Indians and ‘Human Rights’

Canadian Aboriginals: A Debate


This is a debate between Walter Block and Lorne Gunter on public policy with regard to Canadian Aboriginals and human rights legislation.

The exchange of opinion between Block and Gunter began with the latter’s publication in The Edmonton Journal. Block responded, Gunter replied, and several rejoinders followed, a round dozen in all. (The times of day of the messages may not perfectly match the order as correctly depicted below, because the two correspondents were located in different time zones).

I. Gunter

Aboriginal stalling on rights must end; 30-year ‘temporary’ exemption to human rights law has benefited some band leaders The Edmonton Journal Fri 27 Jul 2007 Page: A16 Section: Opinion Byline: Lorne Gunter

Canadian aboriginal leaders have for decades flown all over the globe eagerly denouncing this country’s human rights record against them.

What none has ever mentioned (at least none that I know of) is that aboriginal governments are themselves exempt from Canada’s most fundamental human rights laws.

The very rights violations they accuse non-native governments of, their own governments are unaccountable for.

Thanks to a “temporary” clause in the 1977 Canada Human Rights Act (CHRA), charges of bigotry, discrimination and harassment of the kind frequently levelled against non-aboriginal society cannot be brought against native councils and organizations.

After three decades of being shielded against the provisions of the CHRA, it is past time aboriginal governments were brought under the act’s mandate.

Equality cuts both ways.

Abe Lincoln once said that “he who would be no slave must consent to have no slave.” It works the same for aboriginals and human rights. The very rights aboriginals insist they be granted they must themselves be prepared to grant their own people — and be held accountable when they do not.

The CHRA was initially suspended on reserves and among native bureaucrats so they could ready themselves to abide by it. Federally regulated businesses were given very little time to adjust, even though the act eventually imposed on them billions of dollars of costs in making their services accessible to the disabled and equalizing their pay scales between predominately male and female jobs.

In pushing forward their bill to bring natives under the CHRA, the Tories have offered aboriginal leaders 18 months to get ready to comply. The leaders in turn have demanded three years, pointing out that is how much time the provinces were initially given.

But it should be remembered, aboriginal governments have already had 30 years to get ready. Giving them 33 is not likely to improve their implementation.

Also, at the same time as native organizations are complaining that Ottawa refuses to ratify the United Nations declaration on the rights of indigenous peoples, they themselves are working with the three federal opposition parties to block the Tory human rights bill.

Why the duality?

I can only guess it is because the UN declaration is a one-way street that works in their favour, whereas bringing them under the provisions of the CHRA would place obligations on those same leaders that they vehemently do not want.

They are all in favour of rights agitation when they stand to benefit from it, such as when it is their demands for equality, land claims and funding.

But they want nothing to do with having to protect women’s rights on reserves or individual property rights.

Leaders and the non-aboriginal politicians who are supporting them have offered three arguments against passing the Tory bill at this time — all of them specious: The legislation threatens native notions of “collective” rights because the CHRA is too focused on individual rights, it was drafted without sufficient consultation of aboriginal people and most native governments have too little money to cope with the complaints that could be brought against them.

To the extent that natives practice “collective” rights, those rights are protected by the Charter.

Since the Charter supersedes the CHRA, there can be little fear the Supreme Court will adjudicate in favour of the individualistic CHRA if called to decide between it and the aboriginal-rights clause of Charter.

The charge that the bill was drafted without sufficient consultation with those who will be affected by it is similarly facile.

The government has heard scores of native objections, it merely disagrees with most of them and has decided to press on regardless.

People frequently do that. They confuse being heeded with being consulted.

Unless the consulter ends up adopting their recommendations, they convince themselves they have not been consulted. Or that the consultation process was flawed. Or that there were poor communications.

Not necessarily. The government knows native leaders’ objections, it just believes those objections are stall tactics designed to maintain leaders’ power over native populations.

Finally, there is the claim that aboriginal governments are too poor to implement the CHRA without a lot more money from Ottawa.

First and foremost, this claim is getting tiresome. It is native leaders’ response to every problem: Give us more money.

At present, Ottawa spends about $5,800 for every non-native man, woman and child, and nearly $20,000 for every native one.

Sure, people with greater needs are going to warrant greater spending. But if $20,000 per capita is not enough, how much will be? $40,000? $50,000?

Because of aboriginals’ so-called collectivist approach to governance, individuals are forbidden from owning property on reserves, most federal monies are paid to the band rather than to individuals (so the chief and council get to decide who gets paid and how much), too many women who have married non-natives are denied their rights by their own bands and there is little accountability among far too many leaders.

Maybe the collectivist approach then — and not non-native culture — is responsible for aboriginal plight.

And any change to federal law that weakens the collectivist mindset is helpful.

II. Block

From: Walter Block Sent: July 27, 2007 11:28 AM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

Dear Lorne:

Instead of bringing the Indians under the evil human rights law, wouldn’t it be more libertarian to advocate that the rest of us get out from under this pernicious legislation?

Best regards, Walter

III. Gunter

From: Lorne Gunter Sent: Fri 7/27/2007 1:31 PM To: Walter Block Subject: RE: Aboriginal stalling on rights must end


But so long as we postpone the inevitable clash between equally politically correct groups (such as Aboriginals and women), then there will be no political will to change such laws.

Only once more voters have come to realize that modern human rights theory is nothing more than a hodge-podge of group-power adjudication — the state choosing winners and losers from among competing groups based on the political value of each group — will things change.

Until then, making such laws apply to all is not only fair but also a good way to irritate more people faster.

— Lorne

IV. Block

From: Walter Block Sent: July 27, 2007 1:09 PM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

Slavery is wrong. Suppose I could free only 10% of the slaves. Your argument implies that until ALL the slaves are freed, none should be freed. I find that highly problematic.

V. Gunter

From: Lorne Gunter Sent: Fri 7/27/2007 2:55 PM To: Walter Block Subject: RE: Aboriginal stalling on rights must end

No, Walter. You’ve got it backwards.

Ten percent of Canadians are now slaves because of their leaders’ exemption from the human rights law. The other 90% of us aren’t as well served by the law as we would be by its repeal. But the 10% who are slaves would be better off under the imperfect law than they are now without it.

Native leaders don’t want to be exempt from human rights law so they can make their people freer than the rest of us. They demand exemption so they can keep them down without interference from the rest of society, which (to the extent we support the exemption) makes us complicit in the subjugation.

We would be making Aboriginal individuals freer than they are now by including them in the law. Then we can work on making us all free — native and non-native — by eliminating the law. But the latter is going to take years of voter education.

— Lorne

VI. Block

From: Walter Block [mailto:[email protected]] Sent: July 27, 2007 4:57 PM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

The numbers don’t matter. Suppose I could free only 90% of the slaves. By your logic, I should not do so, since I can’t free them all.

I agree with you about the motives of the native leaders, but I don’t think that is germane to our discussion.

You are calling for the expansion of an unjust law, when, I think, as a libertarian, you should be calling for an end to it.

(You could also call for dividing up all the Indian lands among all the Indians so that they own it individually; that would stop the unjust power of the Indian leaders, but this is an entirely separate issue)

VII. Gunter

From: Lorne Gunter Sent: Fri 7/27/2007 6:09 PM To: Walter Block Subject: RE: Aboriginal stalling on rights must end


If there are two classes of slaves — one (10%) really fettered and the others (90%) less so — and I can get the 10% brought up to the 90%’s level, I should. Even if the 90%’s level is unjust, it is less unjust than the 10%’s. Even if I can’t free the 90%, I’ve still done something useful for freedom by elevating the 10%.

VIII. Block

From: Walter Block Sent: July 27, 2007 5:17 PM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

Why is it “elevating” the majority of natives by imposing an unjust law on them? They could as easily have been elevated WITHOUT violating their rights (you do agree with me that “human rights” laws against discrimination are really a violation of real rights, do you not?) by privatizing all their land, no?

Let me put this in other words.

The majority of natives are suffering under unscrupulous leaders. I’m sure we agree on this. There are two ways to help them

  1. Privatize all their lands. This eliminates, in one fell swoop, the power of the leaders. It is entirely just
  2. Impose “human rights” on all Indians. This, too, will cut the power of the leaders. But it is unjust.

You chose option 2. That is not the libertarian option

IX. Gunter

From: Lorne Gunter Sent: Fri 7/27/2007 8:25 PM To: Walter Block Subject: RE: Aboriginal stalling on rights must end

Sure. But that isn’t happening anytime soon. So in the meantime, they’re better off under the law than not.

Earlier in this chain you said I had suggested that it was better to wait to free all slaves than to free just a few. I think that is now what you are suggesting with Aboriginals — that we should do nothing to make them even slightly freer, but instead wait for the day when their land can be privatized, etc.

That’s the ideal. You’ll get no argument from me there. But it is a long way off. In the interim, their circumstances can be made slightly better by bringing them under the current human rights law, so I think we should.

— Lorne

X. Block

From: Walter Block [mailto:[email protected]] Sent: July 27, 2007 11:02 PM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

Just because something is good for natives or can make “their circumstances … better” does not mean it is compatible with libertarianism.

It would be undoubtedly beneficial for Indians if all whites would transfer 50 IQ points to them, at the point of a gun (assuming we had the technology to do this). But this would not be compatible with libertarianism.

XI. Gunter

From: Lorne Gunter [mailto:[email protected]] Sent: Sat 7/28/2007 12:44 AM To: Walter Block Subject: RE: Aboriginal stalling on rights must end

True. But how can making them live less free than they could be while they wait to be truly free be consistent with libertarianism?

Sometimes victory can only be won incrementally. Give them a small taste of individual liberty and perhaps Aboriginals will be come allies in the fight for a full helping.

Right now, because Aboriginal governments are exempt from the Canadian Human Rights Act, individual natives cannot bring suits against their chiefs for discriminatory practices — such as hiring or dismissal from on-reserve jobs based on one’s last name. They cannot sue band governments in most circumstances for negligent treatment. Reserve women who marry non-natives can be stripped of their status and booted from their band-owned homes. Residents on few reserves can own their own plot of land and the house on it. They cannot borrow capital to start a business because they have no equity.

Instead, all federal monies are paid to the band council who then decides which of their friends and supporters get band jobs, houses and development grants.

Would it be better for all to level the CHRA and the commission that enforces? Undoubtedly. But the practical truth is that that is not going to happen soon. It will take years of re-education of public thinking and several small baby steps before citizens are willing to take such bold action.

So what are natives supposed to do in the meantime? Continue to live like serfs to their own Aboriginal barons?

For them, CHRA protection would be an improvement, a step closer to freedom. So I don’t understand your objection to granting them that admittedly imperfect improvement during the 20 to 30 years, or more, it is going to take to get to the ideal.

— Lorne

XII. Block

From: Walter Block Sent: July 28, 2007 9:40 AM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

Look at who you are “in bed” with: every lefty, pinko, “human rights” group in the country. Doesn’t that give you pause for thought?

What any individual, such as you are I, advocates, will have but a marginal effect on actual events. It is up to us, I think, to advocate things compatible with libertarianism.

Would it be ok with you if I sought publication for this correspondence?

XII. Gunter

From: Lorne Gunter Sent: Sat 7/28/2007 12:02 PM To: Walter Block Subject: RE: Aboriginal stalling on rights must end

I’m always uncomfortable when I am on the same side of an issue with the left. It does make me pause. But I suppose the law of probability dictates their going to be partly right by accident on one issue every few years.

So long as I get to see (and have some say over) the final version of anything you can get published, I’m OK with it.

XIII. Block

From: Walter Block Sent: Sat 7/28/2007 12:08 PM To: Lorne Gunter Subject: RE: Aboriginal stalling on rights must end

Well, then, thanks. Since you got the first word on this, with your initial essay, I’ll take the last word. And here it is: it has been a pleasure debating this issue with you. And I don’t think our cordiality with each other stems, only, from the fact that we agree on the overwhelming majority of issues. It goes deeper than that.

Lorne Gunter Columnist/Editorial Writer, National Post Columnist, Edmonton Journal Tele: (780) 916-0719 E-mail: [email protected] Fax: (780) 481-4735

Walter Block, Ph. D. Harold E. Wirth Eminent Scholar Endowed Chair and Professor of Economics Joseph A. Butt, S.J. College of Business Administration Loyola University New Orleans 6363 St. Charles Avenue, Box 15, Miller Hall 318 New Orleans, LA 70118 c.v.: (504) 864-7934 [email protected]