Rewriting Canada’s Citizenship Oath to ‘Recognize Indigenous Peoples’ Is Wrong

New Canadians take the Oath of Citizenship in a ceremony at the Canadian Museum of Immigration at Pier 21 in Halifax on Jan. 15, 2020. The Canadian Press/Riley Smith

Commentary

“The proposed amendment to the Citizenship Act has been thoroughly and properly dissected by you and I agree with you. In fact, it is startling that this absurd addition stands a good chance of passing.” —Jack Major, retired Justice of the Supreme Court of Canada (email to writer 1/11/20)

Immigration Minister Marco Mendicino announced on Oct. 23 that the Liberal government will soon introduce a bill to alter the Oath of Citizenship, making it “more inclusive.” The minister said the proposed amendment to the Citizenship Act “is one more vital step towards reconciliation.” This change was the last Call to Action in the Truth and Reconciliation Commission Report.

The present oath states: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty the Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.”

The proposed oath would repeat these words but would conclude with “I will faithfully observe the laws of Canada including the Constitution, which recognizes and affirms the Aboriginal and treaty rights of First Nations, Inuit and Metis peoples, and fulfill my duties as a Canadian citizen.”

Changing the citizenship oath is a bad idea.

Our citizenship oath is an affirmation of complete, politically neutral, objectively legal, civic responsibilities of the citizenry of Canada. It cannot be made legally “more inclusive” by referencing one particular law that newcomers swear to “faithfully observe.” All people are either fully included within the citizenry of Canada or they are not. There are no degrees of inclusivity in relation to the legal state of being a citizen.

The Indigenous addition is inherently political, and for this reason it has no place in the citizenship oath. Its legal meaning is unclear, contentious, and the subject of numerous ongoing lawsuits.

Our elites view this addition as a means to “decolonize” the country and developing “nation to nation” relationships with separate groups of “aboriginal peoples.” A substantial percentage of Canadians disagree that Canada can be composed of over 600 separate nations embedded within its borders. Many Canadians think that all of us should live under one set of laws. We all should be citizens, and no one should be treated differently.

The Indigenous addition wrongly compels new Canadians to legally take one side—the elites’ side—in an ongoing political, philosophical, and legal debate.

In fact, some new Canadians, (as well as many other Canadians), if the Indigenous addition were clearly explained, would likely object that there should be two classes of Canadians.

“Aboriginal rights” are based on exclusive hereditary rights. A newcomer from South Asia, for example, would liken this to the caste system, one of the debilitating realities they left behind to emigrate to Canada.

The Indigenous addition will lead to more legal uncertainty, the holy grail of lawyers. Section 35 (1) of the Constitution Act states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) states that “aboriginal peoples” includes the Indian, Inuit and Metis peoples of Canada” (emphasis added).

The Indigenous addition refers to the rights of “First Nations” rather than, as it should, the rights of the “Indian,” which is the correct legal name. “First Nations” is a legally meaningless term. It is neither in the Constitution nor in the Indian Act. This term is based neither in history nor in law. It is merely a recent popular, trendy term invented to assuage the modern, “progressive” guilty sensitivity about the word “Indian,” which sounds so… racist.

The Indigenous addition, if it is to be included in the oath, should repeat the exact words used in the Constitution. It’s a fundamental rule of legal writing that once a concept is legally defined, for consistency and clarity that definition must always be used.

New Canadians should not be required to swear an oath that contains a legal mistake or a misrepresentation, which this proposed addition to the oath contains.

The Indigenous addition will do nothing to promote “reconciliation,” which is a domestic political goal a newcomer to Canada may know very little about.

Finally, there are numerous Indigenous compensation and land claims cases against the federal Crown—meaning in effect against the Canadian taxpayers—working their way through the Canadian courts. The specific reference to “aboriginal rights” in the proposed citizenship oath, the only particular substantive Canadian law specifically referred to in it, can be reasonably interpreted as an endorsement of the federal government’s “nation to nation” interpretation.

This interpretation, of course, could be used by a court to favour Indigenous claimants against the Crown, which means that the oath will be used to go against the financial and legal interests of Canadian taxpayer. In the highly volatile Indigenous-non-Indigenous legal environment that exists, it is imprudent to include the Indigenous addition in the Canadian citizenship oath.

Our citizenship oath should be left in the neutral, apolitical state in which it currently exists.

Peter Best is a lawyer who has practised in Sudbury for the past 45 years. He is the author of “There Is No Difference” (thereisnodifference.ca), which has been endorsed by retired Supreme Court of Canada Justice Jack Major.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.