integrations, and the birth of two new nations, la nation canadienne and the métis, the latter being to a significant degree the children of canadien fathers and Indigenous mothers.

We argue that the social, cultural, economic, military and political communities of the Indian-French fur trade alliances, engaged the monarchical administration of New France, but also involved the independent, symbolic reality called Canada. This symbolic reality continued to hold as a porous and ambiguous, yet nevertheless, as a coherent whole, despite the retreat of the French Crown from much of North America after the fall of New France.

This coherent and intelligible whole held through the fall of New France and the Royal Proclamation 1763 and the Quebec Act of 1774, the latter being the last ‘Intolerable Act’ which precipitated the American Revolution. The British Crown simply sought to take over management of the fur trade society, of those First Nation-Canadien socio-economic and politico-cultural alliances in the symbolic territory called Canada. Furthermore, this coherent symbolic whole would play a crucial role in the defense of Canada against invasions during both the American Revolutionary War and the War of 1812.

This fur trade era of Indigenous Peoples as independent allies will be overtaken, however, by an influx of immigrants who will carry a very different story of themselves. First, after the American Revolution, 40,000 United Empire Loyalists will move into British North America, many into what will eventually become Ontario almost a century later.

What is important to understand is that this influx of settlers represents an infusion of peoples who were not part of the fur trade society and did not identify with its dominant partners: First Nations, les canadiens, or their children, the métis. They brought different ideas about their culture, economy and political ideologies.

Again, it is the fur trade society which largely defends Canada against American invasion, at least in the major land campaigns, during the War of 1812. And independence is a key idea. Indigenous Peoples were not fighting as or to become British subjects, they were fighting to maintain their allied independence in their ancestral territories.

So the idea that treaties would be interpreted as turning Indigenous Peoples into subjugated peoples of the British or Confederation Crowns, we argue, is a violation of the spirit of the Treaty of Niagara which helped protect Canada and helped Canada maintain its own independence during the invasions of the American Revolution and the War of 1812. In fact, the independence of Canada can be arguably built, constitutionally, on the very principles of non-interference and autonomy which First Nations brought to the founding of Canada as an indigenized, symbolic and treated reality. Such independence can not be derived from either the colony of New France or of British North America.

So once again, just as after the defeat of the French Crown in the French and Indian War, and after the American Revolution and the War of 1812, the socio-economic and symbolic political reality of the fur trade society, with its treatied alliances, created and sustained the existence of Canada. However, within 50 years that fur trade society would become the target of a new colonial vision which would institutionalize itself in 1867.

The Settler-Railroad Society

To understand the colonial settler-railroad society and its relationship to the fur trade society, we need to understand the changing demographics in the period after the War of 1812 to Confederation.

Massive Immigration

Population growth in Lower Canada from 1824–1860 follows the natural birth rate pattern of doubling over that period, from approximately half a million to over one million. By contrast, Upper Canada experiences an explosion of immigration, increasing ten-fold in the same period, to almost 1.5 million, surpassing the French of Lower Canada.25

It is this massive immigrant population which will be the socio-political vehicle of the Confederation project, and which will see and portray the fur trade society as the primitive Other opposing its political and economic agenda. For unlike les canadiens in Lower Canada, the new immigrants in Upper Canada do not identify historically with the peoples of the fur trade society founded on cultural, economic and political alliances with First Nations.

If such demographic data is not so clearly connected to the confederation project, we might note that of the 4 principles of the Upper Canadian representatives in Charlotte in 1864, John A. Macdonald, George Brown, D’Arcy Mcgee and Alexander Tilloch Galt, none were born in Canada. All were born in Britain and shared many of the prejudices of their newly arrived American cousins. John A. Macdonald would rail against savages and French half-breeds obstructing his British vision of confederation.

Confederation and Fur Trade Society Rebellions

So as we have already seen, come 1867, the new colonial order will assert a claim of exclusive and universal sovereignty over “Indians, and the lands reserved for Indians”. The political claims of the fur trade society and the underlying Indian-French alliances and the later Indian-British alliances will appear to no longer hold. And as a result, the fur trade society in the North-West, in the pays d’en haut (“the upper or high country”), rebels. Twice! In 1869 and in 1885 the fur trade society of the North-West rebels against the new colonial order established by the Confederation project.

It is here where the propaganda of the Confederation state will portray, most pointedly, French half-breeds and Indian savages as obstacles to progress and civilization, the latter embodied by the new British immigrant-settler, railroad society. It is here that Louis Riel will become the divisive symbolic agent of this historical conflict of competing narratives and competing historical subjects. We argue, Riel symbolized the indigenized reality of the fur trade society linking First Nations, les canadiens and their children, the Métis, in the unassimilated reality called Canada, the ancestral territory of les canadiens. It was against this symbolic reality, of First Nations, les Canadiens and Métis, that Macdonald located his “national dream” of colonization as British North America.

The principles of this conflict and the targeting of the fur trade society as the primitive Other will be articulated in the Indian Act of 1876, the reserve system, the residential schools policy, and the interpretation of treaties as the extinguishment of rights and the surrender of land. All this will be undertaken for the purpose of the economic and political exploitation of Indians and, especially, the lands reserved for Indians.

The ethos of subjugation embodied in the regime of the Indian Act will be the reward for the independent Indigenous allies who helped defend the independence of Canada in two military conflicts which threatened Canada’s own independent existence.

Third Fur Trade Society Rebellion

In 1969, as we’ve seen, the government of prime minister Pierre Trudeau and Indian Affairs minister Jean Chrétien launched a White Paper laying out a plan to assimilate Indians into the Canadian mainstream and extinguish their rights as independent constitutional actors in Canada. The backlash would ultimately lead to the recognition and affirmation of the “existing aboriginal and treaty rights” of Aboriginal peoples.

I see this as the third rebellion of the fur trade society, whose descendants, looking back upon their heritage and patrimony, claim their historic rights of self-determination against the Confederation claim of universal and exclusive sovereignty and the colonial assumption of extinguishing Aboriginal and treaty rights and ceding and surrendering Indigenous traditional territories. This ambiguous symbolic indigenized reality, called “Canada” by les canadiens, asserts its self-actualizing narrative against the colonial Confederation story which claims to have subjugated and assimilated it by asserting Crown sovereignty over it.

So we might say, the Spirit Animals, once again, are affirmed and invoked, and the fur trade society re-connects with the spirits and ancestors who guided and animated its multi-generational existence as expressed in the spiritual vision of the peace and friendship treaties, the self-actualizing relationships symbolized in those doodem doodles.

Conflict, Rebellion, and Historical Subjects

So I will suggest that it is in the conflict between the fur trade society and the new social, cultural, economic and political order of the Confederation society that the contradictory story of the Crown is developed and ultimately ruptured.

And it is in this context, that we can appreciate the long historical dehumanization of the primitive Other as the obstacle to civilization and progress, and how the propaganda of the Confederation state contributed to the targeting of Indigenous women who are located in the contact zone of the fur trade society with colonial settlers in general, but in particular, with the late nineteenth century British colonial order of Confederation and its claim of Crown sovereignty and colonial subjugation.

There is an abundance of evidence which can be called upon to demonstrate the colonial ideology which targeted French half-breeds and lazy Indians as unfit to participate in a modern, civilized society and having no right to obstruct British white settlers and the economic and political progress which they and the Confederation state claimed for themselves.

Disappearing Indigenous rights, becomes the project to disappear Indigenous Peoples from the lands which still bear Indigenous names. From Québec, to Ontario, to Manitoba, to Saskatchewan. From Ottawa, to Toronto, to Winnipeg, to Saskatoon, and thousands of places in between, to the name of the country itself, the mark which Jacques Cartier put on maps and which les canadiens took as their identity to distinguish themselves from their overseas forebears. The Aboriginal root of this identity the federal Senate itself acknowledges. These names mark off the indigenized territory of the fur trade society, and the descendants who still carry those memories in their language and attitudes, in their practices and institutions, in the Indigenous territories in which the Animal Spirits are affirmed and invoked to this day.

So is the Constitution of 1982, Section 35 (1), in fact, the third rebellion of the fur trade society, of the symbolic reality called “Canada”, against the colonial order which claimed a universal and exclusive sovereignty in 1867? And does this disruptive narrative expose a contradiction in the founding story of Confederation which can not be ignored if the ambiguous country called Canada is to reconcile its past, its present and its future, as the political order of a coherent, historical, self-actualizing subject?

Story of Reconciliation?

What would Canada look like culturally, socially, economically and politically if it truly recognized the existing aboriginal and treaty rights of Indigenous Peoples? If the descendants of the fur trade society realized the expression of their historic rights to self-determination in Canada, how would Canada be different?

In order for there to be reconciliation, do we need to deal with the incompatible and contradictory founding stories at the heart of the Canadian colonial constitution? Do we need to recognize Indigenous consent and agreement as the constitutional foundation of Canada?

Is Canada governed by an exclusive Crown sovereignty or by an Indigenous treaty sovereignty?

FWFN & Colonial Municipality of Thunder Bay

In May, 2016, the flag of Fort William First Nation was raised in front of the city hall of Thunder Bay, Ontario. The mayor of Thunder Bay indicated, in his ceremonial remarks, that this flag raising was meant to acknowledge the traditional lands of Fort William First Nation, upon which the city of Thunder Bay rests.

Apparently, after saying this, the mayor still believed that he got to be the colonial mayor of something. How does this work? Was this meant to be a completely empty gesture? Or was it meant to carry substantive significance?

Is this meant to acknowledge that sovereignty and legitimacy continue to flow from those traditional territories?

What is it to affirm and invoke a symbol of sovereignty? Are the Spirit Animals of the traditional territories of an Indigenous Peoples affirmed and invoked when their symbolic representations are invoked in ceremony? If not, why not? And if so, what are the implications of that?

How does this ceremonial act affect the sharing versus surrender interpretations of the treaties? And, as we have already noted, that interpretation has a direct bearing on the sovereignty and legitimacy of the Canadian state in its various manifestations: municipal, provincial, federal, international.

These are not the traditional territories of the Canadian state, nor of the British monarchy. No one disputes that. So what is the symbolic status of that lion wandering about in the traditional territories of the Anishnaabeg? What can be affirmed and invoked in the land of the Anishnaabeg and of the Spirit Animals who abide here? Are we all declared to be in the grip of that lion’s paw or is that a false representation of who we really are propagated by some of the descendants of those folks who started washing up on the shores of Turtle Island some 500 years ago?

Do we have, as Canadians, an intelligible, self-actualizing narrative of an intelligible, self-actualizing historical subject based upon the Crown in Canada? Or do we need to tell the story of ourselves as based upon the freedom and consent of Indigenous Peoples as independent allies and relatives, the true story of all our relations?

Footnotes

  1. “Chronology & Periodization in History | Study.Com.” n.d. Accessed October 27, 2017. http://study.com/academy/lesson/chronology-periodization-in-history.html. ↩︎
  2. Philpott, Daniel. (2016). “Sovereignty.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Summer 2016. Metaphysics Research Lab, Stanford University. https://plato.stanford.edu/archives/sum2016/entries/sovereignty/. ↩︎
  3. “Crown Definition.” (2017). Accessed September 17. http://www.duhaime.org/LegalDictionary/C/Crown.aspx. ↩︎
  4. “Monarchy Definition.” (2017). Accessed September 17. http://www.duhaime.org/LegalDictionary/M/Monarchy.aspx. ↩︎
  5. “Canada a Constitutional Monarchy.” n.d. Accessed October 27, 2017. https://sencanada.ca/en/about/brochure/monarchy/SenMonarchy_00-e ↩︎
  6. Ibid. ↩︎
  7. “Origin of the Name ‘Canada’ - Canada.Ca.” n.d. Accessed October 28, 2017. https://www.canada.ca/en/canadian-heritage/services/origin-name-canada.html. ↩︎
  8. “Canada a Constitutional Monarchy.” n.d. Accessed October 27, 2017. https://sencanada.ca/en/about/brochure/monarchy/SenMonarchy_00-e ↩︎
  9. Ibid. ↩︎
  10. Ibid. ↩︎
  11. “HBC Heritage — The Royal Charter.” n.d. Accessed October 28, 2017. http://www.hbcheritage.ca/things/artifacts/the-royal-charter. ↩︎
  12. “Canada a Constitutional Monarchy.” n.d. Accessed October 27, 2017. https://sencanada.ca/en/about/brochure/monarchy/SenMonarchy_00-e ↩︎
  13. POMEDLI, M. (2014). Living with Animals: Ojibwe Spirit Powers. University of Toronto Press. Retrieved from http://www.jstor.org/stable/10.3138/j.ctt5vkhtg. ↩︎
  14. “Canada a Constitutional Monarchy.” n.d. Accessed October 27, 2017. https://sencanada.ca/en/about/brochure/monarchy/SenMonarchy_00-e ↩︎
  15. Ibid. ↩︎
  16. Ibid. ↩︎
  17. “The Birth of Nationalism in Lower Canada | Site for Language Management in Canada (SLMC) – Official Languages and Bilingualism Institute (OLBI).” n.d. Accessed October 30, 2017. https://slmc.uottawa.ca/?q=nationalist_ideology_lower. ↩︎
  18. Ibid. ↩︎
  19. Ibid. ↩︎
  20. Residential Schools - The Canadian Encyclopedia. (n.d.). Retrieved November 19, 2017, from http://www.thecanadianencyclopedia.ca/en/article/residential-schools/. ↩︎
  21. Stabler, J. (2013). Canadian Identity and Canada’s Indian Residential School Apology. ETopia, 0(0). Retrieved from https://etopia.journals.yorku.ca/index.php/etopia/article/view/36565. ↩︎
  22. Part 3 - Part I: British North America Act, 1867 - Enactment no. 1. (n.d.). Retrieved November 19, 2017, from http://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t13.html. ↩︎
  23. Moore, C. (2011). 1867. McClelland & Stewart, p. 58. ↩︎
  24. Branch, L. S. (2015, July 30). Consolidated federal laws of canada, Access to Information Act. Retrieved November 19, 2017, from http://laws-lois.justice.gc.ca/eng/const/page-16.html. ↩︎
  25. Censuses of Canada 1665 to 1871: The 1800s (1806 to 1871). (n.d.). Retrieved November 19, 2017, from https://www.statcan.gc.ca/pub/98-187-x/4064809-eng.htm. ↩︎