Foot­ball and Canada’s duty to con­sult In­dige­nous na­tions

The Supreme Court of Canada’s re­cent de­ci­sion has changed the rules of the game to favour the vis­it­ing team.



prob­lem­atic as foot­ball is with the Washington R*****ns, and the Kansas City Chiefs, the game holds a spe­cial place in my heart. For those of you who don’t know, my fa­ther is a res­i­den­tial school sur­vivor and with­out get­ting into the nitty gritty trau­mas of his ex­pe­ri­ences, it left him with a deficit when it comes to par­ent­ing skills. Foot­ball was the first way we ever con­nected.

I’d sit on his knee or on the couch be­side him and he’d ex­plain to me what downs meant, how to spot pass in­ter­fer­ence, what a chal­lenge was. In foot­ball, if the coach of a team doesn’t agree with the play called, they can chal­lenge it and have the rul­ing over­turned. I un­der­stand, for the sake of brevity, that each team can­not be con­sulted with ev­ery play be­fore a rul­ing is made. The chal­lenge flag is meant to be used only when a bad call is ob­vi­ous. But if the coach chal­lenges and the rul­ing is not over­turned, the team loses one of their three time outs.

In spite of this loss, the quar­ter­back still gets paid his mil­lions of dol­lars. The coach lives on to coach an­other game. It would ap­pear that Canada has the same af­ter-the-fact strat­egy when it comes to rul­ings for In­dige­nous peo­ple.

On Oc­to­ber 11, 2018, the Supreme Court of Canada ruled that law­mak­ers would not have to con­sult In­dige­nous peo­ples on laws that would di­rectly im­pact Treaty Rights be­cause it would be too oner­ous a task. In the court’s opin­ion, it could slow leg­is­la­tion down to a crawl.

The duty to con­sult en­sures sec­tion 35 of the con­sti­tu­tion and ju­di­cial prece­dent—set by decades of leg­is­la­tion by the SCC it­self—is fol­lowed. This rul­ing es­sen­tially says that the Crown is not the Crown in par­lia­ment. Or rather, the rules of the game don’t ap­ply if the vis­it­ing team is favoured to win.

The fi­nan­cial weight of the chal­lenge will be placed on In­dige­nous com­mu­ni­ties to bear— com­mu­ni­ties that al­ready have fund­ing crises in health care, hous­ing, em­ploy­ment, ed­u­ca­tion and in­fra­struc­ture. Com­mu­ni­ties that have had to func­tion with a two-per­cent fund­ing cap while our pop­u­la­tions vastly out­grew that num­ber. Com­mu­ni­ties that have proven that the govern­ment con­sis­tently spends less on them than non-In­dige­nous com­mu­ni­ties.

We will have to di­vide up our al­ready mea­ger slice of fund­ing to cover the court costs of lengthy le­gal bat­tles. We will have to fight for our rights af­ter-the-fact while dam­age is con­cur­rently be­ing done by these new laws. How­ever, if we lose the chal­lenge, we lose all the money that goes into those chal­lenges. We lose far more than a time out and our play­ers don’t get to move on with­out penalty or con­se­quence be­cause that money came out of an al­ready strapped bank ac­count.

Here’s the thing. It’s re­ally hard to play a game you’ve prac­ticed for your whole life when the rules are sud­denly changed. But it’s not a game for In­dige­nous peo­ple; it’s our lives and we don’t get to use any re­main­ing time outs to pause the dam­age be­ing done so we can con­sult our play book.

Re­becca Thomas is a Mi’kmaq ac­tivist and

Hal­i­fax’s for­mer poet lau­re­ate.


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