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tom flanagan

Tom Flanagan is professor emeritus of political science at the University of Calgary and a former campaign manager for conservative political parties.

The federal government is currently working on a revision of Discover Canada, the study guide for the test that immigrants must pass before obtaining citizenship. To judge from a recent Canadian Press story, the new manual will read like a Liberal campaign platform. Perhaps that's not surprising, because the Liberals control the government. Maybe it's even fair, because the Conservatives revised the manual in 2011, when they controlled the government. But it would be nice if those who are politicizing the Canadian citizenship manual would at least represent Canadian law accurately.

According to The Canadian Press, the draft revision says, "Today, Canadians, for example, can own their own homes and buy land thanks to treaties that the government negotiated." But a moment's reflection shows that this statement can't be correct. Land-cession treaties have never been negotiated in the Atlantic provinces, most of Quebec, and most of British Columbia. Yet, Canadians can own homes and buy land in those provinces, just as they can in Ontario and the Prairie provinces, where land-cession treaties were signed with First Nations.

The ability of Canadians to own land and homes depends upon grants of land from the sovereign. In the English legal tradition, sovereignty includes the title to land, which the sovereign can subsequently grant to individuals or corporations. Modern Canadian sovereignty rests upon earlier French and British sovereignty, founded upon discovery, (occasional) conquest, establishment of governments able to enforce territorial boundaries and administer law and recognition by other sovereign states.

Even while recognizing Indigenous land rights, including full ownership in certain circumstances, the Supreme Court of Canada has consistently upheld Canadian sovereignty as the basis of the Constitution. Chief Justice Antonio Lamer in Van der Peet phrased this as "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown." From the beginning, French, British and Canadian sovereigns have made grants of land upon which our system of private land ownership has developed. Those grants did not depend upon prior negotiation of treaties with First Nations, otherwise there would be no private property today in much of Canada.

Ironically, private property in land does not exist on most Indigenous reserves today. That deficiency in the Indian Act is only one of the many ways in which the property rights of First Nations have been abused. But mistakes in that area do not mean the private-property rights of other Canadians depend upon treaties.

Another misleading statement in the revision is this advice to new Canadians about their legal obligations: "Obeying the law, serving on a jury, paying taxes, filling out the census and respecting treaties with Indigenous Peoples are mandatory." But treaties were legal agreements between the Crown (advised by cabinet) and First Nations (represented by their chiefs). They imposed obligations on the Crown to set aside land and provide assistance of various types. But they don't impose any specific obligations upon citizens other than the general obligation to obey the law, which incidentally is also imposed upon First Nations by the text of the treaties.

These wording changes, if the government follows through with them, won't have any immediate legal effect. But we should be clear about what's happening. In the past election campaign, the Liberals made many irredeemable promises to Indigenous voters, such as adopting the United Nations Declaration of Indigenous Rights. Now, instead of impossible legal changes, they are offering words – and words matter in the long run. As the great philosopher Thomas Hobbes wrote, "Words are wise men's counters, they do but reckon with them, but they are the money of fools." These foolish words will tend to make new Canadians, and indeed all Canadians, feel like interlopers in their own country.