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TABLE OF CONTENTS
Meet the Authors and Editors Letter from the Co-Editor-in-Chiefs
The Canadian War Memorial Exhibition of 1919: Insights into the Canadian First World War Experience - VERNA YAM Deconstructing Canadian Arctic Sovereignty & Security - BRADLEY FUNG
166 The Changing Landscape: The Development of Aboriginal Rights and Title as it Affects Canadian Federalism - JACOB FISHER-SCHMIDT Homelessness in Canada: An Overview - CURTIS GARLOUGH
Trade Agreements and the Promotion of Canadian Values - JACOB DINER
Rhetoric Deployed in the Communication Between the National Energy Board and Indigenous Communities in the Case of the Trans Mountain Pipeline 441 - LIDIA COOEY, BREAGH KOBAYASHI, DANIELLE TAN
4848Temporary Labour Migration and Canadian Foreign Policy Relations on the Basis of Migration: Philippine - PHEBE FERRER
Québé-Quoi? Understanding Intrastate Migration and National Identity SAWYER JUNGER
LIDIA COOEY, BREAGH KOBAYASHI, DANIELLE TAN Breagh, Danielle and Lidia are an interdisciplinary team of English and Forestry students. They are settlers studying on the traditional, ancestral, and unceded territory of the xʷməθkʷəy̓əm (Musqueam) people.
SALLY FALK Sally is a third year settler student in Canadian Studies and History as part of the Sciences PoUBC Dual Degree
SAWYER JUNGER Sawyer is a third year settler student from Victoria majoring in Political Science with a minor in Anthropology. JACOB DINER Jacob is a settler student majoring in Political Science. VERNA YAM Verna Yam is a settler student graduating with a major in International Relations and minor in Asian Area Studies. She will begin her Master’s in International Affairs at Carleton University in September 2018. PHEBE FERRER Phebe is a fourth year student in the International Relations and Asian Canadian and Asian Migration studies programs. Her research interests include studying migration policy and Philippine foreign relations. BRADLEY FUNG Bradley is a fourth year student from Vancouver majoring in Political Science, with a minor in Law and Society. JACOB FISHER-SCHMIDT Jacob is completing a Dual Degree in Arts at Sciences Po and UBC. His academic focus is on the colonialism, social movements and resistance in America. He is a queer settler from Toronto, ON.
JULIA BURNHAM Julia is a third year settler student from Ontario majoring in International Relations with a minor in Canadian Studies. She is also part of the Ubyssey staff. EDIE BUSH Edie is an Australian settler student on exchange from the University of Melbourne. She is in her fourth year of First Nations Indigenous Studies and Creative Writing. ERIKA WITT Erika is a fourth year settler student from the U.S. studying Religion, Literature and Arts with a Minor in Sociology. She is part of the Sciences PoUBC Dual Degree ELLEN PRESTON A second year student majoring in Canadian Studies and minoring in First Nations Indigenous Studies. ANTON STRUKOFF A third year settler student part of the Dual Degree between Sciences Po Paris and UBC. WILL SHELLING Will is a third year settler student majoring in political science and minoring in International Relations. He is a Bill Levine Entrance Scholar. SORAYA AHMAD PARWANI Soraya is a fourth-year Political Science and Economics student. She is currently working in the Government and Public Affairs department at TransLink. CURTIS GARLOUGH Curtis is a third year transfer student majoring in Political Science with a minor in History.
LETTER FROM THE EDITORS _______________________
When we embarked on the journey to bring back the Canadian Studies Undergraduate Journal back in first semester, we could not have predicted the positive responses and support we have received. The Canadian Studies department is a small community of scholars, with only 11 students registered in majors or minors in the fall. Despite this setback, we were able to rally together an interdisciplinary team of scholars and spread our work beyond the departmental boundaries. We had over 30 submissions and published 8 essays that showcase the diverse nature of Canadian Studies. These essays give a brief look into social, political and economic problems for a deeper analytical understanding of contemporary Canada. We hope their insights allow you to think critically about the meaning of the Canadian identity, state and society. Out editors worked very hard to chose papers that would reflect the breadth of the discipline, as well as demonstrate the talent of UBC students from all departments. We would like to thank our dedicated team of editors for working within such a short time frame, as well as the writers for enduring the editing process. Ultimately, none of this could have come together without the hard work and cooperation of so many people. We must also extend a thank you to Andre Lamontagne, head of the department, for guiding us through this new and difficult process. Lastly, we would like to acknowledge that the writing, editing and creation of this journal took place on the unceded, ancestral and traditional territories of the Musqueam people.
Sally Falk & Julia Burnham Co-Editors-in-Chief
The Canadian War Memorial Exhibition of 1919: Insights into the Canadian First World War Experience VERNA YAM ____________
On January 4, 1919, a few months after the signing of the armistice ending the First World War, the Canadian War Memorials Fund (CWMF) displayed in London a collection of artwork depicting Canada’s participation in the war.1 The Canadian War Memorial Exhibition (CWME) showcased art commissioned by the CWMF, which was the official war art program that Sir Max Aitken (later knighted Lord Beaverbrook) established in order to capture Canada’s participation in the First World War. Consisting of paintings, sculptures and drawings of Canada’s war effort, in settings ranging from battlefields in Europe to munitions factories at home, the CWME presented Canada’s widespread and immense contributions to the war. However, the CWME was much more than a collection of artistic renditions of Canada’s war effort. The artwork within the CWME, reactions to the CWME, and the CWME itself reflected key themes in the Canadian experience of the First World War. The CWME illustrated the new sense of Canadian-ness that emerged from the First World War, and the struggle to comprehend the technological advancements and new scale of destruction in modern warfare. As such, the CWME represents developments and attitudes running through Canadian society during the First World War.
The CWME showed the growing sense of a Canadian identity that emerged from the First World War, albeit one that was still housed under the British imperial framework. Canadians developed a stronger sense of nationalism, stemming from their significant contributions to the war. On the battlefield, Canadian fighting forces demonstrated that their skill was equal to that of other powers and also led a successful series of offensives in the closing phase of the war.2 The CWME exemplified this growing sense of a Canadian identity in two ways. First, the CWMF that organized the CWME was a product of this growing Canadian-ness. Jonathan Vance, who studies Canadian social memory and military history, locates the creation of the CWMF as a response to the demands for a uniquely Canadian culture. These demands, sprouting from Canada’s military involvement, brought on a wave of patriotism.3 Next, the CWME asserted that Canada’s achievements, distinct from Britain, made Canada worthy of international recognition. The CWME conveyed this message in exhibiting Canadian contributions to the war to international and domestic audiences in London, New York, Montreal and Toronto. This assertion of Canada’s capabilities supported Canadian attempts to elevate its international status. Canadian art historian Maria Tippett writes that the timely opening
History 12 (Toronto ; Buffalo ; London: University of Toronto Press, 2015), 24. 3 Jonathan Franklin William Vance, A History of Canadian Culture (Don Mills: Oxford University Press, 2009), 218.
Maria Tippett, Art at the Service of War: Canada, Art, and the Great War (Toronto; Buffalo: University of Toronto Press, 1984), 77. 2 Andrew Iarocci and Jeff Keshen, A Nation in Conflict: Canada and the Two World Wars, Themes in Canadian
CWME show in London with its “display of Canada’s wartime accomplishments also [helped] justify the right to sign the peace treaty that
Figure 1 The Flag Source: Canadian War Museum Sir Robert Borden had just secured for the Dominion,” separate from the British Empire that Canada had entered the war under.4 Consequently, the CWME was both a result of and promoted the development of a Canadian identity distinct from Britain; an identity that was founded on Canadian war efforts. While this new nationalism strove to distinguish Canada from Britain, it still had ties to Britain, although these ties were significantly transformed. In fact, Canada remained closely connected to the British Empire throughout and immediately after the First World War, as evident in the organization, contents and reaction to the CWME. Not only was the first war artist commissioned under the CWMF a British artist, the CWME focused on British artists.5 The heart of the CWME’s London debut was its central gallery, which consisted only of works from British artists.6 Despite the CWME’s promotion of Canada as a power in its own right, the CWME emphasis on 4
Tippett, Art at the Service of War, 78. Vance, A History of Canadian Culture, 228. 6 Tippett, Art at the Service of War, 78. 5
British artists reflects how Canada stayed under the larger umbrella of the British Empire. Lord Beaverbrook’s opinions, as CWMF head, are a possible reason why the CWME was organized to emphasize Canada’s connection to Britain. Laura Brandon, an art historian and former curator at the Canadian War Museum, explains that as Lord Beaverbrook was an English-Canadian whose world revolved around Britain, he could see Canadian “nationalism coexist with imperial sentiment.”7 Lord Beaverbrook, however, was clearly not alone in regarding Canada’s new nationalism as within the British imperial framework. The popularity of John Byam Liston Shaw’s painting, The Flag (Figure 1), demonstrated the strength of Canada’s imperial ties. The Flag depicts a group of men, women and children mourning a fallen soldier, who is wrapped in the Canadian ensign at the foot of a lion that symbolizes Britain.8 This painting and its reproductions were the most popular of all the CWME works in its shows abroad and at home, receiving praise for capturing “the sacrificial spirit in which the sons of the Empire laid down the greatest gift they had.”9 In sum, the CWME proved that the rising sense of a distinct Canadian identity included a sense of belonging to the British Empire, as seen through the CWME’s focus on British artists, Britain’s overshadowing presence in The Flag, and popular reception of The Flag. Jay Winter, who analyzes the impact of the First World War on the relationship between Britain and its dominions, provides further support as he argues that although in “Canada a separate national identity emerged out of imperial military service in sacrifice […] the tie to Britain was still there, though
Laura Brandon, Art or Memorial?: The Forgotten History of Canada’s War Art, Beyond Boundaries, no. 2 (Calgary: University of Calgary Press, 2006), xiv. 8 Brandon, 30. 9 Qtd. in Tippett, Art at the Service of War, 91.
palpably and permanently transformed.”10 As a result, it is clear that the emerging Canadian nationalism that
grew from its First World War achievements, while striving to differentiate itself as “Canadian” and not simply British, still situated Canadians as part of the British Empire.
Canada’s violent introduction to modern warfare through the First World War, with its domination of technology and new scale of destruction, challenged Canadians to find methods of understanding the war. The First World War proved radically different to previous Western experiences with combat as it saw the development of trench warfare that entailed widespread use of modern firepower. This type of warfare, in turn, led to unprecedented casualty rates.11 The CWME reflected the struggle to comprehend modern warfare through its artists who experimented with new, modernist styles to document the war’s devastation and extraordinary use of technology. Having realized that old nineteenth century artistic styles were incapable of depicting modern warfare, Lord Beaverbrook’s art advisor, Paul Konody, welcomed modernist painters into the CWMF.12 One of these modernist painters was Christopher R.W. Nevinson, who believed that only Futurism, an artistic movement known for its celebration of machinery, could adequately illustrate the violence of the First World War.13 Nevinson’s The Roads of France (Figure 2) exemplifies the destructive force of new instruments of war. The series of panels shows a landscape mutilated over time by lines of trucks, railway construction and trenches.14 CWMF artists adopted modernism as a result of the war as well. For instance, future Canadian Group of Seven member Alexander Young Jackson expressed that “the impressionist technique that I had adopted in painting […] was now ineffective,” turning instead
Figure 2 The Roads of France Source: https://generalalliedimage.blogspot.com/ 2012_12_02_archive.html.
Jay Winter, “War, Migration, and Remembrance: Britain and Her Dominions,” in Remembering War, The Great War between Memory and History in the 20th Century (Yale University Press, 2006), 169–70, http://www.jstor.org.ezproxy.library.ubc.ca/stable/j.ctt1 npj6t.11. 11 Stéphane Audoin-Rouzeau, “Combat,” in A Companion to World War I, ed. John Horne (Oxford: Wiley-Blackwell, 2012), 184–85.
Ross King, Defiant Spirits: The Modernist Revolution of the Group of Seven (Kleinburg, Ont: McMichael Canadian Art Collection, 2010), 268–69; Tippett, Art at the Service of War, 31.; Tippett, Art at the Service of War, 31. 13 John Merriman and Jay Winter, eds., “Futurism,” in Europe Since 1914: Encyclopedia of the Age of War and Reconstruction, vol. 2 (Detroit: Charles Scribner’s Sons, 2006), 1155–58; Tippett, Art at the Service of War, 62. 14 Tippett, Art at the Service of War, 62.
to emulate the style of fellow CWMF artist Paul Nash, another one of Konody’s modernist additions.15 Following Nash’s bleak and eerie style, as Nash’s well-known Void (Figure 3) epitomizes, Jackson produced works featuring shell-ravaged
casualty lists, deepening hardships, and relentless anxiety.”16 Since modernist works undermined the
Figure 4 A Copse, Evening Source: Canadian War Museum Figure 3 Void Source: National Gallery of Canada landscapes like A Copse, Evening (Figure 4) and Gas Attack, Liévin (Figure 5). The CWME’s modernist works were therefore the products of artists seeking to adequately represent the prominence of technology and destruction on the battlefield. In this way, the CWME expressed the difficulty society faced in encountering and interpreting the new realities of modern warfare that the First World War presented. The treatment of CWME’s modernist works reveals how Canadians coped with the war. Given the First World War’s destruction and loss of life, Canadian society demanded an explanation for the war, or in other words, a sense of purpose that gave the war meaning. For most Canadians who could not understand modern warfare, Alan Bowker says that “the war settled into an endless stream of 15
Qtd. in Tippett, 59. Alan Bowker, A Time Such as There Never Was Before. (Dundurn, 2014), 21, 23, 27, http://www.totalboox.com/book/id5855748710582286577. 16
agency of individual soldiers in the face of technology’s overwhelming might and featured the brutal destruction of the First World War, they offered no comforting resolution to the Canadian quest for purpose. Thus, it is unsurprising that the public generally did not appreciate modernist works when viewing the CWME, with reactions ranging from lack of appreciation to harsh criticism.17 Vance explains that the public actually developed mechanisms to cope with modernist works, the most common way by constructing a “two-tier hierarchy of the CWMF.”18 Commentary on the CWME located modernist works on the lower tier, dismissing them as largely decorative with little informational value.Canadians could therefore focus their attention and praise on traditional works, whose depictions of orderly, organized activity implied that the war had a clear goal.19 The CWME hierarchy that Vance outlines did not only exist in the minds of audiences – it was expressed through 17
Tippett, Art at the Service of War, 80. Jonathan Franklin William Vance, Death so Noble: Memory, Meaning, and the First World War (Vancouver: University of British Columbia Press, 1997), 106. 19 Vance, 106–7. 18
the CWME’s physical structure as well. At the CWME’s London showing, works from modern artists like Nevinson were kept out of the spotlight of the central gallery and instead were allocated to another room.20 In sum, the preference for traditionalist works over modernist ones, reflected in the way people reacted to the CWME and in the hierarchy of the CWME, expressed the Canadian public’s determination to find meaning in the First World War. Canadians overlooked modernist works that evoked confusion in favour of traditionalist works that gave meaning to the sacrifices made in the First World War.
of Byam Shaw’s The Flag. Another facet of the Canadian experience of the First World War that the CWME presented was the attempt to understand the widespread loss and overwhelming use of technology that characterized the war. The CWME represented these efforts through its artists who embraced modernist styles to illustrate the new type of warfare that the First World War introduced. Modernist works in the CWME did not receive a warm welcome from the public, a reaction that reflected the public quest for an explanation for the war’s devastation. Modernist depictions of destruction and human helplessness in the face of technology only evoked more confusion about the war’s purpose, leading to their relative unpopularity and categorization as works less worthy of attention in the CWME’s structure. In these ways, the CWME was much more than a collection of artwork documenting Canada’s First World War experience; rather, it offered deep insight into perspectives and thoughts running through Canadian society during the First World War.
Figure 5 Gas Attack, Liévin Source: Canadian War Museum In conclusion, the CWME offered a look into the minds of Canadians during the First World War. In showcasing Canadian contributions to the war to audiences abroad and in Canada, the CWME represented and asserted the new Canadian nationalism that blossomed from Canada’s military contributions in the First World War. At the same time, this Canadian identity continued to suggest that Canadians existed under the British imperial framework, as indicated by the CWME’s focus on British artists and the popularity 20
Tippett, Art at the Service of War, 78.
Bibliography Audoin-Rouzeau, Stéphane. “Combat.” In A Companion to World War I, edited by John Horne, 171–87. Oxford: Wiley-Blackwell, 2012. Bowker, Alan. A Time Such as There Never Was Before. Dundurn, 2014. http://www.totalboox.com/book/id5855748710582286577. Brandon, Laura. Art or Memorial?: The Forgotten History of Canada’s War Art. Beyond Boundaries, no. 2. Calgary: University of Calgary Press, 2006. Byam Shaw, John. The Flag. 1918. Oil on canvas, 198 x 365.5 cm. Beaverbrook Collection of War Art, Canadian War Museum. http://www.archives.gov.on.ca/en/explore/onli ne/war_artists/big/big_19_flag.aspx. Iarocci, Andrew, and Jeff Keshen. A Nation in Conflict: Canada and the Two World Wars. Themes in Canadian History 12. Toronto ; Buffalo ; London: University of Toronto Press, 2015. Jackson, Alexander Young. A Copse, Evening. 1918. Oil on canvas, 86.9 x 112.2 cm. Beaverbrook Collection of War Art, Canadian War Museum. http://www.warmuseum.ca/firstworldwar/objec ts-and-photos/art-and-culture/official-art/acopse-evening/.
Nash, Paul. Void. 1918. Oil on canvas, 71.4 x 91.7cm. National Gallery of Canada. https://www.gallery.ca/collection/artwork/void0. Nevinson, Christopher R. W. The Roads of France. 1917. Colour lithograph. Private Collection. https://generalalliedimage.blogspot.com/2012_ 12_02_archive.html. Tippett, Maria. Art at the Service of War: Canada, Art, and the Great War. Toronto; Buffalo: University of Toronto Press, 1984. Vance, Jonathan Franklin William. A History of Canadian Culture. Don Mills: Oxford University Press, 2009. ———. Death so Noble: Memory, Meaning, and the First World War. Vancouver: University of British Columbia Press, 1997. Winter, Jay. “War, Migration, and Remembrance: Britain and Her Dominions.” In Remembering War, 154–80. The Great War between Memory and History in the 20th Century. Yale University Press, 2006.
———. Gas Attack, Liévin. 1918. Oil on canvas, 63.6 x 77 cm. Beaverbrook Collection of War Art, Canadian War Museum. http://www.warmuseum.ca/cwm/exhibitions/ca nvas/1/cwd222e.shtml. King, Ross. Defiant Spirits: The Modernist Revolution of the Group of Seven. Kleinburg, Ont: McMichael Canadian Art Collection, 2010. Merriman, John, and Jay Winter, eds. “Futurism.” In Europe Since 1914: Encyclopedia of the Age of War and Reconstruction, 2:1155–58. Detroit: Charles Scribner’s Sons, 2006. http://go.galegroup.com.ezproxy.library.ubc.ca/ ps/i.do?p=GVRL&sw=w&u=ubcolumbia&v=2.1& it=r&id=GALE%7CCX3447000374&sid=summon &asid=154ba9648977c922bc6b2d3257878102.
Deconstructing Canadian Arctic Sovereignty & Security BRADLEY FUNG ____________
Arctic territory has not historically held much value to the surrounding states, but within the last century, the perception of the Arctic has shifted and it is no longer merely “an ice-infested buffer to the outside world”.1 However, with “just slightly over 100,000 people” living in Canada’s Arctic, the emphasis placed upon it in Canadian foreign policy may appear unwarranted to the average citizen.2 Despite the general disconnect between the Arctic and Canadians, the Arctic has been endowed with a persona of its own that carries with it significant political power. I argue that Canada has taken a constructivist approach to both historical and contemporary Arctic security, embedding the importance of the sovereign Arctic in the Canadian identity narrative, and uniting Canadians to defend the potential of the Northwest Passage from other states. Canada is not alone in this constructivist approach to sovereignty and I will be using examples of how other states have used or abstained from this constructivist approach in their Arctic foreign policy. Often this ethos is used to show the international symbolic value of the Arctic by complimenting and supporting the prevailing interest of economic value. Before exploring the symbolic value of the Arctic to Canada, it must be acknowledged that the
1 Andrea Charron, “Canada, the Arctic, and NORAD: Status Quo or New Ball Game?” International Journal 70, no 2 (2015): 215-231. 2 Carolyn James and Patrick James, “Canada, the United States and Arctic Sovereignty: Architecture Without Building?” American Review of Canadian Studies 44, no 2 (2014): 187-204. 3 Marzia Scopelliti and Pérez, Elena Conde. “Defining Security in a Changing Arctic: Helping to Prevent an Arctic
value of the Arctic is not purely a product of symbolic and myth-building nature, and that the economic potential of this territory is quite significant. Scopelliti and Pérez estimate that the Arctic “holds approximately 90 billion barrels of oil” and “1,669 trillion cubic feet of natural gas,” which makes the sovereignty over these resources between neighbor states a topic of international interest.3 Canada specifically is ranked third globally in diamond production, with many mines operating across the Northern territories.4 Furthermore, many of these resource reserves are located offshore and under the sea floor. Each state has sovereign access to their own “Exclusive Economic Zones (EEZ) which extend 200 nautical miles from their coastlines,” but determining the exact jurisdiction and rightful ownership of these reserves has been at the minimum, an imprecise practice.5 This has not resulted in violent conflict, but as the value of the Arctic is revealed, an increase in disagreements between neighbor states is imminent. Lastly, the aspect of the Arctic that may hold the most economic potential for not just neighbor states, but a global audience is the Northwest Passage. The 1,500-kilometer-long stretch through the Canadian North is “the shortest trade route linking Asia, Europe and North
Security Dilemma,” The Polar Record 52, no 267 (2016): 672-279. 4 Geneviève Ruel, “The (Arctic) Show Must Go On,” International Journal 66, no 4 (2011): 825833. 5 Nils Wang, “Arctic Security: An Equation with Multiple Unknowns,” Journal of Military and Strategic Studies 15, no 2 (2013): 16-30.
America,” but has yet to be commercially used due to the difficulties of navigating through thick Arctic ice.6 I do not seek to disprove, nor ignore the economic value of the Arctic, but rather suggest that the economic benefits are selectively chosen to be used as supplementary power to prop up the role of the Arctic in Canadian sovereignty. “As in all fairy tales, Arctic rhetoric combines realistic and fantastic components,” combining realistic economic value with fantastic constructivist narratives result in a much more compelling story.7 This narrative will be unpacked alongside those from other states sharing interest in the Arctic to build a comprehensive view of how constructivist language has shaped the global perception of Canada’s North. An example of a constructivist approach to defend Canadian Arctic sovereignty was in response to a “short-lived diplomatic spat” in 2005 in which a Danish flag was placed on Hans Island.8 Hans Island is an uninhabited island between Ellesmere Island and Greenland, along the seaborder that separates Canadian and Danish territory and has been the subject of territorial disputes on several occasions. This was not a fullymobilized, nor aggressive attempt to claim Canadian territory, but the political significance of encroaching on the Arctic “brought out the competitiveness in Canada”.9 This was a moment that the Canadian government utilized to bring the Arctic to national attention and reframe an encroachment on merely the Arctic as an encroachment on Canada as a whole. This is largely due to the way the conflict was handled, as it was not initially settled through lengthy debate or
legislation but through a symbolic act of reestablishing sovereignty. To assert Canadian sovereignty the presiding Minister of Defense Bill Graham “personally took down the Danish flag,” and replaced it with the Canadian flag.10 This dispute later resulted in diplomatic discussion over state boundaries, but this initial act served several nation-building purposes. Publicizing the event makes the issue a national issue for all Canadians, involving the Arctic in general national defense. Transporting the Minister of Defense to the Arctic to replace the flag himself is a symbolic sign of state interest to protect the Arctic as well as furthering the view that the Arctic is an inseparable element of Canadian territory. Other states with invested interest in the Arctic are the United States of America, China and Russia, and all three states have utilized constructivist strategies in order to achieve their individual goals to some degree. For Canada, the value of the Arctic is inseparably tied to the United States of America, as this land holds importance for both states as a means of protection against attacks from over the Arctic Circle. The United States is undeniably a much larger international power than Canada and its “perspectives are tempered by this reality,” but that does not mean that the Arctic is irrelevant to American interests.11 Significant partnership between the two states began with programs of joint-military defense during the terms of Prime Minister King and President Roosevelt following World War II. Carving and redistribution of territory had just occurred on a global scale and this forced North American allies to take action to protect their own land. The majority of the territory and waters
Walter Berbick, Make the Arctic Great Again, CNN, December 22, 2016. 7 Ruel, The (Arctic) Show Must Go On. 8 Wang, Arctic Security: An Equation with Multiple Unknowns. 9 James, Canada, the United States and Arctic Sovereignty: Architecture Without Building?
Wang, Arctic Security: An Equation with Multiple Unknowns. 11 Whitney Lackenbauer and Rob Huebert, “Premier Partners: Canada, the United States and Arctic Security,” Canadian Foreign Policy Journal 20, no 3 (2014): 320-333.
itself remained under Canadian control, but cooperation with the United States led to three lines of radar being cooperatively built on Canadian soil. Despite this partnership, there were concerns that placing American funded security systems in Canadian territory would further escalate sentiments that Canada lived in the shadow of American values and interests. Tensions increased in 1969 when the American-manned S.S. Manhattan crossed the Northwest Passage with a symbolic single barrel of oil on board.12 The concern was that the United States had shown the world that the Northwest Passage was a viable trade route that could be commercialized and did not need Canadian consent to travel through. This resulted in Canada formally asserting control, and passing “anti-pollution legislation over the Arctic waters”.13 While this was unorthodox as a claim of sovereignty, this legislation placed the Canadian government in a caregiver, paternalistic position in regard to the Arctic. Maintaining sovereignty is the motivating force behind this legislation, and this began the trend of action in the Arctic being “driven mainly by the governing party’s desire to make political gains”.14 A relatively new development threatening Canada’s sovereignty in the Arctic is the emergence of China as a global power seeking to further grow its economic capabilities. China’s interest in the Arctic is purely economic and without any claims to individual sovereignty. However, the manner in which China is pursuing their economic interests still draws on constructivist strategies. For example, earlier this year China sent an icebreaker
through the Northwest Passage, and dropped off temporary research satellites along the way to gather information on the waterways.15 This was an act of self-interest to obtain key knowledge ahead of potential commercialization of the Northwest Passage, but China was careful to involve Canada in their exploration. Notably, China “hired a Canadian ice navigator, applied for permission to conduct research and invited Canadian scientists on board”.16 Hiring a Canadian navigator was an acknowledgement of respect that Canada may possess knowledge of this area that other states do not. Applying for permission to enter acknowledges that for at least the time being, the Northwest Passage is sovereign Canadian territory and entrance of the territory must be treated with the same formalities as any other area of Canada. Finally, inviting Canadian scientists to board the icebreaker changes the outward perception of leadership over the research. Instead of foreign Chinese researchers coming to study Canadian waterways for Chinese interests, it is reframed to be a joint-research project between China and Canada for potentially mutual gain. Using these constructivist strategies to frame this self-interested expedition is a way in which China is able to gain the trust of the Canadian state and be the first to use the Northwest Passage should commercialization occur. It also allows China to have a more intimate position with Canadian Arctic management, and may allow China to influence future Arctic policymaking for their own benefit. Another state actor influencing Canadian Arctic policy is Russia, and in this case economic
12 Jon Carlson et al., “Scramble for the Arctic: Layered Sovereignty, UNCLOS, and Competing Maritime Territorial Claims,” SAIS Review of International Affairs 33, no 2 (2013): 21-43. 13 Caitlin O’Leary, “The New Ice Age: The Dawn of Arctic Shipping and Canada’s Fight for Sovereignty Over the Northwest Passage,” University of Miami Inter-American Law Review 46, no 1 (2014): 117-134.
14 Mathieu Landriault, “Does Standing Up for Sovereignty Pay Off Politically? Arctic Military Announcements and Governing Party Support in Canada from 2006-2014,” International Journal 71, no 1 (2015): 41-61. 15 Michael Byers, “Northern Voyage Opens a New Channel in Diplomacy with China.” The Globe and Mail. Nov. 15, 2017. 16 Ibid.
and national sovereignty issues join together and come to a head. In 2007, Russia planted a Russian flag on the seafloor of the North Pole, and much like Denmark’s claim to Hans Island this was a symbolic assertion of territorial sovereignty.17 However, the realistic threat to Canada from Russian and Danish expansion are of varying degrees. The recent Russian aggression into Ukraine gives cause for concern that this flag-planting may hold more meaning than a symbolic act of claim to territory. Russia has shown that it will mobilize to physically claim territory from another state, and this has in turn forced Canada to take active steps to defend against Russian expansion. “Canada was the first state to introduce sanctions against Russia,” in response to Russia’s invasion of Ukraine, and this act also holds symbolic meaning for Arctic cooperation.18 Canada is the chair state of the Arctic Council, and therefore has set the precedent for methods of recourse that other member states could take. It is also an example of how a state’s foreign policy in one area of the world can have a direct impact on entirely separate inter-state relations, as Russian actions in Ukraine are affecting Russian-Canadian Arctic relations. A key role of the Arctic Council is to ensure that “the rights of sovereign states are respected,” and by displaying complete disregard for the rights of Ukraine, the neighbor states of the Arctic understandably may feel uneasy regarding the threat of Russian expansion.19 A symbolic replacing of the flag may not have the same degree of success of resolving international disagreements as it did in the dispute over Hans Island. Rather, Russia should be seen as a real threat to Canadian
security of the Arctic and makes the CanadaUnited States relationship all the more valuable to protect their mutual interests. The most recent developments from all of these states largely pertain to the shifting seascape and the potential for new trade routes to open due to the effects of global warming. Changing ice levels within the Arctic are spurring a fight over waterways as the stakes and interest for global transportation routes extend further than just neighbor states. This brings forth the issue of territorial sovereignty and how states defend their claim to whom has the rightful claim to the Northwest Passage through the Arctic. Japan, Russia, China and the United States have all asserted that the Northwest Passage is “international water,” and that all states should be able to operate uninhibited in this territory.20 Notably the United States, “Canada’s biggest challenger to the Northwest Passage, is not a part of UNCLOS,” the United Nations Conventions of the Law and Sea.21 UNCLOS is the internationally recognized agreement to standardize the world’s waterways and prevent such discrepancies over territory. The main two agreements of UNCLOS are search and rescue protocol and protection of the environment, both of which “relate back to common vulnerabilities” between all neighbor states.22 These agreements are symbolic of the common goal of Arctic security, but also undermine the concept of individual Canadian sovereignty over the Arctic. Abstaining from this agreement is also a contradictory decision by the United States as it continues to jointly-defend the territory with Canada, but with independent interest in mind.
Scopelliti, Defining Security in a Changing Arctic: Helping to Prevent an Arctic Security Dilemma. 18 Ibid. 19 Ibid. 20 O’Leary, The New Ice Age: The Dawn of Arctic Shipping and Canada’s Fight for Sovereignty Over the Northwest Passage.
Ibid. Sten Rynning, “Arctic Security Order: Collective Security, Collective Defense, or Something New?” Journal of Military and Strategic Studies 15, no 2 (2013): 1-15.
For Canadian politicians, the power the Arctic holds lies in its ability to galvanize Canadians over a part of Canada often perceived as forgotten but still inseparable and integral to national identity. This power is often deployed pragmatically to either raise attention towards current political work or divert attention from political miscues. Landriault argues that “periodic amnesia is a fundamental characteristic of how most Canadians relate to their northern territory;” the subject of the Arctic is a manipulative tool for politicians to wield and rouse attention over nationalism.23 For example, during his term, Prime Minister Harper used the Arctic as “the main theatre,” for military, environmental, scientific and social announcements regarding development in the territory.24 Performing these announcements against the backdrop of diminishing glaciers sends a clear visual reminder to Canadians who may question spending tax dollars in such an uninhabited area. The vast majority will never visit this territory themselves, but public displays of national interest puts a face and emotional attachment to the legislative changes being made. Canada also continues to make military deployments to the Arctic in an effort to keep the memory of the Arctic from fading or from becoming “something almost purely symbolic”.25 Activating the human element also serves to shift the narrative from a stockpile of natural resources to the front line of defense and the homes of fellow Canadians. Furthermore, given the remoteness of the Arctic, the media plays a large role in what the average Canadian learns about it. They use the Arctic judiciously and, “periodically put northern issues front and centre,” to avoid normalizing the exotic
novelty of the Arctic.26 By staging these large-scale announcements and military deployments, the government is able to generate media interest in the Arctic which in turn translates into public interest as well. In terms of garnering support for the sovereignty of the Northwest Passage, the potential gain of this channel has been circulated throughout the popular news media to effectively entrench the norm that this channel is indisputably Canadian territory. Traditionally, “strong rhetoric on Canadian Arctic sovereignty is more of a campaign strategy,” than tangible concerns for security and defense, but recently this rhetoric has risen to be a current issue in Canadian politics as other state leaders begin to eye Arctic waterways.27 Other states have not conducted this mass norm-building over the Northwest Territory and this is reflected in the global general knowledge about this area. Penikett states that “74 per cent of Canadians living in the provinces,” argued that the Northwest Passage is within Canadian boundaries, and in the Territories this figure rose to seventy-eight per cent.28 Conversely, the poll results from states that have had territorial disputes with Canada over the Arctic such as the United States, Russia, and Denmark are much lower. In fact, the majority of all other participants answered that they were unsure about who has rightful claim to the Arctic. Canada has taken a much more active role in myth-building concerning the Northwest Passage.29 This allows Canada to devote a larger portion of funding towards Arctic security and sovereignty, while maintaining positive feedback from its citizens when compared to other states.
Landriault, Public Opinion on Canadian Arctic Sovereignty and Security. 24 Ibid. 25 James, Canada, the United States and Arctic Sovereignty: Architecture Without Building? 26 Ruel, The (Arctic) Show Must Go On.
Kathrin Keil, “The Arctic: A New Region of Conflict? The Case for Oil and Gas,” Cooperation and Conflict 49, no 2 (2013): 162-190. 28 Tony Penikett, “Arctic Security Means More than Arctic Sovereignty,” The Globe and Mail, January 16, 2011. 29 Penikett, Arctic Security Means More than Arctic Sovereignty.
Turning the Arctic into a national stage for politicians to perform on also distracts Canadians from the real issues faced by the individuals who live in the Arctic. Historically the indigenous communities of the Arctic have had very little autonomy in the state’s actions in the territory and have often been deprived of basic Canadian benefits. These communities whom inhabit these areas face extraordinarily high levels of poverty, and where the changing landscape offers economic opportunity for the state, it is fundamentally changing their traditional way of life.30 The Canadian state has historically paid minimal attention to the well-being of these peoples, finding them more useful as decorative pieces of the Arctic landscape as opposed to equal Canadian citizens. This severely undermines the notion of national Arctic sovereignty as the state has not included the indigenous communities of the Arctic as part of the greater Canadian populace. It would be ludicrous to consider Torontonians without clean drinking water, or Vancouverites with extraordinarily low rates of education, and if this territory is indeed Canadian territory, the peoples within must be treated with equal care by the state.31 Now that the Arctic has revealed its immense economic value, the state has shifted its view of indigenous people to be very useful participants in the effort for sovereignty claims. In the “scramble for territory of natural resources,” the state now recognizes the historical claim of the indigenous peoples to the Arctic.32 This interest is twofold, as First Nations groups have experienced shifting views towards industrialization in the Arctic as a means to reduce unemployment rates and stimulate the Northern economy. Having the indigenous communities’ support is vital for Arctic development as the state
is able to portray this relationship as a partnership and not a paternalistic overstep of their traditional territory. By recognizing the indigenous title to the land, this licenses the Canadian state to have title to this land as well. Canadian sovereignty in the Arctic is driven by a constructivist agenda designed to manipulate how Canadians are to perceive and relate to the area. As it is highly likely that the average Canadian will not physically engage with the Arctic, the government has had to construct other ways to perpetuate a “strong rhetoric on Canadian Arctic sovereignty”.33 The Arctic narrative is still a useful tool for politicians today to explain diverting funds to develop and protect an area so far from home for most Canadians. Abroad, Denmark and Russia have made symbolic claims to this territory but threaten to mobilize into physical land-seizures. Elsewhere the United States of America and China put further pressure on Canadian authorities to protect the Northwest Passage from international exploitation. The inherent value of the Arctic is slowly being revealed as pathways in the ice become clear and natural resources are made more readily available. Canadian foreign policy will continue to include the Arctic as a major aspect, but how politicians manipulate the “Arctic effect” on voters is yet to be seen.
Kamrul Hossain et al., “Constructing Arctic Security: an Inter-Disciplinary Approach to Understanding Security in the Barents Region,” Polar Record 53, no 1 (2017): 52-66. 31 Penikett, Arctic Security Means More Than Arctic Sovereignty.
Scopelliti, Defining Security in a Changing Arctic: Helping to Prevent an Arctic Security Dilemma. 33 Keil, The Arctic: A New Region of Conflict? The Case for Oil and Gas.
Bibliography Berbick, W. (2016, Dec. 22). Make the Arctic great again. CNN. Retrieved from http://www.cnn.com/2016/12/22/opinions/mak e-arctic-great-again-berbrick/index.html Byers, M. (2017, Nov.15). Northern voyage opens a new channel in diplomacy with China. The Globe and Mail. Retrieved from https://www.theglobeandmail.com/opinion/nor thern-voyage-opens-a-new-channel-indiplomacy-with-china/article36988971/ Carlson, J., Hubach, C., Long, J., Minteer, K., & Young, S. (2013). Scramble for the Arctic: Layered Sovereignty, UNCLOS, and Competing Maritime Territorial Claims. SAIS Review of International Affairs, 33(2), 21-43. Charron, A. (2015). Canada, the Arctic, and NORAD: Status quo or new ball game? International Journal, 70(2), 215-231. Hossain, K., Zojer, G., Greaves, W., & Roncero, J. (2017). Constructing Arctic security: an inter-disciplinary approach to understanding security in the Barents region. Polar Record, 53(1), 52-66. James, C. & James, P. (2014). Canada, the United States and Arctic Sovereignty: Architecture Without Building? American Review of Canadian Studies, 44(2), 187-204. Keil, K. (2013). The Arctic: A new region of conflict? The case for oil and gas. Cooperation and Conflict, 49(2), 162-190. http://journals.sagepub.com.ezproxy.library.ubc .ca/doi/pdf/10.1177/0010836713482555.
Landriault, M. (2015). Does standing up for sovereignty pay off politically? Arctic military announcements and governing party support in Canada from 2006-2014. International Journal, 71(1), 41-61. . O’Leary, C. (2014). The New Ice Age: The Dawn of Arctic Shipping and Canada’s Fight for Sovereignty Over the Northwest Passage. University of Miami Inter-American Law Review, 46(1), 117134. Penikett, T. (2011, Jan. 16). Arctic security means more than Arctic sovereignty. The Globe and Mail. Retrieved from https://www.theglobeandmail.com/opinion/arc tic-security-means-more-than-arcticsovereignty/article563433/ Ruel, G. (2011). The (Arctic) show must go on. International Journal,66(4), 825-833. https://doi.org/10.1177/002070201106600411. Rynning, S. (2013). Arctic Security Order: Collective Security, Collective Defense, or Something New? Journal of Military and Strategic Studies, 15 (2), 1-15. Scopelliti, M. & Pérez, E. (2016). Defining security in a changing Arctic: helping to prevent an Arctic security dilemma. The Polar Record, 52(267), 672-279. Wang, N. (2013). Arctic Security: An Equation with Multiple Unknowns. Journal of Military and Strategic Studies, 15(2), 16-30.
Lackenbauer, W. & Huebert, R. (2014). Premier Partners: Canada, the United States and Arctic Security. Canadian Foreign Policy Journal, 20(3), 320-333. http://dx.doi.org/10.1080/11926422.2014.9773 13. Landriault, M. (2016). Public Opinion on Canadian Arctic Sovereignty and Security. The Arctic Institute of North America, 69(2), 160-168.
The Changing Landscape: The Development of Aboriginal Rights and Title as it Affects Canadian Federalism JACOB FISHER-SCHMIDT ____________ At a recent rally against the Kinder Morgan pipeline expansion at Burnaby Mountain, VicePresident of the British Columbia Coalition of Indian Chiefs, Bob Chamberlin (Kwikwasut’inuxw Haxwa’mis First Nation) spoke of the interconnectedness of direct- and legal-actions, and the importance of multifaceted and coordinated strategies for reconciliation: “So when we consider the Tsilhqot’in decision, which recognized Aboriginal Title, we consider numerous other court rulings that gave direction to the government for reconciliation with underlying Aboriginal Titles in Canada. They have given a path of reconciliation. And this is reconciliation in action.”1 Aboriginal Rights and Title are increasingly impacting Canadian governance, and supporting grounds for Indigenous resurgence. The Lax Kw’alaams First Nation declared sovereignty over 80,000km2 in September 2014.2 Half a year later, the Atikamekw First Nation rejected a 1 billion-dollar deal over gas extraction on their traditional territory.3 The Idle No More movement has resonated worldwide reflecting Indigenous youth’s frustrations on the slow pace of reform. of
The Canadian legal system is a central tool the settler colonial project’s ongoing
Bob Chamberlin speaking at April 7, 2018 anti-Kinder Morgan rally, Burnaby Mountain, Tsleil-Waututh territory. Emphasis in original. 2 M, Papillon, and A, Juneau, The State of the Federation 2013. 2015.
dispossession of Indigenous people from their land. Since 1982, some Indigenous Canadians Indigenous communities have confronted the colonial nation state through Canada’s own legal system by demanding the recognition of Indigenous rights and frameworks for reconciliation. This offers opportunities for a new era of nation-tonation dialogue, and an attempt at repurposing the legal framework of the Canadian state through the expression of Aboriginal Right and Title. Inuit, First Nations, and Métis peoples have suffered loss of land, culture, sovereignty, legal and political influence reflected in the contemporary persistence of inequitable social and economic conditions. The intensifying Indigenous activism of the 1960s and 70s laid the groundwork for Indigenous empowerment through Canadian law. This movement of emancipation asserted itself into the constitutional moment that is the Constitution Act 4 of 1982: Aboriginal rights were constitutionally entrenched into Section 35 of said act. The Constitution Act is referred to as the “patriation” of the Canadian constitution. Concretely, it amassed the unwritten Constitution into a consolidated document, and transported it from the British to the Canadian Parliament. Legally, it proclaimed a new Canadian Charter of Rights and Freedoms, established a cohesive and more transparent body of text for addressing questions of constitutionality, and explicitly recognized “Aboriginal” and treaty 3
Ibid. Constitution Act 1982, A Consolidation of The Constitution Acts 1867 to 1982. Department of Justice Canada.
rights in its 35th Section. This paper will establish how this patriation created a constitutional basis for Indigenous self-government, bringing the discourse of reconciliation into the jurisprudence of the Supreme Court of Canada. Canada’s constitutional entrenchment of Aboriginal Rights and Title has (I) led to a shift in conception of sovereignty with regard to inherent right and has (II) impacted the balance of powers within Canada’s federalist framework, incorporating elements of multi-layered governance (MLG). The first part of this paper addresses the revolution of Article 35, discussing how a jurisprudential interpretation of the inherent right (of self-government) has shifted conceptions of sovereignty, albeit upholding the doctrine of Sovereign Incompatibility, and purports the application of now-constitutional Aboriginal Rights. The second part analyzes how these applied rights are reflected in the creation of government institutions defining “Aboriginal self-government,” and how these have impacted the nature of Canadian federalism through an analysis of MLG. It is important to state the evolutionary nature of legislation and interpretations of Indigenous Law in the Canadian context. Facing this constant state of change, readers should understand the non-finality of Indigenous legal developments, which represent an attempt at a process of reconciliation. I would like to interrupt the authority of the Crown and its Court: its particular understandings of Indigenous self-determination, and the legitimacy of its authority on these legal questions of self-determination. I want to recognize my author-ity as a white settler and visitor on unceded and stolen Musqueam, Tsleil-Waututh and Squamish territories, and acknowledge that my analyses are informed by settler colonialism, and represent a singular perspective on an ongoing evolution of Indigenous Right and Title within
Canadian law, and its impact on Canada’s federal structure. Terminology of “Aboriginal” is used as a legal signifier in this essay, referring to the language of legal texts. When referring to First Peoples themselves, “Indigenous” will be used. CONSEQUENCES OF THE INHERENT RIGHT: SHIFTING CONCEPTIONS OF SOVEREIGNTY Fundamental questions of sovereignty, wherein it lies and how it is therefore understood as expressed and flowing from, have emerged from the constitutional entrenchment of Aboriginal rights into Canada’s constitution. Though contested throughout Canada’s colonial history, from a legal perspective, these questions of sovereignty have, since 1982, reached the country’s highest courts. Section 35 of the Constitution Act recognizes the inherent right of self-government as an existing Aboriginal right. The amended constitution has brought forward arguments regarding the sovereign incompatibility between Indigenous people and the Crown, a relationship which has been subjected to ongoing interpretation by the Supreme Court of Canada. This case law will be examined hereafter.5 Reconciling the Incompatibility
The fundamental legal question posed in debates over Aboriginal rights is a question of sovereignty. The sovereignty of the Crown and of Indigenous peoples are the dual forces at play when interpreting the writ of the Section 35. This interplay has deep historical roots in the Canadian tradition and has been damaging to Indigenous societies. The reconciliation of Indigenous sovereignty must be concretely applied through
For a brief overview of Aboriginal Rights, Title and related case law, see UBC Indigenous Foundations.
establishment of law recognizing First Nations, Métis and Inuit rights. The wording of Section 35 (1), “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” has resulted in a proliferation of jurisprudence with regards to what constitutes “existing aboriginal and treaty rights,” and what their recognition and affirmation entail. A discussion of the case law that ties Section 35 to the notion of “internal sovereignty” and subsequent inherent right will follow. Historically, Crown authorities have engaged in treaties with Indigenous peoples, and for over a century the Crown had claimed to extinguish any form of Indigenous sovereignty. The Indian Act placed all Aboriginal Title holders as vassals of the state. 6 Section 35 grants legal importance to treaty documents, legally validating Indigenous perspectives while denying any full transfer of competence to the Crown. The patriated constitution opened a debate on the ambiguities of Indigenous sovereignty, particularly with respect to its application and interaction with now-assumed Crown sovereignty.
paper: self-government, existing within and under the sovereignty of a larger political body, is examined. This focused examination is not intended to discredit the important activism on this front; rather, this essay will endeavor to express the potentialities and limitations to debates around reconciling sovereign incompatibility with Aboriginal Rights and Title. Canadian Supreme Court jurisprudence continues to operate under this doctrine of sovereign incompatibility, although imagining it in a more narrowed scope than before Calder,8 to be “applied with caution.” 9 However, as discussed in Mitchell, the court maintains that Crown sovereignty has, in its inherent characteristics, a monopoly over certain areas of sovereign rule. In these areas, the Crown asserts exclusive command: any expression of Indigenous sovereignty in those areas would be incompatible with (a preceding) Crown sovereignty. As such, the doctrine of sovereign incompatibility is the primary concept that limits Indigenous self-determination to self-governance (and inherent right as relegated to internal matters).10 This dogma of legal centralism, namely the doctrine of Sovereign Incompatibility, is a point of contention within debates on the acknowledgement of Indigenous sovereignty and the implication of full sovereignty and self-determination.11 12
The modern nation-state doctrine of indivisible sovereignty has begun to take into account the principle of self-determination as is stated in international law. However, the historical assertion of Crown sovereignty continues to deny Indigenous peoples’ right to self-determination despite its recognition by the international community.7 This concept of self-determination in the international domain will not be analyzed in this
As has been stated, sovereign incompatibility limits the scope of Indigenous claims of sovereignty to matters of internal governance,
The Indian Act. R.S.C. 1895, c. 1-5. 7 United Nations Declaration on the Granting of Independence to Colonial Countries and People, 1960. International Covenant on Civil and Political Rights, 1966. International Covenant on Economic, Social and Cultural Rights, 1966. United Nations Declaration on the Rights of Indigenous Peoples, 2006.
Calder et. al. v. Attorney-General of British Columbia,  S.C.R. 313.
Mitchell v. M. N. R,  1 S.C.R. 911. para. 151. Mitchell v. M. N. R,  1 S.C.R. 911. para. 153. 11 Defenders of the Land. 12 A. Manuel, N. Klein, and R.M. Derrickson, Unsettling Canada: A National Wake-up Call, (Toronto: Between the Lines, 2015), 176. 10
setting a restrictive scope that effectively centers self-government, not self-determination. This legal doctrine limits expression of Section 35 to Indigenous peoples’ control of “internal” aspects of their collective lives.13 As such, in analyzing Supreme Court jurisprudence, the legal notion of “internal” is where interpretation becomes most influential. Indigenous nations have pushed to have “internal” refer to all matters of governance essential to the preservation of identity and autonomy. Section 35 is the source under scrutiny when determining the application of “internal sovereignty,” a diminished form of sovereignty remaining with Indigenous nations after the imposition of Crown sovereignty. This approach should not be understood as a pre-supposed extinguishment of Indigenous sovereignty; it represents an attempt to work within the jurisprudence of Canadian courts and the confines of their traditional legal conceptions of sovereign incompatibility, in which certain aspects of sovereignty are unquestionably monopolized by Crown authorities. “Internal sovereignty” is referred to by legal scholars as the inherent right of Aboriginal peoples. The inherent right has begun to take legal force since its entrenchment in the Canadian constitution and subsequent jurisprudence. Section 35 states that the inherent right to self-government may find expression in treaties, both historical and modern. 14 Negotiation has been stated as a priority over litigation.15 Supreme Court jurisprudence has been clear on the point of sovereign incompatibility: stating that inherent right does not mean the right of sovereignty, it should instead enhance the participation of Aboriginal people in the Canadian federation.16 However, it is important to note that
Publications of the Government of Canada, Report of the Royal Commission on Aboriginal Peoples, (1996). 14 Section 35, Constitution Act, 1982. 15 The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation
Section 35 exists in Part II of the 1982 Constitution Act. Part I of the Canadian Charter of Rights and Freedoms contains a provision (Section 25) that its text is to be interpreted in a manner that respects Aboriginal and treaty rights. Therefore, Part I, in its statement of individual rights and freedoms, is subordinate to Part II on Aboriginal collective rights. This legal hierarchy is further pronounced by the ability of emergency powers to limit the individual rights in Part I, but no such clause might limit the expression of Aboriginal collective rights of Part II. 17 Scholars have outlined legal and procedural pathways for the expression of inherent right. Its developmental nature resulted from the sudden de jure constitutional expression of the legal principle that proceeds the de facto realization of those rights. Judicial developments and activism have, therefore, played an important role in the application of the constitutional text after-the-fact. These developments within the case law are hereafter examined. Ongoing establishment of Aboriginal rights in Supreme Court jurisprudence
The coming-into-force of the Constitutional Act of 1982 began a legal revolution in Canada. Overnight, a legal provision calling for a novel relationship between the central government and Indigenous peoples began the ongoing process for developing legal grounds for this new relationship to function. The process has been inferred teleologically; the purpose being a consultation process where Indigenous governance reflects the diverse choices, values and vision for affirming
of Aboriginal Self-Government, prepared by Indigenous and Northern Affairs Canada. 16 G. Christie, “Aboriginal Nationhood and the Inherent Right to Self-Government,” National Centre for First Nations Governance (May 2007). 17 Emergencies Act, R.S.C. 1985, c 22.
authenticity and workability of results.18 The previous legal framework in place had not fulfilled, nor even articulated these aims. A changed relationship became the mandate of the constitutional status of Section 35. The colonial aspects of the Canadian relationship with the Indigenous peoples are largely represented into the unilaterally proclaimed Indian Act, whose original text dates from 1876. This Crown legislation, imposed on Indigenous people, claims to be a response to the historical treaties with Indigenous peoples. The Indian Act unilaterally dictates many aspects of Indigenous peoples’ lives, from education to health to reservation law. First Nations, Métis and Inuit peoples have struggled to maintain autonomy against this imposition of Crown sovereignty. The impact of it has been a complete disenfranchisement of autonomy; Indigenous peoples have been victims to the complete legal subjugation to Crown sovereignty, as enforced by State-sponsored force.19 Moving towards reconciliation and social rehabilitation implies a change to the government’s unilateral approach to Indigenous peoples. Therein lies the purpose of Section 35 of the 1982 Constitution Act: to revise the historical relationship and to set a path, though constitutional writ, towards an equitable and renewed relationship based on the recognition and affirmation of existing Aboriginal and treaty rights at the constitutional level.20 The legacy of the Indian Act should not be understated: it has resulted in the removal of over 150,000 Aboriginal youth from their families and physically, emotionally, psychologically and sexually abused through the residential schools program. To this day the exact number of deaths is unknown, and the genocidal nature of the
Implementation of Inherent Right, Indigenous and Northern Affairs. 19 The Indian Act. R.S.C. 1895, c. 1-5. 20 Implementation of the Inherent Right, Indigenous and Northern Affairs.
Act remains contested.21 The Indian Act remains in force to this day, excepting regions where modern treaties revoke its application with respect to specific Indigenous nations. The actions of the Canadian government and its institutions have not, however, changed significantly despite the new basic law in place. This incongruence has been challenged, throughout the 1990s, delivering legal decisions outlining legal principles informative of what the legal duty to consult and accommodate Indigenous peoples consists of. The first Supreme Court decision to apply Section 35 was R. v. Sparrow in 1990. This case laid the framework of holding the Crown legally accountable to Indigenous people. Limits to the exercise of Crown legislative power began tentatively: the Crown was required to establish both a valid legislative objective and government action consistent with an “allocation of priority”22 to Indigenous peoples. This priority will be contentious and its definition will change through the case law, but has been interpreted as the prioritized yet nonexclusive access to resources, limiting Crown regulation on the use of the resource in question. The principle of compensation further developed in Delgamuukw v. British Columbia (1997) outlined the unconstitutionality of government action where the infringement of Aboriginal rights is not minimized in reaching the stated legislative objective, and fair compensation being unfulfilled. 23 24 Another innovation in Sparrow was the explicit statement that self-government rights, derived from Section 35, are to be recognized as inherent, emanating from the pre-existence in Canada of “organized Aboriginal societies.” 25 21
Truth and Reconciliation Commission of Canada, Calls to Action (2012). 22 R. v. Sparrow,  1 S.C.R. 1075. 23 Delgamuukw v. British Columbia,  3 S.C.R. 1010. 24 Christie, Aboriginal Nationhood. 25 R. v. Sparrow,  1 S.C.R. 1075.
Outlining the source of this Inherent Right to selfgovernment will impact the understanding of how the concept should be applied judicially and how it has been understood to imply notions of “internal sovereignty,” as stemming from inherent right. The R. v. Van der Peet (1996) decision established an “integral to the distinctive culture” test, held in R. v. Pamajewon26 (1996) to apply to all claims for self-government made directly under Section 35. This landmark test demands that Indigenous nations establish (1) the specific action’s nature relating to an Aboriginal right and (2) the tradition establishing the right. In Van der Peet, the Court demanded that the Indigenous party’s claim be narrowed from “a broad right to manage the use of the reserve lands” to “the right to regulate high stakes gambling.” The application of this “integral to the distinctive culture” test, then, will diffract self-government claims to compartmentalized issue-specific increments. This approach has been criticized as heavily burdening Indigenous nations with claiming each right individually as a result of the narrow ad hoc process dictated by the Supreme Court. The Court also stated, conversely, that “where there is doubt or ambiguity with regards to […] the scope and definition of s. 35 (1), such doubt or ambiguity must be resolved in the favour of aboriginal peoples.”27 28 Distinct from inherent right claims to selfgovernment, yet closely linked in its expression, is the historical understanding of Aboriginal Title. With its basis in historical treaties of the 18th century,
R. v. Pamajewon,  2 S.C.R. 821. R. v. Van der Peet,  2 R.C.S. 507. 28 Christie, Aboriginal Nationhood. 29 R. v. Guerin,  2 S.C.R. 335. 30 Royal Proclamation of 1763 31 Erin Hanson, “Aboriginal Title,” Indigenous Foundations UBC. 2009, http://indigenousfoundations.arts.ubc.ca/aboriginal_title /. 27
Aboriginal Title has undergone many legal prognoses; it was considered extinguished in its entirety until 1984.29 Title can be linked to sovereignty, as Aboriginal Title has been recognized as a collective right to jurisdiction over a group’s traditional territory. This entitlement has been understood as to be extinguished by the Crown through treaty agreements.30 Historical treaties were interpreted in this colonial way until R. v. Guerin (1984), where it was declared a sui generis and legally relevant right, as a result of Indigenous peoples’ own society and relationship with the land; Aboriginal Title is held collectively by a nation. 31 In Delgamuukw v. British Columbia (1997) the Court further developed the notion of Title as an Aboriginal right relating directly to land, linking it to the concept of jurisdictional authority stemming from cultural relationship to the land. Accordingly, the Court developed a test to establish the existence of Aboriginal Title, with the direct implication of “exclusive use”, the “right to choose” and outlining an “inescapable economic component.”32 The Court ruled that the Crown holds underlying Title to Canadian territory, yet Aboriginal Title represents an overlapping burden to this Crown Title. Despite these developments, the concept of “extinguishment” of Aboriginal Title is still prevalent today, especially in provincial perspectives. The terminology of “extinguishment” has largely been replaced by a guise of “certainty.”33 34
Delgamuukw v. British Columbia,  3 S.C.R. 1010. Manuel, Klein, and Derrickson, Unsettling Canada, 19. “‘Extinguishment’ was replaced by ‘certainty.’ The results would be exactly the same.” 34 For a more in-depth discussion on ‘extinguishment’ as it relates to international law see United Nations Permanent Forum on Indigenous Issues, 11th Session, New York, May 7-18, 2012 (especially item 3). 33
The Crown’s fiduciary duty towards Indigenous peoples did not apply to unproven Aboriginal Title or rights prior to the Haida35 case, where the principles of priority and minimization of impact outlined in Sparrow were continued. Haida represents an important change the Supreme Court’s position, shifting to an imposition of proactive obligations on the Crown to accommodate Indigenous concerns, even to legally unproven Aboriginal Title or rights. The burden of proof begins to shift to a more balanced position between parties (the Crown and Indigenous peoples).36 Tsilhqot’in Nation v. British Columbia (2014) is the first judicial case to pronounce the existence of Aboriginal Title over a claims area37. Though the judge indicated that it did not have the power to explicitly grant Aboriginal Title, it reasoned that the province, in imposing its Forest Act, lacked the power to legislate over Title lands in this instance. The passage of the legislation was found to be legal, but its implementation infringed on Aboriginal Title. Referring to Delgamuukw, the Court ruled that the Forest Act constituted an unreasonable and unjustified limitation on Aboriginal Title. Significantly, the court struck down Crown legislation where the Title is currently legally unproven, or in the claims process, based on the exclusive and non-justified nature of the decision process. 38 Based on this reasoning, this Court decision placed legal weight on Aboriginal Title claimants, imposing positive obligations on the Crown for determining both the Right and Title at stake and the impact of legislation on them. Tsilhqot’in reads: “[Aboriginal Title] gives [Indigenous nations] the right to determine […] the uses to which the land is put and to enjoy its economic fruits. As we have seen, this is not merely
Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511. 36 M. Morellato, The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights, 2008.
a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land.”39 Title, therefore, does not simply limit Crown legislation, it provides a venue through which Indigenous selfgovernance might find its legal source. The Case Law expressing the development of the inherent right and the Aboriginal Title rights came about through Section 35 of the Constitution Act of 1982. It has been repeatedly referenced in courtrooms that Indigenous sovereignty (albeit limited and subject to an overarching Crown sovereignty) is ultimately sourced from the preexistence of organized Indigenous societies on what is now considered to be Canadian territory. The jurisprudence analyzed provides a legal framework through which deeply rooted sovereignty might be expressed and translated into concrete self-government, land claims powers and Indigenous autonomy within Canada’s nation-state legal fabric. These legal developments have resonated within the Canadian institutional structures, limiting Crown imposition with regards to Indigenous peoples, and shifting the balance of powers in our federal system. THE BALANCE OF POWERS: ADDING ‘ABORIGINAL’ COMPETENCIES AMIDST THE FEDERAL AND PROVINCIAL The judicial debates regarding the interpretation of Canada’s constitution have impacted the country’s political institutions. Supreme Court decisions have been applied to the Indigenous communities directly involved, as well as created a line of precedents expanding Aboriginal rights throughout the country. Indigenous 37
Tsilhqot’in Nation v. British Columbia,  2 S.C.R. 256. 38 Morellato, Constitutional Duty. 39 Tsilhqot’in Nation v. British Columbia,  2 S.C.R. 256. para 94.
self-government has emerged in Canada’s institutional fabric, impacting the jurisdictional contours of traditional bodies. As a result, Canada has seen a de facto transformation of its governmental system, incorporating elements of multi-layered governance (MLG). Defining ‘Aboriginal self-government’ within a Canadian federalism
Scholars, in light of the jurisprudence since the 1982 Constitution Act, have outlined three approaches in establishing self-government.40 These approaches are, however, largely litigationbased, and prove to be a costly process for all parties involved. Alternatively, negotiating tables are in place with the aim of facilitating meetings between Indigenous nations and the Federal and Provincial governments outside of the courtroom, with financial burdens often shouldered entirely by Indigenous communities.41. The three approaches standing, in light of the previously examined jurisprudence, are as follows: the Van der Peet test approach, the Title approach and the residual sovereignty approach.42 Rights claims stemming directly from Section 35 are subject to the “integral to the distinctive culture test.” The second approach requires the establishment of Aboriginal Title, the process of which is outlined in the Deglamuukw case, hinging greatly on the means of proving that the nation in question exclusively occupied the territory before the Crown asserted sovereignty. Supplementary jurisdictional rights, beyond land use, are engaged in through the first approach. In both of these options, the burden of proof lies overwhelmingly
K. McNeil, The Jurisdiction of Inherent Right Aboriginal Governments. 2007. 41 Manuel, Klein, and Derrickson, Unsettling Canada, 196. 42 McNeil, Inherent Right Aboriginal Governments.
with the Indigenous nation. The third approach to Indigenous jurisdiction would be applied wherever jurisdiction has not been lost to Crown governments (whether through Sovereign Incompatibility, extinguishment or justifiable infringement). This third approach has not been the principal direction in which Courts have ruled; it would place the burden of proof on the Crown governments instead. In cases such as Tsilhqot’in, unproven or potential claims are given legal value; this has consisted of the closest decision to the third approach, yet it still lacks the imposition of legal tests for Crown claims of sovereignty. There have been twenty-two modern selfgovernment agreements implicating thirty-six Indigenous communities signed to date,43 the first being the Nisga’a Final Agreement coming into force in 2001. 44 There exist another eighteen comprehensive land claims agreements. These modern treaties emerge from uncertainty or dispute surrounding historical counterparts, often replacing historic treaties and including provisions relating to self-government or enabling their future negotiation. 45 Further, ninety additional self-government negotiation tables have been established to allow for a multi-lateral exchange between Indigenous and Crown representatives.46 Despite the many structural disadvantages, the leverage gained by Indigenous peoples through Supreme Court jurisprudence since the Constitution Act has contributed to recent negotiations and occasionally their conclusion. The Nisga’a Tribal Council (NTC) began tripartite negotiations with Federal and Provincial governments, establishing a Framework 43
Fact Sheet: Aboriginal Self-Government. Indigenous and Northern Affairs Canada. 44 Nisga’a Final Agreement. 45 Comprehensive Land Claim Agreements (CLCAs). Indigenous and Northern Affairs Canada. 46 Fact Sheet: Aboriginal Self-Government.
Agreement (FA) between the three parties in 1991. Today, the British Columbia Treaty Commission (BCTC) operates building on the framework established with the Nisga’a FA. A preliminary Agreement-in-Principle was established and signed in 1996, providing an initial transfer of jurisdiction to the NTC with a mandate to negotiate a Final Agreement. 47 The FA reads like a constitution, including a preamble and twenty-one chapters regarding the various jurisdictions of the Nisga’a Aboriginal government. As a result, the Nisga’a Nation has established a government with a competence (full or partial) in areas of resource management, taxation, social programming, education, infrastructure, and environmental protection. Further, it establishes the basis for a Nisga’a constitution48 requiring that it meet liberal democratic standards of legal supremacy, electoral process, recognition of individual rights and government accountability. Though the FA forwards specific interpretations of these principles to the Nisga’a constitution, drafted by the First Nation,49 a legal hierarchy can be established where the Nisga’a constitution lies subordinate to the writ of the FA (its legitimacy flowing from FA to Constitution). It remains unclear the extent to which the FA is binding on Canadian legislators, due to its ambiguous positioning vis à vis national or international legal orders. It should be noted that the Nisga’a FA and constitution are not expressions of sovereignty, rather, their legitimacy flows from section 35 and Crown legislation ––Nisga’a selfgovernment exists as an institution within the Canadian state.
History of the negotiations with the Nisga’a Tribunal Council. Indigenous and Northern Affairs Canada. 48 Nisga’a Constitution. 49 Nisga’a Final Agreement.
Impacts on jurisdiction: creating multi-layered governance
Traditional perspectives on Canadian federalism are anchored in the existence of the dual legal orders and the vertical distribution of competencies flowing from the constitutional documents. Inherent jurisdiction, therefore, lies with both Provincial and Federal governments, before the Nisga’a Treaty. Other governments, such as municipal or territorial, function under delegated jurisdiction from either inherent source. The emergence of Indigenous governments has created a new level of inherent jurisdiction within Canada’s federalist framework ––albeit limited to “internal” at the Indigenous level (as limited by the doctrine of Sovereign Incompatibility). Recently, scholars of Canadian federalism have acknowledged the gradual transformation of the Canadian federation towards a system of MLG.50 As an alternative analytical tool exploring intergovernmental relations (including within a state), MLG captures a range of dynamics increasingly relevant to the Canadian institutionalstate complex. Alcantra et al. argue that three core characteristics of MLG can be isolated: (1) actors, (2) scale and (3) negotiated order;51 these are hereby applied to current intergovernmental relations within the Canadian state delineating the advent of MLG processes in an otherwise federal state. In terms of actors, MLG in Canada fulfills the criterion of partnership between a constitutionally recognized government with a nonor quasi-governmental actor. As such, Indigenous nations represent the power acceding to governmental status through such negotiations. 50
C, Alcantra, Indigenous People and the State in Settler Societies: Toward a More Robust Definition of Multilevel Governance, 2013. 51 Ibid.
The participation, however, of many nongovernmental actors, such as environmental advocacy groups, and wider Indigenous associations integrate a variety of actors into the MLG process. Secondly, the variations of scale are evident, ranging from an embeddedness in Federal to Provincial to Indigenous Nation-specific scales. The most revolutionary aspect of emerging MLG in Canadian governance is the third, and most qualitative: a negotiated order. This aspect, with its foundations in the non-hierarchically organized relationships between negotiating groups, could represent a much-needed change in the approach towards nation-to-nation, Indigenous-to-Crown, relations. Such an approach seems best suited to respect the jurisprudence regarding inherent right to “internal” sovereignty within Indigenous governments. Deconstructing classical-federal approaches to power structures and further integrating MLG into Canadian dialogues regarding governance will apply the constitutional principles enshrined in Section 35. The second aspect of negotiated order demands the influence of the various actors in outcomes, a post-facto measure of the effectiveness of MLG, as well as the appropriate implementation of constitutional and judicially clarified principles. This negotiated order is nevertheless highly subjective and contested. The forum and power relations involved in negotiation processes is critiqued by many as pre-supposing extinguishment of Aboriginal Title and rights granting very limited concessions from the Canadian governments.52 Additionally, First Nations political leader Arthur Manuel (Ktuxana and Secwepemc Nations) expressed the following: “[First Nations] discovered, that no matter how
Manuel, Klein, and Derrickson, Unsettling Canada, 158. “federal government policy sought only to extinguish our Aboriginal title for very limited treaty rights.” 53 Ibid., 195-196.
much they protested, the government negotiators insisted they check Aboriginal title and rights–– which are recognized under Section 35 of the Canadian Constitution––at the door. The only way to exit these negotiations was through extinguishment of Aboriginal title and rights.”53 As such, these steep limitations to negotiations cast into doubt the Canadian government representatives’ commitment to MLG. The insertion of legislative and executive powers as competencies of an Indigenous government, therefore existing outside of the provincial-federal dualism, has been judged as constitutional in the Campbell v. British Columbia case.54 The court found that legislative powers had not been exhaustively distributed, leaving room for inherent Indigenous jurisdiction, as flowing from the Canadian Constitution. This inherent attribute to Indigenous jurisdiction is principally expressed in instances of conflict with laws in other legal orders and in the amendment processes. Taking the example of the Nisga’a nation’s Final Act (FA) agreement with Crown powers, section 6 asserts the prevalence of the FA over Crown legislation.55 Amendment of the Nisga’a constitution requires consent of the three signatory parties, paralleling the federal Constitutional amendment process requiring both federal and provincial approval. 56 As a result of the new, constitutionally protected Indigenous governments, the nature of the Canadian federation has been transformed. Though they have proven to be reluctant to do so, Crown governments now face the interaction with a new level of inherent jurisdiction. For instance, the Federal government will have to engage in a fiscal transfer negotiation in accordance with the Nisga’a 54
Campbell v. Canada, British Columbia & Nisga’a Nation. BCSC. 1123. 2000. 55 Nisga’a Final Agreement.. 56 Nisga’a Constitution.
FA. Other intergovernmental areas are emerging, including land claims boards, which are characterized by bilateral and trilateral intergovernmental coordination. The patriation of the Canadian constitution created the space for MLG with regards to Indigenous political developments, increasing responsiveness to Indigenous demands for self-government, and further, self-determination. Though the second aspect of the “negotiated order” characteristic of MLG ––underlining outcomes–– has continued to be limited, there is certainly momentum towards the normalization of MLG processes which grant Indigenous nations competence regarding the outcomes of the intergovernmental agreements, ultimately flowing from Section 35. Nevertheless, the Canadian governments’ position with regards certainty/extinguishment places Indigenous-Crown sovereignty negotiation firmly within the scope of Canadian institutions, in accordance with the doctrine of Sovereign Incompatibility. ‘Completed’ modern treaties, such as the Nisga’a FA, might limit the expression of Indigenous sovereignty as independent and containing full sovereignties (not limited to ‘internal,’ nor to expression within Canadian institutions). In supplementing these discussions, MLG has the potential to act as a framework for Indigenous self-determination, beyond the confines Sovereign Incompatibility. This imagination, however, is not given legal space by Supreme Court Jurisprudence, and can be argued to necessitate a forum that supersedes the Canadian-national. Further research is necessary to explore the budding implications of International Indigenous Law, an area that carries heavy potentialities for Canadian sovereignty, and might see the unravelling of the sovereign nation-state as we know it.
to build self-governing institutions, within and in spite of the colonial structures of Canadian law, and are re-defining the identity of Canadians –– constitutional and otherwise. Developments in reconciling the doctrine of sovereign incompatibility, stemming from the constitutional entrenchment of Aboriginal rights, have been promulgated through Supreme Court jurisprudence and the establishment of Aboriginal Rights and Title. Consequently, Indigenous nations have moved to define Indigenous self-government and enacted those laws into action through Final Agreements and the writing of constitutions, through Comprehensive Land Claims Agreements and Land Use Planning Boards. This negotiation process, along with litigation stemming from the Van der Peet approach and Title (Delgamuukw) approach, have altered the nature of Canadian Federalism, effectively inserting elements of multilayered governance into Canada’s governmental-institutional fabric. Though legal progress has lent leverage to Indigenous nations countrywide, development is still needed to further clarify the application of Section 35 of the Canadian constitution. There is no doubt that the constitutional recognition of Aboriginal title rights has triggered a legal revolution in Canada, yet the outcomes of such a shift in conceptions of sovereignty and jurisdiction are still unfolding. The Canadian case continues to be a leader in transitional justice in ‘non-transitional societies,’ and in the experimentation of constitutionally superimposed norms, continually pushing the limits of constitutionalist practice. This being said, there has been a significant lagging by executive branches in following these imperatives of Section 35 and notions of MLG, often dismissing co-governance processes (as
CONCLUSION Indigenous peoples’ successes in advocacy have established legal grounds on which
exposed in First Nations Nacho Nyak v. Yukon).57 The litigation processes demanded by such legalist approaches to Indigenous empowerment has necessitated the gathering of large sums of money to pay for the immense legal costs, and fails to react speedily to contentious executive actions having immediate and irreversible consequences. This is exemplified by the Pull Together movement58 in opposition to the Kinder Morgan pipeline expansion in British Columbia, applying direct action today while legal claims await pending decisions. Undoubtedly, for a fundamental shift towards Indigenous self-governance and -determination, political efforts will have to supplement the judicial activism. This discussion of Indigenous sovereignty illustrates the momentum and barriers existing in self-government negotiations and interpretations of Section 35, within the scope of the doctrine of sovereign incompatibility. In moving towards Indigenous liberation, this conversation should be had in tandem with the extensive investigation into extra-Canadian considerations of full Indigenous sovereignty that challenges the restriction of Indigenous self-determination to ‘internal’ aspects, and within Canadian national institutions. These institutions, such as treaty negotiations processes and Canadian Supreme Courts, are being challenged as inappropriate venues for nation-tonation dialogue: they hold obvious conflicts of interest. As such, this paper’s investigation is incomplete without further reading into considerations of Indigenous sovereignty as existing entirely independently of any colonial, Canadian national context. Justice for Indigenous peoples will come through simultaneous efforts, through a multitude of channels of action.
First Nations of Nacho Nyak Dun v. Yukon. SCC. 58. 2017
Bibliography “A Consolidation of The Constitution Acts 1867 to 1982.” Department of Justice Canada, Ottawa, Ontario, January 1, 2013. Alcantra, C. “Indigenous Peoples and the State in Settler Societies: Toward a More Robust Definition of Multilevel Governance.” Journal of Federalism. (April 2013). Armstrong, Jeanette. “Land and Rights.” UBC Indigenous Foundation. 2009. <http://indigenousfoundations.web.arts.ubc.ca/ land__rights/> Calder et. al. v. Attorney-General of British Columbia,  S.C.R. 313. Campbell v. Canada, British Columbia & Nisga’a Nation.  BCSC. 1123. Christie, G. “Aboriginal Nationhood and the Inherent Right to Self-Government.” National Centre for First Nations Governance. (May 2007). “Comprehensive Land Claim Agreements (CLCAs).” Indigenous and Northern Affairs Canada. https://www.aadncaandc.gc.ca/eng/1100100027668/11001000276 69. Chamberlin, B. At April 7, 2018 anti-Kinder Morgan rally, Burnaby Mountain, Tsleil-Waututh territory. Delgamuukw v. British Columbia,  3 S.C.R. 1010. Emergencies Act, R.S.C. 1985, c. 22. “Fact Sheet: Aboriginal Self-Government.” Indigenous and Northern Affairs Canada. https://www.aadncaandc.gc.ca/eng/1100100016293/11001000162 94. First Nations of Nacho Nyak Dun v. Yukon.  SCC. 58.
Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511. Hanson, Erin. “Aboriginal Title,” Indigenous Foundations UBC. 2009. <http://indigenousfoundations.arts.ubc.ca/hom e/land-rights/aboriginal-title.html> “History of the negotiations with the Nisga’a Tribunal Council.” Indigenous and Northern Affairs Canada. http://www.aadncaandc.gc.ca/eng/1100100031298/11001000312 99. King George III, Proclamation, “Royal Proclamation of 1763,” (October 7, 1763). Manuel, A., Klein, N., Ph. D, Derrickson, R. M. Unsettling Canada: A National Wake-Up Call (1st ed.). Toronto: Between the Lines, 2015. McNeil, K. “The Jurisdiction of Inherent Right Aboriginal Governments.” National Centre for First Nations Governance. (October 2007). McWhinney, Edward. “Declaration on the Granting of Independence to Colonial Countries and People,” United Nations Audiovisual Library of International Law, 1960. Mitchell v. M. N. R,  1 S.C.R. 911. Morellato, M. “The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights.” National Centre for First Nations Governance. (February 2008).
“Report of the Royal Commission on Aboriginal Peoples.” Royal Commission on Aboriginal Peoples, Government of Canada, 1996. R. v. Guerin,  2 S.C.R. 335. R. v. Pamajewon,  2 S.C.R. 821. R. v. Sparrow,  1 S.C.R. 1075. R. v. Van der Peet,  2 R.C.S. 507. “Stand with Indigenous Peoples: support legal challenges to stop Kinder Morgan’s pipeline and tankers project.” Pull Together. https://pulltogether.ca/. “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.” Indigenous and Northern Affairs Canada. http://www.aadncaandc.gc.ca/eng/1100100031843/11001000318 44. The Indian Act. R.S.C. 1895, c. 1-5. “Truth and Reconciliation Commission of Canada: Calls to Action.” Truth and Reconciliation Commission of Canada, Winnipeg, Manitoba, 2012. Tsilhqot’in Nation v. British Columbia,  2 S.C.R. 256. “Who We Are.” Defenders of the Land. www.defendersoftheland.org
Nisga’a Constitution, 2000. Nisga’a Final Agreement, 2000. Papillon, M., Juneau, A. The State of the Federation 2013: Aboriginal Multilevel Governance. Montreal: McGill-Queen’s University Press, 2015.
Homelessness in Canada: An Overview CURTIS GARLOUGH ____________ Homelessness in Canada is a prevalent problem across the country and is growing at an alarming rate, not only affecting large cities but also expanding into small towns and suburbs. It is nearly impossible to get an accurate number of the homeless in Canada but most estimates currently range from 200 000 all the way up to 250 0001 people. Many large cities now participate in annual homeless counts. In 2016 Vancouver volunteers counted 1847 homeless people2, in Toronto the number of homeless is estimated to be 5000.3 In the Canadian federation, no level of government was assigned the responsibility of homelessness or housing, which is in part one of the reasons that the issue of homelessness is hard to solve. In order for Canada to successfully fight and end homelessness, it is critical that researchers produce accurate statistics on homelessness, provincial and federal governments must coordinate in partnership with cities, and the housing first strategy should be employed. Despite the hard work of volunteers and researchers, current homelessness stats. in Canada are not completely accurate. One major problem with counting the homeless is that there is no universally recognized definition for what homelessness is. Some researchers define homelessness as not having a permanent roof over
oneâ€™s head4, since this definition does not include Relative Homelessness, researchers could use it to manipulate their findings to make it seem as though the number of homeless is smaller than it actually is. In order to provide a more universal and consistent definition, Canadian researchers should adopt the United Nations official definition. The United Nations definition breaks down homelessness into two sub categories. One category being the Absolute Homeless which describes people living on the streets with no permanent shelter of their own5, and the other category is Relative Homelessness which deals with people living in unsafe spaces that could not stand up to the health and safety codes of a city.6 A more difficult situation that arises when trying to count the homeless is the fact that many homeless people keep their struggle to survive private, these people are known as the hidden homeless.7 They may live in cars, hidden in parks or may even couch surf between the houses of friends and family.8 Statistics Canada currently does not take a leading role in compiling homelessness statistics9 and instead it is left up to local groups and advocates of the homeless. Statistics Canada, or some other national organization, should take a leading role in the counting of the homeless in order to produce accurate numbers which have been collected
Paul Chiasson, "Homelessness in Canada: Key Statistics," CTV News, March 16, 2016, http://www.ctvnews.ca/canada/homelessness-incanada-key-statistics-1.2819986. 2 Matt Thomson, Vancouver Homeless Count 2016, report, 5. 3 "Info and Stats." Home First. http://homesfirst.on.ca/info-stats
Jack Layton, Homelessness: How to End the National Crisis (Toronto, Ontario: Penguin Group, 2008), 42. 5 Ibid.,44 6 Ibid.,44 7 Ibid.,99 8 Ibid.,99 9 Ibid.,11
using the same method all across Canada. It is essential to have accurate numbers on the homelessness problem because without them it is impossible to determine what needs to be done and the amount of resources needed to fix the problem. The BNA Act of 1867 and later the Constitution Act of 1982 both fail to mention which level of constitutionally recognized government is responsible for the homeless and housing.10 In the BNA Act it states that all powers that have not been divided are, by default, powers of the federal government (the Residual Clause), therefore it is possible to argue that housing should be the responsibility of the federal government. Historically, the federal government honoured the Residual Clause and provided funding as well as developed affordable housing.11 The Canadian Government continued to fund affordable housing up until the 1990â€™s12 and were even recognized by the United Nations for their co-operative housing program in 1996.13 The government of Canada also signed the United Nations Declaration of Human Rights; article two of this declaration recognizes a universal right to housing.14 The 1990â€™s however were a time of major budget cuts from both conservative and liberal governments which resulted in the cancellation of many housing programs.15 The Charlottetown Accord in 1992 was the first time that housing was discussed at a formal constitutional level.16 The leaders at Charlottetown decided that housing should be the responsibility of the provinces.17 However the Charlottetown
Accord never passed which meant, officially, housing was still an unspecified responsibility. Although the Charlottetown Accord never passed, the federal government decided to run with the idea that the provinces should be in charge of housing and began the process of downloading the responsibility.18 Downloading of housing was completed in 1996 when the Federal government finally decreased funding from 1.7 billion to 0.19 The provinces then decided to download the responsibility of housing onto cities and municipalities.20 Cities were unable to fund affordable housing due to their small budgets relative to provinces and the federal governments. It was this sequence of downloading that resulted in the housing crisis we see now in 2016. In 1996, Canada was recognized as a leading innovator in homelessness by the United Nations, yet ten years later in 2006 the United Nations declared the homelessness situation in Canada a national emergency.21 Recent activity by the Federal, Provincial and municipal governments give reason for optimism in the fight against homelessness. Currently all three levels of government fund housing to varying degrees.22 The Federal government has completely reversed the stance they took in the 1990â€™s and has begun to involve themselves in housing again. The federal government established the HPS(housing partnering strategy), affordable housing trusts, residential rehabilitation assistance
Ibid.,,231 David Snow, A Roof Over Our Heads 2008: Affordable Housing and Homelessness Policy in Canada (Calgary, Alberta: Canada West Foundation, 2008).12 12 Jack Layton, Homelessness: How to End the National Crisis (Toronto, Ontario: Penguin Group, 2008),12 13 Ibid.,7 14 Ibid.,113 15 Ibid.,12 11
Ibid.,231 Ibid.,232 18 Ibid.,232 19 Ibid.,235 20 Ibid.,232 21 Ibid.,7 22 David Snow, A Roof Over Our Heads 2008: Affordable Housing and Homelessness Policy in Canada (Calgary, Alberta: Canada West Foundation 2008).12 17
program(RRAP)23 among other programs, which demonstrates the federal government's new willingness to help with the affordable housing crisis. The federal government has appeared to have embraced the role of funder and left the administration to the provinces and cities.24 The federal government will need to continue to use their spending power to help provinces and cities afford the bill that is associated with housing. Justin Trudeau’s liberal government proposed to invest 2.3 billion dollars over two years to expand affordable housing.25 Of the 2.3 billion, 504 million is directly for affordable housing26 and 111.8 million is directed towards “tackling homelessness”.27 While 504 million is an admirable start for the funding of affordable housing it is more than likely that the federal government will need to increase their funding in the immediate future. The provincial governments also need to play the role of the funder in the fight against homelessness. Additionally, the provincial governments need to decide how to divide up federal funds fairly across provinces and offer expertise to the smaller municipal governments. Currently in British Columbia the Christy Clark Liberal government has allocated 355 million dollars to affordable housing28, which is supposed to create 2000 new units of affordable housing.29 Ultimately, cities will need to play the most important role in the process. Cities will need to be in charge of the administration aspects involved with housing and cities should ultimately dictate where and how the money is spent, because cities
have the greatest knowledge on homelessness within their own domain. There are many theories on how the government should alleviate homelessness or if the government should be involved with homelessness at all. Some people feel that the government is doing enough to help as is and any further expenses would simply be a waste of money. This view is alarmingly more common than one might think and it is very wrong for several reasons, housing is a universal right and therefore it is in fact the government’s responsibility to ensure everyone has access to housing. If that response does not satisfy people who argue it is a waste of money to alleviate homelessness it is also interesting to note that some proposed methods of alleviating homelessness would actually lead to the government spending less money than they currently do.30 A typical homeless person in Canada within a given year may end up at some points using a homeless shelter or being admitted into the hospital or can even find themselves being thrown in prison. All three demand large amounts of money from the government and taxpayers. The use of the shelter system, healthcare system and the time devoted to homelessness by police as well as prison costs makes homelessness undoubtedly a great expense.31 The cost to hospitals is on average 960 dollars more for a homeless person when compared to their housed individuals.32 This increase in cost is due to the fact that hospitals generally require a homeless person to stay
Ibid.,14 24 Ibid.,14 25 Canada, Government of Canada, Ministry of Finance, Budget 2016, by Bill Morneau, 97. 26 Ibid.,97 27 Ibid.97 28 Canada, Government of British Columbia, British Columbia Ministry of Finance, Balanced Budget 2016, by Micheal De Jong, 2. 29 Ibid., 2
Mental Health Commission of Canada-National At Home/Chez Soi Final Report.7. 31 Joshua Evans, Damian Collins, and Jalene Anderson, "Homelessness, Bedspace and the Case for Housing First in Canada," Social Science and Medicine 168 (November 1, 2016): 249. 32 Maya Vijayaraghavan, "Hospitalization Costs Associated with Homelessness in Canada," Journal of Clinical Outcomes Management 18, no. 11 (November 1, 2011):495.
admitted in hospital longer,33 as they do not have a clean or safe place to recover properly outside of the hospital. A month in provincial jail will on average cost taxpayers 4333 dollars34, a Shelter bed for a month costs 1932 dollars35 and if the homeless person was to stay in hospital for a full month it would cost taxpayers 10900 dollars.36 Current estimates place the yearly cost of a single homeless person to be around 62 thousand dollars37 and the estimated cost of the entire homeless population in Canada is estimated to be in the vicinity of 7 billion dollars.38 There are also other economic side effects from homelessness including a decrease in tourism linked to homelessness. At a cost of 7 billion dollars annually and other associated economic side effects, it is clear that homelessness needs to be dealt with in a different more economically efficient way. Housing First is the policy that governments should employ in their alleviation of homelessness. The Housing First method argues that the first step that should be taken in fighting homelessness is giving all homeless people access to housing, with the idea being that after being housed it becomes easier to get their lives back on track. The Mental Health Commission of Canadaâ€™s National At Home report provides plenty of evidence as to why and how the Housing First method is an extremely effective strategy. The researchers for this report chose the participants at random, generally from
the street or from shelters and did not require the participants to enter a period of sobriety before being admitted into the study.39 The Mental Health Commission granted participants immediate access to housing, gave the participants a choice in where they wanted to live and gave participants access to recovery orientations or individualized supports like counseling and drug or alcohol rehabilitation40, but did not force participants do this if they did not want to. Most of the support offered to participants was community based which resulted in a significant decrease in the cost of services.41 The Mental Health Commission of Canadaâ€™s National At Home study found most importantly that the Housing First policy can be implemented to quickly and effectively reduce and possibly end homelessness in Canada.42 At first glance many people may think that the Housing First method would be extremely costly, however the research shows the exact opposite with the Housing First method on average costing less than the traditional methods of using shelters.43 The study determined that on average, Housing First costs 19 583 dollars a person per year.44 Which is a decrease from 42 53645 dollars when compared to the current average cost of homeless per person which is 62 118 dollars per year. There are a number of reasons as to why housing first ends up costing the taxpayer less money including,
Ibid.,495 "Cost of Homelessness in Canada." Look Out Society. http://lookoutsociety.ca/understandinghomelessness/cost-of-homelessness/the-real-cost-ofhomelessness-in-canada. 35 "Cost of Homelessness in Canada." Look Out Society. http://lookoutsociety.ca/understandinghomelessness/cost-of-homelessness/the-real-cost-ofhomelessness-in-canada. 36 "Cost of Homelessness in Canada." Look Out Society. http://lookoutsociety.ca/understandinghomelessness/cost-of-homelessness/the-real-cost-ofhomelessness-in-canada. 34
Mental Health Commission of Canada-National At Home/Chez Soi Final Report.7. 38 Joshua Evans, Damian Collins, and Jalene Anderson, "Homelessness, Bedspace and the Case for Housing First in Canada," Social Science and Medicine 168 (November 1, 2016): 249. 39 Mental Health Commission of Canada-National At Home/Chez Soi Final Report.7. 40 Ibid.,32 41 Ibid., 30. 42 Ibid., 7. 43 Ibid., 23. 44 Ibid., 23. 45 Ibid., 23.
substantial reduction to overnight stays in shelter, less time spent in hospitals, less time spent in jail and less time spent in treatment facilities,46 which is all due to the increase in stability experienced while housed. Additionally, the Housing First method encouraged housed individuals to receive and maintain a steady income, resulting in said individuals no longer relying no longer relying on welfare or disability benefits.47 Aside from the numerous economic advantages, Housing First also has important social benefits as many participants were able to reconnect with family and friends and aided in recovery from substance abuse over time.48 In order to implement a Housing First approach in Canada, The Mental Health Commission reiterates what was previously stated, all levels of government must be involved in the funding and implementing of Housing first.49 In order to implement the Housing First strategy there must be affordable housing available, which many areas of Canada do not currently have. Fortunately there are many ways that cities, provinces and the federal government can increase the stock of affordable housing. Federal and Provincial governments can supply funding for grants, much like they are doing now with programs like HPS, AHI and RRAP these grants can support and maintain affordable housing. Cities play a major role in the supply of affordable housing and have plenty of mechanisms for encouraging the development of more affordable housing. Cities can mandate that specific new developments have a certain
percentage of units designated for affordable housing.50 Currently, Vancouver takes this approach, and demands that all major rezoning of land for the purpose of building a multi-unit complex must designate at least 20 percent of units for affordable housing.51 Vancouver also encourages the construction of convertible housing. Convertible housing is the idea that a secondary suite in a house (that may take the form of a basement suite or lane home) can be built at a relatively low cost and can be used as affordable housing52 since the rent will cover the cost of construction in no time. Another intriguing approach that cities can take to increase the amount of affordable housing in their city is through main street redevelopment. Main street redevelopment is the idea that existing stores can build apartments on top of them and would be able to charge affordable rents to their tenants because the cost of the land is already being covered by the store that is already on the land. Therefore making the apartment units purely profit for the landlord53. Cities can also make sure developers build affordable housing by only granting the building application if it includes affordable housing. There are some who still argue that a Housing First strategy does not work. Ralph Nunez, a Professor at Columbia University, argues that housing first is not a viable solution to homelessness and instead it is only a solution for people who need homes54 and has no effect on people who are in need of education or treatment
Ibid., 24. 47 Ibid., 25. 48 Ibid., 30. 49 Mental Health Commission of Canada-National At Home/Chez Soi Final Report.32. 50 Jack Layton, Homelessness: How to End the National Crisis (Toronto, Ontario: Penguin Group, 2008),281 51 David Snow, A Roof Over Our Heads 2008: Affordable Housing and Homelessness Policy in Canada (Calgary, Alberta: Canada West Foundation, 2008).32
Jack Layton, Homelessness: How to End the National Crisis (Toronto, Ontario: Penguin Group, 2008),266 53 Jack Layton, Homelessness: How to End the National Crisis (Toronto, Ontario: Penguin Group, 2008),288 54 Pat Lamarch, "Housing First Doesn't Work: The Homeless Need Community Support," Huffington Post, January 16, 2014, http://www.huffingtonpost.com/patlamarche/housing-first-doesnthomelessness_b_4611639.html.
for mental illness or substance abuse.55 Nunez is wrong in his approach and the study on the housing first method conducted by the Mental Health Commission of Canada proves it. The commission found that by being given a place to live the participants were able to obtain clinical and community support resulting in them retaining jobs.56 In order for Canada to successfully alleviate and reduce homelessness in Canada, more accurate research on the issue must be obtained. Both the Federal and Provincial governments must work in tandem with cities to implement effective strategies such as Housing First. Homelessness is a large problem in Canada but it does not have to be. There are affordable solutions to the problem but governments must be willing to act together. There are both social and economic benefits to ending homelessness with the Housing First strategy being the most realistic way to improve conditions.
Evans, Joshua, Damian Collins, and Jalene Anderson. "Homelessness, Bedspace and the Case for Housing First in Canada." Social Science and Medicine 168 (November 1, 2016): 249-56. Goering Paula, Scott Veldhuizen, Aimee Watson, Carol Adair, Brianna Kopp, Eric Latimer, Geoff Nelson, Eric MacNaughton, David Streiner & Tim Aubry (2014). National At Home/Chez Soi Final Report. Calgary, AB: Mental Health Commission of Canada. http://www.mentalhealthcommission.ca "Info and Stats." Home First. http://homesfirst.on.ca/info-stats Lamarch, Pat. "Housing First Doesn't Work: The Homeless Need Community Support." Huffington Post, January 16, 2014.
http://www.huffingtonpost.com/patlamarche/housing-first-doesnthomelessness_b_4611639.html. Layton, Jack. Homelessness: How to End the National Crisis. Toronto, Ontario: Penguin Group, 2008.
Snow, David. A Roof Over Our Heads 2008: Affordable Housing and Homelessness Policy in Canada. Calgary, Alberta: Canada West Foundation, 2008.
Thomson, Matt. Vancouver Homeless Count 2016. Report. 1-54.
Canada. Government of Canada. Ministry of Finance. Budget 2016. By Bill Francis Morneau. 1-271.
Vijayaraghavan, Maya. "Hospitalization Costs Associated with Homelessness in Canada." Journal of Clinical Outcomes Management 18, no. 11 (November 1, 2011): 495-97.
Canada. Government of British Columbia. British Columbia Ministry of Finance. Balanced Budget 2016. By Micheal De Jong. Chiasson, Paul. "Homelessness in Canada: Key Statistics." CTV News. March 16, 2016.
Pat Lamarch, "Housing First Doesn't Work: The Homeless Need Community Support," Huffington Post, January 16, 2014, http://www.huffingtonpost.com/pat-
lamarche/housing-first-doesnthomelessness_b_4611639.html. 56 Mental Health Commission of Canada-National At Home/Chez Soi Final Report.28.
Trade Agreements and The Promotion of Canadian Values JACOB DINER ____________
Canada’s large resource capacity and developed economy make it a sought-after trading partner with nations all over the world. Moreover, its global position allows it to pursue non-economic interests through its trade policies, interests defined by a group of shared Canadian values. These values are represented in the liberal internationalist body of thought, the basis of the current world order. Liberal internationalism sees the “pursuit of liberal purposes like security, free trade, human rights, rule of law, and democracy promotion”1 as the core values to be pursued by all states. These five values reflect the core values of the Canadian public, acting as the lens through which Canada conducts its foreign policy. It is to Canada’s benefit that other countries accept these basic values, as this acceptance leads to a more peaceful, prosperous and just world. Canada’s international trade policy must work towards the promotion of these liberal values despite adversity that stems from non-democratic states, protectionism, and intrastate concerns like corruption and conflict. Canada can seek to influence other nations to adopt these values through its trade agreements, using trade as an economic incentive towards their adoption and adherence of, and as a way to open up interstate dialogue to promote them. Canada seeks to expand and reinforce its trade agreements so as to enhance the current liberal world order and its principles, namely security, free trade, human rights, rule of law, and democracy promotion.
Through international trade agreements Canada is able to advance the liberal international order and its values. The acceptance of human rights is a core principle of liberal internationalism and of significant importance to the Canadian regime, as human rights are a main focus in the Canadian Charter of Rights and Freedoms. The charter sees human rights as: fundamental freedoms and legal, democratic and equality rights.2 While these rights and freedoms are guaranteed only to Canadian citizens, they provide insight into the value Canada places in human rights, and this is why Canada seeks to promote them to other nations. It is through Canada’s trade agreements that the promotion of human rights is achieved. Incorporating human rights into trade contracts ensures that other countries follow Canada’s expectations on human rights. The E15 Task Force On Investment Policy analyzes how human rights can become part of the trade process. By “incorporating human rights into the life cycle of a state-investor contract at the prenegotiation stage and extending to the contract negotiation itself”, 3 human rights issues can be considered before and during the period in which Canada enters a trade deal. This incorporation guarantees that provisions are made “for those whose rights are at risk,”4 and that if their rights are infringed upon, they are able to “raise grievances through legitimate and effective processes”. 5
Transform Investment. (United Nations Office of the High Commissioner for Human Rights, 2016). 2. 4 Ibid., 2. 5 Ibid., 2.
Daniel Drezner, What is liberal internationalism? (Foreign Policy, 2006). 2 Canadian Charter of Rights and Freedoms. 1982. 3 E15 Task Force on Investment Policy. A Turn to Responsible Contracting: Harnessing Human Rights to
Canada’s trade policy must consider if its trade agreements “promote the general welfare,” 6 of a populace by opening dialogue with its trade partners, ensuring that the “potential negative impacts on people are avoided or mitigated”.7 It is through closer economic ties that Canada can gain leverage with other nations, allowing for interstate dialogue on issues of concern to Canada. Human rights are often a relevant concern in the case of developing or authoritarian states. China is an example of an authoritarian state, pairing a fast growing economy with a nondemocratic system. China’s people lack many civic values, and concerns over “Chinese labour conditions and respect for human rights” 8 are significant, requiring engagement by Canadian policymakers to resolve. If a business is infringing upon human rights, then the state in which it operates is the “primary duty-bearer under international human rights law,” 9 and thus, is obligated to work towards solving the human rights issues present in the business. States like China who have significant control over business enterprises also have the greatest power in influencing these businesses to implement and follow proper human rights practices. 10 A joint statement between Canada and China in 2016 signaled the success of dialogue on increasing non-economic cooperation between the two states. This statement included the shared belief that frequent dialogue “promotes common understanding on issues such as human rights and rule of law”. 11 Common understanding gained
through dialogue leads to the lessening of human rights violations in business. Through dialogue with other states like China, Canada can “take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State”.12 The rule of law is the principle that law should govern a nation and that all people are subject to law equally, including the elites of society. This principle is contrary to states whose elites, such as government officials and private entities, are irreproachable due to their power and influence in their state system. Ruggie sees states as having the duty to “protect and promote the rule of law”13 by making sure that the justice, equality and application of laws holds violators accountable. Canada gains from the rule of law as it facilitates trade, as a state with strong rule of law will be seen as a trustworthy trading partner. Rule of law is seen as “critical in order to attract foreign multinational corporations”. 14 Canadian business investment and trade deals with nations who respect the rule of law acts as an incentive for states to strictly enforce internationally signed laws. Adoption of a strict rule of law in other nations is achieved through international obligations, which hold states accountable if they fail to “prevent, investigate, punish and redress private actors’ abuse” of the law.15 To further the adherence to rule of law, Canada participates in multilateral institutions that require all members to abide by the rules. The World Trade Organization (WTO) is an example of a multilateral institution
Ibid., 2. 7 Ibid., 3. 8 Michael Holden. Canada’s Trade Policy and Economic Relationship with China. (Library of Parliament, 2008). 8. 9 John Ruggie. Guiding Principles on Business and Human Rights. (United Nations Office of the High Commissioner for Human Rights, 2014). 7. 10 Ibid., 7.
Parliament of Canada. Joint Statement Between Canada and the People's Republic of China. Justin Trudeau. (2016). 12 Ibid., 6. 13 Ibid., 3. 14 Michael Ewing-Chow, Junianto Losari, Melania Slade. The facilitation of trade by the rule of law: the cases of Singapore and ASEAN. (WTO Publications. 2014), 131. 15 Ruggie, Guiding Principles on Business and Human Rights. 4.
Canada partakes in to further its objectives on law. The WTO “compels its member countries to honor trade agreements” and in the case of a dispute, pressures countries “to abide by the decisions of the WTO’s mediating body”. 16 Multilateral institutions are able to create an international consensus on the rule of law, and work towards securing its adherence on a global level. This benefits Canada, who as a member of multilateral institutions like the WTO, abides by international law and sees the merits of the system it promotes. Canada’s ability to uphold internationally accepted law ensures that multilateral institutions like the WTO can hold other states accountable for their actions, or lack thereof. Economic openness as a result of trade can lead to political reform and the promotion of democratic systems within countries. One of the values of liberal internationalism, democracy building, also serves as a national interest that Canada pursues through trade agreements. Griswold found that “nations with open and free economies are far more likely to enjoy full political and civil liberties than those with closed and statedominated economies”. 17 By “increasing the contact a nation’s citizens experience with the rest of the world” 18 international trade can directly impact non-democratic political systems. Commercial trade leads to the flow of “media goods with political and social content,” and foreign investment opens up “opportunities for foreign travel and study”. 19 When exposed first hand to democratic institutions and liberties through foreign media and travel, citizens of non-democratic nations begin to “expect and demand more freedom in the political and social realms”20 of their
own country. Canada’s role in democratization is to engage in trade with non-democratic states, opening up communication and trade channels to educate and enrich their populations. Trade also leads to fast economic growth that increases the size of a nation's middle class. A larger middle class means that “more citizens can afford to be educated and take an interest in public affairs,” 21 again leading to a preference towards democracy and the civil liberties it provides. However, these citizens preferences only matter if they are respected by the elites who control nondemocratic states. Griswold found that “ruling elites tend to treat their middle-class countrymen with more respect” 22 then they do of poorer social classes, meaning that they are more likely to pay attention to citizen preferences. Griswold also writes on how better wealth distribution amongst a population leads to democracy; “For wealth to cultivate the soil for democracy, it must be produced, retained, and controlled by a broad base of society”. 23 Therefore, in addition to opening communication channels and pursuing mutual economic benefits, Canada must try to ensure the wealth gained by its trade agreements is evenly distributed amongst its partner citizens in order to form a large middle class. If achieved, this goal will lead to further democratization of non-democratic states and the spread of liberal values abroad. Both security and democracy promotion, two of the main values of liberalism, are undeniably intertwined. Trades tendency to promote democracy increases Canada’s security due in part to the democratic peace theory. The democratic peace theory alludes to the fact that democracies
Denise Froning, The Benefits of Free Trade: A guide for Policymakers. (Centre for International Trade and Economics, 2000). 6. 17 Griswold, Daniel. Trading Tyranny for Freedom: How Open Markets Till the Soil for Democracy. (Centre for Trade Policy Studies, 2004). 6.
Ibid., 2. Ibid., 2. 20 Ibid., 3. 21 Ibid., 3. 22 Ibid., 3. 23 Ibid., 4. 19
have almost never attacked other democracies.24 It follows that peace and security are achievable through the spread of democracies across the world. Owen further analyzes democracies, defining them as either liberal or illiberal based on whether the state epitomizes liberal values as “the dominant ideology”.25 These values include human, civil and democratic rights. According to Owen, the more liberal a state is, the more peaceful “relations with fellow democracies are”. 26 The promotion of democracy and the liberalization of nations leads to a higher degree of Canadian security, as liberal democratic nations are less likely to engage in conflict with each other. Canada’s broader objectives of global peace and stability are maintained through international trade, as economic ties lead to the deterrence of interstate conflict. Research by Hegre found that significant interstate trade reduces conflict because “interstate violence adversely affects commerce”. 27 Nations are incentivized to pursue trade for the economic gains it provides, and be averse to conflict because of its “contemporaneous effect on bilateral trade”. 28 Canada seeks trade policy that creates a preferential trade agreement (PTA) with other states, an agreement that gives preferential access to certain products between participating countries. Research found that these agreements are “increasingly likely to inhibit hostilities as the flow of commerce rises”.29 Free trade agreements (FTA), a
subcategory of a PTA with an increased scope of tariffs reduction, also lead to the “development of mutual respect and harmonious relations that reduce interstate tension”. 30 Canada is currently seeking an FTA with China with decisions coming this fall. 31 Such an agreement would significantly enhance economic gains between Canada and China, leading to the shared belief that any conflict would threaten these gains, giving the two states further incentive to remain peaceful. Free trade, another value of international liberalism, is of critical importance to Canada. Canada’s trade with the US and Mexico is negotiated through the North American Free Trade Agreement (NAFTA), an agreement crucial to Canada’s continued bilateral trade with both countries. NAFTA is massively important to Canadian economic and non-economic interests and thus acts as an exemplar to Canada’s general interest in free trade. Trade with the US alone amounts to “three quarters of Canada’s exports and two-thirds of its imports”.32 NAFTA has allowed for “positive investments and employment”33 in the Canadian steel and auto industries, which has “generated major growth in employment” 34 for Canada. Free trade is also valuable for its ability to promote the rule of law. The expansion of free trade between nations leads to a greater ability to influence each other in non-economic dimensions. Froning states that free trade can “disseminate democratic values,”35 like the rule of law. Free trade
31 Marie-Danielle Smith. Canada to decide on potential trade agreement with China this fall. (National Post. September 6, 2017.)
John Owen, “How Liberalism Produces Democratic Peace.” (International Security, 1994). 87. 25 Ibid., 89. 26 Ibid., 89. 27 Havard Hegre, John Oneal, Bruce Russet. “Trade does promote peace: New simultaneous estimates of the reciprocal effects of trade and conflict.” (Journal of Peace Research, 2010). 771. 28 Ibid., 772. 29 Edward Mansfield, Jon Pevehouse. “Trade Blocs, Trade Flows, and International Conflict.” (International Organization, 2000). 786. 30 Ibid., 776.
Philip Cross, The Importance of International Trade to the Canadian Economy: An Overview, (Fraser Research Bulletin, 2016).
33 Robert Summerby-Murray, “Trump, Canada and NAFTA: Trading Protection or Protecting Trade?” The Round Table, vol 103 no. 2, 2017. 217. 34 35
Ibid., 218. Froning, The Benefits of Free Trade. 6.
reduces “incentives for corruption by spurring economic growth”. 36 According to Froning, economic prosperity, higher wages and more jobs are all associated with free trade, and all lead to lower levels of state or private corruption.37 Protectionism, the antithetical force to liberal free trade, has become once again salient in Canada’s trade policy. While Canada has free trade agreements with over 40 countries, protectionism has been growing internationally, threatening liberal internationalism and economic upheaval. Under a protectionist President Trump, NAFTA and its benefits to Canada become jeopardized. The Trump Administration has announced plans on the renegotiation of NAFTA, with the intention of enacting a “more protectionist trade regiment for the US”. 38 A renegotiation of NAFTA has the potential to disrupt and damage Canada’s trade agreements with two of its main partners, stifling economic and non-economic gains for Canada, the US and Mexico. It is in all these states shared interest to ensure NAFTA remains in place so that they can profit from its clear value. Canada’s policy regarding NAFTA will be key in determining if Canadian interests inherent in this free trade agreement are upheld. Summerby-Murray analyzes Canada’s policy response to American protectionism and its aggressive take on NAFTA. A cabinet shuffle shortly before Trump’s inauguration included the appointment of Chrystia Freeland to the position of Minister of Foreign Affairs. According to SummerbyMurray, Freeland’s specialty “is in trade,” and her parliamentary secretary “is a former general with connections to the new military advisors in the White House”.39 It is clear that these appointments by Prime Minister Trudeau are meant to be a
response and hedge against recent protectionist American trade policy, signaling the value Canada places in its free trade agreements. SummerbyMurray states that the Canadian government intends to “work closely with the United States administration to negotiate a favourable trading partnership in a renewed NAFTA”,40as opposed to acting with indifference or docility. Trade agreements remain a key concern to Canada, and the Canadian government will work to prevent their collapse so as to secure the benefits they provide to the country. Evidently, Canada’s non-economic interests are directly impacted by Canada’s international trade policies. The liberal values of security, free trade, human rights, rule of law, and democracy promotion are directly advanced by Canada enacting and maintaining trade agreements with international partners. Trade allows for Canada to promote its interests on a global stage while enhancing the liberal internationalist order. Subsequently, nations who are influenced into adopting the five liberal values through trade with Canada see direct benefits to their economy, the rights of their people and their security. The inclusion of more states into the fold of international liberalism is ideal for Canada, who would benefit from the global prosperity, security and justice that would arise from this scenario. Canada’s trade policy must continue to engage the world's nations into adopting its liberal values. According to Schmitz “only 85 countries are regarded as liberal democracies,” who are “free and respectful of basic human rights and the rule of law”.41 While many states have adopted democratic systems over the last few decades, their adherence to the liberal values central to Canadian interests
Ibid., 6. Ibid., 6. 38 Robert Summerby-Murray, “Trump, Canada and NAFTA,” 217. 39 Ibid., 218. 37
Ibid., 218 Gerald Schmitz, The Role of International Democracy Promotion in Canada’s Foreign Policy, (Institute for Research on Public Policy, 2004). 41. 41
are uncertain and incomplete. Fragility in the current world order could lead to a reversal in recent gains. 42 Canada must remain steadfast in its support of the liberal world order, so as to perpetuate the acceptance of Canadian and liberal values abroad. Trade agreements act as the vehicle in which Canada can most influence other states into the acceptance of these values, so the pursuit of further trade agreements remains a priority to Canada’s international trade policy.
Bibliography Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11. Cross, Philip. “The Importance of International Trade to the Canadian Economy: An Overview.” Fraser Research Bulletin. 2016. https://www.fraserinstitute.org/studies/theimportance-of-international-trade-tothecanadian-economy-an-overview Drezner, Daniel. What is liberal internationalism? Foreign Policy. 2006. http://foreignpolicy.com/2006/05/17/what-isliberal-internationalism/ Ewing-Chow, Michael, Junianto Losari, Melania Slade. “The facilitation of trade by the rule of law: the cases of Singapore and ASEAN.” WTO Publications. 2014. https://cil.nus.edu.sg/publication/thefacilitation-of-trade-by-the-rule-of-law-thecases-of-singapore-and-asean/ E15 Task Force on Investment Policy. A Turn to Responsible Contracting: Harnessing Human Rights to Transform Investment. United Nations Office of the High Commissioner for Human Rights. (2016). Froning, Denise. “The Benefits of Free Trade: A guide for Policymakers.” Centre for International Trade and Economics. (2000). 1391.
Griswold, Daniel. (2004). “Trading Tyranny for Freedom: How Open Markets Till the Soil for Democracy.” Centre for Trade Policy Studies. Trade Policy Analysis. (2004). 26. Hegre, Havard, John Oneal, Bruce Russet. “Trade does promote peace: New simultaneous estimates of the reciprocal effects of trade and conflict.” Journal of Peace Research. (2010). 47 (6) 763774. Holden, Michael. Canada’s Trade Policy and Economic Relationship with China. Library of Parliament. (2008). Mansfield, Edward, Jon Pevehouse. “Trade Blocs, Trade Flows, and International Conflict.” International Organization. (2000). 54, 775-808. Owen, John. “How Liberalism Produces Democratic Peace.” International Security. (1994). 19 (2) 87125 Parliament of Canada. Joint Statement Between Canada and the People's Republic of China. Justin Trudeau, Prime Minister of Canada. (2016). Ruggie, John. Guiding Principles on Business and Human Rights. United Nations Office of the High Commissioner for Human Rights. (2014). Schmitz, Gerald. “The Role of International Democracy Promotion in Canada’s Foreign Policy.“ Institute for Research on Public Policy. (2004). 5 (10) 352. Smith, Marie-Danielle. Canada to decide on potential trade agreement with China this fall. National Post. September 6, 2017. http://nationalpost.com/news/politics/canadato-decide-on-potential-free-trade-agreementwith-china-this-fall-with-asia-seen-ascounterpoint-to-nafta-renegotiation Summerby-Murray, Robert. “Trump, Canada and NAFTA: Trading Protection or Protecting Trade?” The Round Table (2017). 106 (2) 217-219.
Rhetoric Deployed in the Communication Between the National Energy Board and Indigenous Communities in the Case of the Trans Mountain Pipeline LIDIA COOEY, BREAGH KOBAYASHI, DANIELLE TAN ____________ Indigenous peoples in Canada have treaty rights in exchange for ceding rights to the land. Treaty rights consist of Indigenous ownership of reserve lands, and the preservation of their traditional way of life. Since the Haida case in 2004, the Supreme Court of Canada “held that the Crown has a duty to consult, and where appropriate, accommodate Aboriginal groups when it considers conduct that might adversely impact potential or established Aboriginal or Treaty rights.”1 Duty to consult, founded on reconciliation, aims to build nation-to-nation relationships between the Canadian government and Indigenous nations “based on recognition of rights, respect, cooperation and partnership.”2 However, it is the Federal official who is responsible for “[designing] the form and content of the consultation process.”3 This is problematic, as this method fails to align with the notion of “nation-to- nation...relationships”4. In an effective execution of “duty to consult” consistent with nation-to-nation relationship building, all involved parties should participate in determining the form of consultation. The Crown’s execution of “duty to consult” thus excludes 1
Indigenous and Northern Affairs Canada, "Consultation and engagement at Indigenous and Northern affairs Canada" (2016). 2 Ibid. 3 Ibid. 4 Ibid. 5 NEB, “Certificate OC-064,” (certificate, Calgary, AB, 2016) 6 Sheri Young, “Trans Mountain Expansion Project (the Project),” letter to Musqueam Indian Band, retrieved from https://apps.neb-
Indigenous perspectives. This is thoroughly expressed throughout the process and language of the Trans Mountain Expansion project. On November 29th, 2016, the Federal government of Canada approved the Trans Mountain Pipeline Expansion project, directing the National Energy Board (NEB) to issue a Certificate of Public Convenience and Necessity5. The Crown relied on the NEB’s hearings to fulfil its duty to consult in this project6. The pipeline expansion will carry crude oil from Alberta to BC for export.7 Despite firm objection from Aboriginal communities, BC’s Environmental Assessment issued approval of the pipeline on December 8th, 2016, followed by the BC government’s approval, in solidarity with the Crown8. In our research, we analyzed letters, reports, and hearing transcripts on the NEB website. We found that consultations are not conducted as government-to-government consultations. Instead, the Crown makes decisions for all parties within a consultation process designed to prioritize the convenience of the Crown. This represents the small amount of power one.gc.ca/REGDOCS/Search?sr=1&loc=2392873& srt=0&isc=False&iscd=False&filter=Attr_12629_1 6&dt=5re3 (2013) 7 John Paul Tasker, "Trudeau Cabinet Approves Trans Mountain, Line 3 Pipelines, Rejects Northern Gateway | CBC News." CBCnews. November 29, 2016. 8 “Trans Mountain Expansion Pipeline,” Environmental Assessment Office, accessed April 5, 2018, https://projects.eao.gov.bc.ca/p/transmountain-expansion/detail.
Indigenous communities have in the decisionmaking process that influences them so heavily. The government and Kinder Morgan share similar values, shown in their emphasis on terms such as “economic benefits" and "market diversification" (see Sections 1.1 and 1.3) as ways of appealing to the public. Terms used to describe the impacts on cultural and ecological life are not given equal weight by the Crown and Kinder Morgan.
perspectives12. In the consultation process, the Crown privileges one perspective over another, resulting in the suppression of the other group and their values. In the case of the Trans Mountain pipeline, the rhetoric used by the NEB visibly privileges Kinder Morgan's viewpoint over Indigenous perspectives. 1. The Problem Landscape 1.1. The Rhetoric of Kinder Morgan Figure 2
Figure 1 Source: David Ball, “Timeline| Trans Mountain through the decades” In this report, we characterize the rhetoric of the NEB, Kinder Morgan and the Tsleil-Waututh, Squamish and Shxw'ōwhámel nations. Although commonly thought of as artistic and subjective, rhetoric is found in all uses of language9, including bureaucratic writing in government reports, letters and policy manuals. The terms and rhetorical styles used by governments are persuasive, conveying specific motives that colour the "lens" through which they see reality10. As “the nature of our terms affect the nature of our observations”11, the nature of the agent's’ terms allows them to select a perspective by emphasizing certain values and excluding others, thus “deflecting” other Samuel Watson, "Setting the Scene in Environmental Fiction: Kenneth Burke and the Frontier Myth." PhD diss., 2016. 10 S. Grainger, E. Sherry, and G. Fondahl, “The John Prince Research Forest: Evolution of a co-management 9
Source: Trans Mountain, “Economic Benefits” Kinder Morgan manipulates the viewer by accentuating positives and concealing negatives. When Kinder Morgan promotes the pipeline’s potential benefits on its web page, it uses viewerfriendly images and specific, appealing terms ( “$3.7 billion”, and “15,000 jobs”) (see Fig. 2). In contrast, the information about the pipeline presented in the letters, reports and applications for partnership in northern British Columbia.” The Forestry Chronicle, 82(4) (2006): 484-95. 11 Ibid., 116. 12 Ibid., 115.
Indigenous viewers is complex and hard to understand. In Kinder Morgan’s Application for Trans Mountain Expansion Project, the technical codes and references make it harder for Indigenous viewers to critically address shortcomings in the project. As stated in one hearing: It is unrealistic in the extreme to imagine for one moment that a Kwantlen First Nation whose future could be so impacted could meaningfully involve itself in this process without counsel and without technical advisors to tell them what this application means, to tell them where the shortcomings are in the assessment, to prepare studies to address the gaps in the application.13 For communities to participate in a technical dialogue with Kinder Morgan, they require experts and specialists. Obtaining technical counsel requires time and money, and depends on the assets of a given party. The language in these documents obstructs people’s understanding of the burdens of the pipeline if they do not have time or financial capital. This is especially prevalent in the legal language often used in the application: ….the NEB issued CPCN OC-064 and Amending Orders AO-003-OC-2 and AO002-OC-49 (Filing ID A80871). Trans Mountain applies to the National Energy Board (NEB or Board), pursuant to sections 33 and 34 of the National Energy Board Act (NEB Act) and section 50 of the National Energy Board Rules of Practice and Procedure, 1995 (Rules)...14
National Energy Board, “Hearing Order OH-001-2014 Volume 7” (hearing transcript, Chilliwack, BC, 2014), para 3120. 14 Carey Johannesson, letter from Trans
Mountain to NEB, December 9, 2016.
While the burdens are hidden under confusing, technical language, the pipeline benefits are easily understood. Through Kinder Morgan’s rhetorical strategies, the public struggle with effectively assessing and critiquing the pipeline. In this way, they are persuaded to support the pipeline, rather than critique or protest it. 1.2. The Rhetoric of Tsleil-Waututh, Squamish and Shxw'ōwhámel Nation The representatives of Tsleil-Waututh, Squamish and Shxw'ōwhámel Nation are critical of the rhetoric deployed by the government that serves to undermine their constitutional rights. They express concerns about the project’s technical studies, the consultation design, and the government’s failure to properly execute duty to consult. Ernie George, the director of the Treaty, Lands and Resources Department of the TsleilWaututh nation (TWT) criticizes that “despite...numerous requests, the NEB has still failed to offer to consult and cooperate with the TWN in respect to the technical assessment of the project...Declining to meet with TWN to consult and cooperate with us as you did in your June 20 letter is also inconsistent with the NEB’s duties under s. 18 of CCEA.”15 This critique highlights one instance of NEB’s failure to respectfully consult many communities. In a letter from the Squamish Nation to the NEB, Squamish legal counsel criticized the pipeline route assessment as coming from an overly technical perspective, and not considering “the potential impacts to surrounding communities, including impacts to traditional marine and land
Ernie George, "Re: Trans Mountain pipeline ULC Application for the Trans Mountain Expansion Project ('Project') Tsleil-Waututh Nation update on its Assessment of the Project." Letter sent to National Energy Board (2014).
use”16. The NEB fails to consider Squamish perspective and values. In their hearing, the Shxw'ōwhámel Nation challenges the appropriateness of the consultation structure and its unilateral design: ...Shxw'ōwhámel is disappointed that there is a largely absent Crown in this process. Shxw'ōwhámel, like other First Nations, has a nation-to-nation relationship with the Crown and there is a constitutional duty and obligation for the Crown to engage in a process with Shxw'ōwhámel to consult, to accommodate, and in fact, to obtain consent whenever there is title for any types of development in their territory… In a related note, Shxw'ōwhámel, like other First Nations, was not consulted in the design of this process. And, again, going back to the nation-to-nation relationship and the constitutional nature of the obligations and duties to Shxw'ōwhámel, it is not appropriate for this process to be designed unilaterally and in a hope to fulfill these obligations without first engaging in how this process would be undertaken.17 The Shxw'ōwhámel nation points out the unconstitutional nature of the Crown’s consultation design where Indigenous communities have no input on the content of consultation. This excludes Indigenous communities with whom the Crown has
partnerships and duty to consult in the project from the start. Other communities also state that the duty to consult has not been fulfilled. There has been “over a hundred legal cases about the duty to consult and accommodate since 2004”, showing that consultation based on “trust, respect, and understanding” needs further development.18 Communities are aware and critical of the NEB’s breach of conduct and poor communication. 1.3. The Rhetoric of the Government Similar to Kinder Morgan, the NEB uses specific terms to emphasize the benefits of the pipeline while downplaying the burdens. In their report, the NEB writes, "The Board finds a considerable benefit in the form of jobs created across Canada: Pipeline construction - 400-600 workers per spread" and "The Board finds that there is a very low probability of a marine spill from a Project-related tanker that may result in a significant effect (high consequence). The Board finds this level of risk to be acceptable."19 The NEB quantifies and guarantees benefits, but chooses not to quantify risk by using uncertain terms such as "probable" . The NEB does not use “probable” for jobs, but determines this as an aspect of the future. This rhetorical mode helps NEB to conceal burdens and direct focus unto jobs, adopting Kinder Morgan’s perspective. The tone in the letters written by NEB to Indigenous communities is technical and authoritative, constructing a premise where
Aaron Bruce, "Re:Trans Mountain Pipeline ULC (“Trans Mountain”) Application for the Trans Mountain Expansion Project (“the Project”) File OF-Fac-Oil-T2602013-03 02 - Hearing Order OH-001-2014 Oral Traditional evidence on Route 1 (HDD) and Route 2 (tunnel)". Letter sent to National Energy Board (2014) 17 National Energy Board, “Hearing Order OH-001-2014 Volume 6.” Hearing transcript, Chilliwack, BC. Retrieved from https://apps.nebone.gc.ca/REGDOCS/File/Download/2538772 (2014)
18 British Columbia Assembly of First Nations, Union of British Columbia Indian Chiefs, & First Nations Summit. "Advancing an Indigenous Framework for Consultation and Accommodation in BC" Vancouver, BC: The First Nations Leadership Council (2013) 19 National Energy Board, "Trans Mountain Expansion Project", Retrieved from https://apps.nebone.gc.ca/REGDOCS/Item/Filing/A77045 (2016).
Indigenous peoples’ consent to the project is not valued. In a letter sent to numerous Indigenous communities affected by the project, the NEB writes, “The Board will make a decision of whether to approve the Project by weighing both the positive and negative of the Project. Should the Board approve the Project, it may impose conditions to ensure any negative impacts will be mitigated or minimized.”20 The NEB seems to say that both the pros and cons will be considered, but their emphasis on pros and downplay of cons in their report contradicts this statement. Also, the Board has right to make decision and impose conditions, not Indigenous peoples. Thus, the Board overrides Indigenous peoples’ right to give consent (see Section 2.2). The NEB uses the same unequal power structure in hearings to infer that Indigenous peoples’ consent does not matter. Oral hearings are a part of the Canadian government's consultation process when approving projects that are deemed, by the government, to affect the public21 . The facilitators at the hearings are all NEB employees chosen by the Crown. In one hearing, Chairman David Hamilton states, We will consider it all and we could decide whether to recommend approval to the government if they can approve or reject this project. That’s our job. It’s to review all that information and recommend approval or we can recommend that the project be rejected.22
Hamilton appears to say that the NEB will consider Indigenous peoples’ interests in their decision. However, Hamilton’s statement stresses the Crown’s right to make all decisions. Hamilton focuses on the Crown’s ability to approve or reject, not Indigenous peoples’. This confirms that the Indigenous peoples’ consent loses its meaning.
Young, Trans Mountain Expansion Project. National Energy Board, "Hearing Process Handbook". retrieved from http://www.neb.gc.ca/prtcptn/hrng/hndbk/indexeng.html (2017) 22 National Energy Board. “Hearing Order OH-001-2014 Volume 2.” Hearing transcript, Chilliwack, BC. 2014. 23 Janet Giltrow, e-mail message sent to authors, February 1, 2017. 21
2. The Solutions Landscape 2.1. Change in Rhetoric The government’s failure to address concerns is a result of the lack of terms for expressing the profound totality of the damage produced by increased marine traffic, emissions and oil spills, the interruptions to marine life, pollution, and the linkage between these and human health. The language used by the government to describe burdens does not effectively encompass their severity. This results in the lack of their recognition in other legal frameworks, such as in court. 23 A gap needs to be bridged between the government’s worldview (institutional knowledge) and indigenous or alternative worldviews traditional ecological knowledge (TEK).24 Scholars have examined how TEK can be successfully integrated into law, policy, and other frameworks. By assessing difficulties and constraints of current development policies, they have proposed principles and models for successful institutional structures and partnership building that allow TEK and science to complement as opposed to compete25. For example, Grainger et al. illustrate the importance of generating a ‘Memorandum of Raymond Pierotti and Daniel Wildcat, "Traditional ecological knowledge: the third alternative (commentary)." Ecological applications 10, no. 5 (2000): 1333-1340. 25 Wouter Buytaert et al., "Citizen science in hydrology and water resources: opportunities for knowledge generation, ecosystem service management, and sustainable development." Frontiers in Earth Science 2 (2014): 26.
Understanding’ between partners, co-edited by both parties, outlining their intentions, responsibilities, and roles to set out a structure for the partnership26. The Crown can learn from these guiding principles and models to establish partnerships that allow equal share of power for Indigenous communities. The Crown should ensure more flexibility in their language use and make room for Indigenous and alternative perspectives in institutional structures, or they are unlikely to hold fair consultations where alternative opinions are heard and considered. The facilitator or panel at any consultation should be agreed upon by both parties to ensure a fair consultation. 2.2. Free, Prior, Informed Consent (FPIC) In 2016, Canada officially adopted the United Nations’ Declaration on Indigenous Peoples (UNDRIP).27 Article 32(2) of the UNDRIP requires states to consult and obtain Free, Prior and Informed Consent (FPIC). FPIC is freely-given consent without any coercion or manipulation. Indigenous peoples are given adequate time to formulate responses and questions after receiving information in a form that is clear and truthfully presented. The community is aware of its right to say ‘no’, and consent is given at every stage of project development.28 It is evident in the case of the Kinder Morgan pipeline that FPIC is not being respected. In the case of the Ditidaht Nation, consent does not exist because the NEB makes the final decision. “We came to the determination… that [the project] was going to go ahead anyway. So it’s not really support. If we 26
Grainger, The John Prince Research Forest. T. Fontaine, "Canada officially adopts UN declaration on rights of Indigenous Peoples". CBC News. retrieved from http://www.cbc.ca/news/indigenous/canadaadopting-implementing-un-rights-declaration-1.3575272. (2016) 28 Matthew Carlson, Jeff Wells, and Mathew Jacobson. "Balancing the relationship between protection and 27
opposed it, we would have no way of addressing spills, because we would be disqualified from funding from Trans Mountain,” said Ditidaht Chief Councillor Robert Joseph.29 FPIC is being violated, not only in this project, but in many others as well. Although FPIC formulates a definition of consent on which both the government and Indigenous peoples agree, it is only effective if the government communicates transparently and includes the perspectives of Indigenous peoples, in order to consult fairly and accommodate the communities.
Bibliography Bastiaensen, Bert De Bièvre et al. "Citizen science in hydrology and water resources: opportunities for knowledge generation, ecosystem service management, and sustainable development." Frontiers in Earth Science 2 (2014): 26. British Columbia Assembly of First Nations, Union of British Columbia Indian Chiefs, & First Nations Summit. "Advancing an Indigenous Framework for Consultation and Accommodation in BC" Vancouver, BC: The First Nations Leadership Council (2013) Bruce, Aaron. "Re:Trans Mountain Pipeline ULC (“Trans Mountain”) Application for the Trans Mountain Expansion Project (“the Project”) File OF-FacOil-T260-2013-03 02 - Hearing Order OH-0012014 Oral Traditional evidence on Route 1 (HDD) and Route 2 (tunnel)". Letter sent to National Energy Board (2014)
sustainable management in Canada's boreal forest." Conservation and Society 13, no. 1 (2015): 13. 29 Amy Smart, "Better in than out: Why nine Vancouver Island First Nations signed on with Kinder Morgan" Victoria Times New Colonist. Retrieved from http://vancouversun.com/news/local-news/better-inthan-out-why-nine-vancouver-island-first-nations-signedon-with-kinder-morgan. (2016)
Buytaert, Wouter, Zed Zulkafli, Sam Grainger, Luis Acosta, Tilashwork C. Alemie, Johan
National Energy Board. “Hearing Order OH-001-2014 Volume 2.” Hearing transcript, Chilliwack, BC.
Carey Johannesson, letter from Trans Mountain to NEB, December 9, 2016.
Pierotti, Raymond, and Daniel Wildcat. "Traditional ecological knowledge: the third alternative (commentary)." Ecological applications 10, no. 5 (2000): 1333-1340.
Carlson, Matthew, Jeff Wells, and Mathew Jacobson. "Balancing the relationship between protection and sustainable management in Canada's boreal forest." Conservation and Society 13, no. 1 (2015): 13. Fontaine, T. "Canada officially adopts UN declaration on rights of Indigenous Peoples". CBC News. retrieved from http://www.cbc.ca/news/indigenous/canadaadopting-implementing-un-rights-declaration1.3575272. (2016) George, Ernie. "Re: Trans Mountain pipeline ULC Application for the Trans Mountain Expansion Project ('Project') Tsleil-Waututh Nation update on its Assessment of the Project." Letter sent to National Energy Board (2014) Indigenous and Northern Affairs Canada "Consultation and engagement at Indigenous and Northern affairs Canada" Retrieved from http://www.aadncaandc.gc.ca/eng/1307644732392/13076447697 69#sec"(2016). Ball, David. “Timeline| Trans Mountain through the decades”, figure. National Energy Board "Trans Mountain Expansion Project", Retrieved from https://apps.nebone.gc.ca/REGDOCS/Item/Filing/A77045 (2016). National Energy Board, "Hearing Process Handbook". retrieved from http://www.neb.gc.ca/prtcptn/hrng/hndbk/inde x-eng.html (2017)
Sheri Young, “Trans Mountain Expansion Project (the Project),” letter to Musqueam Indian Band, retrieved from https://apps.nebone.gc.ca/REGDOCS/Search?sr=1&loc=2392873 &srt=0&isc=False&iscd=False&filter=Attr_12629 _16&dt=5re3 (2013) Smart, Amy. "Better in than out: Why nine Vancouver Island First Nations signed on with Kinder Morgan" Victoria Times New Colonist. Retrieved from http://vancouversun.com/news/localnews/better-in-than-out-why-nine-vancouverisland-first-nations-signed-on-with-kindermorgan. (2016) Tasker, John Paul. "Trudeau Cabinet Approves Trans Mountain, Line 3 Pipelines, Rejects Northern Gateway | CBC News." CBCnews. November 29, 2016. Accessed February 2, 2017. http://www.cbc.ca/news/politics/federalcabinet-trudeau-pipeline-decisions-1.3872828. Trans Mountain Expansion Pipeline,” Environmental Assessment Office, accessed April 5, 2018, https://projects.eao.gov.bc.ca/p/transmountain-expansion/detail. "Economic Benefits." Trans Mountain. Retrieved from https://www.transmountain.com/benefits Watson, Samuel. "Setting the Scene in Environmental Fiction: Kenneth Burke and the Frontier Myth." PhD diss., 2016.
National Energy Board, “Certificate OC-064,” (certificate, Calgary, AB, 2016) National Energy Board, “Hearing Order OH-001-2014 Volume 7” (hearing transcript, Chilliwack, BC, 2014), para 3120. National Energy Board, “Project map,” map. (2016)
Relations on the Basis of Migration: Philippine Temporary Labour Migration and Canadian Foreign Policy PHEBE FERRER ____________
Canada’s foreign relations with developing nations is frequently centred around issues of migration since it is a major destination for migrants. India, China, and the Philippines, comprise the top three nations with the highest levels of migration to Canada.1 Indeed, official government documents and think-tank analyses cite migration as an important consideration in how Canada conducts foreign relations with these countries.23 How then does migration to Canada from these countries affect foreign relations, and thus the formulation of Canadian foreign policy concerning these states? In answering this question, this paper will first engage in a literature review concerning the topic of migration in relation to foreign policy. This review will focus on how migration affects and influences relations between states, and in turn, their foreign policies. From this review, this paper will develop a set of criteria or expectations for assessing the impact of migration on foreign policy, derived from major trends observed in the literature. These criteria will then be applied to the case study of Philippine labour-migration to Canada, in order to understand its effect on Canadian foreign policy. Finally, this paper will conclude by considering the implications of further studies surrounding this topic within the Canadian context. This paper thus argues that there are two observable ways that Philippine labour migration
has potentially impacted Canadian foreign policy. First, this migration flow has enhanced provincial foreign policy-making power through the primary position they have taken in devising labour agreements with the Philippines, where they effectively act as a gatekeeper, for instance, by asserting influence on immigrant settlement provincially. Second, due to the Filipino diaspora resulting from high levels of labour migration and their political mobilization within Canada, this overseas population has become a significant consideration for Canada in conducting its foreign relations with the Philippines. Key Trends in the Literature on Migration and Foreign Policy Overall, I identify three major trends in the literature from political science and international relations concerning migration and its connection to foreign policy.4 The first and arguably most influential trend concerns migration’s perceived threat to state sovereignty under the Westphalian model , which necessitates total control over one’s
“Temporary Foreign Workers in Canada (2015).” The Canadian Magazine of Immigration, April 14, 2016. 2 Ibid. 3 Martin Rudner, Canada and the Philippines: The Dimensions of a Developing Relationship. (Ottawa: Asian Pacific Research and Resource Centre, 1990).
N. Ela Gokalp Aras and Zeynep Sahin Mencutek. “The International Migration and Foreign Policy Nexus: the Case of Syrian Refugee Crisis and Turkey.” Migration Letters 12, no.3 (2015): 195-196.
borders.5 6 7 This trend is reflected in a majority of existing studies in this topic, from Myron Weiner’s ‘political realist’ analysis, which follows the tradition of realism with a state-centric analysis, to James Hollifeld’s contemporary analysis, which considers international migration after 9/11.8 Thus, throughout the literature, it is generally agreed that migration may decrease state sovereignty, particularly in the contemporary context of globalization and international trade.9 Secondly, migration is recognized to be “affected with […] interest,” influenced by national and foreign policies as well as the existing status of relations between states.10 11 This second trend is noteworthy since a majority of the literature views migration from this standpoint, whereas this paper intends to subvert this conception and analyse ,how labour migration itself impacts these relations. Since migration is influenced by existing relations between states, the literature discusses how an influx of migrants can be utilized by states within their individual foreign policies.12 13 One example is the work of Michael Teitelbaum, who analyzes how Latin American countries utilize their outmigration flows to leverage negotiations in their relations with the United States. In Weapons of Mass Migration, Kelly Greenhill argues that migrant sending states can and have used mass migration flows as a threat, in order to have ‘leverage’ during situations
of conflict.141516 While not all examples are as extreme as Greenhill presents, it is notable that states have used migration as a policy tool to achieve their own respective interests. This indicates that states have recognized migration to be a viable component of foreign policy, though a formal documented connection has yet to be made. The third major trend then considers how diasporas, or overseas populations, can impact relations between migrant-sending and receiving states, and thus their respective foreign policies.17 Weiner was among the first group of scholars to consider this possibility, arguing that diasporas “link internal and international politics” through their political mobilization. Examples of this include organized protests, resulting from migrants’ attitude towards the host country and ongoing political issues in their country of origin. Protests and other large-scale forms of mobilization prompt both countries to address the matter in question. 18 While Weiner notes that this political capability may also be limited by conditions imposed by the host country, he nevertheless emphasizes that diasporic populations are not to be ignored, as they may be an important catalyst for gaining migrant rights.19 Other Assumptions within the Literature In addition to these three themes, there are two key assumptions within the literature that must
Ibid; James F Hollifeld, “Migration and International Relations.” in The Oxford Handbook of the Politics of International Migration eds. Marc R. Rosenblum and Daniel J. Tichenhor (Oxford: Oxford University Press, 2015): p.353. 6 Christopher Mitchell, “International Migration, International Relations and Foreign Policy.” The International Migration Review 23, no.3 (1989). 7 Myron Weiner, “On International Migration and International Relations.” Population and Development Review 11, no.3 (1985) 8 Hollifeld, “Migration and International Relations.”; Weiner, “On International Migration and International Relations.” 9 Ibid.
Ibid. Mitchell, “International Migration,” 682. 12 Ibid. 13 Kelly M. Greenhill, Weapons of Mass Migration: Forced Displacement, Coercion, and Foreign Policy, (New York: Cornell University Press, 2010). 11
Ibid. Mitchell, “International Migration,” 682. 16 Michael Teitelbaum, Latin Migration North: The Problem for U.S. Foreign Policy, (US: Council on Foreign Relations, 1985). 15
Weiner, “On International Migration,”451. Ibid. 19 Ibid. 18
be addressed due to their influence on existing research in this topic. The first concerns the attitude adopted within the field of political science towards the topic of migration. Mitchell and Hollifeld point out that migration has been viewed as belonging to the realm of ‘low politics,’ significant only within the domestic context without consideration for its potential implications in foreign policy or ‘high politics’.2021 Thus, political scientists typically consider the implications of migration policies primarily within the context of domestic politics.22 23 Moreover, when there is interest in the international implications of migration, there is a focus on instances of mass migration events that take place after conflict, such as the Syrian refugee crisis.24 25 Thus, as the majority of existing research focuses on mass migration events, future literature might be influenced and continue the trend of focusing on specific contexts.26 Subsequently, the nature of ongoing migration flows may not be fully considered, and thus analyses of this type of migration may be devoid of nuance. This is particularly important for this paper’s case study, since Philippine labour migration to Canada is constituted by an ongoing migration flow. The second then considers how a majority of existing studies on migration and foreign policy are based on American and Western European political contexts. As Hollifeld argues, one major debate within the literature concerning the separation between immigration and foreign policy can be attributed to the fact that authors are writing from contexts where policymakers are engaged in this very debate.27 One example is the work of Michael Teitelbaum, whose discussion of migration
Hollifeld, “Migration and International Relations,” 350. Mitchell, “International Migration,”682. 22 Ibid., 682. 23 Hollifeld, “Migration and International Relations.” 24 Ibid. 25 Gokalp Aras and Sahin Mencutek. “The International Migration and Foreign Policy Nexus,” 195-196. 21
in American foreign policy focuses on this division within United States policy-making and how it impacts immigration policies.28 He finds that because policymakers prioritize this division, it is then reflected in immigration policy, with the strict separation from foreign policy manifested through separated departments and a lack of communication between them.29 Therefore, assumptions and facts held to be true in specific contexts may become generalized due to their predominance in this topic. Additionally, the conceptualization of migration as a threat to the state has itself resulted from Western-based analyses which view migration from the Global South as an existential threat to the West.30 Examples of these include Samuel Huntington’s controversial argument in “The Clash of Civilizations,” that migration is an inherent security threat due to differences between 'civilizations', including the West, and George Borjas’ argument that migration from the Third World constitutes an economic threat, given that an influx of foreign labour could damage the existing Western labour force.31 Considering that Huntington and Borjas have been prominent voices within the study of migration in political science, it is crucial to evaluate how their arguments have shaped the scholarly literature, especially as they are applied to contemporary migration flows. Criteria of Analysis Following the key trends identified in the literature review, this paper has derived three questions to guide the analysis of the impact of Philippine labour migration on Canadian foreign policy. Government documents and news articles
Hollifeld, “Migration and International Relations.” Ibid. 28 Teitelbaum, Latin Migration North. 29 Ibid. 30 Hollifeld, “Migration and International Relations,”352353. 27
Hollifeld, “Migration and International Relations.”
relating to the topic will be used to evaluate these questions. Case Study: Philippine Labour Migration to Canada The Context of Canadian Foreign Policy Before delving into the case study, there are important details needed to frame the specific context of Canadian foreign policy, particularly the division of jurisdictions between the federal and provincial levels of government. Aside from the general separation of immigration and foreign policy observed in the literature, in the Canadian context there is also the division between federal and provincial responsibilities, which also influences Canadian foreign policy.32 Foreign policy is under federal jurisdiction, as this level of government formally represents Canada in the international community.33 Education, healthcare, and particularly labour policy, are determined on a provincial level. Depending on the issue at hand within international agreements, provinces may be considered viable foreign policy-making actors.34 Indeed, some initial studies have been done on the provinces’ foreign policy making power particularly through international trade, such as in Christopher Kukucha’s book, The Provinces and Canadian Foreign Trade Policy.35 However, there have not yet been studies on this topic with regards to migration. Background on Philippine Labour Migration
Christopher J Kukucha, The Provinces and Canadian Foreign Trade Policy, (Canada: UBC Press, 2008), p.3-5. 33 Kukucha, The Provinces and Foreign Trade. 34 Ibid. 35 Ibid. 36 Joaquin L Gonzalez III, Philippine Labour Migration: Critical Dimensions of Public Policy, (Singapore: Continental Press Pte Ltd., 1998). 37 James A Tyner, The Philippines: Mobilities, Identities, Globalization, (New York, U.S.A: Routledge, 2009). 38 Gonzalez, Philippine Labour Migration. 39 Tyner, Mobilities, Identities, Globalization. 40 “DFA Release: An Independent and Principled Philippine Foreign Policy for Economic
In analyzing labour migration from the Philippines, as well as the Filipino labour and temporary foreign worker (TFW) population in Canada, there are several key points to consider. The first is the institutional role of the Philippine state in facilitating the outmigration of Filipino temporary labour.36 37 Similar to other migrant-sending countries, the Philippine government has been instrumental in encouraging the outmigration of its citizens, with government departments such as the Philippines Overseas Employment Administration (POEA) focused on this effort, and overseas workers characteristically labelled as ‘Overseas Filipino Workers’ (OFW).38 39 Furthermore, an official pillar of Philippine foreign policy is to support Filipino nationals abroad.40 A second point then concerns Canada’s Temporary Foreign Worker Programs (TFWP), through which the Canadian and provincial governments manage labour migration and the allocation of resources across industries.41 42 43 Along with dictating labour policy, these programs also often feature a path for acquiring permanent residence status, which then serves as another incentive for Filipinos to come to Canada. The most notable of these programs is the Live-In Caregiver Program (LCP), which has become a political focus of the Filipino Canadian community concerning the labour rights of Filipino caregivers.44 Overall, immigration from the Philippines to Canada has been a noted aspect of Canada-Philippine bilateral Growth,”(Department of Foreign Affairs, Philippines, 2013). 41 Patti Tamara Lenard and Christine Straeble, eds, Legislated Inequality: Temporary Labour Migration in Canada, (Canada: McGill-Queen’s University Press, 2012). 42 ; Austina J Reed, “Canada's Experience with Managed Migration: The Strategic Use of Temporary Foreign Worker Programs,” International Journal 63, no. 2 (2008). 43 Chris Sorensen, “Why Canada Needs its Temporary Foreign-Worker Program,” Macleans, May 24, 2013, http://www.macleans.ca/economy/business/with-alittle-help-from-afar/ 44 Ibid.
relations, demonstrated through government and think tank analyses alike from the 1980s to the present day.45 The Foreign Policy Making Position of the Provinces The first observed impact on Canadian foreign policy concerns the role of provinces in leading labour migration policy with the Philippines. In a study on bilateral trade agreements signed by the Philippines with top migrant-receiving partners, it was found that agreements with Canada were typically made in the name of provincial governments.46 More specifically, the provinces of Saskatchewan, British Columbia, Manitoba and Alberta have each signed individual agreements with the Philippines in the form of a Memorandum of Understanding (MOU) from 2006 to 2008.47 This study particularly notes the unique nature of these independent provincial agreements. By contrast, trading partners like Japan and Saudi Arabia form these agreements on a national basis, rather than based on prefecture or region.48 Indeed, these individual agreements are “adapt[ed] to the specific needs of each province,” from hiring regulations to labour rights.49 With regards to the type of agreement it is necessary to note that MOUs, unlike formal treaties, are not legally binding.50 However, these agreements still indicate a provincial management of Philippine labour migration, since MOUs aim at “ involving key players” in “design[ing] and implement[ing]” labour agreements and
relations between the Philippines and Canada.51 Additionally, the Philippine state recognizes these agreements as ongoing ‘formal bilateral labour agreements,’ thus affirming their legitimacy.52 Therefore, as observed from this study and documents issued from the Philippine government, Canadian provinces take a lead role in migration policy concerning Philippine foreign labour. When the government demonstrates a clear economic need for labour-based migration, the connection to foreign policy is not so obvious. The incoming TFW population is noted as an important means of compensating for a declining national population growth rate, as well as shortages of labour in the industrial and agricultural sectors.53 54 Due to the continuing influx of TFWs and the flexible nature of temporary labour, these workers have been praised by labour analysts and government officials alike in their contribution to the economy.55 56 Additionally, there is a notable domestic demand for Filipino TFWs from industrial and agricultural companies participating in the labour programs.5758 For example, the owners of the Saskatchewan-based farm equipment manufacturer Honey Bee Manufacturing have expressed their preference for Filipino TFWs in company hiring practises, due to their availability through the TFWP and their reputation for being ‘hard workers’.59 Thus, through the aforementioned bilateral agreements, the provinces are able to fill
“Canada-Philippine Relations” (Embassy of Canada in the Philippines, Philippines, 2017). ; Rudner, Canada and the Philippines. 46 Nathan R Blank, “Making Migration Policy: Reflections on the Philippines’ Bilateral Labor Agreements,” Asian Politics & Policy 3, no.2 (2011). 47 Ibid., p.192-194. 48 Ibid. 49 Ibid., p.192. 50 Ibid., p.188. 51 Ibid. 52 “List of Existing Philippine Bilateral Labor Agreements” (Department of Labour and Employment, Philippines, 2011).
Clement Gignac, “For Canada, immigration is a key to prosperity,” The Globe and Mail, October 7, 2013. https://www.theglobeandmail.com/report-onbusiness/economy/economy-lab/for-canadaimmigration-is-a-key-to-prosperity/article14711281/ 54 Reed, “Canada's Experience with Managed Migration.; 55 Sorensen, “Temporary Foreign-Worker Program.” 56 Gignac, “For Canada, immigration is a key to prosperity.” 57 “Hiring Filipinos a Key to Success, say Canadian Farm Equipment Makers,” Philippine Inquirer, November 8, 2017. 58 Sorensen, “Temporary Foreign-Worker Program.” 59 “Hiring Filipinos a Key to Success.”
this economic need and domestic demand for labour due to these Filipino labour inflows. In terms of the impact on Canadian foreign policy, there is insufficient evidence to connect this economic need to foreign policy making. However, one potential connection proposed by this paper suggests that the provinces are motivated to directly maintain relations with the Philippines in order to maintain their provincial levels of incoming migrant labourers . This can be observed through the MOUs, particularly their provision to adhere both to Canadian and Philippine labour codes, and through the joint effort between provincial Canadian governments and the Philippine government in dealing with Filipino recruiting agencies and processing TFWs.60 61 However, aside from these MOU documents, there is not enough evidence to draw a definite connection between labour practises and their impact on Canadian foreign policy. The Filipino Diaspora as a Foreign Policy Consideration The second impact observed by this paper is how the political mobilization of the Filipino diasporic population living in Canada, renders this population a necessary foreign policy consideration. In 2015, the Philippines was the second top country of citizenship for TWFs in Canada, and the overall Filipino community made up around 2% of the national population.62 63 This community is a sizeable portion of the overall migrant population in Canada. However, due to their temporary status, Filipino TFWs are unable to
exercise formal political rights such as voting.64 65 Instead, these workers have demonstrated their political participation in other ways, including protests against Canada’s TFWP, which focused on caregivers’ rights and the LCP. There have also been efforts, such as through communityorganized workshops, aimed at making fellow workers aware of their rights and potential paths to immigrating to Canada.6667 Due to the significant number of Filipino workers in Canada and their political participation they have become a targeted demographic within provincial politics, with the Filipino community often recognized for its contribution of labour to the Canadian economy.6869 Additionally, for Filipinos who later gain citizenship, as well as Canadian-born individuals with Filipino heritage, some choose to formally enter Canadian politics to represent community issues.70 Notable Filipino-Canadian political actors include Mable Elmore, a New Democratic Party member of the legislative assembly in British Columbia, and Tobias Enverga, a senator representing Ontario, who have championed issues important to TFWs and highlighted these within both the federal and provincial governments.71 The Filipino diaspora is also relevant in determining Canadian development and aid policies in the Philippines. One notable example of this is the Canadian response following Typhoon Haiyan in 2013, wherein the government pledged to match all donations to the Philippines made by individuals, non-profit and community
eds. Filipinos in Canada: Disturbing Invisibility. (Toronto: University of Toronto Press, 2012) 66 Coloma, McElhinny, Tungohan, Catungal, and Davidson, eds. Filipinos in Canada. 67 Lenard and Straeble, eds, Legislated Inequality. 68 Ibid. 69 Coloma, McElhinny, Tungohan, Catungal, and Davidson, eds. Filipinos in Canada. 70 Ibid. 71 Ibid.
Blank, “Making Migration Policy.” “Backgrounder: B.C./Philippine Memorandum of Understanding” (Ministry of Economic Development, British Columbia, Canada, 2008). 62 “Immigration and Ethnocultural Diversity in Canada,” (Statistics Canada, Canada, 2016). 63 “Temporary Foreign Workers in Canada (2015).” 64 Lenard and Straeble, eds, Legislated Inequality. 65 Roland Sintos Coloma, Bonnie McElhinny, Ethel Tungohan, John Paul Catungal, and Lisa M. Davidson, 61
organizations.72 In declaring this policy, the government cited the diaspora as a key reason for its actions. The Canadian ambassador to the Philippines stated that the motivation to help was partly a result of “the presence of the Filipino diaspora in Canada,” and the “connection” felt by Canadians to this Filipino migrant population.73 Thus, the diaspora may become a consideration in foreign policy and relations, both through their internal political participation and as a rationale for actions towards the migrant-sending country. Overall, these are the key observable areas where Philippine labour migration has impacted and shaped Canadian foreign policy. As with the criteria drawn from trends in the literature, these observations have generally followed the expectations laid out by authors in existing studies. However, further studies with in-depth analysis into foreign policy documents are required to flesh out this connection between Philippine labour migration and Canadian foreign policy. Conclusion In conclusion, analyzing the connection between migration and foreign policy can reveal how significant increases in migration and labour may impact foreign relations. In turn this demonstrates how countries view these trends as potentially valuable for national interests. Given that Canada is a major destination country for TFWs, and that migration is an important aspect in determining Canadian relations with migrant sending countries like the Philippines, it is valuable to note how migration may impact Canadian foreign policy-making with respect to these states. As a self-proclaimed country of immigrants and multiculturalism, it would be intriguing to examine how immigration, refugee and labour flows into Canada not only shape its image domestically, but also in the international community through foreign
policy and the development of relations with migrant-sending countries. With this in mind, future studies connecting labour migration to the formulation and enactment of foreign policy are needed.
https://www.rappler.com/nation/55258-canada-yolandahaiyan-aid-filipino-canadians 73 Ibid.
Paterno II Esmaquel, “Canada on Haiyan: We helped because of Filipino-Canadians,” Rappler, April 11, 2014.
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Rudner, Martin. Canada and the Philippines: The Dimensions of a Developing Relationship. Ottawa: Asian Pacific Research and Resource Centre, 1990. Sorensen, Chris. “Why Canada Needs its Temporary Foreign-Worker Program.” Macleans, May 24, 2013. http://www.macleans.ca/economy/business/with-alittle-help-from-afar/ Teitelbaum, Michael. Latin Migration North: The Problem for U.S. Foreign Policy. US: Council on Foreign Relations, 1985. The Canadian Magazine of Immigration. “Temporary Foreign Workers in Canada (2015).” The Canadian Magazine of Immigration, April 14, 2016. http://canadaimmigrants.com/temporary-foreignworkers-and-imp-2015/ Tyner, James A. The Philippines: Mobilities, Identities, Globalization. New York, U.S.A: Routledge, 2009. Weiner, Myron. “On International Migration and International Relations.” Population and Development Review 11, no.3 (1985): 441-455.
--- “List of Existing Philippine Bilateral Labor Agreements.” Department of Labour and Employment, Philippines, 2011. Mitchell, Christopher. “International Migration, International Relations and Foreign Policy.” The International Migration Review 23, no.3 (1989): 681708. Philippine Inquirer. “Hiring Filipinos a Key to Success, say Canadian Farm Equipment Makers.” Philippine Inquirer, November 8, 2017. http://usa.inquirer.net/7864/hiring-filipinos-keysuccess-says-canadian-farm-equipmentmakers#ixzz4yBvQ6W4n Reed, Austina J. “Canada's Experience with Managed Migration: The Strategic Use of Temporary Foreign Worker Programs.” International Journal 63, no. 2 (2008): 469-484.
Québé-Quoi? Understanding Intrastate Migration and National Identity SAWYER JUNGER ____________ Introduction In migration and transnational studies, the nation-state is traditionally considered the primary base unit of analysis.1 Migrants are generally seen as individuals or groups who cross borders socially constructed by their respective nation-states. This mode of analysis tends to conflate the interconnectedness of the nation (as a cultural body) with the state (a governmental one). As a result, anthropologists risk diminishing the impact of intrastate migration in states that contain a plurality of cultural groups within their borders. To address this issue, this paper will examine the case of Quebecois Francophones who migrate to British Columbia (BC). As the only primarily francophone province in Canada, Quebec has often been recognized as a distinct and culturally unique province in the context of Canadian society2. The high prevalence of French and cultural uniqueness of the province has shaped the identity of the Quebecois as being something significantly more than a mere Canadian subculture. Instead, the Quebecois are widely considered their own nation. The strength of this acceptance of this notion has even reached Canada’s legislative levels. For example, a bill passed in 2006 was introduced to House of Commons to recognize “that the 1
Andreas Wimmer and Nina Glick Schiller. “Methodological nationalism and beyond: nation-state building, migration and the social sciences,” Global Networks 2, no. 4 (2002): 301-34. 2 Statistics Canada, “Languages,” statcan.gc.ca., (Accessed December 7 2017).
Quebecois form a nation within a united Canada.”3 The recognition of Quebec as a distinct nation within the Canadian state challenges traditional ideas of transnationalism. Because the Quebecois are still Canadian, their access to interprovincial migration is not inhibited by the state, yet they are migrants who move between different cultures with varying languages and values. Accordingly, the case of Quebecois individuals migrating to BC presents a unique case study in which international migration can be examined without being interstate migration. The first section of the body of this paper will provide an overview of the historical creation of the Quebec nationalism and its contemporary cultural effects on the Quebecois. The second section of this paper will examine the migration narratives of Quebecois migrants to illustrate the effects of migration on Quebecois identity. The third section of the body of this paper will synthesize these findings to argue that migration to Anglophone Canada reinforces migrants sense of being Quebecois. Furthermore, this paper will highlight the need for an expansion of migration literature that goes beyond that of methodological nationalism in order to examine
https://www.statcan.gc.ca/pub/11-402x/2011000/chap/lang/lang-eng.html. 3 CBC News, “House passes motion recognizing Quebecois as nation,” Canadian Broadcasting Corporation (Accessed December 7 2017). http://www.cbc.ca/news/canada/house-passesmotion-recognizing-quebecois-as-nation-1.574359
intricacies of transcultural migration that does not involve the crossing of state borders. Historical Background: Quebec as a Nation within a United Canada Quebec’s legacy and recognition as a distinct society stems from the nature of its founding. Before becoming an independent state, Canada was split into two distinct British colonies. One, known as Upper Canada, occupied the space that would eventually become Ontario and was primarily Anglophone. The other, Lower Canada, was originally under French control before being ceded to the British and occupied the area that is now modern-day Quebec. Accordingly, this area was largely francophone. During this era, the francophone population of Lower Canada resisted British institutions and Protestantism. Despite British rule, they maintained their own form of French identity and governmental institutions well into the modern era.4 As a result of this history Quebec remains the sole province in Canada with a Francophone majority.5 Today the legacy of Quebec nationalism continues to affect the political and cultural landscape of Canada. The provincial government has implemented a number of laws dedicated to preserving the French language and Quebecois culture in ways incomparable to other provinces.6 As well as having effects on institutional and structural levels, Quebec nationalism has had strong effects on the identities of the Quebecois people. In his book Nationalism and the Politics of Quebec Richard Handler notes that the Quebecois have
internalised their nationality as members of Quebec rather than as members of Canada.7 However, the exact definition of who is Quebecois is generally broad and open to individual interpretation. Handler cites one Quebecois man’s definition as:
203-241. 7 Richard Handler, Nationalism and the Politics of Culture in Quebec (Madison: University of Wisconsin Press, 1988) 8 Ibid., pg. 33. 9 Ibid., pg. 38.
Cara Des Granges, “Finding Legitimacy: Examining Quebec Sovereignty from Pre-Confederation to Present,” International Journal of Canadian Studies no. 58 (2014): 25-54. 5 Statistics Canada, op. cit. 6 Hudson Meadwell, “The Politics of Nationalism in Quebec,” World Politics 45, no. 2 (1993):
Any inhabitant of Quebec is Quebecois, if you want the broad definition. But the Quebecois- that more likely would be the people who have been here a stretch of time. Certainly in theory, any person residing in Quebec is Quebecois. But the popular mentality holds that the Quebecois are those who have established here for a long time. And generally, the Quebecois speak French and have a certain way of looking at life. When you talk about the Quebecois you’re talking about Francophones who are nationalist and hold to their heritage, culture, customs and traditions. It’s more like that, the Quebecois.8 Nevertheless, Handler highlights three main tenets of this philosophy. The first is the naturalization and pride of a distinct Quebec culture. Amongst the Quebecois, there is a desire to “live as [themselves].”9 The Quebecois see themselves as having a distinct and treasured cultural way of life, one that is uniquely distinct from neighbouring provinces and states with their values and traits. Handler notes that the exact characteristics of Quebec culture are
rarely concretely defined, as “people speak vaguely of traditions, typical ways of behaving, and characteristic modes of conceiving the world.”10 Nonetheless, the Quebecois as an imagined community remains a powerful ideal. The ideology that “the Quebecois nation exists” is something that is created by a shared lifestyle that is consistently socially constructed and recreated.11 To be Quebecois is something that an individual consistently recreates in terms of their lifestyle and association with other Quebecois. Thus, when Handler’s example says they wish to “live as [themselves],” they are expressing the validity of Quebecois identity without necessarily constraining it to an explicit definition.12 In Benedict Anderson’s defining writing on nationalism in Imagined Communities: Reflections on the Origins and Spread of Nationalism, he emphasizes how nations are created via a common interaction with state and cultural institutions, and a shared imagination of a common community.13 Handler’s portrayal of Quebec nationalism firmly fits into Anderson’s framework of nations as imagined communities, a point that will be further proven with my own evidence later in this paper. A Montreal based student in Handler’s article asserts that “we are a nation because we have culture.”14 While that culture may be elusive and difficult to define, it is nevertheless vital and real to those from Quebec. Furthermore, Handler illustrates that being Quebecois has a direct connection to Quebec’s geographic location. According to Handler’s research, living in and being born in Quebec is seen by many Quebecois as a
contributor to an “impulse towards being Quebecois.”15 This ideal is proven to affect Quebecers inclinations to migrate away from or remain in Quebec. Handler’s research illustrates how Quebecers treasure the “permanent bond between people and the place of their birth.”16 One respondent in Handler’s research who had recently returned to Quebec after living abroad for a period emphasizes the internalization of the value of Quebec’s territory on his sense of belonging, noting that “[he doesn’t] believe that a person can live away from the country where he is born” as “[their] heart is a part of the ground.”17 Thus, the Quebec territory is romanticized as a common amongst Quebecers and upheld in the collective consciousness as national value. Finally, Handler notes emphasizes the internalization and naturalization of the French language as a distinct component of the Quebecois identity. While Quebecois identity is regularly contested and reimagined on a case by case basis, speaking French “is the one element of Quebecois culture that people invariably specify.”18 French is seen by the Quebecois as something more than merely behavioural, but as a defining characteristic of who one is due its historical connection to the original French settlers of Quebec and how it differentiates them from Anglophone Canada.19 Ultimately, the Quebecois do fit the widely accepted definition of what constitutes a nation. They share a common history, intangible values, language and most importantly, imagine themselves as part of an independent community that is distinct from the rest of Canada.
Handler, op. cit., p. 39. Ibid. 12 Ibid. 13 Ibid. 14 Ibid.
Handler, op. cit., p. 34. Ibid. 17 Ibid. 18 Ibid., p. 38. 19 Ibid.
Methodology All informants for this paper are undergraduate students at the Vancouver campus of the University of British Columbia (UBC). The focus on students at this university proved beneficial for several reasons. First, attending university is often is a common reason for young adults to relocate following the completion of secondary school.20 Accordingly, university students are a useful sample as they are frequently migrants. Second, limiting the pool of applicants to university students meant that all participants would be relatively young, thus giving a relatively contemporary narrative of Quebecois identity to compare with Handler's findings from the 1980’s. Third, UBC is located in the farthest province from Quebec, meaning the migration from Quebec would have been a significant endeavour for young Quebecois migrants leaving home for the first time. The first participant of this study, Julia, is a fourth-year student double majoring in history and international relations. The second, Florence, is in her third year and studies creative writing. Each participant was informed of the general nature and purpose of the study and promised a beer or coffee in return for their time and cooperation beforehand. Both participants were originally born in Quebec, grew up speaking French, self-identify as francophone and as being French-Canadian. Florence’s parents continue to live in Quebec while Julia’s have since relocated to Alberta. Each continues to primarily speak French with their parents and
consider it their preferred language. Thus, all participants strongly identify with Quebecois culture, yet migrated to BC for their academic career. Interviews were conducted via a semistructured Skype interview in order to both outline the purpose this paper and conduct initial questioning. These interviews were recorded with the participants permission. When further questions arose upon the revision of notes and audio recordings, follow up questions were administered over Facebook Messenger, so participants could answer at their convenience. Reasoning for Migration The beginning stages of young adult North-North migration narratives are often driven by a desire for personal growth and adventure.21 While Quebecois individuals moving from Quebec to BC are not traditionally considered international, their narratives almost perfectly align with this philosophy. When interviewed, each respondent attributed a desire for personal growth as a primary reason for moving from Quebec to BC for school. As previously mentioned, the informants examined in this study are currently undergraduate students at UBC, which is widely considered to be one of the more prestigious universities in Canada.22 However, the universities prestige wasn’t cited as a sufficient motivation for migrating to BC for Florence, noting that she could have received a similar education from an equally prestigious school if she remained in Montreal. This is not to
20 Thomas Cooke and Paul Boyle, “The Migration of High School Graduates to College.” Educational Evaluation and Policy Analysis. 33, no. 2 (2007): 202-213.
Ethnic and Migration Studies 31, no. 2 (2005): 287305. 22 Times Higher Education, “Best Universities in Canada 2018,” Timeshighereducation. (Accessed December 9 2017), https://www.timeshighereducation.com/student/bes t-universities/best-universities-canada.
David Conradson and Alan Latham, “Friendship, networks and transnationality in a world city: Antipodean transmigrants in London,” Journal of
say that UBC’s reputation was not a factor, however, the benefits that came from migrating to Vancouver were equally, if not more, important to Florence. Reasons for selecting Vancouver as a city of residence were varied. Both Florence and Julia listed a variety of factors including its reputation as a multicultural city, the region’s natural landscape, a lack of interest in other Canadian cities and the chance to receive an education in English were recurring examples. Most notably, both respondents cited the desire to study in a different culture as the primary motivating factor. BC, as part of Anglophone Canada, was seen by each of them as culturally distinct from Quebec and provides unique advantages for French-Canadian students. Both respondents noted that remaining in Quebec would not be beneficial for their longterm goals as opportunities in Quebec are seen as limited due to the ostracization of the province from the rest of Anglophone North America. Studying in English Canada however was seen to be beneficial for their careers as it provided access to a wider community both in Canada and the United States. Interestingly, Florence unpromptedly described her decision to enroll at UBC as “[studying] abroad” and likened it to studying in London. Thus, for the Quebecois, migrating to BC is more than simply shifting spatial locations or moving away from home. They also see themselves as entering a new culture, one with a different sense of nationalism, language and political role in the Canadian state with a wider range of opportunities. Migration readiness between French Canada and English Canada has previously
been noted to be low, with Quebec residing Francophones observed to be the least prepared or willing to migrate away from their home province as due to their membership “of the high vitality majority, they… perceive few advantages in moving” to locations where they would become a minority.23 However, Rana Sioufi and Richard Bouris note that when Quebecois people do migrate to English speaking provinces, it is primarily in an attempt to further their career goals by engage with the greater English speaking community of North America.24 Additionally, prior familiarity with English usage due to prevalence in a migrants previous community or by family is also positively correlated with readiness to migrate to Anglophone provinces.25 Both participants in this study supported Sioufi & Bouris’s findings as they were fluent in English before migrating to Vancouver. One had a parent that preferred to speak English at home while the other two at some point lived in or near communities that necessitated English usage. Accordingly, pursuing a postsecondary education in English was not at seen as a hindrance for said francophone students were already fluent in the language. Furthermore, Julia reflects Sioufi & Bouris’s study by reflecting that studying in English gave her credentials that would be better suited for her studies and future employment. Senses of Nationalism Each participant reported conflicting feelings of nationalism and belonging as a result of their migration. While their citizenship belongs to the Canadian nation-state, they also selfidentify as an ethnic minority in Canada. Thus, respondents considered themselves equally a
Rana Sioufi and Richard Bourhis, “Francophone Intergroup Attitudes and Readiness for Interprovincial Migration in Canada.” Canadian Ethnic Studies Journal, 49, no. 1 (2017): 57.
majority citizen (as Canadian) but also as an ethnic minority of the majority. Individuals do not have only one form of identity. Instead, identity is contextually created as individuals navigate their sense of self as an individual as well as a member of a nation, ethnic group, family and so on. This case study reflects this, as francophone Quebecers identify themselves as a member of two distinct nations within the same state. However, conflicts with AngloCanadian culture and separation from Quebec appears to further the divide between feelings of solidarity with Quebec and Canadian identity. It should be noted that while my respondents shared many common grievances towards Western Canada and as well as sentiments of Quebec nationalism, their narratives were not uniform. Julia, while firmly identifying as French-Canadian, has lived in Alberta, Ontario, the Northwest Territories and Saskatchewan in addition to Quebec. Additionally, her research focuses at university primarily concern postcolonial Canadian history and Quebec nationalism. As a result, Julia’s perspectives on Quebec nationalism are largely self-reflexive and influenced by the wider context of Canadian history outside of Quebec. In particular, while Julia is adamant that there is a Quebecois and French-Canadian culture, she also struggles with how the historical conversation for Quebec nationalism often overrides the discourse concerning Indigenous Canadian groups and their claim to nationhood. In spite of these self-reflective tendencies, Julia confirms Handler’s emphasis on the Quebecois ties to the land itself as she expresses that whenever that walking around Montreal “feels like an entirely different part of [her] that gets to explore what’s ahead”. For Julia, Montreal is more than simply a geographical location; it also exists as a social sense that influences her
sense of self and national identity as a French Canadian. Conversely, Florence spent her entire pre-university life as a resident of Montreal. While Julia’s narrative of Quebec nationalism was focussed on the historical and structural reasons for her feelings of nationalism, Florence’s were more instinctual and based on her own personal experiences and feelings. Florence insists that being her Quebecois shapes not just her inward sense of identity, but her outwards actions. Florence expressed this sentiment through two methods. First, she was insistent that her sense of humor was different in French and that she acts differently when speaking her native language. Second, Florence believes that she was more politically active while living in Quebec, regularly attending protests and engaging in political discussions with peers. In BC however, Florence admits that she is significantly less engaged or interested in political affairs as she feels there is less of a political atmosphere. Ultimately, both Julia and Florence display traits of Handler’s description of Quebecois nationalism. Both respondents at some point explicitly expressed sentiments of identity intertwined with the French language, personal connection to the provincial territory of Quebec, and social connectedness with Quebecois culture. However, the migration complicated the respondents sense of nationalism. Handler’s portrayal of Quebec nationalism portrays it as almost dogmatic and deep rooted. The ethnographic data from this study however, illustrates a more complex interaction between French-Canadians sense of national identity in the context of the larger Canadian state, where migration both reinforces Quebecois nationalism while also forcing migrants to consider in the context of other Canadian social issues.
Migration Complications: The Effects of the Canadian State While migration between Canadian provinces is quite accessible for FrenchCanadians as there is no need for visas or registration, state institutions nonetheless present obstacles for Quebec migrants. Due to the decentralized nature of the Canadian federal state and Quebec’s cultural differences from the rest of Canada, Quebecois students in BC often find incongruence between provincial institutions in BC and Quebec. Most notably, informants of this students expressed frustration with the health care systems and differences between Quebec and BC. As a young student, Florence is covered by her Quebec residing parents’ medical insurance. Due to the decentralized nature of the Canadian government, medical care coverage is provided and legislated by provinces, not the federal government. This forces Quebecois migrant requiring some form of medical coverage to participate in lengthy bureaucratic processes. Florence illustrated her personal frustrations with the process, highlighting the differences between how she is treated and how native residents of BC are treated. In her own words, the Florence noted:
I have chronic low blood pressure. I tend to like… faint… at random moments because of it and I also can’t predict when it’s gonna happen and because of that at one point I just passed out in a coffee shop and my friend had to call an ambulance for me. And that cost me like four hundred and sixty dollars. Three hundred for the ambulance. I’m not covered in BC, I’m covered in Quebec. So, what I have to do is every time I go see a doctor it’s $130. So, I have to pay upfront. Or they send me the bill. And
then once I pay I have to wait for my insurance in Quebec to reimburse my parents. Like it doesn’t come to me directly. So basically, I have to pay out of my own pocket every time and then wait for the money to come back. So, like, that’s really annoying when you’re on a budget and you’re a student. I can’t help having to go see a doctor once in a while. Florence’s frustrations from this narrative stem from her perception that she is being treated as an outsider rather than as a fellow Canadian. This example demonstrates how hospitals appear to discriminate against Quebecois. This became more explicit in a later quote by the same respondent when she stated: “it makes me feel like I’m not even wanted here. Like, if I am a Canadian why do I have to pay my bills up front?” Julia similarly expressed frustrations with medical coverage and state institutions, however, her concern was primarily based around a lack of French language skills amongst medical personnel in BC noting: Basically, it’s just super rare outside of Quebec to be able to receive services in both languages. It kind of depends on the setting so, like... the federal government, certain posts are mandated to be like bilingual, so sometimes you can. But it’s also like the accessibility. Because such a smaller percentage of the population is bilingual compared to unilingual. Umm… you’re really limited in terms of like your interactions…. Linguistically. But yeah. So, like… I’m completely fluent in either language which is great. But there are times where like, well most of my life has
been spent outside of Quebec or Ontario, whether it’s healthcare or like services that like somewhat could be described as public. It’s just… you’re not gonna get it in French. It’s not criticism, it’s just like not available. Julia later clarified that she understood that the lack of public services in French was a result of lack of availability and not an active form of discrimination against French-Canadians. Nevertheless, not being able to speak French in these public and potentially vulnerable instances made her “feel like an outsider” in Anglophone Canada. In this example, the importance of language in relation to migrants’ sense of personal belonging and personhood is stressed. Julia specifically argues that Canada (as a distinct nation-state from Quebec) fails to uphold her rights as a citizen by not providing access for her to seek medical consultation in her native language. Medical anthropologists have made extensive observations concerning the uneven power relations between physicians and patients.26 When seeking medical coverage, patients are in a vulnerable liminal position, due to their dependence on the physician's expert diagnosis and prescription as well as the fear and insecurity commonly associated with illness. As a result of this temporary vulnerability, the earlier examined effects of French utilisation on Quebecois senses of belonging are augmented. The respondent in this scenario displayed feelings of both insult (in her opinion, she was not being treated as someone with Canadian citizenship ought to be and more so as a foreigner) and danger (she feared a scenario in which a 26
Beverly Ann Davenport, “Witnessing and the Medical Gaze: How Medical Students
francophone Canadian wouldn’t be able to properly express themselves to medical professional in a non-Quebec province). Ultimately, medical institutions, as a state/provincial actor, were reported to have a negative correlation with Quebecers sense of belonging in BC. Lengthy bureaucratic processes create a sense amongst migrants that they are not wanted in BC and the inability to explain sensitive information in one’s native tongue is seen to be an infringement of a Canadian’s basic rights. Thus, the state plays a role in ostracizing the Quebecois due to its inability to provide what are considered basic rights for all Canadians. It should be noted that these are not intentional actions by the BC government. The need for Quebecois citizens to pay for medical coverage upfront when out of province is an invariable consequence of having each province be responsible for its own specific system of medical coverage. Moreover, BC is almost an exclusively Anglophone province, it is only natural that there would be a limited pool of bilingual medical doctors. Despite the historical and structural explanations for these issues, they nevertheless contribute to a sense of alienation and lack of belonging amongst Quebec migrants living in BC. Analysis From these findings, it is apparent that migration from Quebec to BC reinforces Quebecois students preconceived nationalistic ideals. It would be incorrect to say that interviewees of this study are ostracized in their new home province. Each of them belongs to at least one university organization, is employed part time and expressed positive feelings concerning their life in Vancouver. However, Learn to See at a Free Clinic for the Homeless,” Medical Anthropology Quarterly, 14, no. 3 (2000): 310-327.
their motives for coming to Vancouver, interactions with state institutions and personal sense of identity and belonging mirror that of migrants crossing the borders of traditional nation-states more so than migrants moving within the boundaries of their home nation-state. Furthermore, the migration experience appeared to reinforce rather than challenge these notions of national identity and belonging. Quebecois migrants also maintained a strong sense of cultural intimacy and familiarity with Quebec culture while in BC. Cultural intimacy is defined by anthropologists as the “recognition of those aspects of a cultural identity that are considered a source of external embarrassment but that nevertheless provide insiders with their assurance of common sociality.”27 In other words, intense familiarity with a culture is often displayed with mockery of the cultures stereotypes amongst members of said social group. Because members of a nation would understand the nuances between stereotypes and lived realities, they share an embarrassment towards the inaccuracies and incongruences with their culture which reaffirms their identity with the social group. Questions directly concerning Quebec nationalism and separatism (i.e.: “how you feel about Quebec nationalism in general?” or “what your personal feelings towards Quebec separatism before were relocating to BC and has moving affected them?”) were accordingly received with traces of both slight uncomfortable and humour. Respondents stated that Quebec separatism, while maintaining that it “could be a possible solution” to problems facing Quebec’s relationship with federal Canada, they do not themselves believe it is a necessary solution and stated it was an outdated ideal that is more
valued by older generations. This does not dissuade them from their beliefs in minority French language rights or the distinctiveness of French culture. However, formal separation from Canada as a political ideal is both a source of culturally intimate embarrassment in its antiquity and radicalness while also reinforcing a sense of cultural connectivity for Quebecois who maintain the importance of their cultural uniqueness. In addition to a culturally intimate relationship with the concept of Quebec nationalism, Julia noted how even though she jokingly “mocks certain aspects” of Quebecois culture, participation in it provides her with a feeling of belonging and “home”. Julia specifically references of musical spoons, an instrument commonly associated with Quebecois folk music, as a tangible example of Quebecois culture: I know I make fun of those spoons. You know when you play music with spoons? It looks silly. But when I see that, when I hear that it, feels like home. Ultimately, the case of Quebecois migrants in BC challenges traditional migration concepts based on theories rooted in methodological nationalism. While the Quebecois migrants studied in this paper never crossed the borders of Canada, their motivations, sense of nationalism were affected in many of the same ways as migrants that cross state lines. For example, the difficulties facing Quebecois migrants in medical institutions in many ways mirror that of the naturalization process faced by optanten residents of the Netherlands. Verkaaik observes that while the naturalization process is
Michael Herzfeld, Cultural Intimacy: Social Poetics in the Nation-State (New York and London: Routledge, 2004), p. 3.
meant to include the opantent (adult children of Moroccan migrants) in Dutch society, it mainly serves to further social divisions by treating them as outsiders to the nation.28 Similarly, hospitals in BC reinforce French-Canadians feelings of being outsiders to the province by not providing them with care in their native language. Particular attention also ought to be given to the point made by one of the Florence when she specified that she wanted to study abroad and listed her options as either London or Vancouver. The key word here is her explicit usage of the word “abroad”. In the respondent’s perspective, Vancouver is just as foreign and non-Quebec as the UK, despite still being a part of her home state. The commodification of international experience as a personal and professional asset has been noted to be a major motivating factor for international migration.29 The narratives of Quebecois migrants in this study reflect this trend as one of the major appeals of migration to them was the socioeconomic benefits of ties with Anglophone Canada and North America. The experiences of Quebecois migrants do not strictly conform to that of the traditional state-centric literature concerning international migration. International migrants generally face challenges concerning assimilation and border control.3031 As Canadian citizens, Quebecois migrants face none of these obstacles.
However, their personal sense of identity is contested and reinstated in the wider Canadian context. The evidence from this study indicates that migration for French Canadians reinforces feeling of distinctiveness from the rest of Canada. As Quebecois migrants are not expected to assimilate by the state and as a result, they make little to no effort to do so as they are proud of their heritage. This mirrors how more privileged migrants in inter-state migration maintain socio-cultural ties in their countries of origin.32 Like these privileged migrants, Quebecois immigrants are maintaining transnational ties due to their privileged status. Additionally, while there is no active persecution in BC towards Quebecois in BC, cultural differences between the two provinces and create personal feelings of displacement which contribute to an increase in migrants’ feelings of connection Quebec. Thus, interprovincial migration facilitates migrants’ feelings of division rather than assimilation. Ultimately, the migration experiences of Quebecois migrants in BC bear some resemblances to the traditional state-centric literature on international migration as they bear a sense of displacement and separation from their locality. As well, migration to English speaking areas such as BC are seen to provide the Quebecois with greater long term socioeconomic opportunities than staying in Quebec
on Migrants From the (Former) Dutch East Indies 1949-66,” Ethnic and Racial Studies, 36, no. 7 (2013): 1232-1250. 31 Cetta Mainwaring, “Migrant Agency: Negotiating Borders and Migration Control,” Migration Studies, 4, no. 3 (2016): 289-308. 32 P. Gustafson, “Transnationalism in retirement migration: the case of North European retirees in Spain,” Ethnic and Racial Studies, 31, no. 3 (2008): 451-473.
Oskaar Verkaaik, “The Cachet Dilemma: Ritual and Agency in New Dutch Nationalism.” American Ethnologist, 37, no. 1 (2010): 69-82 29 Mario Rutten and Sanderien Verstappen, “Middling Migration: Contradictory Mobility Experiences of Indian Youth in London,” Journal of Ethnic and Migration Studies, 40, no. 8 (2014): 1217-1235. 30 Charlotte Laarman, “Family Metaphor in Political and Public Debate in the Netherlands
could provide. However, these similarities appear to end here as the Quebecois still do not face systematic state oppression or pressure to assimilate. These similarities differences are crucial for the study of international migration if it is too move beyond methodological nationalism. By observing transnational migration characteristics that are not bound to state levels of analysis, it is possible to deconstruct the role of migration literature and observe the cultural effects of nations as social bodies on migrantsâ€™ sense of identity. Conclusion In conclusion, while francophone Quebecer student migrants in BC are able to positively assimilate to their new home province, their personal self-described sense of national identity remains firmly rooted with Quebec. This was shown to be a result of both internal personal factors and external state influenced ones. On the internal side, this includes a personal preference for French language usage, cultural intimacy and a closer familiarity with French-Canadian culture than Anglo-Canadian culture. As well, state institutions that fail to provide services in French is interpreted by migrants as a sign that they are not wanted outside of Quebec, reinforcing their identities as Quebecois rather than as Canadians. The broad theoretical implications of this study challenge traditional notions of methodological nationalism in migration studies which prioritize states as the primary unit of
analysis, limiting the study of migration to that of an individual or group moving between states and conflating the interrelatedness of the nation and the state. The Quebecois challenge this framework as they exist as a second nation within the Canadian nation-state. Additionally, the motivations and complications faced by Quebec-BC migrants bear some cultural similarities to those of interstate migrants. Ultimately, this study provides evidence of the effects of transnationalism when analyzed with a framework that moves beyond methodological nationalism. Finally, I would like to acknowledge the limitations of this study to highlight where future research can be directed. First, both respondents in this study were women, thus, differences in a gendered perspective could not be controlled. While my data did not indicate any particularly salient gendered issue, this possibility should not be ignored as it was not controlled for in this study. Secondly, while the usage of university students was useful for accessibility and a youth perspective on nationalistic feelings, French-Canadian migrants who are less fluent in English and lack the brokerage opportunities provided by educational institutions (UBC provided residence for my interviewees for the first year of their studies) would likely face greater difficulties in their new home province and in turn have different responses that could affect their personal feelings towards Quebec nationalism.
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