April 2010

Contents Related Letters

Re: “The Calamity of Caledonia,” by Christopher Moore

Christopher Moore’s piece in the April LRC, “The Calamity of Caledonia,” with the subhead advising “What B.C. can teach Ontario about Native Land claims” and including a small reference to a 1998 Vancouver Sun column of mine, is an amusing caricature that flatters the Liberal government in Victoria.

A small matter, but that column dealt in part with Australia’s approach—legislation—to the aborigines’ problems with the whites. I made sympathetic noises but didn’t specifically advise something similar for Canada. More important, and allowing that Moore deals in a small space with a gargantuan and in my view intractable issue, his thesis bristles with errors of omission if not commission, and is a classic example of the winking lure of the chimera of Nowism: Our forefathers’ treatment of native Indians (and much else) was bigoted, exploitative, and plain stupid, but, by George, now we the enlightened of this day are getting it right!

If only. But space is short. Moore claims Premier Gordon Campbell had a revelation on the Damascan road, made a volte-face on B.C.’s historical opposition to Indian land claims, and began serious negotiations. (New Democratic Premier Mike Harcourt and his NDP successors had earlier refused to take yes for an answer in court and undermined the government’s own case. In sports they ban you forever for throwing games.) I believe it’s déjà vu all over again: The hard-eyed Liberals and harder-eyed big business concluded that, whiskey and trinkets having a bad name, it was better to make deals with essentially free taxpayer money and Crown land, of which B.C. has a plenitude, than have projects blockaded and the economy held hostage. Violence, terrorism and the threat thereof worked, as they do elsewhere.

A new era? A model for Queen’s Park? As I write, the Musqueam Indian Band and Nation sued, in April, the city of Richmond, for a $59 million land deal it signed, in March. That’s right, the previous month. The band claims it was pressured and cheated. White man still speaks with forked tongue. In olden times at least a decent interval of years intervened before such complaints were made.

Moore cites the 2010 Winter Olympics “partnership” with bands and its implied peace.  He ignores that the Canadian Press news agency reported in 2008 that the Musqueam and Tsleil-Waututh were each paid $17 million—which used to be a lot of money—for  use of their traditional territory. Evidently you can buy a fair amount of peace for that, plus dancing and music.

The following caused more Main Street fury than any abstraction: perfectly timed for the Olympics, in February the Squamish nation raised big billboards on pockets of band land in Vancouver, including adjacent to the cherished Burrard and Lions Gate bridges. That raised virtually unanimous citizen anger (a North Shore  newspaper poll recorded 100 per cent opposition) muted by white guilt, political correctness, fear of hate speech charges and the Star Chamber hammer of the “human rights” commission. Any positive lessons for Ontario there?

The fact is that—still—B.C.’s 200-odd bands claim over 100 per cent of the province. Overlaps abound, especially in the choicest areas. Politicians humbly give thanks to bands for allowing public events to take place on their traditional territory, in my view  dangerous rhetoric with potential real consequences. Since it was created in 1993 the B.C. Treaty Commission has reached no major treaties, its costs approach $1 billion, and like all other aspects of what I rudely call Canada’s “affirmative apartheid” policy (glaringly concerning B.C.’s fishery), it’s enriched lawyers, consultants and Indian leaders.

Moore favourably cites the Nisga’a treaty—signed, after long negotiations outside of the commission process, in 2000. The treaty denies full voting rights to non-Nisga’a on Nisga’a territory. Mired in procedural blockades, its constitutional legality has been doggedly challenged by Nisga’a Chief Mountain (James Robinson) and Mercy Thomas and is finally scheduled to come to trial this summer. The B.C. government and media have elaborately, dare I say suspiciously, ignored its existence.

From Toronto, where Moore lives, all this and much more (notably the unresolved issue of women’s rights, also band governance, nepotism, favouritism, accountability and all those familiar characteristics that infect non-Indian governance too, but more so) doesn’t diminish B.C. as an admirable template for Ontario, apparently with application to the Six Nations conundrum centered in Caledonia.

The stark certainty is that the zeitgeist, as I believe learned persons call it, insures that Canada’s White Problem and the Indian Problem will persist as long as the sun will shine and the grass will grow. All “solutions” including Moore’s are not just doomed but designed to fail.  The aboriginal industry is simply too attractive and too lucrative to be wound up. And the truth is that most if not all Indians, like all entities harbouring a grievance, and with much justification, will never forget.

Trevor Lautens
West Vancouver, British Columbia

Thank you for Christopher Moore’s excellent piece “The Calamity of Caledonia.” For many months now, ever since the Caledonia demonstrations in April 2006 and the impasse there, I’ve been troubled by the lack in the public media of this kind of informed, fair-minded discussion of the situation. We Ontarians, along with our governments and courts, have a lot to learn from what has happened in BC in recent years. It would be good if Moore’s views could reach beyond the LRC readership to, say, The Globe and Mail and The Hamilton Spectator. They could start some real thinking and action—not Christie Blatchford’s kind—to replace the stunning official silence now surrounding Caledonia.

Alvin A. Lee
Dundas, Ontario

Christopher Moore’s excellent article points out the necessity for Canadians to respect the rights of Indigenous Peoples, but it suffers from one glaring factual error: There was and is no “armed insurrection” of Mohawks in Caledonia. The Clan Mothers and women organized and carried out the reclamation of the former Douglas Creek Estates, and they enforced a “no weapons” rule on the site. In fact, the very strength of the Six Nations people was in being unarmed, facing down dozens of heavily armed OPP … who couldn’t shoot unarmed people and thus retreated in disarray.

This doesn’t change the essence of Christopher Moore’s fine article, but perhaps it clarifies for readers just how Six Nations managed to hold their ground: It was precisely because they were unarmed.

Connie Kidd
Hamilton, Ontario

I think Ms. Kidd is correct. I was writing an essay, not a re-creation of events, but my first paragraph does exaggerate the role of weapons in the occupying of the Douglas Creek Estates. I stand by the essay’s larger point. The country needs an alternative to these confrontations, which will spawn violence despite the will and determination of the Clan Mothers.

Christopher Moore

Re: “Opportunity or Temptation?,” by Pamela D. Palmater

In her review of our book, Beyond the Indian Act: Restoring Aboriginal Property Rights, Pamela Palmater neglected the reviewer’s responsibility of acquainting readers with the book’s argument. Here’s what our book really says.

Prior to contact with Europeans, aboriginal people owned and managed lands collectively, and also had individual rights to land and personal possessions such as clothing, tools, weapons and animals. But the Canadian government replaced these indigenous property rights with a set of problematic quasi-property rights. As a result of the Indian Act, First Nations are stuck with outdated property rights that hinder them from using their lands and houses in economically efficient ways.

First Nations, however, are demonstrating ingenuity in “escaping” the Indian Act. Our book focuses on one such innovation, pioneered by the Nisga’a in British Columbia and now being further developed by Manny Jules and other First Nations leaders. Dubbed the First Nations Property Ownership Act by Jules, it involves three important and separate steps.

First, for those First Nations that choose to opt into the act, the Crown would transfer underlying title to their reserve lands to the aboriginal group. This means First Nations, rather than the Crown, would finally own reserve lands.

Second, once a First Nation has this underlying title, it could choose to develop and implement more robust forms of collective and individual property on some or all of its lands. It could subdivide its reserve into individual allotments (which is already the case on some reserves, albeit using the deficient forms of property found in the Indian Act), or it could hold the lands in collective form, or do a mixture of both. A First Nation could choose to have rental, leasehold, fee simple or a combination of all three individual property rights on its lands. Regardless of the mix of property regimes it chose, the territorial integrity of the reserve would not be threatened because the First Nation would continue to hold underlying title to reserve lands, whether owned by aboriginal or non-aboriginal individuals.

Finally, aboriginal groups opting into the act would register their title in a First Nations Torrens Registry, which experience has shown to be the best way of documenting and protecting land titles. Doing so would mitigate problems stemming from the Indian Act, such as high transaction costs and insecurity of tenure.

The First Nations Property Ownership Act initiative is led by First Nations people; it is voluntary rather than coercive and it combines the economic benefits of efficient property rights with the safety of territorial integrity. It is not a magic wand nor will it be appropriate for all First Nations in Canada, but it can be an important tool for those groups who want to move beyond the Indian Act, restore their property rights and maximize the economic freedom of their citizens.

Christopher Alcantara, Tom Flanagan and André Le Dressay
Waterloo, Ontario, Calgary, Alberta, and Kamloops, British Columbia

Re: “Different Pipers, Different Tunes,” by Ian D. Clark

Among those who accept the growing private corporate rule of universities, Professor Ian D. Clark consistently blinkers out the evidence for the problem he denies. However much corporate-administrator usurpation of academic standards is documented through case studies from across Canada, as explained in Selling Out: Academic Freedom and the Corporate Market, comfortable assumptions screen out the facts. How else are we to interpret Clark’s summative assertion that he is “left to question the extent to which the case studies [in the book] really have to do with academic freedom”?

Consider two cases analyzed in my study. Professor Vedanand of the University of Manitoba was punished for “rudeness” for questioning the claims of a Xerox salesman at a seminar hosted by the administration, in violation of academic standards “to pursue inquiry without deference to authority or established doctrine”. More profoundly, the eminent career of Dr Nancy Olivieri at the University of Toronto was almost destroyed by administrative-cum-corporate mobbing for reporting, as a leading pediatric physician and researcher, the dangers of a drug she was testing. Dr. Olivieri received a major award this year from the American Association for the Advancement of Science for standing against this systemic violation of academic and medical standards.

Corporate-administration debasement of academic teaching within the university is also blinkered out. That student opinion polls absurdly judge academic performance in advancing learning and disseminating knowledge in the areas within which students are by definition uninformed is ignored as an issue. Thus, teaching that challenges students to think against the grain of the surrounding corporate market culture is made vulnerable to administration sanctions.

A central argument of Selling Out (once more ignored by your reviewer) is that academic freedom and institutional autonomy are internally related: loss of one results in corresponding loss of the other. When the administration of the University of Saskatchewan spends tens of millions of higher-education dollars on a flashy synchrotron, we observe how commercial interests override even as universities suffer a crisis of education underfunding.

Clark prefers a “public finance analysis” which, he claims, shows people prefer economic development, health care, and the military. Again, strong evidence is ignored. A recent poll by Harris/Decima (accessible at http://www.caut.ca) shows that more than 55 percent believe that federal government spending should be increased even if taxes have to be raised.

Howard Woodhouse
Professor, Department of Educational Foundations
& Co-Director, University of Saskatchewan Process Philosophy Research Unit

We are continuing to “pay the bill for free enquiry” out of public funds, as we must (how else?), but we are making enquiry progressively less free. The funds come with the proviso that they be used for purposes that an administrator can recognize as “practical.” The research is therefore focused on the near term. Consequently, it is less innovative. The tax payer continues to pay, but gets less.

John Polanyi
Toronto, Ontario

In his review of Howard Woodhouse’s Selling Out: Academic Freedom and the Corporate Market, Clark writes that “The Hospital for Sick Children case has mostly to do with the difficulties of deciding when there is sufficient data from experimental testing of a new drug to conclude that the experiment should be aborted because the drug is likely to do more harm than good.” As a summary of the central issue in the Apotex-Olivieri scandal this statement is radically misleading.

Dr. Nancy Olivieri had safety concerns about deferiprone, the drug she was testing for Apotex. But she most certainly did not want to abort the trial. Rather, she wanted to inform her patients about the possibility of serious side-effects. She argued that parents were entitled to give informed consent for their children to continue taking the experimental drug.

Apotex replied that she had signed a confidentiality agreement, and they refused to give permission for her either to inform patients about possible risks or to publish her preliminary findings.

Despite threats from Apotex to sue her for breach of contract, Olivieri informed the Research Ethics Board of Sick Kids Hospital of her safety concerns. A mere 72 hours later, Apotex aborted the experiment and issued threats of legal action should she disclose the risk to patients. Significantly, although Apotex continues to downplay safety concerns about their drug, fifteen years have now passed since Olivieri first flagged possible problems, and the U.S. Food and Drug Administration has still not licenced the drug.

So, the scandal arose because a drug company attempted to prevent a physician from warning her patients of potentially lethal side-effects. An equally troubling aspect of the scandal was the dramatic failure of Olivieri’s hospital (“Sick Kids”) and her University (the U of T) to assist in defending the rights of her patients and her own right to academic freedom in the face of Apotex’s intimidating threats. Some believed that this failure was not unconnected to negotiations between Apotex and the U of T for a donation of over $50 million dollars towards the building of a new biomedical complex.

When our universities and hospitals are dependent upon wealthy corporations to fund their research, equipment and buildings, their commitment to academic freedom and patient safety may be seriously eroded. This is what the Hospital for Sick Children case was about. Howard Woodhouse gets the point. Ian Clark doesn’t.

Professor Schafer served as an unpaid ethics consultant to Dr. Olivieri and appeared with her at three press conferences to discuss the ethical dimension of the controversy.

Arthur Schafer
Director, Centre for Professional and Applied Ethics
University of Manitoba

Re: “The Elected and the Appointed,” by David E. Smith

David Smith’s review of my book, The Politics of the Charter: The Illusive Promise of Constitutional Rights, does a good job of communicating his own preoccupations and views concerning the Canadian Charter of Rights and Freedoms. Unfortunately it does a less satisfactory job of explaining mine.

Smith, for example, wishes that I had spent time examining the attitudes of individual judges. Yet such analysis is superfluous to the thrust of my critique, which is aimed at understanding the underlying structures and ideological assumptions that drive Charter interpretation, and at evaluating arguments concerning its legitimacy.

In the same vein, he assumes that my criticism of the Charter is directed at the judiciary. This is not the case. While I seek to expose the values and attitudes that characterize the Canadian legal system and critically assess certain Charter cases, I have nothing but sympathy and respect for judges on whom Canadians have foisted the unenviable task of addressing problems, through the blunt instrument of litigation, that we have become unable or unwilling to resolve for ourselves through democratic means. Thus my main problem is not with judges, but with those who urge greater use of the Charter to fashion policies that should be made democratically, and with politicians who increasingly invoke it to avoid political responsibility.

Smith also appears to think that the Charter’s popularity answers concerns I express about the implications for democracy of placing ever more reliance upon courts to resolve contentious social issues. He has this precisely backwards. Such popularity serves to reinforce the extent to which Canadians have become content to forego hard-won political rights. It thus provides further evidence of the disturbing state of contemporary democracy.

I could go on, but rather than repeating here the various aspects of my thesis that Smith disregards, I suggest that those who would like to learn more about my analysis of the Charter and its political implications read the book for themselves.

Andrew Petter
Victoria, British Columbia

Re: “A Spy Story Well Told,” by Barbara McDougall

In her review of Robert Wright’s Our Man in Tehran: Ken Taylor, the CIA and the Iran Hostage Crisis, Barbara McDougall claims that “the author shines considerable light on a series of events that were pivotal in altering the relationship between the Islamic world and the rest, a relationship that continues to bedevil us.” But a detailed examination of Wright’s narrative, particularly his chapter tendentiously titled “A Nest of Spies,” turns up some troubling issues. For one, Wright offers no evidence whatsoever for his claims about Ken Taylor’s espionage role. Former prime minister Joe Clark has denied Wright’s claim that Taylor’s assistance in an espionage role was requested by the U.S. president, Jimmy Carter. Wright deploys a cloud of qualifiers to mask the fact that the evidence for Taylor’s role is missing—“it is easy to imagine,” “the request appears to have come,” “if Carter asked,” “it had to have happened,” and so on.

Wright digs himself in a little deeper when he has the good ambassador engaged in intelligence-gathering work on the U.S. embassy compound and in “calibrating the daily caloric intake of the hostages,” based on the movement of food in and out of the compound and the removal of waste. Strange duty for an ambassador whose main concern was keeping his own embassy staff and their U.S. house guests safe in an increasingly unpredictable Iranian environment. As Wright says, “if the ambassador had been found running a CIA operation out of the Canadian embassy—in aid of a planned U.S. military strike against Iran—the consequences would have been incalculably worse.” That part is certainly true and must cast serious doubt on the rest.

The real, or imagined, Canadian James Bond in this affair is not Ken Taylor, but a military police sergeant named James Edward, who was posted to the Canadian embassy in Tehran to increase its security in the aftermath of the fall of the shah and the Ayatollah Khomeini’s ascent to power. Wright, it would appear, did not interview Edward directly, but relies entirely on the transcripts of an interview that the erstwhile Canadian Bond apparently gave to a film maker named Les Harris. Curiously, Harris did not use much of the Edward material in his documentary The Iran Hostage Crisis: 444 Days to Freedom (What Really Happened), and shows only a photograph of the sergeant, rather than, as with the rest of the film, any live interviews with the participants in the drama. Was Harris less credulous than Wright, I wonder?

The story that Edward tells is that he was deployed (without any prior training or experience) as a front-line spy gathering daily and systematic intelligence on activities at the captured U.S. embassy even though he would, by his own admission, have stood out among the crowd of suspicious and volatile “students” guarding the site like a western sore thumb. Edward is described in the closing sentence of Chapter 14 as “the Americans’ only full-time spy in Tehran.” Wright finds it odd that CIA director Stansfield Turner never mentioned his (or Ambassador Taylor’s) spy exploits in his memoirs. Perhaps there is another reason?

If Wright’s account in Our Man in Tehran turns on his revelations of espionage, then what is certainly a lively account of a well-known story becomes a dubious account of a spy operation, affected by too much naiveté about the nature of intelligence and too much willingness to stretch the narrative and the evidence in order to tell a good, if tall, tale.

Wesley Wark
Ottawa, Ontario

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