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Review

On Being Here to Stay: Treaties and Aboriginal Rights in Canada

By Michael Asch

September 4, 2014

Review By Neil Vallance

Michael Asch has enjoyed a distinguished career as an anthropologist and original thinker. In his writing he wrestles with the big questions of Indigenous/settler relations, proposes original answers, and argues his points with elegance and logic. His work is always a pleasure to read. The book under review represents his most recent thinking about a problem that has preoccupied him for thirty years: “We may be convinced by reasoned argument that Indigenous peoples have the same right of self-determination as do other colonized peoples, and the consequence may well be a recognition on our part that we have no right to stay. Yet, as [former Chief Justice] Lamer aptly summarized, we are here to stay. Therefore, even though the argument may be compelling, we are likely to reject it” (72). Each of the nine short chapters deals with an aspect of this conundrum.

In the first half of the book Asch critiques standard objections to his core premises: a) “It is not right to move onto lands that belong to others without their permission,” and b) the permission granted by historical treaties “does not give us the authority to live as though these lands now belong to us” (4). In Chapter 1 Asch demonstrates that the Government of Canada offers only a meagre vision of aboriginal rights, one in which “an Indigenous party must agree to exchange whatever rights derive from their pre-existence as societies for financial compensation and state recognition of specified rights” (21). In Chapter 3 he considers five arguments put forward in 2000 by Tom Flanagan (in First Nations? Second Thoughts) as to why Canadians should ignore the principle of “temporal priority,” which holds “… that people who were here before European settlement have rights which those who came later must recognize” (34). Asch then demolishes them one by one with merciless logic. In Chapter 4 he problematizes the argument that “it is the majority that determines the rights of Indigenous peoples regardless of how the majority came to be” (63).

In the ensuing chapters Asch switches from the negative to the positive, using the history of the so-called Numbered Treaties (especially Treaty No. 4 of 1874) as a way to frame potential solutions to the conundrum. He begins with the assertion that Indigenous parties to all the numbered treaties “… speak with one voice in asserting that what the Crown asked for was permission to share the land, not to transfer the authority to govern it” (77), and concludes that the Indigenous version “more closely conforms to what actually transpired at the time of treaty making” than to the government’s account (80). He neatly sidesteps the issue of bad faith on the part of the Crown by arguing that at least some government representatives tried to be fair, and by adopting the position of the courts that “The Crown must be assumed to intend to fulfill its promises” (viii). Once past this hurdle, Asch innovatively draws upon Indigenous treaty law and marriage rules to provide fresh ways of looking at the historical treaties. For example, he takes the common image of the Two Row Wampum treaty at Niagara of two canoes travelling down a river side by side, and gives it an intriguing new twist. He also argues that a treaty is like a marriage: “…a treaty links two collectivities, just as a marriage joins two families together. Furthermore, as with our treaties, this marriage joins together two families that are living together on lands that originally belonged to one of them” (130).           

Asch concludes that the way forward will require of Canadians both “setting the record straight” and “keeping our promises” (152-65). His arguments will not satisfy everyone, but this important reflection on the state of Indigenous/settler relations in Canada merits a wide readership.

On Being Here to Stay: Treaties and Aboriginal Rights in Canada
Michael Asch
Toronto: University of Toronto Press, 2014. 232 pp. $24.95 paper