The new constitutional order

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.

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