Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014), 232 pp.
How can Canada justify its assertion of sovereignty and jurisdiction over the country’s territory and the Indigenous peoples whose ancestors first occupied and used that territory? Is power, money, and majority rule enough? Do these questions even still matter as we embark on the 21st century? Michael Asch addresses these questions in his new book, On Being Here to Stay: Treaties and Aboriginal Rights in Canada. His focus is on the relationship between Indigenous
peoples and Settlers (i.e., non-Indigenous people), and how that relationship must be grounded in the spirit and original intent of the treaties negotiated just after Confederation in order to achieve reconciliation. Asch is a professor emeritus in the Department of Anthropology at the University of Alberta, and a professor (limited term) in the Department of Anthropology and adjunct professor in the Department of Political Science at the University of Victoria.
The title of the book comes from Chief Justice Antonio Lamer’s closing words in the seminal Supreme Court of Canada judgment in Delgamuukw v. R. in 1997: “Let’s face it, we are all here to stay.” Lamer was speaking of the basic purpose of s. 35(1) of the Constitution Act, 1982—the reconciliation of the pre-existence of Indigenous societies with the sovereignty of the Crown.
While the Supreme Court has emphasized that goal in a number of its decisions, it has not provided any concrete or detailed guidance as to how that reconciliation might be achieved. Asch sets out to determine what needs to be done to effect that reconciliation. Asch’s position is that, at least with respect to colonized peoples, it is wrong legally as well as morally to move onto lands belonging to others without first obtaining their permission. His book attempts to reconcile this principle with the obvious fact that Canada is already occupying land that was originally occupied by Indigenous people by exploring what permission from those Indigenous peoples might involve and, in particular, how Indigenous peoples may have perceived those original treaties with the Crown.
He begins by reviewing the history of political relations between Indigenous peoples and Canada from 1973 (the year of the Supreme Court of Canada’s decision in R. v. Calder) to the present.
For the first time in Canadian law Calder recognized that at the time of European settlement in Canada, Indigenous peoples had rights based on the fact that they were already here, living in organized societies, and had a form of title to the land. It is with Calder that the question of whether Indigenous rights survived European settlement came to the foreground. Asch then goes on to consider whether Indigenous rights might also include political rights (i.e., rights of self- determination and self-government) and discusses the implications of taking the view that they do. He concludes that the implications are so extreme that the principle could be applied only with the consent of those who now constitute the majority of the population in this country. To square legitimacy with principle, he argues, does not require Settlers to choose between our right to be here and our recognition that Indigenous peoples have a similar right to self-determination as do others who have been subjected to colonialism. Asch offers treaties as one alternative in that they encourage Settlers to see the legitimacy of their settlement on these lands as linked to
the fact that they gained permission to settle them from Indigenous people who had the authority to grant such permission.
The balance of the book advances that possibility and concentrates on the history of Treaty 4. He concludes that the agreement reached in Treaty 4 (and, by extension, the other historical treaties) was one in which we were permitted to settle on lands that we were to share with Indigenous peoples, and in return we would promise to treat them “with kindness”; second, that notwithstanding our conventional view that they surrendered sovereignty and jurisdiction to us, the treaties did not effect such a transaction. Instead, they established a nation-to-nation relationship between Canada and Indigenous peoples which parallels that between Canada and other ex-Dominions: that is, “brothers to each other” or “children of the Queen”. Subsequent chapters investigate the possibility of implementing a “nation-to-nation” relationship based on principles in contemporary Western political thought. Asch closes by seeking a way to ensure that governments live up to the commitments made to Indigenous peoples at the time the treaties were made. He acknowledges that a secure method would be to gain sufficient public support for holding governments to account, and suggests a place to begin is to retell the story of Canada in such a way that the treaties are better understood as part of the founding documents of this country. In this regard Asch quotes the Earl of Dufferin, Canada’s third post-Confederation governor-general: “we acknowledge that the original title to the land existed in the Indian Tribes
so that before we touch an acre we make a treaty with the chiefs representing the bands. . .but not until then do we consider that we are entitled to deal with a single acre.” This statement continues to guide us both on lands where treaties have been concluded and those lands where, over 150 years after Confederation, the Crown has yet to do so.
On Being Here to Stay is a timely addition to Indigenous scholarship in this country, and offers a path forward for Indigenous and non-Indigenous people which re-establishes the relationship in terms of the original treaties and principles underlying those treaties. That such a relationship might be based on mutual consent and understanding instead of the might and power of a Settler majority may strike some as a radical way of re-imagining the founding of this country. That Asch’s prescription is “strong medicine” may be an inevitable conclusion, equally so his statement that strong medicine of some sort is needed to resolve the dilemma at the heart of Canada’s relationship with its Indigenous peoples. It is easy, even for a court, to state that “we are all here to stay”; what is harder is finding a way to achieve a reconciliation based on mutual respect and understanding. Michael Asch has suggested how we might find our way.
—Scott Duke, Legal Counsel, Department of Justice Canada. Scott lives, works, and fishes in Yellowknife, Northwest Territories. His legal practice is concentrated in the areas of Aboriginal, constitutional, administrative, and environmental law. Please note that the views expressed herein are those of the author and not the Department of Justice Canada or Government of Canada.