It is the rule of law that is fundamentally the glue that keeps our society together. And we all have to have respect for it. Once that respect is lost, chaos will happen. – Smith J. in Platinex Inc. vs. “KI”1
The fury of the mob is a poor substitute for the reasoned consideration of experienced statesmen. But when we no longer have experienced statesmen leading us, what dangerous situation do we then have? -Author 2
The new retrograde reality reflected by the decision in the Caledonia case was reinforced by another decision of the Ontario Court of Appeal in 2008, their decision in the Frontenac Ventures case,3 a case involving two members of a relatively tiny reserve, the Ardoch Algonquin First Nation, located in south-central Ontario just east of Algonquin Park.
Both these individuals were city-dwelling university teachers, one of them holding a Ph.D. They were both sentenced to jail for acting in contempt of two court orders to cease blockading a mining exploration company, Frontenac Ventures, from engaging in an exploratory drilling program on Crown lands pursuant to mineral lease rights lawfully given to it by the province of Ontario. The protestors, their deliberately illegal behavior encouraged and justified by the Haida Nation and Mikisew court decisions, and no doubt inspired by seeing what the Caledonia occupiers were getting away with, claimed that Ontario failed to consult with them about the mining company’s exploration plans and the renewal of the mining lease. They admitted their disobedience of the court orders, which occurred after negotiations with Frontenac Ventures and the province had “failed to resolve the impasse.” So in this case, there had already been a fair amount of “consultation.” Their lawyer admitted that their behavior came close to criminal contempt of court, “but stated that their conduct flowed from adherence to Algonquin law.”4
Poor hapless Frontenac Ventures. It had tried to “consult” with the blockaders, even though, as a holder of valid past-acquired mining rights which included the untrammeled right to explore for minerals, it was legally doubtful here that it even had a duty to consult because there was no Crown or Crown-authorized activity being proposed or contemplated and no Crown decisions or approvals required by Frontenac Ventures.
But the problem here, as the lower court judge had noted,5 was that:
… in the present case the defendants have shown little interest in consultation and accommodation and have made it perfectly clear that there will be no consultation so long as there is even a potential of uranium mining on the property….
Shockingly, despite this disdainful and arrogant attitude on the part of the illegal blockaders, the timid legal position of the Ontario Crown before Justice Cunningham, the lower court judge, was that he “…ought to defer any decision regarding injunctive relief until further consultation can be undertaken…” thus restating and refining the government of Ontario’s new “retreat and hide” and “we continue to try to negotiate with economic terrorists, even if they won’t negotiate with us,” default legal positions in civil cases involving illegal Indian behavior.
Justice Cunningham, bless his heart, found no merit in the cowardly and unprincipled position Ontario had suggested he adopt. He ordered the blockade ended and the arrest of anyone who failed to obey his order. In his judgment, he wrote that “there can only be one law, and that is the law of Canada, expressed through this court.”
Maybe there is only one law, our Court of Appeal ruled (although one never knows – they did not expressly reject the protesters assertion that there was such an objective, relevant thing as “Algonquin law,” and, given the “never conquered” comment of Justice McLachlin in Haida Nation, maybe the court decided that the issue was moot and could be left to be decided in another case on another day), but for Canada’s Indians, unlike for the rest of us, that law is, as stated, “highly textured,” “nuanced” and will be differently applied. In the case of Indians violating a court order, the court said, “…compliance with court orders is an important but not exclusive component of the rule of law.”
It is simply stunning that the court is clearly saying here that complying with its orders can in some circumstances be basically optional for Indians. As the court said:
The stage at which the comprehensive and nuanced description of the rule of law expressed in (the Caledonia case) must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982. Such cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunction and on what terms.
In the present case, as in (Caledonia), the competing interests include the asserted aboriginal rights of the Algonquin First Nations, Frontenac’s private interest in pursuing its exploration plan in accordance with valid mining claims and agreements, and respect for the Crown property rights of Ontario.
And how are these rights to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada- consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests.
Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted , injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to participate in the injunction proceedings.
By these words the court in effect downgraded Frontenac Venture’s mining lease, embodying concrete rights granted to it by the Crown, and no doubt representing hundreds of thousands of dollars of expenditure on the part of Frontenac Ventures, to a “private interest,” having little more status in the court’s eyes than the “competing… asserted aboriginal rights.”
Now, when any Indian asserts an aboriginal or treaty right in relation to a mining lease or claim then, in the face of that bare assertion, the rights of the lessee or claimant become merely, in the eyes of the law, a “contentious private activity” that cannot be further carried on unless the Crown, “fully and faithfully discharges its duty to consult with the affected First Nations.” (See below in the Solid Gold Resources chapter how, well after Frontenac Ventures, Ontario has voluntarily, cravenly and completely unnecessarily worsened the situation for our mining industry.)
This is a disastrous new reality for any business legally operating on public lands in Canada.
Further in Frontenac, the court, either oblivious or indifferent to the huge added expense and delay involved, and seemingly indifferent to the de-legitimizing effect of its words on the validity and credibility of Crown covenants as embodied in its mining leases – on rights clearly granted to stakeholders by the Mining Act generally – on private property rights generally – in effect told Frontenac Ventures, and sent the same message out to other legitimate, law-abiding companies in their position: “Don’t come running to us for injunctive relief against illegal interference by Indians with your property rights unless you can show that before you came to us you “exhausted” (the court’s word) every effort to obtain a negotiated solution- and we really can’t be concerned with how much it’s going to cost you or how long it’s going to take you to do that.”
Amongst other criticisms of the lower court judge’s “too harsh” sentence of jail for the two contemnors the Court of Appeal criticized his failure to recognize “the limited purpose” of the conduct of these two university teachers. As it stated:
The purpose was not a “no-entry” purpose, whereby non-Algonquins could not set foot on the disputed property. Rather, the purpose was to prevent mining exploration on lands which were, and still are, subject to land claim negotiations with the Governments of Canada and Ontario.
What a specious non-distinction! Was not physically preventing Frontenac Ventures employees from conducting lawfully authorized exploration activities a “no-entry purpose”? And reading the romantic, unreal and idealized way in which the court characterized the wrongdoers – giving them the full Walt Disney approach – is dispiriting. Notwithstanding that they had conceded their contempt of two court orders, the court gave them credit for the fact that they had done so “candidly.”
Then the court noted that they “had led lives characterized by leadership in their community, including leadership in demonstrating respect for Canadian law” (italics added for disbelieving emphasis). These two persons had showed no respect for Canadian law! Their position was that Canadian law was subservient to some made-up, in any event unproven, thing called “Algonquin law”! The whole reason for the court case was their gross, deliberate and repeated disrespect for Canadian law!
As Justice Cunningham had found, they had even refused to negotiate! How could Frontenac Ventures even start to “meaningfully consult” if the other side refused to talk to them? The Court of Appeal inexplicably brushed this aside. Then the court said their conduct was “peaceful, with no violence and no damage to property.” So what? That’s only because the police and the Crown were cowed by their behaviour. Giving these lawbreakers credit for that was like praising bank robbers for not firing their guns during a robbery because everyone lay motionless face down on the floor.
The court should have focused on the threat of violence created by the blockading lawbreakers and the basic illegality of the behaviour itself, not the fact that, because Frontenac Ventures, rather than taking the law into its own hands, properly went to the police and then the court for relief, no violence happened to occur.
The court then ruled that criminal law sentencing principles applicable to Indians should be extended to these kinds of civil law situations. These principles are contained in a Supreme Court case called Gladue,6 which instructs judges, when sentencing aboriginal offenders, to take into account:
…the acute problem of the disproportionate incarceration of aboriginal offenders…the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts…and the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection.
A natural and totally foreseeable result of Gladue is a now-ongoing debate about whether Canada is developing a “two-tier” justice system- one for aboriginals and one for the rest of Canadians.
That was merely debatable before Frontenac Ventures because Gladue was so focused on individual aboriginal criminal offenders and the pernicious effects of the reserve system on their social behaviour.
Now that the Court of Appeal of Ontario in Frontenac Ventures has extended the Gladue principles to the civil law – to civil disputes arising from competing property rights claims involving sophisticated, well-advised players (and any blockading Indian group must be included in that description) – there can be no debate any more.
We now do indeed have a two-tier civil justice system which, in land claims cases like Haida Nations, Caledonia and Frontenac Ventures – which are essentially about money, jobs, power, influence, concessions, entitlements, property rights – which are essentially sophisticated and complex extensions of economic warfare between competing interests in society – is tilted in favour of Indians. As the court wrote:
Although Gladue was focused primarily on the serious problem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system’s engagement with Canada’s First Nations. I note three factors in particular that were highlighted in Gladue: the estrangement of aboriginal peoples from the Canadian justice system, the impact of years of dislocation, and whether imprisonment would be meaningful to the community of which the offender is a member. Those factors were all at stake in this case.
With all due respect to the court, the Gladue factors were not at all at stake in Frontenac Ventures. The situation of a solitary Indian up against the criminal justice system because of a robbery charge, a drug charge or any other Criminal Code violation, is vastly different from well-organized and relatively well-heeled Indians being defendants in a civil lawsuit (and an injunction proceeding within it) arising from carefully planned (often days or weeks in advance), group illegal behaviour in support of an Indian land claim or some other “asserted aboriginal right.”
(While not the focus of this essay one cannot help noting in passing the article in the September 14th, 2012 National Post describing Gladue as authorizing “race-based sentencing” of aboriginal offenders, which contained a transcript of a letter Newfoundland MLA Randy Edmunds, an Inuit, sent to the Chief Judge of the Provincial Court of Newfoundland, criticizing Gladue and saying that it’s time for the federal government to consider repealing the section of the Criminal Code that embodies it, because of the deleterious effects that the light to non-existent “Gladue sentencing” was having on law and order and community safety in remote Inuit communities, where Gladue was regarded as “a joke”)
How could it credibly be said that those two city-dwelling university teachers were “estranged from the Canadian justice system”? How could two people who rose to be university teachers be said to be affected by “years of dislocation”? They were in fact two fully integrated, urban, successful middle-class Canadians who just happened to qualify by pure accident of birth for an Indian status card! And surely they weren’t members of any distinct “community.” They were urbanized, fully assimilated Indians who, in the numerous meetings that were held to attempt to resolve the “impasse” which their own obstinately adhered-to behaviour had created, had plenty of time to re-consider their illegal behaviour. These people should have known better, they did know better, and they should have been held accountable for their actions.
Frontenac Ventures exemplifies our higher courts’ increasing tendency to stack the deck in favour of Indians in any civil dispute involving them – to give members of any Indian band before it the full Walt Disney approach – to assume without critical inquiry that they have been injured – to regard them, regardless of clear evidence to the contrary, as innocent, unsophisticated, victimized, noble pre-contact beings – to refuse to place on their shoulders the same degree of personal responsibility for illegal behaviour as is on the shoulders of non-Indian Canadians – all regardless of the plain, modern reality of the situation before them.
All this is a recipe for the breakdown of law and order, for a new legal regime in Canada that rewards feigning, calculating, sophisticated Indian lawbreakers and punishes their innocent non-Indian victims. It’s also a recipe for economic disaster for mining companies involved in mining leases and for the mining industry generally – in fact for any other similar business or undertaking in Canada properly carrying out a state-authorized activity which finds itself in the same vulnerable, unjust situation as Frontenac Ventures found itself in.
- Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 (ON SC)
- Idea and most of the phraseology from Thomas Madden, Venice, Penguin Books, 2013
- Frontenac Ventures Corp. v Ardoch Algonquin First Nation2008 O.J. No. 2651.
- See chapter 11, The Grant of Legal Rights to Canada’s Indians, note 2, where I argue that in substance such a thing, in terms of any commonly understood meaning of the word “law”, does not exist.
- Frontenac Ventures lower Court decision at 2008 O.J. No. 792.
- Gladue is v Gladue, 1999 1 SCR 688.