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The new constitutional order

A counterpoint to Bob Rae
|Written By Peter Best
The new constitutional order

Bob Rae’s sunny and upbeat assessment of the state of aboriginal law, in the July edition of Canadian Lawyer, warrants a counterpoint response.

No doubt, as a partner in his new law firm, it’s “an exciting time to be practising aboriginal law.” In this area of litigation and “bargaining table” legal activity, win or lose, counsel for Indian bands usually get their legal fees fully paid by the Canadian taxpayer.

But Rae is wrong and unfair to our British and Canadian ancestors to state the written treaties were “forced on” the Indian bands who signed them, and that they were deliberately “starved into submission.”

This totally unsupported assertion is gravely insulting to our forefathers, who generally acted honourably and sympathetically towards the Indian bands with whom they were treating.

In the recent Grassy Narrows First Nation v. Ontario (Natural Resources) case, both the litigants and the courts, at all levels, relied on Alexander Morris’ account of the treaty deliberations at issue. Morris’ account gave rise to no suggestion of coercion and the courts found none.

Nor is it correct for Rae to say, at the time of the signing of the treaties, the Indian bands concept of them was “a sharing of the land, water, food, and resources.” There is no evidence for this in history or in any of Morris’ or anyone else’s treaty deliberation accounts.

This “sharing” concept is basically a recent legal invention of the Supreme Court of Canada, primarily in Haida Nation v. British Columbia (Minister of Forests), and has become one of the profound, harmful (to the Canadian welfare), and unintended consequences of the enactors of s. 35 of the Charter of Rights not knowing “exactly what the implications of these changes were,” (Rae’s words).

Edmund Burke wrote that in relation to the “science” of reforming a nation’s constitution “. . . very pleasing commencements have often shameful and lamentable conclusions.”

Such has been the case with the passage of s. 35 of the Charter.

Haida Nation and its legal successors, now capped off by Tsilhqot’in Nation v. British Columbia, have created something like a “separate but equal” constitutional regime, with, in large areas of Canadian life, one set of laws for native people and another set of laws for the rest of Canadians.

This is retrograde and racist (albeit unintentionally and benignly so). It’s illiberal. Nelson Mandela must be turning in his grave.

These court decisions have also radically amended the Canadian constitutional order by creating a third fount of constitutional sovereignty. The federal and provincial Crowns being the first two and now small, often poorly organized, self-seeking, technically totally dependent, geographically scattered Indian bands.

Now, with Tsilhqot’in Nation, we see the even worse prospect of semi-sovereign Indian bands whose aboriginal title, in all but “pressing and substantial” matters, ranks superior to Crown title.

Will the Queen’s writ still automatically extend to aboriginal title lands? Will fee simple titles come under question? Rae’s firm should be standing by for more taxpayer-funded litigation and “bargaining table” activity on these and hundreds more similar questions.

The harmful effects of all this devolutionary, revolutionary jurisprudence are already happening: the emasculation of crucial Crown sovereignty; the weakening of the tax and revenue spine of the country; diminishment of the rule of law; the “consult and accommodate” obligation being used as a weapon of economic coercion; important undertakings of great benefit to Canadians being delayed or shelved; and demands for new, taxpayer-funded “Indians only” schools, to name only a few.

With all this new wealth and power being transferred to Indian bands, the opposite of the Supreme Court’s vaunted goal of “reconciliation” is occurring.

Indian bands across Canada have been handed positions in the Canadian economic and legal order partially akin to 19th century rentiers, except their new-found wealth and power, rather than being inherited, will be coerced from anyone wanting to engage in hitherto untethered (except for the obligation to pay taxes), normal, entrepreneurial activity on their now (as decreed by the Supreme Court), either “traditional lands” or “aboriginal title” lands. (Either way they pretty well have the entire country covered.)

As this tribute-like new money increasingly flows into Indian bands, as this new Indian-controlled capital continues to amass and increase (tax-free?), this new wealth will indeed take on more and more of the characteristics of the passive, indolent, and civically unhealthy wealth of those 19th century rentiers, with Indian elites, propped up by “bought,” mainly non-Indian, expertise, acting essentially as coupon-clipping absentee landlords.

I found it disturbing to read Rae’s glowing take on all this. He spent his entire political career as a small-l liberal-progressive who championed a strong, activist state possessing the fiscal and legal power to advance the causes of equality under the law and social justice.

The new constitutional order he is now so excited about, despite the progressive gloss he applies to it, is the opposite of that.

Peter Best is a lawyer in Sudbury, Ont., with 39 years of practice under his belt.


    BLAH BLAH BLAH.......No more about Bob Rae please, enough is enough. Let's talk about the unlawfulness of the Ontario Government and how corrupt Ontario's legal system is.
    It's about time the REAL facts behind the SOLID GOLD SWINDLE were revealed. Mr. Best needs to publish a article about that....perhaps a series of articles, let's study the facts and the corruption of the Ontario government starting with McGuinty and blessed by Wynne. IF YOU WANT A GREAT STORY THIS IS IT!!
  • Tendentious much?

    Sandy MacDonald
    It's remarkable that Mr. Best can get an article published in this journal which is so thoroughly ungrounded in fact. Canadian history is full of imposed treaties, fraudulent treaties; and - in the case of British Columbia - unacknowledged treaties. One only has to look at the case law to find plenty of examples. It makes one wonder exactly what kind of law Mr. Best has been practicing for 30 years.
  • 2ic

    feathers two
    Mr. Rae
    Re: "A new and exciting frontier"

    Among other things, you state;

    "There is a growing body of historical evidence that, in fact, the written treaties as interpreted by the Crown were forced on First Nations. They were, for the most part, take-it-or-leave-it documents that were matched by real economic hardship. The phrase “starved into submission” is tragically accurate."

    Thank you for this important summary on how the Crown conquered the Indians in Canada.

    A hundred years ago the Treaty 9 commissioners asserted sovereignty with an ominous warning. They told the Indians;

    "If you do not accept this treaty, the government will do whatever it wants with you." and "if you don't you will find it hard for yourselves..." [Note 159]

    Perhaps this explains why Indians accepted the sanctuary of a Crown granted reserve.
  • Lawyer

    Darcy Lindberg
    Respectfully, the assertion that bands were "starved into submission" is far from undocumented. In his master thesis turned book titled "Clearing the Plains", James Daschuk is meticulous and detailed in his research into federal policies that used the food security of many Plains groups as a tool for colonization and surrender of the land. Its an eye opening read for those who have a similar open mind.
  • Not All land Claims are the Same!

    James B. Bandow
    Both Peter Best and Bob Rae seems to think that all land claims are created equal. They are not. Comparing Grassy Narrows decision with recent Supreme Court of Canada decisions in British Columbia only confuses the public about these issues. The British Columbia cases were GENERAL LAND CLAIMS; that is, claims where no lands or title were historically surrendered to the Crown. There was no treaty. Grassy Narrows was a SPECIFIC CLAIM: A dispute over rights outlined by an already established Treaty. As such, nobody should expect similar outcomes. Compare those types of land claims with COMPREHENSIVE CLAIMS with may involve either Specific or General claims but include agreements about governance and other political structures. Under Specific Claims the courts must weigh the claim in the context of the existing treaties. Under General claims, the crown has no such document to dispute title. Hence, the resulting judgements.