by Anthony Hall
Decoding the Encounter between Professor Tom Flanagan and Idle No More at the University of Lethbridge in Alberta Canada.
Professor Tom Flanagan was instrumental in mentoring, grooming and handling Stephen Harper during the most formative stages of the meteoric political career of Canada’s current prime minister.
Professor Flanagan is a US-trained political scientist who was hired by a transplanted Pentagon intelligence expert to help make Calgary safe for Houston and Dallas-based oil companies in Texas North. Professor Flanagan was politically disowned recently by many of his former students and associates, including by Stephen Harper, for characterizing the consumption of child pornography as a victimless crime that should be met with counseling rather than incarceration.
Professor Flanagan made the comments in response to questions from Aboriginal supporters of the Idle No More movement who look at the denigration entailed in child pornography through the lens of many of their their people’s harsh experiences as victims of the child sexual exploitation in Canada’s federally-funded system of Christian residential schools for Aboriginal youths.
Professor Flanagan Meets His Waterloo
On March 13 I devoted a three-hour university class to looking at the media coverage, political fallout, historical background, and future implications of Tom Flanagan’s controversial presentation two weeks earlier. I did so as a long-serving member of the Arts and Science Faculty at the University of Lethbridge where, on February 27, Professor Flanagan delivered his talk, including the now-notorious comment displaying his libertarian extremism on the subject of child pornography and the law.
Professor Flanagan was invited to speak at our school by the Southern Albertan Council on Public Affairs. The host and moderator of the session was Professor Peter McCormick. Professor McCormick and Professor Flanagan are like-minded political scientists who have applied their academic expertise to helping the transmutation of the Reform Party and then the Alliance Party into the governing Conservative Party of Canada. As has been widely reported, the subject of Professor Flanagan’s presentation at my school was the Indian Act, a topic in which he and I share considerable professional interest.
Over the years Professor Flanagan and I have exchanged opposing interpretations on Aboriginal matters in a number of venues, both academic and journalistic. In August of 2000 I reviewed a book by Tom Flanagan’s in The Globe and Mail. In the late 1990s I debated him for an hour on the airwaves of CBC Radio in an Alberta-wide show known as Wildrose Forum.
During this period I invited my colleague from the Political Science Department at the University of Calgary to lecture my students, many of them Aboriginal, in the Department of Native American Studies at the University of Lethbridge. This academic unit was the first of its kind to be established in western Canada.
Professor Flanagan accepted my invitation to help my students gain access to a perspective on Aboriginal matters very different from my own.
As I recall, one of his main topics in the last class during my day with Professor Flanagan at the University of Lethbridge was my guest’s detailed presentation of his antagonism towards Tom Berger, a jurist whose legal arguments, government reports, judge’s rulings, and scholarly books have been instrumental in moving Canada away from the darkest era of federal Indian policy.
he statistics indexing the disproportionately high rates of Aboriginal unemployment, suicide, incarceration, domestic violence, addictions, and the like make it clear the darkness continues yet.
This darkness, however, was less nuanced until the early 1960s when John Diefenbaker, the Tory prime minister of Canada, applied his Bill of Rights to the extension of the federal franchise to registered Indians.
For the previous century registered Indians were legally classified according to Canada’s Indian Act as the disenfranchised wards of the federal government. The rendering of adult Indians into wards of federal authority essentially infantilized them in law.
Those governed by the Indian Act were deemed to be insufficiently civilized to be afforded the rights and responsibilities of citizenship. As such they were denied the capacity to vote or gain public office in federal or provincial elections. They could not sign binding contracts. They could not hold positions involving exchanges of signatures and contractual obligations.
They were thus precluded, for instance, from becoming lawyers or bankers. As human beings placed outside the domain of legal “personhood” they could not defend their rights and titles through civil litigation in court. At the same time corporations like the Canadian Pacific Railway Company, whose expanding frontiers were mirrored by the imploding frontiers of Indian Country, were extended the status of “natural persons.”
During the decade when I hosted Professor Flanagan as a visiting lecturer in my classes and throughout the following decade my adversarial colleague acted as Stephen Harper’s mentor, co-author, campaign manager, political adviser, and behind-the-scenes fixer in the process of creating the conditions that would bring to power a Conservative Party majority government in 2011.[i]
Along this journey Professor Flanagan and his political protégé dethroned Preston Manning, the preacher son of a Baptist preacher who was the premier of Alberta from 1943 until 1968.
In the process of taking Mr. Manning’s movement from an Alberta-based, largely rural phenomenon, the Harper-Flanagan juggernaut succeeded in ingesting and subsequently destroying Canada’s Progressive Conservative Party along with the its centrist and Red Tory heritage. This heritage was embodied by the likes of former prime ministers John Diefenbaker and Joe Clark.[ii]
This assault on the indigenous conservatism of Canada, a country that emerged from the conservative side of the American Revolution, was misrepresented as a campaign to “unite the right.”[iii]
This shift from the indigenous conservatism of Canada to the imported conservatism of the United States has huge implications for all Canadians but especially for Aboriginal peoples. In the era of conflict culminating in the War of 1812 the Red Tory tradition of Canada was founded in the negotiation of an expanding Covenant Chain of Crown-Aboriginal treaties.
In their most classical forms of expression these agreements signified friendship, commercial cooperation, military alliance, and resource sharing between distinct peoples. Until the end of the War of 1812 in the East and the building of the Canadian Pacific Railway in the West this British imperial policy of treaty alliances with Indigenous peoples provided the basis of Crown claims to what was then referred to most often as British North America. In the War of 1812 Canada was saved from annexation by the United States by the fighting prowess of about 12,000 Aboriginal soldiers serving Tecumseh’s Indian Confederacy.
The assault by the Harper-Flanagan juggernaut on the generally friendly orientation of Canadian conservatism towards the state, towards Indigenous peoples, and towards the institutions of Crown sovereignty helped clear aside obstacles to the importation from United States of the Republican Party’s jihad on managed capitalism. Flanagan and Harper took charge of the Canadian version of the Reagan Revolution aimed at transforming the social welfare state into the stock market state.
he Harper-Flanagan hostility to Canada’s indigenous conservative heritage showed up most recently in Alberta’s last provincial election. With Stephen Harper’s silent backing Professor Flanagan advised the Wildrose Party’s Danielle Smith on how to defeat Alison Redford’s Progressive Conservative Party. If elected, the Wildrose Party would have moved Canada’s most Americanized province even closer to the Flanaganesque policies mimicking those pioneered most zealously by the US Republican Party.
As is now coming to light, a big part of this assault on the indigenous conservatism of Canada is the push to obliterate the constitutional force of the Royal Proclamation of 1763 as well as its outgrowths in the still-expanding domain of Crown-Aboriginal treaties whose constitutional character is recognized and affirmed in Canadian law.
Professor’s Flanagan’s superficial and USAocentric characterization of North America’s past is devoid of any explanation of the evolution of Crown-Aboriginal alliances, let alone any explanation of how this history affects the present conditions and future prospects of Canada.
As I have tried to outline in my historical works, King George III came up with the Royal Proclamation of 1763 based on the advice of Sir William Johnson, a top official of the British Imperial Indian Department based in New York colony.
Following the defeat of the French imperial forces in North America Johnson counseled the British imperial government to hold out an olive branch to the Indigenous peoples of Canada and the Mississippi Valley.
Johnson advised his Tory colleagues in the imperial government to entice Indians to join the British Empire based on promises that the Crown would protect the Aboriginal and treaty rights of its Aboriginal allies.
As is discussed below, Canada’s commitment to recognize and affirm the existence of Aboriginal and treaty rights was renewed with the patriation of the Canadian constitution from Great Britain in 1982.
To understand the career of Professor Flanagan is to understand the political agenda of huge commercial interests inside and outside of Canada that seek to terminate Aboriginal and treaty rights as major impediments to the corporate exploitation of northern North America’s so-called natural resources.
Right now the Harper government’s top priority for greasing the wheels of this corporate plundering of Canada’s natural resources is through the building of pipelines to export Alberta bitumen to BC ports for export to China. Most of British Columbia has not yet been drawn into the Canadian rule of law requiring the formalization of Crown-Aboriginal treaties as a prelude to non-Aboriginal ownership and exploitation.
To understand the upsurge of Idle No More is to understand the deep consternation of decent men and women of diverse ethnic backgrounds who refuse to remain passive and silent as the Stephen Harper government systematically violates the best inheritances of Canadian social democracy. The Idle No More movement begins in Canada but extends to condemnations of the systematic abuses of Indigenous peoples around the world.
The original seed from which the Idle No More movement grew starts with an unwillingness to accept the Harper government’s violations of domestic and international law by opting to implement Tom Flanagan’s agenda for Canada rather than adhering to Canada’s constitutional recognition and affirmation of Aboriginal and treaty rights.
I remember being the butt of considerable criticism for offering Professor Flanagan a podium at the University of Lethbridge in the late 1990s to express views that are widely perceived among many of my peers and students as fundamentally antithetical to the political economy that would prevail if federal authorities in Canada were to adhere to the rule of law as articulated in section 35 of our Constitution Act, 1982. This provision proclaims, “the existing Aboriginal and treaty of the Aboriginal peoples of Canada are hereby recognized and affirmed.” What would Canada look like if Aboriginal and treaty rights were to be genuinely recognized and affirmed rather than denied and negated as is currently happening through the Harper government’s zeal to push through a large package of statutes incorporating Professor Flanagan’s favoured policies?
Since the 1990s Tom Flanagan and I brought out books presenting our divergent interpretations of the past place, present conditions, and future prospects of Indigenous peoples in Canada. My volumes extend my Canadian perspective on Aboriginal Affairs to a global consideration of Indigenous peoples and colonialism. Professor Flanagan’s First Nations? Second Thoughts appeared in 2000. His co-authored publication, Beyond the Indian Act: Restoring Aboriginal Property Rights, was first published in 2010. My work, The American Empire and the Fourth World first appeared in 2003. I followed up in 2010 with Earth into Property: Colonization, Decolonization, and Capitalism. McGill-Queen’s University Press published all four of our volumes on Aboriginal matters. Professor Flanagan’s First Nations? was honoured with a lucrative Donner Prize in 2001. In 2004 I received an Alberta Book Award for the best work of non-fiction by an Albertan author. In 2010 the UK newspaper, The Independent, selected Earth into Property as one of the best English-language history books in the world in its annual selection of Christmas pics.[iv]
I had every reason, then, to anticipate a lively exchange of ideas once I learned that Professor Flanagan would visit our campus as the guest of the Southern Alberta Council on Public Affairs, an organization with a long history of collaboration with the University of Lethbridge. I was reinforced in this anticipation from my understanding that Professor Flanagan is probably the single individual whose perspectives on Aboriginal matters come closest to embodying the very antithesis of everything that the Idle No More movement is attempting to achieve. Idle No More has been especially active here in the Treaty 7 area covering southern Alberta, the ancestral territory of the Blackfoot Confederacy. The vibrancy of Idle No More here in the Treaty 7 area, a domain encompassing both Calgary and Lethbridge, gave me confidence that a spirited challenge would be generated to the analysis of a consummate political insider, a highly effective operator adept at moving between the overlapping circles of government policy formation, the media, the academy, and the hands-on organization of what would become Canada’s dominant political party. I could not have anticipated, however, that the coverage of Professor Flanagan’s views on child pornography would so suddenly shift public discourse away from the advertised subject that brought the controversial figure to our school.
The Tom Flanagan episode at the University of Lethbridge presents a classic case study in the incorporation into mainstream news coverage of the social networking led by new styles of citizens’ journalism. The only journalists actually paid to cover Professor Flanagan’s talk were correspondents of the local media. Initially these local journalists missed altogether the significance of our visitor’s astonishing remarks on child pornography. As far as I know the only reason a national news story emerged from the proceedings was because Arnell Tailfeathers, a graduate of the Fine Arts Faculty at my school, videoed the pertinent section of the presentation on his iPhone and then quickly uploaded it to You Tube. When Arnell’s turn came to speak in my class the Blood Tribe member explained that he uploaded the fateful clip directly from his digital device even before Professor Flanagan had left the lecture hall on the night of February 27. Professor Flanagan’s comments came in direct response to the observations and question of Levi Mustache who attended the February 27 as well as my March 13 class.
As Arnell Tailfeathers’ You Tube went viral, the broad-ranging ethical, legal, professional, and political implications of Professor Flanagan’s menacing foray into the subject of child pornography became increasingly evident. The story gathered momentum as many powerful individuals, some of them close colleagues of Professor Flanagan, sought to distance themselves as well as their institutions from the offending message and its outspoken messenger. Not surprisingly a spokesman for Prime Minister Stephen Harper, who has most to lose from how this story eventually plays out, was the first to set the pattern of spurning condemnation. As the bandwagon of outrage gained momentum Premier Alison Redford jumped on. She announced that her stomach was turned by the nauseating comment of the Calgary School’s senior academic. Then Canada’s PM and Alberta’s premier were joined on the dump-Flanagan bandwagon by Danielle Smith. Like Sun News’ Ezra Levant, Smith is one of Professor Flanagan’s former students. Smith announced that her former teacher “will have no role—formal or informal—with our organization going forward.”
By the end of the day Professor Flanagan had been fired as a regular commentator on a high-profile CBC public affairs show. Later the Calgary School’s heavy hitter was dropped from the list of invited speakers asked to hold forth at a networking event organized by Preston Manning. Preston Manning, who works through the Manning Centre for Building Democracy, has become the Harper regime’s presiding eminence.
Perhaps the harshest condemnation of all came from the University of Calgary’s president, Dr. Elizabeth Cannon. Still reeling from all the flack generated by Professor Flanagan’s earlier on-air suggestion that Wikileaks’ Julian Assange should be “assassinated” for publishing government secrets, the University of Calgary’s CEO spun her intervention to make it look like her school was severing professional ties with its most controversial faculty member. With her remarks Dr. Cannon seemed to leave the impression she was intent on putting Tom Flanagan’s academic career to bed.
Dr. Cannon’s remarks were sufficiently provocative to stimulate justifiable defenses of academic freedom. There are pronounced dangers to the sanctity of academic freedom whenever university administrators opt to speak on behalf of their institutions over the heads of faculty members to pass public judgment on their interpretations. Dr. Cannon sided with many powerful political leaders who declared themselves unable to defend the indefensible.
Consideration of the University of Calgary’s president into the Tom Flanagan affair helped keep the controversy alive over several more news cycles. The fact that both the National Post and The Globe and Mail, Canada’s two major English-language newspapers, were so quick to publish articles sympathetic to the backlash against the dump-Flanagan movement might be an indicator that we have not yet seen the end of the national and even international controversy concerning what Professor Flanagan suggests is the wrongful criminalization of those that consume as opposed to those that produce child pornography. What does it say about the present state of our political culture that Tom Flanagan is being presented in some prominent circles of media power as a martyr for the rejection he has experienced after characterizing the watching of movies highlighting the sexual exploitation of children as a victimless crime?
To my way of thinking even this partial list of consequences is enough to draw attention to the team of Tailfeathers and Little Mustach, citizen journalists whose actions and words were instrumental in drawing national attention to an event whose significance might otherwise have been largely ignored outside of Lethbridge. With this thought in mind I invited Levi Little Mustache and then Arnell Tailfeathers to lead off the proceedings after I finished my twenty-minute introduction to the Flanagan-Idle No More encounter. In this introduction I developed themes that I had earlier introduced into the curriculum of my course entitled “Globalization since 1492.” In my current offering of this second-year social science elective I had characterized the Idle No More phenomenon as a continuation of a long heritage Aboriginal resistance to the colonization of their ancestral lands and waters as well as their very persons. This indigenous resistance to the dispossession and disentitlement of Aboriginal peoples has been going on since the modern era of imperial globalization began with Christopher Columbus’s most transformative trans-Atlantic voyage in 1492.
After screening in class Arnell Tailfeathers’ You Tube on the exchange between Professor Flanagan and Levi Little Mustache, the latter took his position at the front of the class. Currently Levi is employed by the Blood Tribe to lead youth programs. Mr. Little Mustache is a graduate from the Agricultural Economics program at the University of Lethbridge. In the course of his presentation Levi explained his attraction to the Idle No More movement as an outgrowth of his commitment to see the youth of his tribe engaged in positive and self-affirming activities. Levi began by responding to my comments on the relevant aspects of Professor Flanagan’s qualified apology as published in the National Post on March 4. Of Mr. Little Mustache Professor Flanagan wrote, “In the middle of the evening, a young man had gotten up to ask a rambling series of questions about aboriginal issues. Apropos of nothing, he also asked me about some comments I had made about child pornography when I gave a guest lecture at the University of Manitoba in 2009.” Professor Flanagan went further. He characterized Levi Little Mustache’s comments as “a trap, not a bona fide question.”[v] What kind of apology is it when the person giving the apology describes himself as a trapped victim?
I had taken note before the class that in his social networking Levi Little Mustache had made a special point of satirizing Professor Flanagan’s “Apropos of nothing” remark. In my view this particular part of Professor Flanagan’s published explanation of his Lethbridge talk does an injustice to Levi’s contribution to the discussion. All Levi’s comments bore some relationship to the advertised subject matter of Professor Flanagan’s talk. In the widely disseminated video of Levi’s exchange with Professor Flanagan the assertive young man introduces his question about the older man’s views on child pornography by making reference to the legacy of Indian residential schools. These schools were created to advance the same assimilationist strategy as the Indian Act, whose first incarnation in 1857 was tellingly entitled An Act for the Gradual Civilization of the Indian Tribes in Canada. As is now widely recognized, including by the federal government, these Indian residential schools were real traps where various forms of child abuse, including sexual, physical and psychological abuse, often ran rampant.
Expanding on the idea Levi introduced from the floor in his remarks of February 27, the young man explained to the students in my class that he was aware that even in the narrow confines of the lecture hall where Professor Flanagan spoke there were several “survivors” of Indian residential schools. These now-notorious schools continued into the 1970s and some of them into 80s. While a few former Indian residential school students speak well of their time at these places the dominant opinion in Indian Country is that these institution were centres of coercive indoctrination where a broad array of terrible abuses were heaped on defenseless children stripped from the protective custody of their legally-infantilized parents.. The schools were run by Christian churches but funded by the federal government. There is no more eloquent expression in Canadian history of the thick web of connections linking church and state.
While the subject of the pornographic exploitation of children is especially fraught and painful for all decent-minded folks, this same subject tends to be especially difficult for Indian families given the excruciating legacies of sexual assault that took place in the prison-like institutions where pedophile predators were too often left free to prey on the young. Perhaps Professor Flanagan could have been more attentive to the reason for what he described as the “uproar” that met his comments. Perhaps those U of C professors who claimed that Professor Flanagan was “shouted down” by the Idle No More audience in the lecture hall might have shown more consideration for the contextual setting in which our colleague delivered his most shocking comments.[vi] Rather than condemning members of the audience for being attentive enough to express justifiable indignation at what they were hearing, perhaps some recognition is in order for those who rose to the challenge of immediately flagging a radical idea that, if it were to be implemented, packs plenty of potential to wreak havoc. Amanda Todd’s broadly-viewed suicide You Tube helps illustrate the grotesque implications of malicious dissemination of explicit pictures of young people.
As we discussed in class, Levi introduced in his initial remarks to Professor Flanagan the concept of the assimilationist thrust of Canadian Indian policy. Assimilation is a word used by some anthropologists to describe processes that eliminate the distinctiveness of some groups to the dominant homogenizing power of other groups. Levi clarified that he was trying to make the point that Professor Flanagan seeks to continue and accelerate the assimilationist trajectory of Canadian Indian policy with his proposals advocating the termination of Indian reserves through their transformations into municipalities and through the process of dividing the collective-held estates of Indian bands into fee simple plots that can be bought and sold by human and corporate entities in the open market.
As is widely understood in the Idle No More movement, Professor Flanagan’s agenda of change embodies not a deviation from the Indian Act’s assimilationist thrust but rather a realization of its original author’s assimilationist intent. Every time some North American government reverts back to the project of attempting to break up the collectively-held domains of Indigenous peoples in order to incorporate the privatized property into the regular matrix of market transactions it ends up being disastrous for most of the Aboriginal people involved. It ends up extending rather than shrinking economic disparities between rich and poor. It ends up with the further vanquishment of the already-vanquished. It ends up with the further dispossession of the already-dispossessed.
With all their problems Indian reserves have helped sustain the principle that Aboriginal groups have collective identities and shared estates that sooner or later must be incorporated into the self-governing structures of Canadian federalism as well as into international relations and global geopolitics. The primary strategies for preempting this outcome are precisely those that Tom Flanagan has proposed in his books and precisely those that the Harper government is zealously implementing through a variety of techniques, some of them overt and some of them by stealth.
Currently Indian reserves in Canada’s provinces cover about one-half of 1% of the total land mass. To push forward the market-driven breakup of Indian reserves, as the Harper-Flanagan juggernaut seems intent on doing,[vii] is to advance the long-institutionalized project of extinguishing and terminating Aboriginal nations. It is to finish up the job of appropriating Canada from its original title holders in ways that go against the explicit commitment in the Canada constitution that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”
Indian reserves have provided a kind of sanctuary for the survival of Indian languages. These endangered and disappearing languages are major repositories of Aboriginal and ecological knowledge that ultimately belong to the linguistic, philosophical, and intellectual commonwealth of all humanity. In a similar vein Indian reserves have provided sites of sufficient critical mass for the renewal, adaptation, and elaboration of the distinct cultural practices that otherwise would have disappeared long ago. To advocate the market-driven breakup of Indian reserves is to advance a genocidal project that began with the Columbian conquests in 1492.
The Consumption of Child Pornography as a Victimless Crime?
Before class I was able to look up a news report describing Professor Flanagan’s visit to the University of Manitoba in 2009 as referred to by Levi Little Mustache on February 27. Using the digital projector I shared the relevant web page of the U of M student newspaper with the students as I discussed its contents with Levi. In his question to Prime Minister Harper’s original handler and groomer, Levi quoted Professor Flanagan. Referring to research notes he had brought him, Levi cited a direct citation taken from Professor Flanagan’s talk at the U of M. “What’s wrong with child pornography— in the sense its just pictures,” Professor Flanagan had asked rhetorically.
On reading The Manitoban’s account of the response at this provincial university to Professor Flanagan’s presentation in 2009 I was surprised by the similarity of audience reactions in Winnipeg to those expressed at the University of Lethbridge four years later. Similarly I could not help but notice Professor Flanagan’s similar reaction to the barrages of criticism that mark the Calgary academic as a kind of pariah for the not-so-silent majority of Aboriginal people, those that do not share the opinions of the Harper government’s First Nations Tax Commission chaired by Manny Jules. In 2009 a Facebook group had coalesced to request that Professor Flanagan’s planned talks should either be cancelled or reconfigured “to include a roundtable discussion on Aboriginal issues.” I had heard similar proposals from members of Idle No More in Lethbridge. The Southern Alberta Council on Public Affairs was criticized for not balancing Professor Flanagan’s one-sided presentation with a speaker to articulate at least one other side side of a complex story.
In 2009 the University of Manitoba Aboriginal Students’ Association (UMASA) got involved, writing a letter of complaint to the Political Science Department that was hosting the controversial presenter. According to Tara Gosek, co-president of UMASA, seeing Professor Flanagan being presented with such a prestigious podium at her school left “students who feel strongly about Aboriginal issues” with a sense of “powerlessness.” The experience left people “upset” about bringing to campus such a biased commentator claiming superior expertise in the “Aboriginal history in Canada.”[viii]
Levi Little Mustache finished up his presentation by referring to media biases and the censorship of ideas, interpretations, and interpreters inconvenient to power. Next up was Arnell Tailfeathers who is much more soft-spoken than his friend Levi. Arnell tells me he was a student of mine in one of my offerings in the 1990s of the U of L’s introductory course in Native American Studies. He explained that due to his education in Fine Arts he considers himself more an artist of the New Media than a journalist. In describing what he does he rhymed off a number of his social networking venues including Facebook, Twitter, Instagram, You Tube, and several others interfaces I had not heard of. As Levi had done, Arnell declared his commitment to the principles of Idle No More. He explained his preoccupation with documenting the Blood Tribe’s contribution to Idle No More in a number of actions throughout Blackfoot Country.[ix] With an ironic grin Arnell gave a title to what had transpired at the University of Lethbridge on February 27 and in Canada’s national media through the broad dissemination of his You Tube. Arnell referred to the episode as “Flanagan’s Last Stand.”
Firewall Federalism or a Federalism of Reciprocity and Equity Across Cultures?
The third presenter was Faye Morning Bull, a lawyer whose legal firm, Indigenous Law, is based on the Peigan reserve in the town of Brocket. Faye’s Nitsitapi name is Natoamiskapiakii. This word means Holy Sunrise in English. Nitsitapi is the indigenous term of self-identification used by the people known to the outside world as Blackfoot or, in the United States, Blackfeet. Natoamiskapiakii traces one line of her family ancestry back to the migration of Nez Perce refugees from the United States. Faye’s ancestors were part of White Bird’s Nez Perce band. Unlike Chief Joseph and his followers, White Bird’s band did succeed in evading the US Armed Forces in 1877 to join Sitting Bull and his contingent in the Cypress Hills of Canada. Generating rapid-fire exchanges exchange between diplomats in Washington and the British imperial capital, Sitting Bull and his followers received for a time refuge in Canada after his fighting force’s defeat in 1876 of General George Custer’s Seventh Calgary at the Battle of Little Bighorn.
I remember Faye Morning Bull well as one of my early students at the University of Lethbridge. She was took her studies especially seriously. After graduating with a BA in Native American Studies Faye obtained a law degree from the University of Calgary. I have twice seen Faye present her very rich power point display accompanied by her commentary detailing the content and intent of the nine federal statutes, two of them the now-notorious Omnibus Bills, all dealing with various aspects of what the federal government refers to these days as Aboriginal Affairs.[x] Before inviting Faye to speak in my class I admired her presentation at an Idle No More teach-in, one where I also spoke. I also saw Faye hold forth at an event hosted by SACPA, the group that had hosted Professor Flanagan the previous week.
In my exchange with Faye in class it became clearer to me that the Harper government is seeking to radically transform Canada’s fundamental constitutional fabric by doing legislative end runs around the difficult process of amending the Canadian constitution through federal-provincial cooperation. In other words the Harper government is attempting, illegally in my view, to change Canada’s supreme law through the device of federal enactments. The classic case in point is Bill C-45, the Omnibus Bill that advances concurrently so many legal changes that, according to some prominent jurists, it “violates the rule of law as it has traditionally been defined through the democratization movement of the 19th and 20th centuries.” According to Lawyers Rights Watch Canada, C-45 “lumps together more than 550 provisions on more than 30 topics in a 443 page omnibus bill [that] foreclosed the open public discussion and consultation that are essential according to both the Canadian constitution and the internationally defined democratic standard of prior informed consent.”[xi]
The Harper government’s attempt in Bill C-45 to withdraw federal jurisdiction from all but a tiny proportion of Canada’s vast proliferation of navigable streams, rivers, lakes, and creeks epitomizes the effort to transform Canada’s constitutional design through federal legislation. This attempt is clearly connected to the Harper government’s desire to disable the existing juridical system for Federal Environmental Assessments whenever explicitly-stated federal responsibilities for fish, inland navigation, and Indians are invoked. The Harper government’s most immediate goal in this manoeuver is to set aside all legal obstructions to the rapid construction of bitumen pipelines especially in British Columbia. More generally the goal is to dismantle the existing machinery of federal environmental protection and federal responsibility for “Indians and lands reserved for the Indians” so that Canada’s natural resources can be more quickly exploited by foreign corporations, most of which derive their charters and licenses from Canada’s provincial governments.
The provincialist orientation of Canada’s current national government was made entirely clear in 2001 when Stephen Harper, Tom Flanagan and other Calgary School operatives published in the National Post an open letter to Alberta’s premier advocating “building firewalls around Alberta, to limit the extent to which an aggressive and hostile federal government can encroach upon legitimate provincial jurisdiction.”[xii]This extraordinary document, seeking to change the balance of power in Canada federalism away from Ottawa and towards provincial capitals, is sometimes referred to as the Firewall Manifesto.
A major factor in the initial rise of the Idle No More movement was public indignation towards that part of Bill C-45 that would so dramatically deregulate and degrade one of the largest and most pristine repositories of fresh water in the world. The Harper government’s attempt to withdraw federal jurisdiction from most of Canada’s vast array of aquatic environments has serious consequences for citizens inside and outside Canada, a country widely known for its abundance of relatively unspoiled places. The consequences are especially grave for some Aboriginal groups. Many of Canada’s multitudinous water bodies still form an important source of food and economic activity for some First Nations.
The federal parliament’s jurisdictions in fish and their aquatic habitat, in Indians and lands reserved for the Indians, and in inland navigation are all derived from the list of the federal parliament’s areas of jurisdiction as outlined in section 91 of the British North American Act (BNA). As of 1982 the BNA Act, which initially came into force as a statute of the imperial parliament of Great Britain, can be amended domestically through enactments that must be adopted by both the federal parliament in Ottawa and, depending on the subject matter, either seven or ten provincial legislatures. The division of powers as outlined in the BNA Act cannot be unilaterally altered, as the Harper government is trying to do, through mere federal enactments alone.
The packing of so much disparate legislation covering so many different topics into such huge and opaque units of federal enactment marks a new low in the denigration of parliament democracy. It confirms that, in the words of the director of the Constitution Unit at University College, London, “Canada’s Parliament is more dysfunctional than any of the other Westminster Parliaments.”[xiii] The form of obfuscation epitomized by the Omnibus Bills C-45 and, earlier, C-38 removes any practical possibility that rational public discourse will lead to informed public consent for the Harper government’s effort to remake Canada as a reflection of its Reaganesque ideals.
Professor Flanagan is most likely one of the strategists who devised plans for the Harper government’s ominous omnibus bills and for doing legislative end runs around changes that should properly take place through processes of constitutional amendment. In an interview over a year ago Professor Flanagan signaled his importance in pointing the Harper government towards a path on which it is currently embarked. Professor Flanagan explained to Globe reporter Gloria Galloway that the request by the Assembly of Manitoba Chiefs for first ministers’ conferences on Aboriginal matters similar to those that took place in the years following patriation of the Canadian constitution in 1982 were “definitely out.” [xiv]The call for such conferences came specifically from Grand Chief Derek Nepinak. Early in 2013 Chief Nepinak came to the forefront of national controversy as the Idle No More movement commanded headlines as well as the attention of Prime Minister Harper, who is reputed to have referred to Idle No More as a “PR shit storm.”[xv]
Faye’s summary of the elaborate body of legislation aimed at reconfiguring the landscape of Aboriginal Affairs helped persuade me that Stephen Harper has made Professor Flanagan’s area of academic specialty one of his government’s highest priorities. In order to better reflect its Reaganesque ideals and in order to expedite its emphasis on resource extraction as an alternative to a genuine industrial strategy for Canada, the Harper government has adopted Professor Flanagan’s agenda accelerating the federal authority’s assault on Aboriginal and treaty rights.
In this respect the Harper government seems to be pressing forward its own variation on the assimilationist principles promoted early in the first mandate of Prime Minister Pierre Elliot Trudeau. The Trudeau government attempted to bring Crown-Aboriginal treaties to an end with his White Paper on Indian policy. Rather than presenting the same clear target for opponents as did the Trudeau government with its 1969 White Paper, the Harper government has obfuscated its plans for the breakup and privatization of the remaining Aboriginal estate in Canada in a wide array of legislative packages including the omnibus bills. The coup de grace of the Flanagan plan for Aboriginal Canada is a statute still being held in the wings to terminate Indian reserves by transforming these small plots into packages of private real estate available to the highest bidder after they are first doled out to political cronies of the Harper government.
Replicating the US termination policies of the Eisenhower era in the 1950s, the legislation will inevitably be spun as an affirmation of the property rights of Indian individuals rather than an extinguishment of the shared rights and jurisdictions of Aboriginal collectivities. The trick for the Harper government in pulling off this slight of hand for atomizing and destroying Aboriginal polities will be to transform the handful of well-to-do Indians who will enrich themselves personally from the change as somehow representative of the larger Aboriginal polity. The strategy will be to discredit and disassemble the largest constituency of Aboriginal peoples who seek to renew and maintain a shared place for their own First Nations within the larger Canadian polity for as long as the sun shines, the waters flow, and the grass grows.
The Harper government was in full-divide-and-conquer mode in January as the Idle No More tidal wave of activism washed over Ottawa. By refusing Idle No More’s insistence that the Governor-General of Canada must be included in Aboriginal negotiations with the Harper government, the Harper Team demonstrated its antipathy to the role of the Canadian monarchy as the protector of Indigenous peoples and their Aboriginal and treaty rights from the incursions of the political branch of government. The necessity of invoking the powers of the institutions of Canadian monarchy, which is meant to be the symbol of stability, permanence and the transcendence of partisan politics in our ailing parliamentary democracy, has become stronger than ever when it comes to the need to protect from human and corporate predators the Indigenous peoples and their remaining Aboriginal estates.
As Tom Flanagan and Stephen Harper seem well to understand, there is almost certainly more votes available to them for attacking the underlying basis of Aboriginal and treaty rights rather than in adhering to section 35 of the Constitution Act 1982, that provision of Canada’s constitution addressing most directly the oldest and most profound human rights issue of the Americas. There are probably more votes to be had appealing to the baser instincts of the non-Aboriginal majority in Canada who can easily be encouraged to support those politicians who pretend to be speaking up for ordinary folks by assuming a get-tough posture towards Aboriginal peoples. The fact that the big media conglomerates, including the CBC, have managed to give Professor Flanagan’s otherwise radical agenda for breaking up and privatizing Canada’s remaining Aboriginal estate the appearance of orthodoxy demonstrates just how easy it is these days it is to invest advocates of enhanced corporate-sector power with the aura of scholarly envoys giving voice to popular wisdom.
The reality that this attack on the constitutional foundations of Crown-Aboriginal relations is being led by an entity that calls itself the Conservative Party of Canada demonstrates just how dramatically the Harper-Flanagan juggernaut has pulled Canada away from our own indigenous conservative heritage. This heritage is rooted in the period when Indians sided with the British imperial government in the extended civil war in British North America resulting in the creation of the United States in 1776 and in the future superpower’s subsequent military effort to annex Canada in the War of 1812.
Harper’s corruption of the Office of the Governor-General to retain power when his minority government was about to be defeated in a confidence vote in the House of Commons illustrates graphically the dysfunctional state of parliamentary democracy in Canada. Part of the problem is the growing confusions of Canadians and our governors when it comes to making sense of the institutions of the Canadian monarchy in the twenty-first century. How could it be otherwise when the Harper-Flanagan juggernaut has worked so intently to replace the Tory tradition in Canada, and especially the Red Tory tradition pioneered by Sir William Johnson, with a Canadian branch plant of the US Republican Party. How could it be otherwise given the education and political orientation of the current prime minister whose political base is Calgary, a colonial outpost dominated by offshoots of Huston and Dallas-based oil companies.
Academic Freedom and Political Contestation. Criminalization and Government Contracts.
In the discussion that ensued in the class many significant ideas and interpretations were brought forward. One of the first to comment was Jan Semmelroggen, a former student who has recently completed a PhD. in Geography at Loughborough University in the UK. Jan took one of my first offerings where I applied and expanded many of the themes from Native American Studies to international and transnational dimensions in Globalization Studies. To Jan it was almost inexplicable how a person as savvy and sophisticated as Tom Flanagan could have exposed himself to such infamy in the way he did. Jan took exception to the resort by some to the principles of academic freedom as the primary line of defense for the stigmatized speaker. It all came down, said Jan, to whether Tom Flanagan was invited to speak as an academic expert or as a political insider with a place of his own among the dominant figures in the government of the day. Jan’s opinion swung decidedly to the latter option.
Jan pointed out that Tom Flanagan was not invited to speak to a class of registered students at the University. Instead he was invited to address an audience assembled by the Southern Alberta Council on Public Affairs. As its name implies, SACPA’s mandate is to advance public discourse in public affairs. Although some academics are involved in directing SACPA’s activities, SACPA is not an academic agency per se. On the basis of its mandate SACPA invites many individuals from a variety of career backgrounds, not only academics, to address the public controversies of the day. According to Jan, SACPA’s event should be understood to have taken place at the University of Lethbridge. It was not, however, exactly of the University of Lethbridge.
Speaking from the perspective of a university professor who, according to the Canadian Association of University Teachers, has twice had his academic freedom violated, I think Jan’s observations raise a number of fair questions. For instance, does there come a point when a member of an academic faculty becomes so deeply identified with partisan politics and the hands-on exercise of political power that he or she gives up some of his or her protections of academic freedom when operating outside the formal structures of university teaching, research, publication, and community service? Does Professor Flanagan’s work in helping Stephen Harper and his associates gain and exercise political power count as community service? Can those faculty members who engage in the rough and tumble of partisan politics claim academic freedom when their political activities outside the formal boundaries of the academy go awry?
Another commentator with much to say in the March 13 class was Patricia Kelly. Patricia and I are partners. She attended the class along with her nineteen year-old son, Kwiis Hamilton. Kwiis means snow in the language of his Nuu-Chah-Nulth father, Ron Hamilton. Along with Kwiis and his sister, Patricia has been living with me here in Lethbridge since September. Her home territory is in the Chilliwack area just upstream from Vancouver. Patricia is a registered Indian, a residential school survivor, and a member of the Stó:Lō Nation within the larger community of Coast Salish people. Along with her ten surviving siblings Patricia Kelly was orphaned at age thirteen. Her father died when she was six. For much of her first thirteen years Patricia grew up in her mother’s fishing camp on the banks of the Fraser River. After her mother died she was subsequently adopted into the family of the Coast Salish actor, Dan George. For a time Dan George was in great demand in Hollywood co-starring, for instance, with Dustin Hoffman in Arthur Penn’s Little Big Man. Patricia worked for a time in the crew of the classic Canadian sitcom, The Beachcombers. Since 2004 she has been self-defending against the government of Canada’s charge that she possessed fish contrary to the terms of the federal Fisheries Act.
The zeal of the Canadian Ministry of Justice to criminalize Patricia Kelly for activities that would be protected if Aboriginal and treaty rights were genuinely recognized and affirmed in Canada informed her extended comments to Professor Flanagan on February 27. Arnell Tailfeathers uploaded a You Tube of what I think could fairly be described as Patricia’s impassioned tongue lashing of a man who has done extensive work for the federal Ministry of Justice and the Department of Indian Affairs trying to convince judges to adopt very narrow interpretations of the constitutional meaning of Section 35.[xvi] I showed this You Tube in class as part of my introduction of Patricia’s quest for justice in the same juridical system where Tom Flanagan has been paid handsomely to assist the Canadian government and provincial governments in court in what can be fairly be described as a systematic campaign to deny and negate rather than recognize and affirm the existence of Aboriginal and treaty rights.
Professor Flanagan has been employed by the government of Canada as well as by those of Alberta and Manitoba to oppose various Aboriginal litigants. Among the main cases on which Professor Flanagan has worked are Victor Buffalo versus the Queen, part of a larger constellation of cases involving between 1989 and 2005 the federal government, several large transnational oil companies and the four Cree bands in the most oil-rich district of the Treaty 6 area in Alberta.[xvii] Professor Flanagan also gave expert testimony to oppose Aboriginal assertions in the Benoit case involving Indians, taxation and Treaty 8. His most long-standing work for the federal Crown involved litigating the assertions of the Manitoba Metis Federation that the Dominion of Canada never made good on the promise in the legal instrument establishing the province of Manitoba that 1.4 millions would go “for the benefit of the families of half-breed residents.”[xviii]
On February 27 Patricia Kelly wanted to know how much Professor Flanagan has earned fighting Aboriginal rights on behalf of successive federal governments, some governments controlled by the Liberal Party of Canada and some under the auspices of his own Conservative Party. This request for information I think is completely fair given that it is tax payers money that has added substantially to Professor Flanagan’s pay as a university professor. Professor Flanagan did not give a dollar amount although I will say that his comments on the subject on February 27 constitute the first time I have heard my colleague say anything at all on the question of his being publicly funded to oppose Aboriginal litigants in court. In the absence of any estimate from Professor Flanagan I will venture an estimate that Professor Flanagan has been paid several hundreds of thousands of dollars over the years, if not more, to advance the Canadian government’s systematic policy of denying and negating Aboriginal and treaty rights in court. The fact that Professor Flanagan’s political spins on Aboriginal Affairs have been pushed forward under Liberal Party ministers as well as Conservative Party ministers is proof, I think of the extreme anti-Aboriginal bias which is deeply entrenched in Canada’s most fundamental institutions of law enforcement, but especially within the so-called Ministry of Justice.
The disparity in resourcing the contested sides in litigation to determine the scope and extent of existing Aboriginal and treaty rights in court is one aspect of an inequitable system of litigation that in my view could not withstand close scrutiny if ever Canada’s unjust treatment of Aboriginal peoples was to attract serious and sustained international attention. Patricia Kelly has self-defended in court for almost 200 days over more than eight years for the supposed crime of possessing fish contrary to Canada’s Fisheries Act. The Canadian government’s zeal to criminalize Patricia Kelly for exercising her Aboriginal right to fish is illustrative. So far she has been made to spend several periods in jail where she experienced anal and vaginal searches. Patricia Kelly, whose Stó:Lō name is Kwitsel Tatel, has had her picture and personal information published in Crime Stoppers in a country where the descendants of Canada’s original title holders are sent to prison at a disproportionately high and rapidly accelerating rates. The Crime Stoppers advertisement contains disinformation. Patricia Kelly was charged with possessing fish, not purchasing or selling fish.
Any claim that the federal government is simply interpreting the law as it is rather than attempting to direct the evolution of Canadian jurisprudence to the disadvantage of Aboriginal peoples is precluded by the role of Professor Flanagan as a regular witness for the federal Crown in Aboriginal litigation. Professor Flanagan’s own political connections as well as his political views favouring the exclusion of Aboriginal peoples and their representative bodies from any substantial role in Canadian federalism are well known. If the Canadian government was actually ready, willing, and able to recognize and affirm rather than deny and negate Aboriginal and treaty rights it would have to hire, say, Thomas Berger rather than Tom Flanagan to give expert testimony in court on behalf of the federal Crown. The federal government would have to follow the example of the US federal government. In late 1960s and early 1970s the US executive branch took Washington state to court for violating US treaties with Native Americans in the Pacific Northwest. The USA and Native Americans won the case in the Boldt decision setting a precedent that the Canadian government has yet to follow as a persistent naysayer in any and all court cases test the legal meaning of Aboriginal and treaty rights.[xix]
Tom Flanagan, the Fraser Institute and Academic Credentials
Of all the commentaries I shared with students throughout the course of my class on the Tom Flanagan episode at the University of Lethbridge, one of the most silly emerged from the fevered mind of Jonathan Kay, a scribe devoted to the industrial strength othering of his targets in order to turn public opinion against those that oppose the agenda for Canada advanced by the Harper-Flanagan juggernaut. Kay teamed up with Terence Corcoran on this piece. An inveterate conspiracy theorist of those he would demonize as inhabitants of the “conspiracist underground,”[v] Kay and his partner completed their co-authored editorial in the National Post as follows, “For those of us who followed Facebook, Twitter and email in the days following Mr. Flanagan’s remarks, it’s clear that the folks who called loudest for Mr. Flanagan’s head weren’t child-welfare advocates or ordinary Canadian parents. Rather, they were the same Idle No More activists who deliberately set up the Lethbridge ambush in the first place. Having lured Mr. Flanagan into a trap, they now are trying to leverage the episode to destroy his career. Mr. Flanagan, and Canadians, deserve better treatment in a nation that claims to be open and free.”[xx]
Professor Flanagan was not “lured” into a “trap” or an “ambush” by Idle No More. He was invited, rather, to speak in Lethbridge by the Southern Alberta Council on Public Affairs. From what I know of SACPA, the moderator of a presentation is usually the individual who makes the invitation on behalf of the public affairs organization. The person who moderated Professor Flanagan’s talk is Professor Peter McCormick whose politics are far closer to those of the Calgary School’s senior academic than to Idle No More. If left to their own without the contributions of Arnell Tailfeathers and Levi Little Mustache the national media, including the National Post, would have treated the event pretty much as insufficiently important for national coverage. In my view this decision was a poor one given the demonstrated vitality of Idle No More in the Treaty 7/Southern Alberta area.
The tense and emotional character of the encounter with Idle No More was completely predictable given that Professor Flanagan’s academic and political work, which have obviously found a central place in the Harper government’s much reviled Aboriginal policies, embody the very antithesis of everything Idle No More stands for. Kay’s and Corcoran’s effort to pose Idle No More as unrepresentative of “child-care advocates or ordinary Canadian parents” is clearly mischievous or worse in the offensively discriminatory way that is the hallmark of Jonathan Kay’s bottom-feeding journalism. For the record, most of those that presented in my class are proud proponents of Idle No More as well as “ordinary parents.” Why do Kay and Corcoran posit that Idle No More lacks it proportionate share of “child-welfare advocates and ordinary Canadian parents?”
In their diatribe, Kay and Corcoran point out that one of the organizations that opted not to disown Professor Flanagan was the Fraser Institute, a political spin-doctoring outfit that is so partisan in its politics it should not have should not be invested with charitable status. In a Facebook posting I called attention to the Fraser Institute’s retention of Professor Flanagan as a Senior Fellow, a posting that I suspect might have influenced Kay’s and Corcoran’s decision to make the allegation that Idle No More is intent on “trying to leverage the episode to destroy [Professor Flanagan’s} career.” Certainly it is not my intent to destroy my colleague’s career. I do want to point out, however, the serious and extremely consequential flaws I see in Professor Flanagan’s work in trying to bring his study of Aboriginal Affairs in Canada to bear on the creation of judicial precedents and in the formulation of contemporary government policy. Moreover I would very much like media such as the National Post to eschew hysterical conspiracy mongering and deal intelligently and accurately with the range of very important issues that arose in the encounter between Idle No More and Professor Flanagan at the University of Lethbridge on February 27.
My poor opinion of the Fraser Institute, the right-wing think tank that opted to retain Professor Flanagan as a Senior Fellow, is based partly on its misrepresentation of at least one of its associate’s academic credentials. For instance the Fraser Institute ascribes apparently false credentials to Alexander von Gernet, who has teamed up with Professor Flanagan on many occasions on the litigious front lines of the Ministry of Justice’s systematic effort to deploy the powers of the federal Crown to deny and negate Aboriginal and treaty rights. The Fraser Institute describes Dr. von Gernet as Professor of Anthropology at the University of Toronto at Mississauga.[xxii] At the web site of the Anthropology Department at the U of T’s Erindale campus, however, there is currently no reference whatsoever to Dr. von Gernet. I did see that Dr. von Gernet had been listed some weeks ago as a Sessional Lecturer and Course Instructor before I made inquiries to the Department Chair about the actual status of Professor Flanagan’s colleague.
Unlike Dr. von Gernet’s phantom credentials, which were inexplicably accepted by the many judges who transformed some of his biased positions into Canadian jurisprudence, Professor Flanagan is a genuine tenured full professor on the faculty of an important Canadian university. I am glad I got a chance to visit Professor Flanagan after his presentation on February 27. When I exchanged pleasantries with him my colleague was indeed sporting an Idle No More lapel pin. Moreover he did indeed pose happily behind a large Idle No More banner with a smiling group of Aboriginal women. I briefly talked to Professor Flanagan about his retirement plans. He mentioned he would formally be formally retiring at the end of June but he added that he intended to continue his media and consultant work. With his characteristic ironic sparkle in his eye, Professor Flanagan did mention in relation to his retirement that perhaps he has created his own fair share of— the word was either “trouble” or “problems”—and that maybe the time had come for him move on from his 45 year career as a university teacher.
Sex, Sexuality, the Media, and Maintaining the Facade of Christian Family Values for Political Advantage
Part of Arnell Tailfeather’s You Tube of Professor Flanagan’s response to Levi Little Mustache’s question was as follows: I got put on the mailing list of the National Man/Boy Love Association. I started getting the mailings for a couple of years, and that’s about the closest I ever came to child pornography.” What is one to make of this comment, one that easily merits the criticism, “too much information.” We all get unwanted spam in our digital mailboxes. Given the gravity of the issues at play here, however, is it right and proper to assume without reflection that the communications just came to Professor Flanagan through some mistake, through some ill-considered joke, or through some overly aggressive digital advertising? Who put Professor Flanagan on the mailing list and why?
As Jan Semmelroggen asked in my class, what possessed Tom Flanagan to go down this path in his remarks? Is it possible that in this day and age, when we are all being digitally monitored one way or another, my colleague had been waiting for a moment to unburden himself of something he feared might be put before him by an inquisitor in some uninvited fashion. Reflecting on Jan’s Semmelroggen’s comments I find myself speculating on whether or not Professor Flanagan’s remark about the Man/Boy Love Association has some meaning whose true significance has yet to be deciphered. What should we make of Professor Flanagan’s related comment in the National Post, a significant articulation of general principles that seriously calls into question the whole drift of one of the Harper government’s top priorities.
This priority, whose onus once again falls disproportionately on Aboriginal peoples, is to put many more Canadians in jail over longer periods of time and then hand over Canada’s swelling internal penal colonies to corporate cronies for privatization and further enrichment of the 1%. Professor Flanagan asserts, “Do we keep sending more people to prison, where effective counselling and therapy are in short supply, or should we look for another approach? Would counselling and therapy work better than mandatory jail sentences for consumers of child pornography who are not otherwise involved in sales, production, or actual sexual abuse? I think the question is worth asking. Jail is a grim necessity for criminals who seriously harm the person and property of other people, but should we fill our prisons with people whose problems can be dealt with in other ways? In the pursuit of justice, we shouldn’t forget about mercy for people whose offenses lie at lower levels of harm to others.”[xxiii] To me there is a sensibility in these comments that suggest Professor Flanagan has some specific examples rather than abstract theories in mind.
As this whole episode illustrates, the relationship of sex and sexuality to politics and law is a hugely difficult subject for public discourse especially in Canada where we are rightfully prone to want to transcend the gossip mongering that tends to run rife in the media culture of the United States. Most Canadians were reared in a liberal tradition that makes many of us want to disengage the personal stories of our politicians from their professional functions in public life. At what point, however, does the personal become the political? And what happens to our political discourse as we move away from the liberal traditions that have defined Canada for so long?
As I see it one of the implications of Tom Flanagan’s insistence on forcing us, however reluctantly, into a national conversation on child pornography and the law is that new possibilities have been opened up to discuss with alacrity a range of issues concerning the role of sex and sexuality in many aspects of our public life. What is to be said, for instance, of the apparently unorthodox family life of our prime minister and his wife Laureen in what seems to have become according to some reports a show marriage with both estranged partners looking elsewhere for comfort, companionship and intimacy outside the staged theatricality of their relationship? What is to be said about a Minister of Foreign Affairs who seems to be simultaneously openly gay in some circles and closeted in others when it comes to his portrayal in the national media?
How long has it been since positions requiring high security clearance such as that of Canada’s Minister of Foreign Affairs were formally closed to homosexuals for fear that they would be subject to blackmail? What has happened to alter these considerations? Who can or should explain the transition to ordinary Canadians who have a right to know our own policies on such matters? What tradeoffs might be involved when members of the media join together to provide cloaks of obfuscation around the personal lives of those they agree to protect? Why would they do so? What is the carrot and what is the stick of such agreements? What is the significance of all this obfuscation when it comes to very legitimate issues that arise form the importance of evangelical Christians as core members in the confederacy of constituencies that put the Harper government in power?
Friedrich von Hayek, Tom Flanagan, Grand Visions, and Idle No More
Many of the questions and issues posed throughout this essay have much to do with how badly the Canadian public is served by our failing mainstream media culture that obviously is not up to many of the challenges before it. The failure of professional journalists to identify what really transpired between Idle No More and Professor Flanagan at the University of Lethbridge on February 27, 2013 is just one small example of a much larger phenomenon. I have tried to describe the significance of this encounter across many fields of Canadian statecraft. To me the most marked feature of our failing media is its inability or unwillingness to explain to Canadians who is really governing us and what interests and factions are at the core of the new governing party. The trajectory of success of this new governing party is truly stupendous. But how did this success come about? The new governing party went from conception to full-fledged majority status in the House of Commons in less than a decade. How did this happen? Who intervened to make it happen? What forces are at play to bring about such a major transformation of Canada’s political culture.
This failure of explanation is well signified in failure to consider the absurdity of any suggestion that Prime Minister Stephen Harper can somehow break his connection to his primary mentor, groomer, and handler during the formative stages of his meteoric political rise with a single tweet from his press secretary calling Professor Flanagan’s thoughts on child pornography “repugnant.” But if Tom Flanagan is the man behind Stephen Harper, who is the man behind Tom Flanagan and his important career for all Canadians? Marci McDonald’s essay provides one answer. The person who hired Tom Flanagan in 1968 at the Political Science Department of the brand new University of Calgary is Dr. E. Burke Inlow.
Colonel Inlow came to Calgary from the Pentagon in Washington DC where he was engaged in “providing intelligence to people the U.S. government were sending to the Middle East.” Inlow was a Pentagon operative with expert knowledge on the covert oil politics of Iran. It seems clear he was sent to Calgary by the national security state to do what he could to see that the local academy provided an intellectually safe and friendly environment for US oil interests. To advance this goal Colonel Inlow’s first hire was Tom Flanagan who came directly to Calgary upon finishing his Ph.D. thesis at the US-funded Free University in West Berlin. The young scholar was selected by the Pentagon official without his even having to formally apply for the position.[xxiv]
Professor Flanagan lauds and reflects in his own work the scholarship of Friedrich von Hayek, the Austrian economist who spent much of his career arguing against the theories of John Maynard Keynes. Especially in his most accessible text, The Road to Serfdom, Hayek made the case against central planning and the privileging of any “grand vision” such as those advanced by fascists or communists. Hayek’s work deeply informed the economic interpretations of Milton Friedman and the so-called Chicago School of Economics. Ironically Hayek’s arguments against grand visions enlivened the grand vision of those who went to work to deregulate global capitalism in the name of Reagonomics and the revolution in conservatism ushered into Great Britain by Prime Minister Margaret Thatcher and those she inspired.
Interestingly, in the notes he left behind on the podium where he spoke at the University of Lethbridge Professor Flanagan referred to Idle No More as a “grand vision” in a long line of grand visions that he claims have been captured in various renditions of Aboriginal policy over the years. Under the heading “Grand visions have always failed,” Professor Flanagan lists the following:
- Assimilation, residential schools, enfranchisement
- White Paper of 1969
- Royal Commission
- Idle No More
The roots of Crown recognition of Aboriginal and treaty rights go back to the imperial history of British North America. These origins do not emerge from some “grand vision” but rather from pragmatic innovations to advance the colonization of Canada through the fur trade, the basis of commercial and military alliances with Aboriginal peoples. Why not claim back some of this pragmatism by replacing the obsolete Indian Act with a Section 35 Implementation and Enforcement Act. Such an initiative, to be formulated through appropriate Crown-Aboriginal negotiations, would enable Canada to regain some of its lost reputation in the international community. With a Section 35 Implementation and Enforcement Act the Canadian government might be able to demonstrate some respect rather than contempt for the human rights of its Aboriginal founders.
[i] See Marci McDonald, “The Man Behind Stephen Harper,” The Walrus Magazine, October, 2004 at
[ii] Hall, Fixing Elections Through Fraud, Veterans Today, 5 April, 2012 at
[iii] See Stephen Harper and Tom Flanagan, “Our Benign Dictatorship,” Next City, 1996-97 at
[iv] The Independent, The Best Books for Christmas, 26 November, 2010 at
[v] Tom Flanagan, “Tom Flanagan in his own word: Ex-Harper strategist explains controversial child-pornography comments, National Post, 4 March, 2013 at
[vi] Rainer Knopff and Curtis Eaton, “Knopff and Eaton: U of C Owes Tom Flanagan an Apology,” Calgary Herald, 5 March, 2013 at
[vii] John Ibbitson, “Do opponents of native property rights think things are okay now? The Globe and Mail, 8 August, 2012, at
[viii] Laura Blakeley, “Flanagan Speaks,” 12 November, 2009, The Manitoban: The Student Newspaper of the University of Manitoba, at
[xi] Gail Davidson, Catherine Morris, Grace Woo for Lawyers Watch Canada, “Canada: Arrange Meeting Called for by Chief Spence,” 29 December, 2013 at
[xii] Stephen Harper, Tom Flanagan, Ted Morton, Andrew Crooks, Ken Boessenkool, “An Open Letter to Premier Klein,” published in the National Post, 24 January, 2001, available at
[xiii] Citation taken from Frances Russell, “Stephen Harper and the Triumph of the Corporation State,” iPOLITICS, 31 October, 2013 at
[xiv] Gloria Galloway, “Aboriginal leaders seek conference on rights,” The Globe and Mail, 19 January, 2013 at
[xv] Ben Makuch, “What Exactly Is Idle No More,” VICE, no date, at
[xvii] See Gordon Laird, “This Land Is Whose Land,” This Magazine, March-April 2000, at
[xviii] The Geek with a Cynical View, “Tom Flanagan (Political Scientist),” December 4, 2010 at
[xix] Hall, “Criminality and Law on the North American Frontiers of Indian Country,” Veterans Today, 10 July, 2012 at
[xx] Hall, “Waging the Battle for Reality: A Review Essay on a Propagandist’s Journey in Search of ‘the Conspiracist Underground,” Salem News, 29 May, 2011 at
[xxi] Jonathan Kay and Terrence Corcoran, “Flanagan’s Media Critics Leave Their Spines at the Door,” National Post, 13 March, 2013 at
[xxiii] Tom Flanagan, “Tom Flanagan in his own words: Ex-Harper strategist explains controversial child-pornography comments,” National Post, 13 March, 2013 at
[xxiv] See Marci McDonald, “The Man Behind Stephen Harper,” The Walrus Magazine, October, 2004 at
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