Discrimination comes from treating all equally

Page 6

The Alliance Party was the first to play the race card. They did it as soon as they nailed down the central plank in their Aboriginal policy: "the rules must be the same for all." Treating people who are not the same as though they are and applying the same rules to people who are different results in discrimination. As Justice Murray Sinclair put it in the report of the Manitoba Justice Inquiry: "Systemic discrimination involves the concept that the application of uniform standards, common rules and treatment of people who are not the same constitutes a form of discrimination. . . . The reasons may be geographic, economic or cultural.

However, it must be acknowledged that the application of uniform policies can have a discriminatory effect."

For example, as Ontario Crown attorney Rupert Ross so insightfully recognizes in his book, Dancing with a Ghost, cultural differences in behavior (such as avoidance of confrontation or averting the eyes from a questioner) lead to misunderstandings in police stations and court rooms, and often to results prejudicial to Natives charged with offences.

He writes about alternative ways of delivering justice, such as community conferencing, which are more in keeping with Native ways and which are better at producing healing and reconciliation (the goals of Native justice systems) than our notions of guilt and punishment.

Another example - J. David Fairgrieve noted in Jones-Nadjiwon, his ruling on Nawash commercial fishing rights in the Bruce Peninsula:

"The Band's fishing income is a crucial part of its subsistence economy, and the limited access caused by the quota produced greater deprivation and poverty and contributed to increased unemployment and poverty, individually and communally. The quota had a serious adverse restriction and constituted an infringement under section 35(1) [of the 1982 Constitution]. .. . The Native fishery was seen as just one part of the commercial fishery. No special regard was given to the band's fishery operation, quite apart from the question of any constitutional priority."

What happened was the Ontario Ministry of Natural Resources scrupulously applied the same rules in allocating quotas to Natives and non-Natives alike: they tallied up past recorded catches from Native and non-Native fishermen over a six-year period and divided by six. The problem was, the small size of the Nawash fishery (Nawash fishermen were restricted to a tiny area around their reserve) and the nature of that fishery (small open boats, close to shore) meant that the tiny, inadequate even for subsistence, Native catches were cast in regulatory stone. The government dutifully prosecuted Native fishermen, year after year, for violating regulations that were, in fact, discriminatory.

How did Nawash end up with such an inadequate fishery? That's the story of another form of racial discrimination. Their fishery was expropriated by American and Canadian commercial fishing fleets aided by a government policy to look the other way.

Discrimination against First Nations in North America has two stages. During the first stage, we completely marginalized Native peoples by treating them totally differently than we treat our own people. Thus colonial Canada broke, at will, the treaties it signed or ignored its obligations under them.

If someone breaks a contract with non-Natives, they have recourse to legal action. However, it was illegal (until 1951) for First Nations to hire lawyers in claims against the Crown. If the state took away non-Native children by force, politicians could expect some sort of retribution, even if only on election day. However, Canada removed Native children from their parents and culture for years and put them in residential schools as part of a clearly stated government policy of assimilation. Native people could not vote in federal elections until 1960.

Now that we have completely marginalized First Nations peoples by treating them as we ourselves wold not be treated . . . now we can enter the second stage of racism. Now we can apply to Native people the same rules by which non-Native people govern themselves, confident that they will not be able to "measure up."

Native people are helped to start businesses, when entrepreneurial programs are not applicable, or workable. Then non-Natives despair over Native peoples' stubborn unemployment rates of 50, 70, 90 per cent. Diligently following the regulations non-Natives make for everyone, they prosecute Native hunters and fishers for trying to make a moderate livelihood in their traditional territories (by practising rights non-Natives have perhaps not yet recognized). Then despair at the poverty of Natives' tiny reserves.

People rejoice when the United Nations declares Canada the best place in the world to live. But then fret when the UN says they discriminate against a race of people - "It must the fault of the Natives themselves, because, after all, we treat them the same."

There is a way out. It is not through guilt, and it certainly isn't by applying the same rules to the Aboriginal reality. Non-Natives can reconcile themselves to Aboriginal people by listening to what Natives have been trying to tell them for the past 300 years:

"Honor the treaties. Recognize our Aboriginal and treaty rights to natural resources so we may become self-sufficient again. Let us chart our own course, as we did for the thousands of years before you came to our Canada."

David McLaren has worked with First Nations on racial and environmental issues for the past 10 years. He can be reached at .