Cowboys & Indians Talking Wexit
This could change everything.
The cowboys are talking to the Indians. Western separatists, from the cowboys of Alberta to various supporters of "Wexit" across the prairies and in BC, are talking to actual Indian political activists.
They are talking about creating an international treaty. The "cowboys" want this treaty so they can create a new sovereign nation called the Republic of West Canada. The Indians haven't agreed to anything yet, but they've been invited to ask for whatever they want and maybe get it. Not after thirty years of negotiations, but now.
The cowboys think they need the treaty to get the federal government to give them what they want. The Indians could use the possibility of a Wexit-Aboriginal Treaty to gain a negotiating advantage in ongoing treaty talks with the federal government in BC. So, they're talking.
What both sides may soon realize is that if the cowboys and the Indians can agree to this treaty, they may not need to negotiate anything with the federal government of Canada at all. They may not need to get Ottawa's permission for anything ever again. They can both get all the permissions they need from each other, once and for all.
That may sound impossible and crazy, but the current political and legal situation in western Canada is so bizarre already that this could really happen. It probably won't happen, but it could.
The first reason it sounds so crazy is that these are two groups that are normally expected to be somewhat hostile to each other -- and they are. The second reason this sounds crazy is because everyone knows that you can't just ignore the government and start your own country. There is a process... there's a process for everything in Canada. The Clarity Act of 2000 specifies how a province can hold a referendum on secession and that it needs to be approved by the parliament in Ottawa and there has to be an amendment to the Constitution of Canada. When all the forms are filled out and the regulations complied with, then the government will negotiate on whether to give you independence or not and on what terms. Right?
That's what it looks like to people who've never left Canada, never studied international affairs or international law, and don't know a huge amount about history, either. From an international perspective, it looks very different.
Why should that be the process? Under Chinese law, secession is never legal under any circumstances. There is no process. In America, the same secession process that was used to create the country was considered illegal when some of the same states tried to do it again. Who gets to decide? In each country, the current government writes the laws. Of course, they could write them to make it impossible to secede. China's laws openly say that. The Clarity Act in Canada makes it sound like you can secede, but actually says that secession referendums don't count no matter what the voters say unless the federal parliament agrees to allow it by amending the constitution.
The world is full of national governments writing hypocritical laws to benefit themselves as much as possible. It is also full of national governments contradicting each other and claiming each other's territory and trying to rule it and acting like they're doing nothing wrong. It's also full of national governments and international organizations claiming to be guided by established principles of right and wrong and international law and actually violating those same principles and laws and making everything up as they go.
Are the Wexiteers ready to play in that crooked and dangerous game? The first test they have to pass is whether they fall for the trap of letting the other side write all the rules. That's what the Clarity Act process is about. It's the federal government writing the rules to make sure you can't really secede unless they decide to let you. It's rigged against you as bad as the BC Treaty Commission process is rigged against the Indians.
But it's the law, right? Sure, but the whole issue here is who gets to write the laws for West Canada. If you start off letting Ottawa do that, they'll just keep doing that and there will never be any Republic of West Canada.
So let's try to think outside the box. The box is the national perspective. Let's try to for an international perspective for just a few minutes to see if we can learn anything useful from that.
Like citizens of every other country, Canadians are taught that you have to obey the law. You have to be loyal to your country. If you have any rights, they exist because they are written in the laws or the constitution, which is another kind of law. The government obeys the laws, but it also has the power to write or rewrite the laws. Politically, everything is all about winning elections so you can have power inside the government, whether at the local, provincial, or national level. How elections are conducted or even the requirement that there be elections, is in the laws. Doing anything that is against the law is terrible and wrong and you would go to prison for it after having a trial according to the law. Right and wrong are defined by the law. The issue of whether the laws themselves are wrong rarely ever comes up and seems weird and rebellious to even discuss. The existence and supremacy of the laws of the country is so fundamental to the worldview of the Canadian citizen, it's very hard to step outside that and see things from an international perspective. At least, if you're talking about your own country. If you take a look at someone else's country, it's a lot easier to see their government as something other than the ultimate authority on what is right and wrong, the ultimate good to which everyone should be loyal and the fundamental framework within which everything must happen.
Consider, for a moment, the government of North Korea. Is it wrong to break the laws of North Korea? Even when those laws permit people to be imprisoned, tortured and killed just for criticizing the ruling dictator? Obviously not. When those same laws restrict and control economic activity so much that it causes widespread poverty and even famines, should someone be scorned as a greedy criminal for breaking those laws? The government of North Korea doesn't call itself North Korea, by the way. They say they are the government of Korea, all of Korea. The official name of their government is the Democratic People's Republic of Korea (DPRK). The government of South Korea also claims to be the government of all of Korea. Their official name is the Republic of Korea (ROK). They fought a war over this and Canadian troops and many others fought on the side of South Korea, but it ended in a stalemate. Both sides are still claiming to be the government of all of Korea, but each side only controls part of the country. That's why we refer to them by which part of the country they actually control, North or South. It is not unusual at all in international affairs to have two different governments claiming the same territory and saying that their laws apply there. We're not used to thinking that way in Canada, but we actually have situations like that here, too. That's the origin of Aboriginal rights, actually, but first let's look at some other country.
According to the government of North Korea, if you are walking down the streets of the capital city of South Korea, you still are legally required to obey the laws of North Korea and could be imprisoned or killed for criticizing the dictator of North Korea. That seems ludicrous now, but in 1950, when the North Korean army invaded South Korea and occupied it, people actually were arrested in the capital of South Korea for breaking North Korean laws. At one point all of South Korea was occupied by North Korean troops except for one town called Pusan. At that point, Pusan was sort of like an Indian reserve. It was the last refuge of a nation that used to rule a much larger territory. Like a First Nation on an Indian reserve, that last tiny remaining piece of South Korea seemed doomed to eventually disappear.
At that time, the government... that is, the government that claimed and actually ruled Korea, the DPRK, did not consider Pusan to be a legally separate independent country. Sort of like how Canada says Indian reserves are part of Canada. The DPRK insisted that even Pusan was part of Korea, subject to the same laws of the communist government that ruled the rest of Korea.
Just because "the government" at that time ruled all the rest of Korea and according to the law, Pusan was also subject to the same laws, did that make it true? Did that mean that the government of South Korea no longer existed? In fact, "the government" of the DPRK said that the so-called, self-proclaimed government of the Republic of Korea was never a real country, that it was just a bunch of criminals disloyal to their country causing trouble.
If you were in Korea in those days, "the government" might have seemed all-powerful. It wasn't just a matter of opinion whether it was a good idea for the communists to be the only legal political party. The law said all other parties were illegal and you could go to jail for trying to start any other political party or even for saying it was a good idea to have more than one party.
But to the rest of the world, North Korea was still just a communist dictatorship trying to take over land that they had no right to rule. It didn't matter that they wrote their own laws to officially name their country the Democratic Peoples Republic of Korea, it was still not democratic, wasn't really a republic, was not ruled by the people and wasn't the rightful government of Korea. In fact, according to the government of Canada, the DPRK was never the legal government of any part of Korea, even when they actually had control of all of it except for Pusan. That's why Canada, the United States, and a long list of other countries sent troops to drive the communist forces back to the North and free South Korea from communist rule. What mattered was not just who was actually in control right then. It also mattered what the rest of the world thought about it. There doesn't have to be a war for the opinion of the rest of the world to matter.
Another example that makes that clear is Latvia. In 1939, Hitler and Stalin, the dictators of Germany and the Soviet Union, invaded Poland and took over all its territory. Right after that, Stalin told four other countries that bordered the Soviet Union that he wanted Soviet military bases in their countries. Those four countries were Finland, Estonia, Latvia, and Lithuania. Finland said no, so Stalin sent Soviet troops to invade them. The other three all gave in. The next year, Stalin just took over all three countries and declared them to be part of the Soviet Union. He claimed he wasn't trying to destroy their nations. In fact, their nations were to be full members of the Soviet Union. They would just have their names changed slightly. Instead of the Republic of Latvia, for example, it would be the Latvian Soviet Socialist Republic. Instead of electing whomever they wanted to lead them, the Latvians and the others would only be allowed to vote for communist candidates. All other political parties were illegal and independent candidates were banned. In fact, even communist party candidates weren't allowed to run for office except with the permission of the communist party. The government of the Latvian Soviet Socialist Republic was created by, defined by, and controlled by the laws of the Soviet Union. The Soviet Union was in control of all of Latvia. The police and courts would enforce those laws. So, the Soviet Union was the government, right? And the Latvian Soviet Socialist Republic was the local government for Latvia, right?
No. The Latvians disagreed and so did the rest of the world. Latvia, Lithuania and Estonia all established offices in London, England to be the offices of their governments in exile. They all declared that the Soviet Union did not have the right to pass or enforce any laws in their territory. They all declared that the "Soviet Socialist Republics" that the Soviet Union had set up for them were not their real governments. The real governments might not control any territory at all, just offices in London, but they were the legitimate governments of those countries. The Soviet Union ignored this and ruled over those countries for fifty years. But then, in 1990, people in Latvia, Lithuania and Estonia, saw a chance to regain their freedom and their territory. Even the communist party officials ruling Latvia and the others wanted an end to Soviet rule. So Lithuania declared independence from the Soviet Union. Then Latvia and Estonia did, too. Not only that, they declared that the Soviet Union had never been the real government of Latvia or the others. At first, the Soviets sent troops, but to the surprise of the world, they gave up with almost no fighting and let Latvia and the others have independence. This was partly due to fear of the reaction of the rest of the world. If the Soviets had brutally crushed the crowds of people demanding their freedom and independence, there would have been adverse consequences for the Soviet Union.
So, was the Soviet Union the legitimate government of Latvia for fifty years? The government of Latvia today would say no. The government in exile at the time said no. Pretty much every country in the world except the ones controlled by the Soviet Union also said no during the entire fifty years. In the end, the Latvians got their freedom back. Isn't that the way it should be?
So what does that have to do with Canada today? Well, just because there is a government that is now in control of all the territory of Canada doesn't really make it "the government" any more than the DPRK was really "the government" of Korea just because they had the military power to take over. The fact that British and later Canadian rule over western Canada was established without war doesn't really change anything. It just makes it more like the Latvia example. The Latvians gave in without a war because they were so outnumbered that they would obviously lose. The same is true for natives in North America in their dealings with Britain and Canada.
The point of all this is to try to give you an international perspective on the situation in Canada. When we talk about North Korea and the Soviet Union, it's easy to say they weren't legitimate rulers of South Korea or Latvia or maybe not of anywhere. It's easy to say it doesn't matter if North Korean police were patrolling South Korea in 1950, the people there had no moral obligation to obey the laws of the communist regime. It's easy to say it doesn't matter that the Soviet Union had ruled Latvia for half a century, they still were not the lawful government of Latvia. It doesn't matter that in the 1980s, people saying that in Latvia were considered radicals. It didn't matter that during Soviet rule, huge numbers of ethnic Russians had settled in Latvia, Lithuania and Estonia. It didn't matter that Russians whose families had been living in Latvia for generations said, "That's way back in history, get over it." It didn't matter that it seemed like the Soviet Union would rule Latvia forever. The fact is, the Soviet Union never had a right to rule Latvia. The Latvian Soviet Socialist Republic was a fake government, created to allow the Soviet Union to rule Latvia. The Latvian government in exile in one office building in London had more right to make and enforce laws in Latvia than all the government officials, police and courts in Latvia or even in the whole Soviet Union.
It didn't matter if the Soviet Union had ruled Latvia for 700 years, the Latvian people, if they still existed after all that, had a right to be free and to regain their territory. If that seems far-fetched, let me remind you that Scotland just had a referendum in 2014 on whether to reclaim their independence after, yes, 700 years of being part of Britain. It looks like they may have another one next year and actually regain their independence. That is how the world works.
When we talk about our own country, it somehow seems different. I mean, we're not talking about stories from far away anymore, that's the real, actual government. Oh? Is it somehow more real than the government of the Soviet Union was or than the government of North Korea is today? No, it just feels different because it's the government that rules the place where we live. If you moved to North Korea, the government there would suddenly seem a lot more real. When the government of North Korea still says they have a right to rule all of Korea and everyone in the crowds there cheers with approval, that doesn't make it true. When the government of North Korea has been saying it for seventy years, that doesn't make it true. If they keep on saying it for 150 years that doesn't make it true, either.
Keep that in mind when we talk about the fact that the governments of Britain and Canada have been ruling western Canada for about 150 years. Keep that in mind when that just seems so solid and permanent and it's tempting to think the natives here should "just get over it because that's all in the past." It's not all in the past. The occupation of native territory continues and it is still an issue no matter how long it goes on. The native nations have a right to self-determination under international law that does not go away, not in 150 years, not in 1,000 years.
You sometimes may see on TV "native leaders" themselves saying that they are part of Canada. Usually they then start talking about wanting compensation for their land. Or maybe just an apology. The Soviet Union had Latvian communist officials to go on TV and say that sort of thing, too. Keep in mind that the native "leaders" who are allowed to talk on the government-owned CBC news are almost always the Chiefs or members of the councils of the band governments. These are governments set up by Canada's Indian Act. They are not the government in exile of those nations. They are the Native Soviet Socialist Republics created by the occupying power to rule over them and speak in their name.
Whether it's a hereditary chief or a gathering of native elder, the authentic heirs to the political power of the native nations have more right to rule their ancient territories than the parliament in Ottawa. No matter what they have been reduced to, they are the legitimate authorities. It might be an alcoholic native elder living in a shack who is the authority according to the laws and customs of his own nation, but whoever he is, he has more rightful authority in that territory than the RCMP.
You might be thinking, "so, what, they'll never actually rule again." Yeah, Russians in Latvia said the same thing in the 1980s and for the exact same reasons. It wasn't because it was right, it was because they wanted to make it true. They were happy enough with the current situation and didn't want it to change. But what happened when they did want it to change?
Well, that's interesting because ethnic Russians living in Latvia were able to escape from communist rule by supporting the native Latvian efforts for restoring the independence of their nation. The Soviet Union collapsed the very next year, but even if it had continued for another three centuries, everybody in Latvia was free from it. Not just the natives; the non-natives too.
If you're completely happy with the government in Ottawa, then I guess you'll want to keep waving the Canadian flag and telling natives to "get over it." But what if you want to escape Liberal rule?
The Wexiteers are already willing to throw away the Canadian flag, overcome the normal ideas of patriotism, and try to start a new country.
So what was that about not needing permission from the federal government?
The Clarity Act envisions a process by which provincial governments propose referendums. The federal government then gets to delay the process by approving or disapproving of the wording of the referendum question. Perhaps they'll send it back to the provinces after lengthy hearings several times, postponing the vote by a year or two. During all this, the government will propagandize against secession like they did in Quebec in 1995. If the referendums pass, the federal government then holds lengthy hearings on whether or not the vote actually expressed the "will of the people." Section 2(3) of the Clarity Act specifically says they must listen to the Aboriginal people on this issue and they're expected to say that they're against it and it wasn't the will of all the people, just the white privileged people or something like that. They may say the referendums didn't count because of this issue. It may be several more years before the referendums are held again. If that wasn't enough for the political mood to turn against secession, the federal government might actually reach the stage of negotiating with the provinces about secession. Then the federal government deploys section 3(2) of the Clarity Act that prohibits any federal minister from proposing a secession amendment to the Constitution of Canada until the federal government has "addressed" in its negotiations, "the rights, interests and territorial claims of the Aboriginal peoples." The Clarity Act also says that an amendment to the Constitution of Canada is required in order for secession to take place and therefore, parliament can veto the secession of any province. The wording about Aboriginals is one of several things that have been put in there to provide a handy excuse for why parliament would veto secession.
So, that's the process. You'll notice it doesn't end in secession. It's not really a process for secession. It's a process for preventing secession. Here's a real process for secession:
A political movement gains massive public support for secession. A vote is held through some democratic process and a proposal for independence passes. The secessionists declare that they are now an independent country and start acting like there is no question about it, it's a fact. The government they seceded from says it's not true and takes actions to stop it. The secessionists send ambassadors to foreign countries to seek recognition and help. Some foreign countries support them. The secessionists are able to enforce their laws in their territory and prevent enforcement of the laws of the previous regime. The secessionists carry on acting independently. The previous regime continues to insist that the secession was illegal and doesn't count.
That's it. That's the process used by Latvia, Lithuania and Estonia. That's the process used by the United States to gain independence. That was also the process used by Greece, Serbia, Bulgaria, Ukraine, Belarus, Russia, Azerbaijan, Armenia, Kazakhstan, Uzbekistan, Tajikistan, Turkmenistan, Kyrgyzstan, Rhodesia, Ireland, Indonesia, Brazil, Mexico, Venezuela, Colombia, Chile, Argentina, Honduras, Nicaragua, Guatemala, El Salvador, Costa Rica, Panama, Peru, Bolivia, Uruguay, Paraguay, Mozambique, Angola, Algeria, Vietnam and many others.
None of these countries would be independent if they had just asked for permission and followed the rules written by the other side.
So, could provinces of western Canada just hold referendums, announce the results and declare independence? Yes, but that might not lead to actual independence. It would be very easy for the federal government to point to the Clarity Act and say the procedure had not been followed and they could go to the federal courts to get rulings to back that up. Wouldn't most people in West Canada agree that the law must be followed? Yes. Would the rest of the world be willing to disrupt friendly diplomatic relations with Canada over whether some details of the Clarity Act were fair? No. If you don't have the support of the people, the law, or foreign powers, your cause is pretty much doomed.
That leaves the Wexiteers what options? Follow the process that is designed to cause their project to fail? There is a federal veto waiting at the end of that process if they make it that far.
This is a lot like the BC Treaty Commission process for creating treaties between Aboriginal nations and the crown. The federal parliament creates and defines the entire process and rigs the whole thing at every step to ensure the other side loses everything and the government gets what they want.
It looks like the Wexiteers are falling for this and exploring the possibility of making their own treaties with the Aboriginal nations just to try to deal with section 3(2) of the Clarity Act. If they keep following the script written for them in Ottawa, they will fail. But now that the cowboys are actually talking to the actual Indians, Ottawa can't control the conversation.
Let's just stop and think about that for a second. Natives and non-natives are actually talking to each other about creating a treaty and the federal government isn't even at the table for this negotiation.
See now, that's interesting from an Aboriginal point of view. Normally, treaty negotiations in Canada involve the federal government pretty much dictating ridiculous terms for treaties to Aboriginal nations and rigging the whole process to railroad those treaties through no matter how much natives oppose them. 21st century treaties, just like 19th century treaties, involve the government promising to pay an amount of money now in exchange for taking assets of gigantically greater value than the money while also violating rights that are priceless. That's how Canada "negotiates" treaties with Aboriginal nations. When they negotiate treaties with other nations like Britain, the US, or China, they treat them very differently. Britain, the US, China and other nations do not allow Ottawa to define and control the entire process and make up the rules as they go. To those nations, the Canadian federal government is not "the government". It is a foreign government with no authority over them. Aboriginal nations would have a much stronger negotiating position if they took this view as well. Wexiteers should take note of how easily Aboriginals can do that.
What the federal government of Canada is counting on is that Aboriginal people have little or no understanding of international law and will think they only have the options the government provides them. The government only provides two options. (1) Aboriginals sell their rights, their lands and their nations dirt cheap in a treaty or (2) Aboriginals don't sign the treaty and the government takes everything anyway. Wemyss Simpson and others told native people exactly that in order to coerce them into signing the numbered treaties.
But now come these Wexit guys talking about a different kind of treaty. It seems like it doesn't really matter because the Wexiteers aren't in charge of a real country. Then again, what makes a country real? Who says Canada is a "real" country and the Tsilhqot'in National Government is not? Who says Quebec can have a referendum on whether to become an independent country and Haida Gwaii cannot?
Who, indeed. Is that what international law says? No. The most basic principle of international law is that nations are independent and sovereign. They do not lose their sovereignty just because someone else says so. But that's what the Canadian federal government has been saying all this time about Aboriginal nations. It's like Canada is on some other planet where it's just assumed that the Queen is sovereign over everything and independent nations that have existed for thousands of years are just, automatically, magically -- without any treaty, consent, surrender or conquest -- somehow under the sovereignty of the Queen.
Here's a news flash that somehow never reaches Canadians: On planet Earth, sovereign nations do not lose their right to independence just because somebody comes into their territory and puts up a new flag. It doesn't matter if 50 years go by, or 150 or 700; it's still a sovereign country. Latvia is still Latvia. Scotland is still Scotland. Tsilhqot'in is still Tsilhqot'in, too. This concept is the most important principle in the Charter of the United Nations. The United Nations was founded on the principle that the sovereignty of nation is paramount. That was also the most fundamental principle of international law for centuries before the UN existed. Another important principle is the principle of self-determination of peoples. This means that even if a national group of people does not have a sovereign country, they have the right to create one or to decide which country they want to be a part of. In case it's not clear, Aboriginal nations in Canada have a right to self-determination according to international law.
The United Nations even passed a resolution that specifically addressed this situation. It is called the United Nations Declaration on the Rights of Indigenous Peoples. In 2015, Prime Minister Justin Trudeau finally accepted this resolution. At least, he said the words. In fact, there has been no change in how the government of Canada actually treats Aboriginal people or Aboriginal nations. Conservatives who think the federal government panders too much to Aboriginal people probably have that impression because they hear all the words the government says, but they aren't there on Indian reserves to see the enormous gap between words and deeds.
There is no doubt in the rest of the world that rule over North American Aboriginal peoples by colonists from Europe is colonialism and should end. For the same reason that Britain gave in and recognized the independence of India and dozens of other former colonies, Canada must give in sooner or later and recognize the independence of Aboriginal nations. The lawyers in the Justice Ministry know this. You can see by the wording they want to put in the treaties that they know the government's claim to sovereignty over Aboriginal nations is so weak it's almost nonexistent. Those treaties are designed to give Canada a firm claim to sovereignty over native lands in BC for the first time. The crooked process being used to get those treaties signed is very similar to the process that was used in the 19th century to get Aboriginal nations in the prairies to agree to the numbered treaties.
For that reason, the BC treaties that have already been signed and the numbered treaties in the prairies can easily be repudiated.
Repudiated? What's that word doing there? Treaties are supposed to be forever and ever, right? In international law, all sovereign nations have the power to repudiate any treaty whatsoever. Canada signed the NATO Charter, but it of course retains the right to repudiate that treaty if they want to. Canada signed the United Nations Charter, but could, if they wanted to, repudiate that as well. Canada signed trade agreements with China that are international treaties, but both Canada and China of course have the right to repudiate any of these treaties if they wish. The United States in recent years has repudiated the Anti-Ballistic Missile Treaty and the JCPOA nuclear treaty with Iran. They agreed to the treaty, but they changed their minds. It's rude. It jeopardizes international relations. Sometimes it can even lead to war, but it is a basic principle of international law that no one has the legal authority to force a sovereign power to do anything at all, not even to keep their word, no matter what the words on a treaty say.
But does any of that matter if the government of Canada won't recognize native nations as sovereign? They undoubtedly are not inclined to recognize any "Republic of West Canada" as sovereign either.
That's where the right to self-determination comes in. The right to self-determination of peoples is recognized as a fundamental right by the UN and was a crucial part of international law long before the UN existed. In fact, it was one of the crucial issues that the allied powers in World War I said was their reason for fighting that war. Millions of people died in a war that was the most destructive and most deadly war in all of history up to that time. Only World War II killed more people and did more damage than World War I. And for what? The right of self-determination of peoples. Specifically the right of the people of Bosnia-Herzogovina to decide whether they wanted to continue to be ruled by the Austro-Hungarian Empire, or to be an independent country, or to be ruled by the Kingdom of Serbia. But it was not just for Bosnians that a whole generation of Canadians went into the bloodiest war the world had ever seen. It was to establish that all nations and all peoples at all times had the same right to self-determination. That is, the right to determine, for themselves, whether they wanted to be ruled by the government that was already ruling them or whether they wanted to be part of a different country, or whether they wanted to have their own country, fully independent and sovereign. It was up to the Bosnians to decide this for themselves. They did not need permission from the government of the Austro-Hungarian Empire or the Ottoman Empire or anyone else. This is the same principle that is why the Americans had a right to separate from Britain and why Canada did as well, though in typically Canadian fashion, this was accomplished peacefully. It is the same right that was later applied to India and Pakistan, Ghana and Kenya, Barbados and the Bahamas. It was not just a right for Europeans or Americans. The right to self-determination is for all peoples and that is what Canada fought for in World War I. That is why we wear the poppy on Remembrance Day. To honour those who fought and died -- not just to defend Serbia from the Austrians or to defend Belgium from the Germans, but to defend the right of Belgium, Serbia, Bosnia and all other nations, including Canada, not to be invaded and conquered, not to be dictated to by foreign powers that happen to be more powerful.
If we would honour the dead of the Great War, we must recognize the principle they were sent to their deaths for. That principle is the principle of self-determination. It is that same principle that says that yes, the people of Quebec are a distinct people who do in fact have the right to self-determination. They had and still have the right to decide whether they still want to be part of Canada or whether they want to be an independent nation.
The people of western Canada have that same right. The people of every province have that same right and for the same reasons. But the moral purity of that assertion is shattered if the same principle is not also applied to the Aboriginal nations in those same lands. Quebecers said they had a right to self-determination because they were a distinct culture with their own distinct history and their own language. Aboriginal nations have even more distinct cultures with vastly longer histories and their own languages. More importantly, many Aboriginal nations have never agreed to be part of Canada in the first place, and there is no principle of international law that gives Canada authority over them even now.
The Canadian government has two problems, Aboriginals who still have their own nations, and western separatists who want to establish a new nation. The politicians and bureaucrats in Ottawa want to get these two groups to work against each other so neither of them will get what they want and the government will get everything it wants.
Well, here's a surprise move in this cynical political game. What if the Aboriginals and the western separatists work together?
So why wouldn't the Aboriginals be willing to negotiate a treaty with a Republic of West Canada? Mostly because the government has done such a good job of convincing them that there is no other option except the crooked treaties the government offers that most natives haven't really tried to imagine what a good treaty would look like.
The reason why the government of Canada thinks it can get away with the crooked treaties it's trying to push on the native people is because it thinks they have no other options. In some ways it has tried to make sure they have no other options. What the Wexiteers might be able to offer, if they were shrewd, is another option. What the Aboriginals have to offer the Wexiteers is the country they want.
You see, the Aboriginal nations have a vastly stronger case for sovereignty over almost all of western Canada than the federal government in Ottawa does. They also have an enormously more powerful case for self-determination than western Canada does. The reason for this is because there is some room for dispute in international law on who, exactly, gets to be considered a separate "people" who have a right to self-determination. Certainly each nation with its own language, culture and history as a sovereign nation has a right to self-determination. Aboriginal nations easily meet this test. One particular Indian Band might not, but together with the other bands that speak the same language, they most certainly do.
But are the non-native people of western Canada a separate people from those in eastern Canada? The case for that is certainly weaker. Does Alberta by itself have a right to self-determination? Some would say yes, but the case is even weaker. How about just Calgary? How about just the western parts of Calgary? Do those neighborhoods have a right to hold a referendum and decide whether to establish a Republic of West Calgary? There are a few who would say yes, but most of the world and almost all the precedent in international law would suggest the answer is no.
The Aboriginal nations have a very strong case... in principle. But another aspect of international law is that actual power usually counts for more than any kind of law in international affairs. What western Canada does have, if they somehow chose to band together and assert it, is a population of millions of people, an economy that produces many billions of dollars a year in value, entire provinces of established political structures, their own mass media, their own school systems, their own health care systems, etc.
One of the most interesting things about the idea of some kind of negotiation between Aboriginal nations and Wexiteers is that the biggest stumbling block of all could be removed. The elephant in the room at every treaty negotiating table is the fact that Aboriginal nations are nations and Canada won't really admit that. Canadian government negotiators will not accept any suggestion whatsoever that Canada is not the absolute master and sovereign over every single square centimeter of native territory no matter what international law says and no matter how many thousands of years that land has been territory of a nation of Aboriginals.
And why should Canada agree to "give up" territory? Because it's not theirs? What nation has ever agreed to give up territory it claims as sovereign just because it's right? That almost never happens. Power matters more in international affairs than law or right. If people were more moral, that would not be true, but in the real world, it is very true.
Western Canada does have power. Wexiteers don't at this point, but if they could actually get the public behind them, then they would. The political and economic power of western Canada PLUS the legal rights of Aboriginals could be an unbeatable combination.
And here's why they might be able to work together. You see, Canada sees all the land in Canada as Canadian territory. For Aboriginal nations to have any territory at all, Canada has to "give up" territory. They don't want to do that. They'll let some become part of Indian reserves, but not much and only if the reserves are sovereign territory of Canada and owned by the Queen in trust for the natives.
How much territory would the Republic of West Canada be willing to give up to get a treaty with the Aboriginal nations? That's a laugh. The Republic of West Canada doesn't exist. It has no territory to give. It might come into existence if Canada allows it. That's highly unlikely. It might also come into existence if the Aboriginal nations allow it, even if the federal government of Canada says no.
Could they? Well, theoretically, yes. According to international law, every nation has a right to self-determination. The United Nations Declaration on the Rights of Indigenous Peoples, specifically states that Indigenous peoples who have been colonized by others have a right to self-determination. They have a right to decide to form a sovereign country of their own. They have a right to their territory as well.
The only thing stopping them from doing that is the Canadian federal government which is striving mightily to prevent it -- in violation of international law and contrary to the UN Declaration on the Rights of Indigenous Peoples. That, and the fact that most natives don't know much about international law.
Don't the non-natives have a right to self-determination as well? Sure. They have a right to have their own nation. The problem for Wexiteers is that if they are not a separate "people" from the other Canadians, then their right to self-determination, according to international law, might be nothing more than a right to have Canada continue to be a sovereign state. Quebec had a stronger case by far because they had a separate language, culture, and history. The Aboriginal people have all that, only more so.
What they don't have is anywhere near as many people as the non-natives of western Canada or the economy. The political and economic power of several entire provinces of western Canada is quite a lot. Enough to easily get the attention of the world and to make the federal government dismiss any thought of just arresting them all. Of course, the Wexiteers do not at this point command the support of the majority of the population of entire provinces or any one province. Some polls have shown support for western secession as high as 28% though.
Maybe support would be higher if people thought it was both possible and beneficial. Maybe the Wexit-Aboriginal treaty needs to come first. If it were already in existence, the public would be able to see exactly what the plan was and be able to decide if they would want to vote for it or not.
What would such a treaty look like? That's up for discussion of course, but here are some key points.
(1) The treaty could be just a proposal until ratified by at least one province that has voted in favor of secession in a referendum and at least one Aboriginal nation. The process for ratification by Aboriginal nations should not just be approval by the Indian Act chief and council. At the very least, there would need to be a referendum, but probably also approval by any traditional authorities that may exist.
(2) Because it's just a proposal, the text of the treaty could be negotiated by anyone. For example, a group of Aboriginal activists and leaders of the Wexit movement could write it. If the Aboriginal nations and the provinces don't like it, they can always negotiate a whole new treaty.
(3) A key sticking point is likely to be use, ownership, jurisdiction and sovereignty over land. Note that these are four completely different things and they don't always go together. For example, imagine an apartment complex in Hong Kong in 1995 while Britain still ruled Hong Kong. Sovereignty over the land technically still belonged to China. The British government was only administering the government of Hong Kong under a 99-year treaty. But if the apartment building was privately owned, neither the Chinese government which had sovereignty, nor the British government which had jurisdiction over the land, had ownership of the land. That would belong to the private landlord. But even the landlord would not have had the use of the apartments if they are all leased out to tenants. The tenants would be the ones who actually live there and use the building. Could Alberta operate on a similar model? Could British Columbia? Saskatchewan? Yes, of course. It's possible. There would have to be agreement between various people and governments, but that might not be impossible to achieve. They all want the same land, but some only want the use of it for a limited time. Others want to keep their ownership of the land. Still others want to be the government whose police patrol that area and whose courts hear cases from that territory. Still others have the right to ultimate sovereignty over that same territory.
I notice that the Wexit proposal is for a REPUBLIC of West Canada. So, not Queen in Right of West Canada? That's interesting because technically, under Canadian law, the Queen, not the government, is sovereign. If you create a republic, you have removed the sovereign from the system and you have a big blank spot where the crown used to be. Crown lands? Whose are they now? The lieutenant governor general of each province is a representative of the Queen and performs a ceremonial, but crucial role in the operation of the government of each province. The Queen is even the nominal owner of all land on all Indian reserves according to Canadian federal law.
You could just write a new constitution that says crown lands will now be government-owned lands, the lieutenant governor general will be replaced by some elected governor, the government will own the Indian reserves and change the name of the crown prosecutors, the throne speech and things like that. But that's not the only way to do it.
Many of the Aboriginals, probably almost all of them, want ALL their territory back. Many of them want to be able to carry on their traditions. Here's a radical idea. What if the Wexiteers said yes to that? What if sovereignty in West Canada would not reside in the Queen, but in the Aboriginal nations whose right to that sovereignty is so very strong in international law? At a single stroke, the number one point of disagreement between natives and non-natives in Canada goes away. Whose land is it? Whose country is it? Where could we go with this if we start from an agreement that West Canada still rightfully consists of Aboriginal sovereign nations and that neither Britain nor Canada ever had any moral or legal right to rule there?
Under that line of thinking, you sure don't need to comply with the Clarity Act or ask the parliament in Ottawa for permission.
Would the Aboriginals want to kick all the non-natives out and go back to hunting buffalo or fishing? Nobody is saying that. I'm sure they'll joke about it if this gets going, but in all seriousness, Aboriginal people are not trying to turn back the clock on everything. It should also be clear that if the benefits of this arrangement for the non-natives are not enough, the deal will never happen. But a deal that would greatly benefit both sides could still be vastly better for the Aboriginal nations than any deal that has been offered from Ottawa.
For example, what if the treaty starts out by acknowledging that the Aboriginal nations are sovereign and also that those sovereign nations recognize the sovereignty of the Republic of West Canada. They would be the first nations to recognize the sovereignty of West Canada. They wouldn't recognize West Canada as sovereign over them or any of their territory, but they would recognize that that particular group of people have a right to govern themselves however they want. Then, there could be an agreement that some large amount of land would be leased by the Republic of West Canada for a long time, perhaps a hundred years, for some amount of money, probably far below current market value. That's because West Canada can't afford anything close to market value and even a tiny fraction of market value would still be vastly more money than the Aboriginals are getting from that now or from everything now. It might seem expensive, but this is a scenario where equalization payments, federal income tax, GST, and all other federal taxes are gone. Unless the Republic of West Canada wants to implement similar programs itself, of course. Even so, they could be at lower rates.
A crucial part of this is that not all the land would be leased to the Republic. Each Aboriginal nation could have some land that is their sovereign territory and is directly under their control without any non-native authority over them whatsoever. The Wexiteers get their own independent country in this deal; the Aboriginals get theirs, too. At the very least, this should include all the land that is currently Indian reserves. There are large amounts of land that is currently considered crown land that Aboriginal nations might also retain as territory that they are not only sovereign over, but also exercising jurisdiction, ownership and use. Exactly which lands is a subject for negotiation.
Land that is currently registered in provincial title registries as being owned by the province or by private owners is an issue. Aboriginal nations who never sold such land or did so only under duress when the government threatened to take the land without payment might agree to a financial settlement that includes a legitimate sale of such lands. Probably not, though. Another option is to say that the current title holders will have the exclusive use of those lands for the duration of the 99 year lease that gives the Republic the right to have jurisdiction over those same lands. They can sell the titles, mortgage them, continue to live on or otherwise use the land all they want... so long as the Republic is still leasing that territory.
The treaty would, however, recognize that the land is actually fully owned by the Aboriginal people whose territory it is. They would be recognized not only as sovereign over that territory, but also as holding aboriginal title to that same land. They will be the landlords from whom the land is leased. That doesn't mean the title holders lose their property when the lease ends. They have 99 years to negotiate a deal to buy Aboriginal title to that land on mutually agreeable terms. If they cannot do that, they have 99 years to sell their title to someone else and buy or lease a different property, perhaps from an entirely different Aboriginal nation. Then again, if things are working out well for everyone, the lease might be renewed for another 99 years. Ideally, negotiations on renewal would be concluded 20 years or more before the expiration of the lease. It might also be good to have different parts of the territory leased for different periods of time so each negotiation is not all or nothing for the Republic.
So there is a rough idea of how the seemingly intractable problem of contradictory land claims could be resolved. There will be a lot of non-natives who will be upset that this means they don't fully own land they paid for and consider theirs. There is already a cloud on their title. Aboriginal title already exists and is increasingly being recognized by the courts of Canada. A Canadian court could at any time make a ruling similar to the one in the Tsilhqot'in case that says the natives really do own the land. A treaty like we're talking about here would guarantee that nothing like that could happen for at least 99 years. It might happen then, but who among us would even still be around then? Those who are will have had a lifetime to see it coming and plan around it. In the meantime, all the arguing and uncertainty about land claims comes completely to an end. Aboriginal title and Aboriginal rights issues and the Canadian government's irresponsible and grossly unfair ways of handling it have created uncertainty that has seriously hampered the ability of western Canada to attract investment money for decades. That would end with the ratification of this treaty.
(4) With all that resolved, what else even needs to be in the treaty? Payment for damages for past wrongs? Maybe, but most of that was done by the federal government, not the provinces and certainly not by the Republic of West Canada which didn't even exist. There would be no need for the Aboriginals to give up or settle any of their financial claims for damages against the Canadian federal government. If the Aboriginals gained enough from this agreement, they might offer to settle such claims for a reasonable amount as part of a deal in which Canada recognizes the sovereignty and full independence of the Aboriginal nations and stops trying to rule West Canada.
If Canada recognized the sovereignty of Aboriginal nations over West Canada, the rest of the world would, too. If those same Aboriginal nations had already recognized the independence of the Republic of West Canada in a Wexit-Aboriginal treaty, the rest of the world would also recognize the independence of the Republic of West Canada.
If the federal government of Canada refused to recognize any of this, the Aboriginals could sue the government of Canada in its own courts for more money than Canada could hope to ever pay. There is a strong legal case that the federal government is liable for everything it has done to the Aboriginal peoples, including the full value of all the territory they were deprived of the use of for over a hundred years, the fishing rights, the hunting rights, racial discrimination, deliberately destroying their languages and culture, trying to force them assimilate, forced sterilization of women, countless wrongful deaths, taking their children by force and giving them to non-native families to adopt, the foster care system in which a native child is dying every few days even now. The list goes on and on. Why isn't this happening already? It is, but slowly and in a disorganized way. The federal minister in charge of Indian affairs is authorized by federal law to fire any Indian Act chief at any time for any reason. That puts a damper on how confrontational they are willing to be. Individual Indians living on reserves are typically poor, don't know much about the court system, and don't know they have a case or how to pursue it.
It may be that no treaty can be agreed to by the Wexiteers and the Aboriginals. It may be that there will never be a Republic of West Canada. But both the Wexiteers and the Aboriginals have a much stronger negotiating position with Ottawa if they explore that option. Just the fact that there might soon be another treaty table where the crown is not invited could change the whole conversation at the treaty tables we have now.