¹ Manitoba, Legislative Assembly, Debates and Proceedings (30 May 1995) at 235 Google ScholarPubMed (G. Filmon) [hereinafter Debates].

² Debates, supra note 1, (1 November 1995) at 4449 (O. Lathlin).

³ I use the concept of “performance” here to describe the way in which the seemingly stable identities of subjects and of places (i.e., ‘Canadian’, ‘Canada’, ‘Manitoban’, ‘Manitoba’) are in fact constituted by, and thus, their meanings are dependent upon, what Judith Butler calls “a stylized repetition of acts.” Butler, J., Gender Trouble: Feminism and the Subversion of Identity 2nd ed. (New York, London: Routledge, 1999 [1990]) at 179.Google Scholar We can think about the production and reproduction of national identities as Butler does in the case of gender identity, where gender is understood as a project that has cultural survival as its end. Ibid. at 177. Gender, in this formulation, is “a corporeal style, an ‘act’ … which is both intentional and performative, where ‘performative’ suggests a dramatic and contingent construction of meaning.” Ibid. In this paper I emphasize the affects and effects of speech (‘discursive’ or ‘narrative’) acts whose performance reactivates and remains highly contingent upon a racialized legal, political, economic, social and spatial order. Thus, to perform an identity (and by implication, a history), is to repeatedly act out a story about oneself through time. (The need for repetition is wherein lies the tenuous and unstable nature of identity.) To perform a geography (i.e., a ‘racism - free’ Manitoba) is to mobilize a story about a place: the dramatization of a spatial narrative that in turn limns out the nature and the location of the subject doing the telling. Geography, after all, is a story told from a particular point of view, about a space that only becomes a ‘place’ through someone's authoritative telling (‘mapping’) of it, and by people's continued production (or ‘performance’) of it within the authorized terms of reference. In the argument that follows my primary interest is in the way the law constrains and enables particular kinds of tellings, of both the spatial and the ontological variety.

⁴ Recall that in 1990 the 78-day standoff at Kanesatake (Oka) between Mohawks, police and the Canadian military pushed Aboriginal affairs to the forefront of media attention. In 1991 the Royal Commission on Aboriginal Peoples was mounted, and that year Innu families were encamped in protest of military installations in Labrador. 1995 saw a blockade by Kettle and Stony Point First Nation protesters at Ipperwash Provincial Park in Ontario, and the police killing of protester Dudley George. Also making national headlines in 1995 was a standoff between the Shuswap Ts'peten Defenders and the RCMP, at Gustafsen Lake in British Columbia.

⁵ Jane Jacobs writes: “Imaginary and material geographies are not incommensurate, nor is one simply the product, a disempowered surplus of the other. They are complexly intertwined and mutually constitutive … Together they have created the most painfully uneven geographies of advantage and disadvantage. The social construction of space is part of the very machinery of imperialism … [These spatial events] established the beginnings [and I add, the ongoing production] of that most permanent legacy of imperialism: the contest between that which, through space itself, has been ‘naturalised’ and that which has been made ‘illegitimate’.” Jacobs, J. M., Edge of Empire: Postcolonialism and the City (London and New York: Routledge, 1996) at 158–159.CrossRefGoogle Scholar

⁶ An Act Respecting the Manitoba Hydro - Electric Board, 1961, R.S.M. 1970 (2nd Sess.), c. H190 [hereinafter The Manitoba Hydro – Act, The Hydro Act, or Act]. For historical reasons I work with the version passed in 1961 and re-enacted in 1970, reflecting revisions up to and including those of 1969 (2nd Sess.). A subsequent version of the The Hydro Act was published in 1987, while an Amendment Act was published in 1998. The specific articles that I examine undergo no significant change in these later versions. The Manitoba Hydro Act R.S.M. 1987 vol.3 c. H190; The Manitoba Hydro Amendment Act, 1997 S.M. 1998 (3rd. Sess.) c. 55.

⁷ Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People, vol. 1 (Winnipeg: Queen's Printer, 1991) (Commissioners: Hamilton, A. C. & Sinclair, C.M.)Google Scholar; Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba: The Deaths of Helen Betty Osborne and John Joseph Harper, vol. 2 (Winnipeg: Queen's Printer, 1991) (Commissioners: Hamilton, A. C. & Sinclair, C.M.) [hereinafter Report].Google Scholar

⁸ Premier Filmem's Conservatives first took power in 1988 after the fall of Howard Pawley's New Democrat government. In September of 1999 (following a year replete with Tory scandal related to the 1995 election), the Filmon team lost to the New Democrats, led by current Premier Gary Doer.

⁹ Debates (29 May 1995) at 212 (O. Lathlin).

¹⁰ Ibid. at 215–217.

¹¹ Ibid. at 216 [emphasis added].

¹² Ibid.

¹³ Debates (29 May 1995) at 222 (G. Filmon).

¹⁴ Ibid.

¹⁵ Ibid. Opposition House Leader Steve Ashton, Member for Thompson, made this allegation regarding the Premier on a Point of Order. Mr. Lathlin restated the charge when he rose on a Matter of Privilege the following day.

¹⁶ Debates (29 May 1995) at 222 (L. Dacquay).

¹⁷ Debates (7 June 1995) at 953 (L. Dacquay).

¹⁸ On November 1st, 1995, the Member for Thompson argued this point in detail. He suggested that the British precedent regarding unparliamentary language, as well as precedents set in Manitoba's own House, support the basic principle that “we have freedom of speech, subject only to the fact that we cannot make charges against individual members of this House and other protected individuals.” Ashton noted that this principle was upheld as recently as 1986 in the British House of Commons. Debates (1 November 1995) at 4453 (S. Ashton).

¹⁹ Debates (7 June 1995) at 954 (O. Lathlin). “MLA” refers to “Member of the Legislative Assembly.”

²⁰ Debates (11 October 1995) at 3789 (O. Lathlin).

²¹ Debates (11 October 1995) at 3789 (A. Driedger).

²² Debates (11 October 1995) at 3789 (S. Ashton).

²³ Debates (1 November 1995) at 4447 (L. Dacquay).

²⁴ Supra note 2.

²⁵ Ibid.

²⁶ Ibid. A member of the Opposition alleged that while Lathlin delivered these remarks, a member of the Government “was heard to say from his seat, ‘this is bullshit.’” Debates (1 November 1995) at 4449 (G. Mackintosh).

²⁷ The following brief description of processes of self – and Other – making in liberal democratic thought and practice draws considerably on Fellows' and Razack's detailed discussion in “The Race to Innocence.” See Fellows, M. L. and Razack, S., “The Race to Innocence: Confronting Hierarchical Relations among Women” (1998) 1 The Journal of Gender, Race and Justice 335 at 341 – 344.Google Scholar

²⁸ Alcoff, L. M., “Philosophy and Racial Identity” (1996) 75 Radical Philosophy 5 at 5.Google Scholar

²⁹ Supra note 1.

³⁰ Supra note 13 at 223.

³¹ Mohanram, R., Black Body: Women, Colonialism, and Space (Minneapolis: University of Minnesota Press, 1999) at 3.Google Scholar

³² Supra note 28 [footnotes omitted].

³³ Report, Vol. 1, supra note 7 at 162. The outstanding treaty land entitlement now exceeds one million acres of Crown land. Ibid. at 169.

³⁴ Said, E., Culture and Imperialism (New York: Vintage Books, 1994) at xii– xiii.Google Scholar

³⁵ Report, Vol. 1, supra note 7 at 6.

³⁶ Supra note 31 at 183.

³⁷ Report, Vol. 1, supra note 7 at 162.

³⁸ Supra note 13 at 220.

³⁹ ibid.

⁴⁰ Ibid.

⁴¹ Ibid. Reductive ‘marveling’ at Aboriginal peoples' skills is a common feature of imperial travel discourse. See Pratt, M. L., Imperial Eyes: Travel Writing and Transculturation (London and New York: Routledge, 1992).CrossRefGoogle Scholar An article published in the Manitoba Morning Free Press nearly one hundred years earlier expressed sentiments remarkably similar to those shared by Premier Filmon in his travel stories. In late summer of 1899, thirty businessmen from Winnipeg took a northern trip by steamer to assess the feasibility of developing Lake Winnipeg and its resources. They toured through Grand Rapids (in the current constituency of The Pas), where “Each of the canoes and the boat had an Indian at the bow and one at the stern…” The “excursioners” observed that “as the frail craft dashed along through the seething waves … [t]he skill of the Indians in guiding the canoes safely through [was] marvelous.” For these gentlemen, “[t]he whole experience [was] one never to be forgotten.” “The Fishing Industries: The Observations of Thirty Business Men on Lake Winnipeg and Its Rich Resources” Manitoba Morning Free Press (5 September 1899).

⁴² Ibid.

⁴³ Ibid. at 221.

⁴⁴ Ibid. at 221 – 222.

⁴⁵ Canadian Electricity Association, “Electrical Power in Canada” (1995) online: Can. Elect, homepage <http://www.canelect.ca/media/directory.html> (accessed: 15 February 1999).

⁴⁶ Supra note 6 at s. 9.

⁴⁷ ‘Land’ is defined in the Act as “real property of whatsoever nature or kind and included tenements, hereditaments, and appurtenances, leaseholds, and any estate, term, easement, right or interest in, to, over, under or affecting land, including rights – of – way, and waters, water rights, water powers, and water privileges….” Ibid. at s. 2(e).

⁴⁸ Ibid. at ss. 15(d) – (e), 15(g).

⁴⁹ Supra note 45.

⁵⁰ Manitoba Hydro, “The Hydro Province” (1999) online: Man. Hydro homepage <http://www.hydro.mb.ca/all_about_us/the_hydro_province.html> (accessed 9 September 1999).

⁵¹ Canadian Electricity Association, “Canada” (1999) online: Can. Elect, homepage <http://www.canelect.ca/connections_online/this_week/canada/canada.html> (accessed 9 September 1999).

⁵² In earlier days southerners were more candid about the uneven nature of their development schemes. The thirty businessmen's 1899 report on Lake Winnipeg development noted that the lake “contains much that is required to make a growing city and commercial centre like Winnipeg, a cheap and pleasant place to live in.” Manitoba Morning Free Press, supra note 41.

⁵³ 3 Report, Vol. 1, supra note 7 at 172 – 175. The commissioners recommended that both the provincial and federal governments recognize the Northern Flood Agreement as a treaty, honouring and implementing its terms; that equivalent rights be granted by agreement to other Aboriginal people affected by the flooding, but not signatory to the NFA; and that a moratorium be placed on major natural resource development projects “unless, and until, agreements or treaties are reached with the Aboriginal people in the region who might be negatively affected by such projects in order to respect their Aboriginal or treaty rights in the territory concerned.” Ibid. at 175.

⁵⁴ Lyons, John, “Fox Lake Band Members Refuse to Accept Federal Treaty Payment” Winnipeg Free Press (3 July 1999) A7.Google Scholar

⁵⁵ Nairne, Doug, “Newman goes on the attack at Cross Lake” Winnipeg Free Press (26 June 1999) A3.Google Scholar Nairne reported that members of a church – led inquiry into issues of flooding compensation were “taken aback by the apparent hostility” of the provincial Minister of Northern Affairs, David Newman, when he addressed the hearing at Cross Lake. To the credit of the provincial government, it did send a representative, while no federal officials were even in attendance.

⁵⁶ Supra note 5 at s. 57.

⁵⁷ Ibid. at s. 8.

⁵⁸ Ibid.

⁵⁹ Ibid. at s. 13 [emphasis added].

⁶⁰ Ibid. at s. 56 [emphasis added].

⁶¹ Ibid. at s. 55(2)(a) – (b).

⁶² Ibid. at s. 53(2).

⁶³ Ibid. at s. 54.

⁶⁴ For insightful discussion regarding ‘dreams’ of Canadian innocence, see Razack, S., “Making Canada White: Law and the Policing of Bodies of Colour in the 1990s” (1999) 14:1 Canadian Journal of Law and Society 159.CrossRefGoogle Scholar

⁶⁵ Debates (30 May 1995) at 234 (O. Lathlin) [emphasis added].

⁶⁶ Randy Fred contends that “[t]he elimination of language has always been a primary stage in the process of cultural genocide. This was the primary function of the residential school.” Fred, R., “Introduction” in Haig, C. – Brown, , Resistance and Renewal: Surviving the Indian Residential School (Vancouver: Tillacum Library, 1988) at 15.Google Scholar Fred recounts the experience of his father, who attended Alberni Indian Residential School for four years in the twenties: “He was physically tortured by his teachers for speaking Tseshaht: they pushed sewing needles through his tongue, a routine punishment for language offenders.” Ibid. at 15 – 16.

⁶⁷ Supra note 65 at 233 (O. Lathlin).

⁶⁸ Supra note 1. Premier Filmon explained that while funding was withdrawn from the three Aboriginal organizations to which Lathlin refers (Manitoba Keewatinowi Okimakanak, an umbrella organization for twenty – six First Nations in the Northern Manitoba, the Assembly of Manitoba Chiefs and the Indian and Metis Friendship Centres), funding was also withdrawn from more than fifty Manitoba agencies and organizations. Filmon contended that it was a broad-based ‘policy’ decision of his government to remove funding from all primarily advocacy organizations. The Premier's rebuttal categorically de-linked policy pragmatics and material implications of funding cuts, from a typically (and strategically) abstract conceptualization of racism (and of a homogeneous public). The Premier insisted: “It was not racist, but it was in fact fiscal policy of the government of Manitoba … There were reductions in funding throughout government, not a racist policy, not a discriminatory policy.” Ibid. A variety of marginalized groups did lose out when the government targeted ‘advocacy’. Women's groups, poverty and disability organizations all lost critical resources in 1995. By targeting a range of marginalized social groups the government did not avoid racism, but rather, made more visible the ways in which relations of dominance depend upon the maintenance of linked and overlapping systems of oppression.

⁶⁹ Ibid.

⁷⁰ Report, Vol. 2, supra note 7. Section one of this volume focuses exclusively on matters relating to Osborne's death, while section two (separately paginated) deals with the death of J.J. Harper. Harper died from a gunshot wound caused by the firearm of Constable Robert Andrew Cross of the Winnipeg Police Department. A member of the Wasagamack Indian Band, Harper was known as a leader in Manitoba's Aboriginal community. At the time of his death he was married, had three children, and was thirty – seven years old. Ibid. at 5 (s. 2).

⁷¹ Report, Vol. 1, supra note 7 at 2 – 3.

⁷² Ibid. at 2.

⁷³ Ibid. at 5. In contrast with the Inquiry's more general work regarding the justice system, the nature of the Osborne and Harper matters, compounded by a number of legal challenges launched by the Winnipeg Police Association, obliged the Commissioners to proceed in these instances “in a formal way, ensuring that all interested parties were represented by counsel, that all witnesses could be cross-examined, that their rights would be respected and that all testimony was given under oath.” Ibid.

⁷⁴ Ibid.

⁷⁵ Ibid. at 765–767.

⁷⁶ Ibid. at 6.

⁷⁷ Ibid. at 9–10. More recent statistics attest to the worsening of this trend. On a national scale where Aboriginal people represent 2% of the adult population in Canada, this same demographic accounted for 11% of admissions to federal penitentiaries in 1991 – 92; 15% in 1996 – 97; and 17% in 1997 – 98. Reed, M. and Roberts, J., “Adult Correctional Services in Canada, 1997 – 1998” Juristat 19:4 (Ottawa: Canadian Centre for Justice Statistics/Statistics Canada, 1999) at 1.Google Scholar

⁷⁸ Report, Vol. 1, supra note 7 at 10.

⁷⁹ Ibid.

⁸⁰ Ibid. at 561.

⁸¹ Ibid. at 101. Reed and Roberts report that this figure rose to 61% in 1997 – 98. Reed, supra note 77 at 7.

⁸² Report, Vol. 1, supra note 7 at 8. Compare prison statistics with welfare rates for Manitoba's Aboriginal population, rates which rank among the highest in Canada at close to 85% for reserve residents. Note as well that 63% of Status Indians in Manitoba live on reserves, which is “one of the highest proportions of on – reserve residencies in Canada.” Ibid. at 8 – 9.

⁸³ Ibid. at 102 [footnotes omitted].

⁸⁴ Elizabeth Fry Society, “Fact Sheets: Alternatives To Incarceration” online: E. Fry homepage <http://www.elizabethfry.ca/factsl_e.htm> (accessed: 21 July 2000). This same source notes that in 1997 First Nations women represented 19% of federally sentenced women, while they make up 1 – 2% of the Canadian population.

⁸⁵ Report, Vol. 1, supra note 7 at 12.

⁸⁶ Supra note 65.

⁸⁷ Manitoba Bureau of Statistics Manitoba Provincial Electoral Divisions: Detailed Statistical Profiles (Winnipeg, 1990) at 23.Google Scholar

⁸⁸ The April 1990 publication Detailed Statistical Profiles, supra note 86, relies on data collected during the 1986 Census. The electoral profiles incorporate a minimum of detail. The graph summarizing median household incomes for Winnipeg sets an upper category at “$40,000 and over” (Chart 6B 1990, 23), while the province-wide chart sets the upper end of the range at only “$30,000 and over” (Chart 6A 1990, 22). I suggest that this format responds to the fact that embarrassing (and racialized) economic disparities become even more obvious in the full provincial context.

⁸⁹ Supra note 87 at 22.

⁹⁰ LaPrairie, C., Examining Aboriginal Corrections in Canada (Ottawa: Aboriginal Corrections, Ministry of the Solicitor General, 1996) at 64.Google Scholar

⁹¹ Ibid.

⁹² Loxley, J., “Aboriginal People in the Winnipeg Economy” (1994) in cd – rom: For Seven Generations: An Information Legacy of The Royal Commission on Aboriginal Peoples (Ottawa: Libraxus, 1997).Google Scholar

⁹³ In October of 1986 charges of murder were laid against Lee Colgan and Dwayne Archie Johnston. In March of 1987 Lee Colgan was granted immunity from prosecution in exchange for his testimony. James Houghton was arrested and charged on July 5, 1987 on the strength of evidence provided by Colgan. Both Houghton and Johnston were committed to stand trial at a preliminary hearing later that month, and the case came to trial in December 1987. Report, Vol. 2, supra note 7at 2. An exclusively non – Aboriginal jury found Johnston guilty of the murder of Helen Betty Osborne. Ibid. at 87. Johnston was sentenced to life imprisonment without parole eligibility for 10 years. The jury acquitted Houghton. Ibid. at 2. Following his acquittal, the Crown gave no consideration to charging him with other offences. Ibid. at 82. Lee Colgan was acquitted. Ibid. at 2. Evidence against Norman Manger had been deemed insufficient to support a charge: “[I]n addition, all the evidence suggested that Manger was too drunk to form the requisite criminal intent.” Ibid. at 72. Johnston's appeal of his conviction was dismissed by the Manitoba Court of Appeal on September 14, 1988. On March 13, 1989 his application for leave to appeal to the Supreme Court of Canada was also denied. Ibid. at 3.

⁹⁴ Smith, Michael, “Tent city preferable to living in poor housing” Windspeaker (December 1995) 3.Google Scholar When Pukatawagan protestors brought their concerns to the government one month earlier, filling the public galleries of the Legislature, the Speaker interrupted proceedings' to instruct them in House rules, particularly with respect to applause and the use of placards: “In short, [members of the public in the galleries] are not to interfere in any way in the proceedings of the House.” Debates (10 October 1995) at 3736 (L. Dacquay).

⁹⁵ Lindberg, T., “What Do You Call an Indian Woman with a Law Degree? Nine Aboriginal Women at the University of Saskatchewan College of Law Speak Out” (1997) 9:2 C.J.W.L. 301 at 318.Google Scholar In asserting “This is my personhood” Lindberg notes that here she is echoing Patricia Monture-Angus in her important piece, “Flint Woman”. Monture, P. A., “Ka-Nin-Geh-Heh-E-Sa-Nonh-Yah-Gah” (1986) 2:1 Canadian Journal of Women and the Law 159 at 161.Google Scholar

⁹⁶ Goldberg, D., Racist Cultures, Philosophy and the Politics of Meaning (Cambridge, Mass: Blackwell Publishers Ltd., 1993) at 204.Google Scholar

⁹⁷ Report, Vol. 1, supra note 7 at 49.

⁹⁸ Kirby, K., “Re: Mapping Subjectivity: Cartographic Vision and the Limits of Politics” in Duncan, N., ed., Body Space: Destabilizing Geographies of Gender and Sexuality (London and New York: Routledge, 1996) at 48.Google Scholar

⁹⁹ Morrison, Toni, Playing in the Dark: Whiteness and the Literary Imagination (Cambridge, Mass: Harvard University Press, 1990) at xiii.Google Scholar