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Lethbridge Herald, The (Newspaper) - February 13, 1975, Lethbridge, Alberta Thursday, February 13, 1975 THE LETHBRIDGE HERALD 5 A setback for the equal rights struggle By Maurice Western, Herald Ottawa commentator OTTAWA The Indian struggle against discrimina- tion has suffered a setback, although perhaps a temporary one, in consequence of the decision by a majority of Supreme Court justices in the Canard case. It is interesting that the argument turned en- tirely the judges being agreed on other matters on conflicting views of the reach of the 15 year old Canadian Bill of Rights. Although the court divided, with Chief Justice Bora Laskin and Mr. Justice Spencer dissenting from the majority opinion written by Mr. Justice Beetz, even those who upheld the government rebuked the department of In- dian Affairs for its notably insensitive behavior. On the death in a traffic ac- cident of Alexander Canard, normally resident (as the Appeal Courts determined) on tne Fort Alexander Indian reserve, the minister ap- pointed William Barber Rees, superintendent in charge of the Clandeboye Fisher River Indian district as ad- ministrator. This was done without consulting or even ad- vising Flora Canard, the widow. Again without notification of Mrs. Canard, the department's appointee commenced an action claim- ing damages from three defendants. Mrs. Canard ob- tained letters of administra- tion from a Manitoba sur- rogate court. The question had then to be decided: which of the two was the lawful ad- ministrator? Certain comments are worth noting at this point. The court endeavored to ascertain what was the practice of the department in these matters. Mr. Justice Beetz observes, rather dryly: "We would not be told whether an Indian widow or widower had ever been appointed once to be ad- ministrator of his spouse's es- tate, or whether the practice is common or unheard of, and what the reasons are for such a practice, whatever it is." In the dissenting view of the Chief Justice, we read: "On the face of the Indian Act, as amplified by the regulations thereunder, and certainly as fortified by the invariable practice of the department of Indian Affairs, Indians are disqualified from obtaining letters of administration of the estate of an Indian intestate even in the case where the intestate is a spouse Mrs. Canard prevailed in the Manitoba Court of Queen's Bench on a simple but in- correct finding that her hus- band was "ordinarily resident" on a farm off the reserve. It was on appeal that the wider issues were joined. Mr. Justice Dickson speaking for the Appeal Court, held that Section 43 of the Indian Act was inoperative to the extent that, in violation of the Bill of Rights guaranteeing the right to equality before the law, it denied Mrs. Canard, by reason of her Indian race, the administration of her late husband's estate. It is clear that a widow, not subject to the Indian Act, would enjoy in such a matter something very close to a right according to law which has come down to us from the time of Henry VIII. In the words of Mr. Justice Beetz: "I would be prepared to regard it as having color of right and as not being capable of frustration unless good cause be shown why It should be defeated, and unless it be defeated by a judicially exer- cised discretion." That there is a difference is 1975 by NEA. Inc "Bring me a hot fudge sundae I iust learned that the health club I joined has declared obvious. In the case of Mrs. Canard, no cause good or indifferent was shown. Mr. Justice Beetz, speaking for the Supreme Court ma- jority, suggested that the regulations, if read by themselves, would appear to give the minister no choice in such cases leave ad- ministration of the estate to an officer of the branch. Since the effect would be to prevent all Indians in all circum- stances from being appointed administrators, the regulations might well be open to attack as inoperative by virtue of the Bill of Rights. Taking the regulations in conjunction with the act, however, the majority justices accepted the government's argument that Indians are not necessarily precluded from being ad- ministrators. The minister might exercise his powers un- der the act in a judicial manner; he might, had Mrs. Canard applied, have acted under Section 43 to appoint her administrator, or he might, under Section 44, have directed that an application be made to a court with jurisdic- tion in the usual, non Indian cases. The Chief Justice termed these possibilities "complete- ly illusory" in the light of the regulations and the actual treatment of Mrs. Canard. Mr. Justice Beetz was evidently somewhat troubled too; he would have been inclined, in the circum- stances, to hold that the burden of showing cause why she ought not to be appointed rested on the government. But there was a difficulty; given that the minister had the jurisdiction to make ap- pointments, it could be reviewed only in the federal and not in a Manitoba court. In reaching their conclusions the justices had to take into account earlier decisions involving the Bill of Rights in the Drybones case (intoxication off a reserve) and the Laveli case (inter- marriage and .resulting dis- They found some common ground. It is within the power of Parlia- ment to declare expressly that an ac't shall operate notwithstanding the bill. Where this is not the case, however, the bill, in the words of Mr. Justice Beetz, "renders inoperative any law of Canada that cannot be construed and applied so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized by the bill." Secondly, the equality re- quired is not merely equality with others within the class. For in that case all forms of discrimination would be possi- ble so long as all within the class were treated in the same way. Finally, an Indian is denied equality before the law if it is an offence for him, because of race, to do something which other Canadians are free to do. Such a recital sounds im- pressive. But in fact the con- stitution creates a racial classification for Indians; status, with its special rights or incapacities, being defined in the Indian Act. If any part of the act is at odds with the Bill of Rights, this is justified by the fact that Indians have been designated as a special class for which Parliament may, and has legislated. Special status ought not to be "whittled in Mr. Justice Ritchie's phrase, without express legislation. This means, in the majority view, that the aid of the Bill of Rights may be invoked only if discrimination results from some legislation other than the Indian Act; for example, the Territorial liquor or- dinance cited in the Drybones case. The Chief Justice, as in the Laveli case, finds himself in basic disagreement. "I do not regard the mere grant of legislative power (in the BNA Act) as itself authorizing Parliament to offend against its generally stated protec- tions in the Canadian Bill of Rights." Parliament has not chosen to write a notwithstanding clause. Why should the courts do, in what Parliament has not chosen to do? It is unnecessary that ine- quality be proved by reference to some other legislation. With or without a territorial ordinance for- bidding intoxication in a "public the Drybones decision was justifiable on the basis of the Indian Act alone since it was made an offence for Indians, but not for others, to be intoxicated anywhere off a reserve. Mr. Justice Laskin proceeds from the premise, patent, he says, on the face of the Bill of Rights, that permission is not needed to do anything or act in any manner not prohibited by law. An act which specifically prohibited a racial or other group from doing something would be assailable even in the absence of other legisla- tion expressly permitting ithers to do the same thing, if, for example, Indians and only Indians were prohibited from travelling in first class accommodation, a question of inequality would arise and it ought to be possi- ble to invoke the Bill of There's one great reason why Acadian 400 is becoming so popular. Flavour! SUPERIOR Rights. The Chief Justice had no doubt that Mrs. Canard was in such a position; as an Indian, by virtue of sections of the Indian Act and regulations, she could not do, what others were entitled to do; namely administer her late husband's estate. By the ebb and flow of such judicial decisions, the mean- ing of the Bill of Rights is be- ing clarified over time. For many, it must be a painfully slow process; 15 years have now passed since Parliament enacted quasi constitutional statute, the significance Of which was not then under- stood and remains only par- tially comprehended. But the decisions, even when the court is divided, may have another effect; creating a public opi- nion favorable to legislative remedies. Here the problem is that the government, recognizing differences of view in the In- dian community, has given an undertaking that it will not alter the Indian Act until con- sultations have been com- pleted. A commitment so broad has obvious disadvan- tages. Mrs. Canard had the support of both the National Indian Brotherhood and the Manitoba Indian Brotherhood. The minister, from his com- ments, would probably have welcomed a different decision. But the broken win- dow cannot be repaired until the entire house is rebuilt. This does not seem very sen- sible. There would seem to be a case for defining the under- standing in such a way as to permit at least a bit of repair .work where injustice appears both stark and unnecessary. Books in brief "The F'rench Foreign Legion" by James Wellard (Andre Deutsch Limited, 142 pages, distributed by William Collins and The French Foreign Legion has been the subject of much romantic fantasy since its for- mation in 1831. James Wellard has torn away the veneer of glamor created by Hollywood and novelists to show what life in the Legion was really like. Training was atrociously severe but those who chose to join the Legion were men for whom war was "not merely a career, but a War was their business and they showed how good there were at it in Africa, both world wars, and in the futile carnage of Dien Bien Phu. Legion- naires were invariably sent to where the fighting was the fiercest and since they were expected to fight to the last man their casualties were enormous: The terrible thing is that so many brave men were sacrificed as canon fodder by backroom generals whose military tactics were firmly grounded in the distant past. This fascinating book is profusely illustrated and has an index and bibliography. TERRY MORRIS "The Classic Fairy Tales" by lona and Peter Opie (Oxford University Press, 512.50, 255 Two dozen of the best known fairy tales are given here in their original or oldest known form. Each story is accom- panied by a history giving the name of the author and noting the. changes made in the retelling. In the original story of Little Red Riding Hood, to give an illustration, the wolf eats the little girl but in other versions she is spared or delivered, like Jonah, after having been swallowed. A lot of research has obviously gone into this book which is il- lustrated with color plates and other drawings. Beautifully designed and pr inted.'the book will be cherished by students of children's literature. DOUG WALKER Sanity in Wisconsin By Tom Wicker, New York Times commentator NEW YORK The settlement by which a Menominee Indian force peacefully evacuated a Roman Catholic novitiate in Wisconsin, and under which the 262 acre property is to be deeded to the Menominee nation for and "future considerations" appears to have been a triumph of good sense and humanity. Nobody was killed on either side, the forces of law and order are being of- ficially served, and the Menominees will regain possession of a property they regarded as historically their own. The Menominee settlement, moreover, may signal some easing of what American In- dians consider the hostility of the Roman Catholic Church toward them and their claims. At the peak of the Wisconsin siege, when it appeared possible that the National Guard would storm the novitiate and the Menominee warriors holding it, the Alexian Brothers order of Chicago, who held title to the property, sought the counsel of the apostolic delegate in Washington. His advice was sensible and crucial that an empty novitiate was not worth a single life. At about the same time, Gov. Pat Lucey of Wisconsin who was frequently in direct telephone negotiation with the Menominees holding the putting hard questions to the Alexians. Did they really want him to order force used to regain a property they had all but abandoned? Par- ticularly when Col. Hugh Simonson, com- manding the National Guard units sur- rounding the novitiate, had said, "there are dedicated people in there, who are going to stay until they get an honorable agreement. I know these are people who will die for this cause." The Alexians did not want to force that issue and in the end they participated in the necessary "honorable agreement" as did the occupying Menominee warriors, who dropped their demand for amnesty, and who have now been charged locally with criminal .offenses. (Misdemeanors except for five felony counts against the Title to the novitiate, however, will be deeded to the whole Menominee nation. Governor Lucey and Colonel Simonson seem to have handled this prickly matter with intelligence and firmness toward both sides. Bringing in the National Guard at the appropriate moment enabled the governor to supersede hostile local authorities without appearing weak; and Simonson's handling of the guard including ordering them to patrol with unloaded weapons won praise even from the Menominees. The lesson too late to prevent Kent State, Jackson State, At- tica and other American atrocities is that gunfire need not be the automatic recourse of a challenged society. Some more militant Indians may continue to consider the criminal charges un- warranted, and many whites in the vicinity of the novitiate are apparently angered by the settlement on grounds that the Menominees, in effect, seized the property and were rewarded with its ownership. But that raises questions no white American ought to con- sider without shame to whom did these dis- puted lands originally belong? By what dis- reputable means did npn Indian property owners first take title to them? Those are questions that some American Indians are determined to press to a remarkable conclusion- the renewed recognition by the United States of the sovereignty of the 300 odd Indian nations. That sovereignty would include the sovereign ownership of the lands originally recognized, in solemnly concluded treaties, with the In- dian nations. The United States has not been making such treaties which the constitution decrees as "the supreme law of the land" since 1871, but it has never formally repudiated those made before then. In some cases, the validity of a treaty is in dispute; in many it is not. In practice, however, the United States long since ceased to treat any Indian tribe as a sovereign nation much less to recognize its sovereignty over treaty lands. If it did so recognize the Indians, there would be hundreds of independent nations scattered through more than 30 states, the largest being the 24 million acres claimed by the Shoshone in Nevada, and the huge tracts of the Sioux in the Dakotas, of .the Choctaw and the Cherokee in Oklahoma, and of the Six Nations in New York. Exactly how such sovereignty might work in practice is not clear, although Jim Durham of the Inter- national Indian Treaty Council observes that "we'd probably let Washington handle our foreign policy." Durham represents the council formed last June at- "Standing Rock Indian Country" the United Nations. His task there is ultimately to gain what the council called "recognition and membership of the sovereign Native more im- mediately, he seeks to have an American In- dian delegation received -and heard as the "one color of mankind in the world who are not represented in the United Nations... the indigenous Redman of the Western Hemisphere." That, the Indians do not con- sider themselves represented fay the United States is something the rest of us might ponder. Behind the Maritimer's attitude By Harry Bruce, Toronto Star commentator HALIFAX The people of Ontario in- directly contribute hundreds of millions of dollars to the Atlantic Provinces every year of their lives. In Federal Equalization Grants, for instance, more than million goes to Nova Scotia alone and the bulk of that comes from Ontario. (Ontario, of course, is loaded.) Ontario's money sometimes insulates her people from knowledge of national passions and programs. It's doubtful if many of them even know that, thanks to federal taxes, they are the generous donors to a kind of vast, national and compulsory United Appeal. The beneficiaries are millions of their han- dicapped and less fortunate Canadian neighbors in every province except British Columbia and Alberta. (Those two are also loaded.) It may puzzle those Ontario people who do know what their tax money is doing for the Maritimes to discover that many Mari timers would gladly repay them with a stiff shot in the mouth. Charity patients, of course, are seldom sufficiently grateful to their benefac- tors. They're greedy, too. One reason why the Maritimers' attitude is so surly is that they have never regarded federal aid as charity. Down here, the equalization grants are not "handouts." They are rights, legitimate pay offs from a deal Maritimers made honorably, and Upper Canadians have often betrayed. The grants are not some sort of dole. Rather, they are an inadequate down pay- ment on the tremendous debt central Canada owes the Maritimes for sacrificing Bluenose interests to Toronto and Montreal interests. How so? Well let me explain. (Everyone, even an Upper Canadian, has a right to know why his neighbours are bad mouthing him.) The reasons are old stuff but, in Canada, forever contemporary. They bear directly on the current fury in Nova Scotia over a 29 per cent jump in railway freight rates. High freight rates are a double whammy for Nova Scotia. By increasing the difficulty of selling Nova Scotian stuff in the big markets of central Canada, they, encourage the collapse of in- dustry by raising the price of imports they drive up the cost of both manufacturing and living. Down here, nothing could be a neater catalyst for the deadly chemistry of reces- sion plus inflation than the jacking of freight rates. Too bad, you say, but the railroads have got to make ends meet, too. Ah, but that wasn't the agreement. The old deal, the deal of 1867, was that the federal government would make sure the railroads gave the Maritimes a fair crack at Upper Canadian markets. "Our says G. I. Smith, the former premier of Nova Scotia, "are not simply commercial enterprises. They were a basic instrument of national policy in creating this country." And that particular national policy was an inducement to us Maritimers to abandon the material joys of free trade with our natural markets in New England. One hundred and eight years have passed and, still, we have no policy to force the railroads to fulfill the promises of Confedera- tion but, as sure as God made little green An- napolis Valley apples, we have a policy of tariff protection for central Canada. "In the ten year period between 1956 and Mr. Smith argues, "Canadians paid million for the support of the national policy in the field of cars alone Nova Scotians paid more than million to sup- port the protection policy, on cars alone. There are similar examples in scores of fields, such as electric appliances, industrial machinery, chemicals." Westerners feel the same way. In the course of beating me about the head and ears for some unfriendly comments I made about Alberta's oil policy, an angry Edmontonian named F. PI Methuen seems to have mis- taken me. for a mouthpiece of the manufac- turing moguls of Ontario. Actually, I'm pleased to endorse his sour comment that, "After paying Ontario prices V4 to Vt higher than Montana prices for cars over the last 50 years to protect Ontario branches of Detroit manufacturers, I'm low on sympathy." I would only add that your sympathy plummets still further when you discover that, thanks to shipping charges, those On- tario built cars cost hundreds of dollars more in Halifax than they do in Ontario. R. S. Matheson, an even angrier Edmon- tonian, says: "When we also consider that Albertans probably pay five million dollars a day over world prices for all goods manufac- tured in Ontario so that that province is.in all likelihood receiving one billion eight hundred million dollars per year more than it is entitl- ed to, I ask you, what point is there in our be- ing part of this Few Nova Scotians still ask that question but they do ask others. John Buchanan, the leader of the Tory Opposition, wonders about the St. Lawrence Seaway for instance. The Seaway, he argues, has a deficit of more than million. It loses millions every year. It has no hope of breaking even. But strangely, the federal government pays for the seaway's losses. Strangely, the feds do not raise its rates. Strangely, the feds dp raise railroad freight rates, and that hurts Maritimers. Strangely, the feds spend hundreds of millions on icebreakers to keep St. Lawrence ports open in winter, and that hurts Atlantic ports. "We must Buchanan says, "that the St. Lawrence Seaway is in Quebec." We must realize, other Nova Scotians argue, that the big companies, the money that talks, the voting power, the clout are all up there in the centre. And the Upper Canadians are giving us the gears, royally. As ;