Law – Page 8 – a sibilant intake of breath

House prices in Canada

Many journalistic sources have been commenting on the possibility that house prices in Canada have risen at unsustainable rates. Recently, The Economist printed:

Household debt has climbed to almost 170% of post-tax income. House prices rose by 20% in the year to April. Looked at relative to rents, they have deviated from their long-run average by more than any other big country The Economist covers in its global house-price index. In Toronto, one of two cities, along with Vancouver, where the boom has been concentrated, rental yields are barely above the cost of borrowing, even though interest rates are at record lows. In its twice-yearly health-check on the financial system, published this month, the Bank of Canada concluded that “extrapolative expectations” are a feature of the market. In other words, people are buying because they hope, or fear, that prices will keep rising.

They also note that house price inflation in Toronto is above 30%.

To me, a lot of this coverage seems to miss the link between house price inflation and global wealth inequality. People who own valuable assets have, in many cases, seen their wealth rise rapidly, while those reliant on wages have seen it stagnate or fall.

I think governments ought to be thinking much more seriously about policy mechanisms to curb inequality, including wealth taxes and guaranteed minimum incomes. This is both because much of the accumulation of wealth by the wealthy has been undeserved and because inequality distorts politics and social relations, making it harder to confront other problems.

Canada and Toronto’s housing markets

Ian Townsend-Gault

I was saddened to learn while watching the U.K. election that a former professor of mine — Ian Townsend-Gault — died in 2016.

I studied international law with him as an undergraduate, we had many engaging conversations over the years, he encouraged one of my early publications, he edited other early pieces of writing, I attended excellent parties at his Bowen Island home, he served as a reference for many of my grad school applications, he gave me good advice while I was at Oxford, and we met once in London.

Ian was memorable for his good humour, friendliness, and hospitality. He had a talent for making arcane subjects intriguing and even fascinating. I think the remarkably candid obituary above would not have displeased him.

Canada’s history of oppressive Indigenous policies

Almost every year the Indian Act was amended to add new measures of control, many of them requested by the government’s agents in the field. In twenty-five pages of its report, the Royal Commission on Aboriginal Peoples laid out in detail the “oppressive measures” that were added to the act right up until 1951. They included the power to force bands to use the municipal election model of governance and to police elections so that chiefs and other traditional leaders could be disqualified for office. Indian agents were given the power of justices of the peace, extending their control to the justice system. Enfranchisement, that ticket to white man’s freedom, was forced on Indians who obtained university degrees and later on Indian leaders mobilizing resistance to their people’s oppression. The totalitarian ambition of the Act was manifest in its attack on traditional ceremonies and festivals such as the potlatch and the sun dance. Even dress was regulated when a 1914 amendment prohibited Indians from wearing, without permission, “Aboriginal costume” in any “dance, show, exhibition, stampede or pageant.” The land base of bands was steadily reduced through government pressure to surrender land to real estate developers and municipalities. In 1911 public authorities were given the power to expropriate reserve lands without a surrender. It was a criminal offence for Indian farmers to sell their produce without the Indian agent’s permission. That permission was frequently denied. And to make sure Indians did not challenge any of this in the white man’s courts, a 1927 amendment made it a criminal offence to solicit funds for taking claims to court without a license from the superintendent general.

Of all the “oppressive measures,” the one best known and most regretted by non-Aboriginal Canadians is the residential school program. It is the one thing we Canadians did to Aboriginal peoples for which we have made an official apology. Prime Minister Stephen Harper, speaking in the House of Commons on 11 June 2008, said “I stand before you today to offer an apology to former students of Indian residential schools. The treatment of the children in Indian residential schools is a sad chapter in our history. We are sorry.” Justices of Australia’s High Court concluded in the Mabo case that the Aboriginal peoples they encountered were fully human and their insistence for over two centuries that they arrived in a terra nullius (an empty land) “constitute the darkest aspect of the history of this nation.” Canada’s residential school program for Aboriginal children is surely “the darkest aspect” of Canada’s history.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests. University of Toronto Press, 2017. p. 191–2

Contradictory thinking in Canadian treaty-making

In the two decades between the [1857] Gradual Civilization Act and the [1876] Indian Act, only one Indian opted for enfranchisement, and the Indian peoples did not disappear. The Government of Canada continued to negotiate treaties with Indian nations while at the same time appointing Ottawa bureaucrats to run their societies. There was no logic in this: a government does not make treaties with persons it regards as its subjects. But the Canadian federation was formed at the high tide of European imperialism, when white people — and this most certainly included the Fathers of Confederation — believed fervently in their racial superiority and, in the words of Edward Said, “the almost metaphysical obligation to rule subordinate, inferior, less-advanced peoples.” Through its first century, Canada’s policies with respect to native peoples would move along this contradictory path — treaties for getting their lands, imposing white officials as their rulers — with tragic consequences for Indigenous peoples and an enormous legacy of broken promises and distrust.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests. University of Toronto Press, 2017. p. 150

Agreement under duress

These land cession treaties were flawed by the fundamental inequality of the parties. The Indians no longer had the option of walking away from the negotiations and threatening to resume military hostilities. Their bargaining position was further weakened by their desperate material circumstances and their lack of knowledge of the white man’s legal culture. No longer in receipt of the Crown’s largesse, with greatly diminished resources from their hunting grounds inundated by the incoming flood of settlers, and continuing to experience the devastating and bewildering impact of disease, many native communities were poor and hungry. The promise of an annual payment of cash or goods and a reserve of land where they could make a fresh start free of settler encroachments was difficult to resist. It is clear that the Indians did not understand that the off-reserve lands, always by far the lion’s share of their lands according to the white man’s understanding of the treaties, were being sold to the Crown and forever alientated from them. The rhetoric of the Crown’s negotiator employed phrases such as “as long as the rivers flow and the sun rises” to assure the Indians that they would be able to pursue their traditional economic pursuits on the lands they were agreeing to share with the white man. As native communities quickly discovered, these vast tracts of their traditional country that they were deemed to have “surrendered” would be turned into settlers’ farms and towns from which they would be excluded.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests. University of Toronto Press, 2017. p. 83-4

Burkean constitutionalism in Canada

In a word, Canada’s constitution has been profoundly evolutionary, and so the constitutional theory of aother British political philosopher, Edmund Burke, is much more appropriate than that of John Locke.

According to Burke the contract that best ensures good government is an intergenerational contract in which a generation inherits arrangements that have worked tolerably well – in the sense of providing reasonable security, social harmony, and prosperity – and passes on to the next generation its own improvements to that heritage. For a country as complex as Canada, based not on a single people but on several peoples, the Burkean idea of an organic constitutional system working itself out over time has proved eminently more suitable than the Lockean ideal of a single constitutional document expressing the moral beliefs of a single founding people.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests. University of Toronto Press, 2017. p. 69

Potential roots of reconciliation

As we saw in the previous chapter, the Aboriginal peoples’ foundational agreement for sharing the country with the settlers was with the British Crown. The rights and freedoms of Aboriginal peoples recognized in that agreement are now inscribed in the Charter. Since that agreement, Canada has become a self-governing democracy. Some might say this means that Aboriginal people should adjust to this reality and give up counting on an honourable Crown as their partner in regulating the relationship with Canada. But why should they do that? They were never consulted about these huge changes in the nature of their treaty partner. They were totally excluded from any kind of participation in the discussions and negotiations that led to Confederation and the founding of the Dominion of Canada. For nearly a century after Confederation they were denied any right to participate in the institutions of the new Dominion – including, for a time, its courts. For Canadians who wish to see Canada’s relations with Aboriginal peoples based on justice and honour rather than force, the task ahead is to find a way modern-day Canada can replace the Great White Mother or Father with a treaty-making process that Aboriginal peoples can trust but that also meets the imperatives of accountable democratic government.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests. University of Toronto Press, 2017. p. 67

Canada’s illegitimate origins

After the War of 1812, Britain, no longer in need of Indigenous allies, began to treat the Indian nations as subjects of the Crown. The colonial administrators paid lip service to the 1763 Royal Proclamation by continuing to acquire land for settlement through treaties with their native owners. But the purpose of making treaties was not to establish a continuing relationship of mutual help and the sharing of the country, but to pave the way for British settlers by isolating groups of Indians on tiny reserves, denying them the possibility of carrying out their traditional economy or the opportunity to participate in the new economy on the off-reserve lands they were considered to have “surrendered.” The policy behind this approach became clear when the United Colony of Canada passed the Gradual Civilization Act in 1857. Indians were now to be confined to reserves until sufficiently civilized to be “emancipated” from their Indian status and assimilated into mainstream society.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests. University of Toronto Press, 2017. p. 8

Animal transport and the ethics of meat

In a perceptive tweet Ziya Tong argued: “In the 21st century you’ll find cameras *everywhere* except: where our food comes from, where our energy comes from, and where our waste goes”.

I have long been of the view that if people were forced to look at where our meat, eggs, and dairy come from, few would still be willing to eat them.

That lines up with a recent episode of The Current, in which Anita Krajnc’s acquittal for giving water to pigs heading to a slaughterhouse was used to open a broader conversation about animal transport in the meat industry, including high mortality among “spent hens” used to make nuggets and chicken soup.

My vegetarianism has softened since the long period when I was pretty strict about it starting in 2005, though not for any morally-informed reason. Rather, I think it has just been a result of the way meat-eating (among so many other unsustainable and potentially unethical behaviours) is normalized in our society.

At a minimum, I will try to be more mindful again going forward. Talk of “spent hens” and the conditions of pig, cattle, and horse transport has kept me vegetarian since the broadcast.

Establishing a Responsibility to Repair

The concept of Right to Repair is meant to help consumers and tinkerers keep their vehicles, electronics, and other equipment going, despite the preferences of manufacturers that they buy something new or at least pay the original builder for any repairs.

In a more sustainable world, we can imagine a Responsibility to Repair, where any manufacturer of a product intended to be durable – from a phone or laptop to a car or house – would be expected to support repairs by providing blueprints and source code, by making spare parts available, and by designing products in the first place so that failures can be repaired (a) by individual users (b) by third-party repair centres and (c) by the company itself.

This is the opposite of the Apple philosophy of keeping everything secret, building machines that cannot be taken apart, and throwing away anything broken to replace it with something new.

In a Responsibility to Repair world, governments could keep track of all devices which consumers report as broken and impossible to fix, and then press companies to comply with regard to those items. Companies that refuse could face sactions from fines to losing the right to advertise to losing the right to make products in certain categories.

It would be the end of planned obsolescence, and the start of a much more sustainable form of consumerism. Even for companies that close down, this approach would create multiple benefits, since their design specifications and software would be openly available and their products would be designed with public repair in mind from the beginning. If one big jurisdiction like the EU were to establish laws of this kind, the benefits would be felt around the world.