By: Doğan D. Akman
Following two years of
consultation by officials of the Department of Citizenship and Immigration, the
government has come out with a new oath of citizenship.
The new oath reads: “I swear (or affirm) that I
will be faithful and bear allegiance to
Her Majesty the Queen Elizabeth II, the Queen of Canada, her heirs and
successors, and that I will faithfully
observe the laws of Canada, including treaties with Indigenous Peoples and
fulfill my duties as a Canadian citizen.”
The change to the wording of the
oath is the insertion of the phrase “including treaties with Indigenous Peoples”.
This change came about as a
result of the promise of the Prime Minister to implement all 94 recommendations
made by the Truth and Reconciliation Commission which examined the legacy of
Canada’s residential schools.
The oath will be used after the
Citizenship Act is amended accordingly.
So far, the change in the wording
of the oath has not generated much, if any, public reaction or a reaction from
the legal profession in general or from
the lawyers that specialise in aboriginal law ought to know better.
By way of preliminary
observation, either my immigrant English or that of officialdom is not up to
scratch, but surely there is no reason to capitalise the words “indigenous” or
“peoples” any more than we capitalise
the term “aboriginal”.
The change to the wording does
not make sense for a number of reasons. To start with, treaties per se are not laws of Canada. Second, the
laws of Canada already includes section 35 of the Constitution Act of 1982 which
“recognizes and affirms the existing aboriginal and treaty rights of the
aboriginal peoples of Canada” which peoples “includes the Indian, Inuit and Métis peoples” of Canada and the recognition and
affirmation is further strengthened by section 25 of the Charter.
Consequently, the added wording
is redundant since the observation of the laws of Canada, includes the observation,
and I would add, respect of treaty
rights.
Thirdly and ironically, the new
wording makes no mention of a big ticket item, namely aboriginal rights, a
number of which have been recognised by the Supreme Court of Canada, including
the rights of aboriginal peoples to the title of their lands which have been
extinguished by treaty or otherwise. If you want to know about the crucial
importance of aboriginal rights, ask the Métis, who have no treaties and have to rely on
historical claims based aboriginal rights in order to argue the existence of right based on historical customs, practices.
And that is by no means all. If
you want to know about the critical importance of aboriginal rights to Indians, including their aboriginal title to lands, all you have to do is ask those of British Columbia, who have been
negotiating for years for the recognition of their aboriginal title and of their
land related aboriginal rights.
Finally, from a practical
standpoint given the complexity of aboriginal law governing treaties, it is
absolutely nonsensical to expect the average immigrant to be motivated to learn
enough and keep learning up to date, in
order to determine whether they are observing or violating treaty rights. They are by no means the only Canadians in
this predicament. On this score, I very much doubt that they differ from the average Canadian.
In the premises, what is the
point of exacting from the immigrants a duty that, that save for some
exceptional individuals, is practically impossible to discharge?
I
wish the government would get down to serious business and stop its showbiz
approach to the reconciliation process ,among other ways, by messing
around with our oath of citizenship
the new wording of which, more
likely than not, upsets the aboriginal peoples of Canada and their shrewd
leaders.
Retired member of the Federal
Department of Justice, Civil Litigation Branch where the writer practiced
aboriginal law for 24 year.
310 Clemow Avenue,
Ottawa,
ON K1S 2B8
Ottawa,
ON K1S 2B8
Tel:
613-230-3881
e-mail: Dogan.Akman@rogers.com
e-mail: Dogan.Akman@rogers.com
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