23. THE HAIDA NATION CASE

The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori. Nor is it a short experience that can instruct us in that practical science; because the real effects of moral causes are not always immediate; but that which in the first instance may be prejudicial may be excellent in its remoter operation; and its excellence may even arise from the ill effects it produces in the beginning. The reverse also happens; and very pleasing commencements, have often shameful and lamentable conclusions.  –  Edmund Burke, Reflections

I was a member of the House of Commons when the Charter was debated, and remember well the discussions and negotiations around s. 35 and the valuable references to the Royal Proclamation. Some protested no one knew exactly what the implications of these changes were, but in fact we knew full well we were making progress in reducing the unilateral prerogative of governments. -Bob Rae1

Almost a decade after Calder, the enactment of s. 35 of the Constitution Act, 1982 “recognized and affirmed” existing Aboriginal rights, although it took some time for the meaning of this section to be fully fleshed out.-McLachlin C.J., Tsilhqot’in Nation vs. British Columbia2

All Canadians have to live with constitutional mistakes, perhaps forever. We are entitled to great care.- Gordon Gibson 3

I can’t explain the mushroom effect of the duty to consult. -Retired Supreme Court Justice Jack Major 4

Radical reform without some kind of social consensus is dangerous. -Anthony Trollope 5

As evidenced by Mr. Bob Rae’s quote above, the framers of the Constitution Act had no real or solid  idea what they were doing when they carelessly, and with no real pressure or reason to do so, threw section 35 into it, other than recklessly and heedlessly “reducing the unilateral prerogatives of government” i.e. reducing Crown sovereignty to the extent that the Canadian people as a whole, through our elected representatives acting in our federal and provincial parliaments- all collectively embodying “the Crown”-in some unknown ways and to some unknown degrees, with respect to all matters Aboriginal, would no longer be masters in our own legislative houses. Edmund Burke would not have been pleased.

To Mr. Rae and his heedless colleagues this undemocratic,  race-based enactment, agreed upon literally during the middle of the night , and preceded by no broader public consultation or input, was “progress”. But the only “pleasing commencement” of it  has turned out to be their own personal, (misguided) sense of moral satisfaction. Yes, they had been acting  compassionately,  but they had also, in retrospect, been acting incompetently.

Like all elites who at heart distrust “the people”, they sought no social consensus before doing what they did. They did not show “great care”, as urged by Gordon Gibson, (above), so as to avoid making the serious constitutional mistake that enacting section 35 was and is. What they did, as now evidenced by section 35 in its “remoter operation”, was cause a very harmful diminishment of Crown sovereignty,  serious economic harm and greater  racial division in the country.

The brilliant Canadian historian and humanist Erna Paris, a champion of the kind of pluralist, universalist society that Canada was on the road to becoming vis-a-vis our Indian peoples before we were wrenched off course by the passage of section 35 and the happening of the legal sequelae to it, writing in From Tolerance to Tyranny (above) about 15th Century Spain’s descent into deadly bigotry and discrimination, described an aspect of that process with words apt to Mr. Rae and his fellow “framer” elites:

In keeping with my theme of the political consequences of exclusiveness, it is a tale of influential people and key events  that effectively altered the general attitude towards minorities. The spotlight is on individuals who set cultural and ideological agendas and changed the direction of society. 

The lamentable consequences of what they so unwisely and haphazardly did- the first of the major consequences of it- started almost immediately.

In 2004 the Supreme Court, in Haida Nation v. British Columbia (Minister of Forests),6 ruled that the British Columbia Minister of Forestry could not approve the transfer of a 40 year-old Tree Farm License (as had been done with these licenses countless times in the past), without first consulting with the “Council of the Haida Nation” and, “if appropriate,” accommodating their concerns.

The Forestry Minister had approved the transfer in 1999, as had been done with this license several times in the years before that. The Haida Nation challenged this approval in court on the ground that because they were making a land claim in relation to the area in question their consent was needed for the transfer.

They won! The Supreme Court ruled that because of the existence of the land claim, regardless of its’ merits or when it might finally be resolved, British Columbia had a legal duty to meaningfully consult with the Haida people about the harvest of timber from the land in question, which included decisions to transfer or replace tree farm licenses. The court went further, saying, “Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber”, although, with a distressing lack of concern for the practical, it acknowledged that “what accommodation, if any, cannot at this time be ascertained.”

Indian leaders are now lecturing non-Indian Canadians more and more about our legal duty, based on the Haida Nation case, and on “the honour of the Crown” to “consult and accommodate” Indian concerns. And, as it’s already being used now, in the future this completely new and “out of left field” jurisprudential construct, often irrelevant to and disconnected from facts on the ground, will more and more be cleverly and cynically used by Indian bands everywhere against their non-Indian fellow Canadians as a key instrument of economic coercion.

Honourable Crown conduct, which “must be understood generously,” is required, according to the Supreme Court, “if we are to achieve the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown….” One is hard-pressed to imagine a more elegant and legally impressive phrase than that: “… the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown….” Unfortunately it’s a phrase designed only to be read and understood by other lawyers, law professors, judges and civil servants, and it has little grounding whatsoever in any concrete historical or social reality.

The court used the word “reconciliation” in the unusual sense of meaning the meshing in the smoothest and most minimalist manner possible of the pre- treaty legal rights of Indians (as stated above, as originally and basically conceptualized and defined by British notions of legal fair play only, as in the Royal Proclamation) with the rights granted to the Crown by the treaties, so that the continued existence of each of these two inherently competing sets of rights is diminished and impaired to the least possible extent.

By this phrase the court in Haida Nation said in effect that each sets of rights, Indian and non-Indian, continued and continues today to exist. There was no general extinguishment of Indian rights! This is radical, profound and legally earth-shaking – a complete legal departure from the past, unsupported by any reasonable interpretation or application of the Crown fiduciary or honour principles, and unsupported by the historical record or the wording of any of the old treaties.

Most Canadians since the beginning of the treaty-making processes, until now told by the Supreme Court to the contrary, reasonably thought that aboriginal claims to and rights over the land were more than “reconciled.” In fact, Canadians, Indians and non-Indians alike, thought they were, especially in treaty areas, extinguished, plain and simple, subject to very simple and clearly worded exceptions,  being essentially the right to hunt, fish and trap on unoccupied wilderness Crown lands, subject to ultimate Crown sovereignty and control, small annual cash payments and reservations.

Suddenly, with Haida Nation, after well over a century of established law, practice and understanding on all sides, that’s no longer the case. The meaning and effect of Haida Nation is that now it can no longer be said that the treaties were entered into for the purpose of extinguishing Indian title to Canadian lands, thus allowing us all, under the  protective umbrella of ultimate Crown sovereignty, to move on into the future with the goal of eventually becoming equals in every respect.

Haida Nation, and the cases decided by our higher courts since then, say that the treaties were entered into merely in order to “reconcile” Indians prior sovereign occupancy of the land with the new sovereignty of the Crown: they were instruments of power and land sharing, not instruments of rights extinguishment!

The great historian, Diamond Jenness, in all six editions of his authoritative masterwork, The Indians of Canada, given the supposedly better-informed  counsels of Haida Nation,  was apparently wrong. Absolutely no explanation given of why he was wrong. In accordance with the new advocacy historical method embraced by our Supreme Court, to merely desire and then declare something to be true, so long as it’s a “progressive” consumation devoutly to be wished,  is seemingly enough. This is called unargued persuasion by the great art critic and historian Robert Hughes, in his essay The Decline of the City of Mahagony. 7The full quote is too rich and true not to be set down:

But the “American Century” whose arrival was eagerly proclaimed after 1945 is now at an end. It finished ignobly amid the glitzy triumphalism of Reagan’s presidency, and its’ squandered resources cannot simply be willed back into being. New York’s loss of vitality as an art center runs parallel to events in the larger culture of politics, economics and mass media. It is part of the general aging of the United States: its stagnation, its willing surrender to ephemeral media images and unargued persuasion. It is connected, not causally but by analogy, to the extraordinary decay of American public life.

(As Exhibit A in the proof of Mr. Hughes assertion the writer offers the reader…President Donald Trump.)

To me, far, far too many assertions by the numerous proponents of the maintenance and enhancement of the status quo in this area of Canadian life constitute mere unargued persuasion. But it’s especially discouraging to see the Supreme Court of Canada engaging in it.

Indians, after all,  didn’t cede their territory to the migrators and submit to confinement on narrow reserves. They actually entered into something like a joint venture arrangement! With guaranteed royalties! How do we know? The Supreme Court – and only the Supreme Court – has now told us that this was the case.

So, according to Haida Nation, Indian sovereignty was never totally surrendered or extinguished – it continues to exist in some form alongside Crown sovereignty – and the treaties merely evidenced some form of ongoing, never-ending partnership/sharing arrangement being entered into, requiring the constant, expensive, uncertain fine-tuning and adjustment from time to never-ending time of the granted Crown rights with the retained sovereign Indian rights.

And that never totally surrendered or extinguished Indian sovereignty now constitutes a de facto third order of government in Canada – a third fount of constitutional power – where, in addition to the federal government and the provinces, we now have the third component of Indian bands.

We now have in substance, to a significant degree, in treaty areas of Canada, and, with Tsilhcot’in, (discussed further below) even more so in non-treaty areas like British Columbia,  a tri-power federal system, rather than our former purely dual power system.

The reader won’t think this assertion so far-fetched when he or she considers the May, 2012 seriously vacuous, harmful and pandering statement of Ontario NDP leader Andrea Horwath setting out her party’s view of how Ontario can maximize the economic benefits of mineral exploration:

On mineral exploration we may not get the benefits if the government is not serious about talking to the other order of government in Canada and that would be First Nations.8

As harmful, shameful and ill-considered as that statement is, it is even more harmful, shameful and frightening that no politician from any of the other Ontario parties, and no other Canadian politician, provincial or federal, has ever taken issue with it. Ms. Horwath seemingly now reflects the views of all our politicians on this profound issue, who, unlike Winston Churchill in different circumstances, all seem quite content to preside over the dissolution of all that has made this country the safe, prosperous, civilized and great country that it is.

In 2014 Ms. Horwath was actually seconded and endorsed in this regard  by the Ontario McGuinty/Wynne majority Liberal government when it announced in trumpeting fashion a “Ring of Fire” (below) development agreement-in-principle made with a number of Indian bands in the area, as a “government to government” agreement. Edmund Burke, in Reflections, wrote about such shockingly short-sighted and irresponsible leadership as follows:

When I hear the simplicity of contrivance aimed at and boasted of in any new political constitutions, I am at no loss to decide that the artificers are grossly ignorant of their trade or totally negligent of their duty.

And, in 2015, this quasi-segregationist and destructively chaotic new legal reality continued, with the election of the Justin Trudeau federal Liberal government, and its relentless repetition of its fantasy, nation-to-nation mantra.

Haida Nation essentially re-writes the treaties, the Crown fiduciary and honour principles and Canadian history generally. Now, the treaties must be regarded not as instruments of extinguishment of Indian rights and establishment of ultimate Crown sovereignty in Canada, but rather as instruments of process- of perpetual rights “reconciliation.”

But the treaties had nothing to do with “reconciliation” of co-existent rights! Nowhere does one see that in the historical record or in any treaty wording, both of which clearly demonstrate a focus on the extinguishment of Indian rights and the establishment of sole, ultimate Crown authority.

The short-term intent of the treaties was to provide temporary self-sufficiency for Indians in the face of the cold vicissitudes of the ever-encroaching, debilitating, modern world. For the long term they were regarded as necessary but temporary way stations – refuges – on the road to the explicit, positive and necessary goal of assimilation and integration.

By radically expanding those minor, limited exceptions into a general “sharing” rule, Haida Nation, and subsequent higher court decisions which have followed and expanded on it, wrongly deny or ignore the historical record and frustrate the original intentions and even the actual wording of the treaties. This new jurisprudence dangerously and recklessly in effect decrees a devolution of Crown sovereignty to Indians – a handing back of previously-surrendered power.

Haida Nation (and Tsilhcot’in) make Canadian Indians on the one hand and the Crowns of Canada on the other constitutional co-equals in many fundamental respects. (Tsilhcot’in in many respects makes them constitutionally superior!) In effect the early historical era of collaboration and shared control, which ended in the 1800’s and which since then all Canadians assumed was over, is not over after all. This is partly because, according to the court in Haida Nation, “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.”

What an unfortunately simplistic statement! How devoid of context, nuance and texture! Small numbers of Indians were indeed here first and they indeed, in Canada, were never conquered militarily (the least effective means of one group attaining permanent dominance over another). But the absence of any kind of military conquest was only because Indians effectively surrendered first on all the other fronts of life – the fronts that really counted – the cultural, economic and political fronts.

Indians peacefully and voluntarily embraced European culture and control. Two hundred and fifty years of relatively peaceful interaction worked to achieve de facto conquest and then, with the treaties, legal and sole Crown sovereignty. Military compulsion- diplomacy “by other means” – to the credit of both our Indian and non-Indian forefathers, was never necessary and rarely considered or engaged in.

Haida Nation, by focusing in a completely over-simplified way on the mere fact that Indians were here when Europeans first came and on the admirable absence of any military conquest of Indians, and spinning that today against the interests of non-Indian Canadians and Canadian sovereignty generally, is fatally flawed. As stated, and as Tom Flanagan writes in First Nations? Second Thoughts, “the Indians had become subject de facto to the sovereignty of the Crown. They knew it and everyone else knew it at the time.”

It was like what the Cree chief  (chapter 21-Common Themes) said about stopping the flow of the Saskatchewan River- unstoppable.

And the court’s “never conquered” remark, in addition to placing an undue and inappropriate emphasis on the lack of use of physical force in Canada’s past dealings with Indians, has the creepy, unsettling effect on present day non-Indian Canadians of, in the face of the harmful social and economic consequences of Haida Nation, making them feel in effect punished for our forefathers relatively decent, civilized and decidedly non-military approach in this area of our history.

If military conquest was such an important factor to our Supreme Court then Canada’s non-Indians may justly speculate whether Haida Nation, with all the negative, destabilizing and financially harmful consequences it has wrought, would have been decided differently if our forefathers had acted more like the Spanish – or if some variation of Wounded Knee was in our history.

These unhealthy and unsavory speculations are the natural, unwelcome response to Haida Nation’s selective, simplistic, inaccurate and overly-romantic approach to the historical facts existing when the treaties were signed. As Tom Flanagan (above) wrote:

…can anyone seriously doubt that the (military) conquest would have been carried out if necessary, just as Canada suppressed the Metis and Indians who rose in the North-West Rebellion? Does it make sense to respect power established by brutal conquest but not power that was, for the most part, established peacefully and humanely?

A further harmful feature of Haida Nation is that it doesn’t just focus on traditional Indian rights, like fishing, hunting, gathering and trapping. Again, in a radical departure from the wording and intent of the treaties, it created a whole new set of undefined rights for Indians i.e. “potential” rights, which have “yet to be determined, recognized and respected.”

Now, according to Haida Nation – and this is the heart of the case and the source of all the legal, social and economic harm it has created – the determination and recognition of and respect for potential Indian land claims rights,  rights that Indians may merely assert have some direct or indirect connection to fishing, hunting and trapping, requires the Crown, where it is proposing to engage in some future undertaking, or to grant to an individual or a corporation a license, permit or other such right to engage in a proposed undertaking, to act “honourably” and “… to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where appropriate, accommodate Aboriginal interests….”

These key words set up a very bad scenario, already coming into being, for Canadians – Indian and non-Indian alike. They give Indian bands all across Canada a chokehold on huge aspects of economic development in rural and wilderness Canada, even in some parts of urban Canada, whether it be the opening of a new mine, a new forestry undertaking, the transfer of Crown land to a municipality, the building of a new dam, a wind power installation, the construction of a new road, transmission line or pipeline, or anything else like that.

All an Indian band has to do, following Haida Nation, is to merely assert, regardless of whether or not it’s even remotely the case, that a proposed off-reserve undertaking affects an Indian right or concern, actual or potential, and the “duty to consult” is then instantly activated, thereby automatically engaging the Indian chokehold, namely, the delaying, costly “consultation and accommodation, if necessary” process.

This new, legal, de facto, chokehold reality was well exemplified in January, 2013 by Manitoba Chief Derek Nepinak’s threat, as part of the “Idle No More” protests,9 to “bring the Canadian economy to its knees”, and to “…stop Prime Minister Harper’s resource development plan and his billion dollar plan to develop resources in our ancestral territories. We have the warriors that are standing up now that are willing to go that far.” (The neo-adolescent “warriors” threat, well illustrating a massive disrespect for the rule of law, also a progeny of Haida Nation (see The Attack on Law and Order, below).

As the court said in a later decision following Haida Nation, the mere fact that a land claim has been accepted by the Crown for negotiation “…establishes a prima facie case that the claim has merit.”  No concrete facts need be provided. No evidence threshold need be met. A mere assertion,  such as, “…that’s sacred ground!” will suffice.

Obviously therefore, given human nature, given any individual’s or group’s tendency not to pass up a good thing if it’s there for the taking, whenever any of these types of projects, public or private, are now proposed, with virtually no evidentiary threshold-merit standard to be met, any Indian band or reservation remotely nearby  now immediately claims that an actual or potential “Aboriginal interest,” of theirs, like “sacred ground,”  is affected, a “potential but yet unproven interest,” thus requiring that they be consulted and accommodated.

And given the already-being-amply-demonstrated timidity of Canada’s bureaucrats and politicians in the face of anything  “Indigenous”- their fear of making waves – of making a career-ending controversial decision – they rarely say no at the outset to an asserted Indian claim, no matter to what degree they may privately think that the claim is basically hogwash. They now point to Haida Nation and its legal successors, instinctively consider first the safety and security of their own career or political position, take the path of least resistance, and then head down- or, as it usually turns out, force the private sector business involved, (often called “the proponent”), to head down-  the too-often maze-like or mapless path of “consultation and, where appropriate, accommodation,” and this, regardless of the substantial, wide-ranging collateral damage being caused.

In practice, “consultation,” in too many cases, has turned out to be an almost endless process, because Indian band elites have no compelling reason to ever finally settle, the actual process of consultation, involving travel off the reserve, expense account living,10consultation fees, “capacity funding” and other large sums of money being paid to them in relation to which little or no accounting is required, meetings with important people in new places, being courted by people, wallowing in unhealthy, (but feel-good, to the tribal-minded), race talk, fawning media events – the stimulation of it all-the ego boost caused by it – being almost an end, an attractive, engaging, lucrative activity in itself.

This is supported by aboriginal writer Calvin Helin, in Dances With Dependency:

Community members complain that many Aboriginal negotiators have latched onto the sinecure as well and have made profitable careers largely through negotiating one treaty. Youth view many of these negotiators as elitists not wishing to bring an end to the “ongoing banquet” but instead are sucking the assets out of a treaty settlement before it is even made. Ordinary Aboriginal folk wonder where the incentive for their negotiators to settle their treaties is when they are profiting handsomely from the process.

And accommodation “where appropriate,” well, as stated, who is to say?  And is there anyone with the courage to say that, in any given case, it’s “not appropriate”? Who will risk taking the flak for that? So far, in almost all cases, no one.

Because in this new world unilaterally created by our Supreme Court the law, and legal considerations generally, are secondary. The essentially ungoverned and unregulated raw, coercive power of Indian bands, for all involved,  is the first and foremost consideration.

Richard T. King, a prominent big-firm Toronto aboriginal law practitioner, said at the St. Andrews conference on aboriginal law held in late 2016, (noted above),11that it was a mistake for any project proponent, public or private, when facing a consult and accommodate claim, no matter how weak they thought it was, “to express any opinion on the First Nations rights level”, and that the proponent, because of (in this writer’s belief) the justifiable fear of a costly, delaying and sometimes  lawless backlash from saying a reasonable, good faith “no” to the claim- would be creating a risk “to go on a strength of claim assessment”.  (For examples of what adverse consequences befall  companies who take this risk see the discussion of the Frontenac VenturesPlatinexSolid Gold Resources and Northern Superior cases, below.) The advice given was to basically, resignedly, (my word) hear and accommodate “all comers” i.e. all the claims of all the Indian bands who make one, however (in the writer’s opinion- Mr. King did not expressly say this)  specious the proponent privately might think any of their respective claims  might be.

This is  how cowed and craven this new legal situation has made project proponents in Canada.

Lawyer and writer Thomas Isaac, a renowned expert in the field, at the same conference, said:

You can have a legal analysis. But that’s very different from a practical risk assessment. (Italics to reflect Mr. Isaac’s ironic, telling emphasis.)

In other words, as the writer interprets Mr. Isaac’s words, and as experience has amply shown, a legal analysis means very little. A proponent can have all the law on its side, and it doesn’t matter. It’s all about the naked, coercive power that Haida Nation and its legal successors have given to Indian bands. Rights and reason, which should be the only considerations, as stated, are secondary.

And at whose expense is this consultation to be and with what murderously costly delay? How many meetings, studies, experts and lawyers will it take in each case to decide that?

Very few actually.

It’s all at the expense, even though it’s the Crown which has the duty, of the usually private corporate proponent. The only issue is not whether, but how much, it will have to  pay, and in what form.

And with respect to the delay factor, that depends entirely on how quickly the project proponent sees the writing on the wall and resignedly buckles under to  the new Haida Nation shakedown reality it finds itself mired in.

And why should Indians, after they finally decide what they want (this can take a long time), ever be satisfied with getting anything less than that? They will have no real, compelling down side in any of these situations. Like B.C’s Lax Kw’alaams, who turned down one billion dollars, offered in exchange for their support of an industrial project. (See Dancing With Danegeld, below).

With their guaranteed Canadian taxpayer-financed transfer payments coming to them every year in any event, and with the shameful, fawning, sovereignty-surrendering treatment they get from our Crowns, unlike non-Indian Canadians, they don’t have to make compromises with perfection. They will never be facing any real economic risks or other such pressures,, unlike most of the other people or businesses involved in these situations. They will rarely have any of their own money in the pot. They will always be playing their roles with the other “partners” money and, because of that, because of the absence of any legal, financial or psychological checks on them, they will “play” as long as they want and really, never risk losing.

All in all a situation rife with “moral hazard”, which was a huge factor in the 2008 financial crash, where people took great risks in circumstances where the risk downsides would never be experienced by them, but only by innocent, vulnerable  others.

This moral hazard factor was  well illustrated in 2011 during “consultation talks” between a northern Ontario Indian band, Wahgoshig First Nation, and a mining company trying to explore its claims, Solid Gold Resources,12 which led to a seminal court decision on this “duty to consult” issue (see The Solid Gold Resources case- Ontario’s Sovereignty Giveaway, below). During the negotiations, characterized by Solid Gold Resources unexpectedly refusing to accede to what it considered were Wahgoshig’s excessive financial demands, Wahgoshig erected a large, crudely lettered sign on Solid Gold’s claim area bearing the message:  

WHEN TALKS FAIL WAHGOSHIG PREVAILS

This was a bold, clear admission by Wahgoshig that this was a completely no-lose situation for them – that, knowing that they had no real “skin in the game,” they could be cheerily and defiantly basically indifferent to the outcome.

It’s trite (but seemingly lost on our elites) that for any reasonable set of negotiations to fairly and effectively work each side has to have something to lose, as a check against arbitrary, unreasonable conduct. If one side has nothing to lose, and the other side has everything to lose, you don’t have negotiations – you have a shakedown. And this is exactly how Haida Nation is playing out, as anyone exercising common sense could have foreseen. And so “accommodation” will usually boil down to others, particularly private companies, having to cry uncle and give the Indian bands who claim to be “affected” by their proposed undertaking  a free piece of the action, just to be able to get their project moving forward.

Haida Nation represents a very harmful, legally unjustified and unnecessary attack on and diminishment of Crown sovereignty- an irresponsible, thoughtless and dangerous attack against the necessary and legitimate powers and functionings of the Canadian state.

In addition, Haida Nation, in its effect, mandates the largest, unilateral, unbalanced, unregulated, uncompensated transfer of wealth and power from government and private industry into the collective hands of one particular Canadian racial group – Indians – in our history.

Haida Nation in effect amends our constitution without any input or consent whatsoever from the people of Canada expressed through our federal and provincial governments.

Haida Nation, by judicial fiat, transforms the economic landscape of Canada.

Section 35 and Haida Nation are huge, “large step”, practically irreversible constitutional mistakes, violating as they do one of the most basic principles of constitutional law-making:

States should take small steps rather than large ones, Policies are apt to be more successful if they can be reversed once they start to go awry, and so good planners ensure reversibility. 13

Though well-meaning, Haida Nation is a prime example of a Court – a small, unelected group of individuals – using its power to act as a “super-legislature” – engaging in inappropriate  and undemocratic “untethered  judicial activism.”14 The combination of an aggressively pro-Indian, anti-Crown sovereignty interpretation of Haida Nation by Crown politicians and senior bureaucrats (see below) and subsequent equally overly-activist higher court decisions which have adopted and expanded on Haida Nation, has greatly magnified Haida Nation’s  deleterious effects on Crown sovereignty, Canadian economic development, the rule of law and Canadian unity, all giving fresh relevance and applicability to Edmund Burke’s  assertion:

To avoid therefore the evils of inconstancy and versatility, ten thousand times worse than those of obstinacy and the blindest prejudice, we have consecrated the State, that no man should look into its defects or corruptions but with due caution; that he should never dream of beginning its reformation by its subversion. (italics added)

 

  1. Canadian Lawyer Magazine, July 2014- italics added
  2. 2014 SCC 44
  3. Gordon Gibson, Tips for the PM: Stay clear of constitutional quagmires– The Globe and Mail, September 17, 2016
  4. Email to author, April 17, 2019
  5. From Trollope Trending, by Adam Gopnik, The New  Yorker, May 4, 2015-  A wonderful essay on the British mid-Victorian liberal, “progressive” novelist, Anthony Trollope, much of whose body  of work, Mr. Gopnik asserts, was devoted to the notion of the “gradual annihilation” of social and economic distances between citizens. That’s what we all say we are in favour of. But ungradual Court rulings, like Haida Nation, and all its jurisprudential followers, have increased distances between Indian and non-Indian Canadians. Mr. Trollope would not be pleased, and would warn against the social danger inherent in this. What social danger? See, for instance, The Amygdala Factor, etc, chapter 44, below.
  6. 2004 3 S.C.R. 511
  7. In The Spectacle of Skill, Selected Writings of Robert Hughes ,Alfred A, Knopf, 2015
  8. Rob Ferguson. The Toronto Star. the star.com/news, 24 May 2012. (italics added)
  9. com. 10 January 2013.
  10. In Indigenous social activist Tanya Talaga’s 2018 book, All Our Relations, noted above, Ms. Talaga describes a Canadian taxpayer-financed conference she attended at the Delta Hotel in Ottawa, “on the unceded territory of the Algonquins”, in May of 2018, called determiNATION:Moving Beyond the Indian Act. She writes in part:

The conference, organized by the grand chief of the Nishnawbe Aski Nation, Alvin Fidler, brought together an impressive list of close to three hundred First Nations Elders, leaders, knowledge keepers, youth and lawyers for two days at the Delta to imagine a future without the Indian Act. All the progressives, all the thinkers were there…The night before the summit began Alvin and I went for dinner with Mushkegowuk Grand Council Chief Jonathan Solomon at a chain steakhouse restaurant across the street from the hotel. The place was packed with Indigenous people from across the country.

One of the topics they discussed while eating their steak, (about $125.00 for two, with wine), was a “national suicide strategy” for indigenous youth. This kind of profligate, big-city, freeloading,  high living, which is about as far from the tragic and horrific scenes of Indigenous suicides as you can get, does the image of these people as purporting to be serious and caring “social justice” advocates no good. Far better that they would show some moral seriousness, and some solidarity-showing personal sacrifice, and all meet for bag lunches in Attiwapiskat or on one of the remote Northwestern Ontario reserves or in one of the Northern Quebec Inuit villages where these suicides are still happening regularly.

  1. His address entitled An Update on Aboriginal Rights: Reconciliation/ Consultation/ UNDRIP/Metis Rights
  2. Wahgoshig First Nation  v. Solid Gold Resources Corp, 2012 ONSC 2323
  3. Robert Conquest, quoting Cass R. Sunstein in Reflections on a Ravaged Century, above
  4. American Judge Learned Hand,New York Review of Books, December 5th, 2013.

By: Peter Best