Though a king may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by a stronger reason, the house of commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities. Otherwise competence and power would soon be confounded, and no law left but the will of a prevailing force. – Edmund Burke1
Something is profoundly wrong with the way we live today. For thirty years we have made a virtue out of the pursuit of material self-interest: indeed, this pursuit now constitutes whatever remains of our sense of collective purpose. We know what things cost but have no idea what they are worth. We no longer ask of a judicial ruling or a legislative act: is it good? Is it fair? Is it just? Is it right? Will it help bring about a better society or a better world? These used to be the political questions, even if they invited no easy answers. We must learn once again to pose them. – Tony Judt 2
Canada’s wealth, and the reason why the world beats a path to our natural resources, lies not in the resources themselves. What makes that endowment almost uniquely valuable in the world is that it exists within another vastly more important endowment of rules, institutions and behaviours…the rule of law…the enforcement of contract…the absence of corruption among government officials and the police; respect of private property; a moderate, predictable and stable taxation and regulatory burden…a refusal to resort to violence to resolve political disagreements. This is the greatest endowment that we have. – Brian Lee Crowley3
The state puts a wedge between us and instincts like tribalism and personal vengeance…the state exists for a reason, and reason benefits from the state. It’s a virtuous circle that’s threatening to unravel”- Ivor Tossell4
Local Governments can be great systems of oppression. And it’s a wonderful thing to have a national government that can intervene in the name of national values.- Marilynne Robinson 5
Any society which destroys the fabric of its state, must soon be “disconnected into the dust and powder of individuality.” -Edmund Burke6
The reckless Crown sovereignty giveaway behavior of Ontario’s political leaders and senior bureaucrats described above, and by the Trudeau federal government, described and decried well below, and the anti- law and order behavior of the Ontario Crown and the OPP in the Caledonia, Frontenac Ventures and Platinex cases, and more recently, in their stupefying passivity in the face of the many illegal “Idle No More” and similar roadblocks and rail blockages, is inexplicable and intensely worrisome. Our elites acted in these situations, and continue to act in the many similar ones that are occurring daily, like weak, timid, unprincipled, reactive followers, not leaders.
Their harmful conduct in this regard is the main reason why Indian leaders like chief Moonias of the Neskantaga band could so casually (and, shamefully, but so typically, without any comment or criticism from our political leaders) expressly threaten “blockades and even acts of mischief” in relation to the Ring of Fire project, and why Manitoba chief Nepinak could so casually and arrogantly threaten the use of so-called “warriors” to advance his Idle No More political and economic goals (whatever they might be, typical of the entire “movement”- he never did say).
No less worrisome is the too silent and servile acceptance by our political leaders, media and academic elites, top law enforcement officials and senior civil servants of these civically harmful court decisions, treating them as though they constitute indisputable, unchallengable, eternal judicial verities-legal first principles.
No! They should be lawfully and loudly pushing back against them with everything they’ve got! They should be trying to restrict them to the narrowest possible application. They should be loudly complaining about them, making the citizenry and the higher courts aware by all the usual political and legal methods that they believe the higher courts are being too activist – that they’re going way too far in legal theory and policy – that profound, devolutionary constitutional change is the primary business of the legislatures, not the courts.
Instead of pushing back like this these senior people, who are trustees and guardians of our overall general welfare, are adopting an overly passive and deferential, almost forelock-tugging, response to every new “aboriginal law” jurisprudential excess foisted on Canadians.
Sometimes even worse, as exemplified by the activities of the Ontario government in the Solid Gold Resources situation, and by the Trudeau federal government, described above and below, they have, on their own volition, out of a completely misplaced sense of public duty, by extending Haida Nation far beyond its intended scope, gone ahead of the courts in their wrong-headed, devolutionary zeal to act “honourably” towards Canada’s Indians.
The behaviour of Ontario in the Frontenac Ventures, Platinex and Solid Gold Resources cases – in the circumstances giving rise to them, while they were before the courts and in its political and legal response to the legal decisions resulting from them – demonstrates an almost complete loss of nerve and confidence on the part of our governing officials- our governing classes – departing as it does from the traditional, politically healthy, default position of the “State” i.e. that like any healthy, sentient entity with an appropriate degree of self-confidence and sense of public purpose, it rarely voluntarily gives up power – it only keeps its power and tries to increase it.
“Power concedes nothing without a demand. It never did and it never will.” 7
At their best our elites, like the Ontario politicians and bureaucrats responsible for the legal messes described in these cases, are acting like mere order takers – like the proverbial “head waiters” of Canadian constitutional lore – except this time the sole diner giving orders is the Supreme Court of Canada. At their worst, as exemplified by all of the above, our elites, as in the Solid Gold situation, are active and enabling participants in the destruction of our resource-based economy and in the very harmful erosion and emasculation of legitimate and necessary Crown sovereignty.
It’s as if our “best and brightest” no longer believe in the value of a strong state or in the worth of what they do or in what they represent -as if “they have wearied of the demands our traditions make of us.” 8 As exemplified by their acceptance, with such apparent equanimity, of the devastating, (to Crown sovereignty, the economy and the public welfare generally), of the Haida Nation and Tsilhcot’in decisions, and, in B.C, their adoption of UNDRIP, it’s as if they don’t believe in the value of a strong, sovereign and unified province or country, with the Crown representing and embodying that unity and strength, and best able to preserve and advance the general welfare.
It’s as if they don’t believe with any passion in the core Western value that the rule of law must be maintained and upheld above all- that without the rule of law, as people have known and written about for centuries, and which depends on a strong state, there is physical and moral danger, and ultimate diminishment of freedom. You can have order without liberty, but not liberty without order.
“Liberal ideals cannot survive without power, and that power requires careful upkeep.“9
It’s as if mature, responsible, principled adults- those increasingly rare adults who are unafraid to say “no” – are no longer in charge.
In this regard our elites are at odds with the vast majority of Canadians who, in this increasingly complex, uncertain, technology-based world, where the problems inherent in it have to be regulated by strong central powers, and where Canadians are becoming increasingly vulnerable to all kinds of negative, global, economic forces, fear and disagree with the handing back of state power to small, decentralized, scattered, undisciplined, poorly governed, self-seeking, technically illiterate, Indian bands. They fear the weakening of the state’s powers to try to ameliorate the negative effects of these powerful, destabilizing, global forces . They fear the attack on our tax and revenue bases that all this represents . They sense that the weakening of the state means the weakening of legal order.They fear the increasing two-tier nature of our law enforcement and justice systems, and rightfully fear the weakening of the state’s power generally, all of which these things represent.
Ordinary Canadians sense what our elites don’t, that is, that we are going socially, economically and politically backwards, and that this weakening of Crown sovereignty can only accelerate these negative trends.
In The Social Conquest of Earth10 Professor Edward O. Wilson describes the State – the most sophisticated and complex system of human organization – as “the final step in the cultural evolution of societies,” with bands, tribes, village societies and chiefdoms being earlier, precursor, less complex, forms of social organizations.
A key feature of any successful state is a clear system of hierarchical control- “the ordering principle of domestic politics.”11 Professor Wilson:
As with complexity of any physical or biological system, the society, in order to achieve stability and survive and not quickly crumble, must add hierarchical control…hierarchies work better than unorganized assemblages (in) that they are easier for their rulers to understand and manage. Put another way, you cannot expect success if assembly-line workers vote at executive conferences or enlisted men plan military campaigns.
Nor can the Canadian state stay healthy, act for all our benefit, and expect continued success, if Indian bands are given and exercise top-of the-hierarchy control, even shared or joint control, (the latter something now being claimed in “aboriginal title” and UNDRIP parts of Canada), over the rest of us. The buck has to stop somewhere for our State to work properly. That somewhere must be the federal and provincial Crowns.
Again, the brilliant, wise, prescient and apt Edmund Burke, in Reflections:
You would not cure the evil by resolving, that there should be no more monarchs, nor ministers of state, nor of the gospel; no interpreters of law; no general officers; no public councils. You might change the names. The things in some shape must remain. A certain quantum of power must always exist in the community, in some hands, and under some appellation.
Historian Niall Ferguson discusses part of what I think is present here – a loss of faith on the part of our country’s ruling class in the basic tenets of our civilization which it is entrusted with presiding over- in his recent book, Civilization.12 He describes this phenomenon as one of the prime, historically common indicators of a civilization in decline.
Considering these numerous indicators in relation to our European-based civilization he writes:
Maybe the real threat is posed not by the rise of China, Islam or (global warming), but by our own loss of faith in the civilization we inherited from our ancestors…Churchill captured a crucial point when he defined the central precept of Western Civilization as “the subordination of the ruling classes to the settled customs of the people and to their will as expressed in the Constitution.”
Ross Douthat, of the New York Times, also touches on part of what is happening here: a paralysis taking hold of so many of our insecure, confused and failing elites:
When an old order is in crisis, something distinctive happens to the men who lead it. A strange paralysis sets in , a curious mix of denial and resignation. W.B. Yeats’ line about the best lacking all conviction captures part of this, but only part. What really goes missing isn’t conviction itself but the capacity to act on it-to adapt swiftly, resist effectively, or both. Instead the tendency is to freeze, like mice under a hawk’s shadow, and hope that the stillness alone can save you from the talons. 13
To me, our elites seem to be suffering from the chronic diseases of excessive, insecure niceness and the phobia of appearing “unprogressive.” As Robert Conquest wrote in Reflections on a Ravaged Century (above), “There is of course nothing far more slavish in the conformism of one who can be made to toe the line by fear of not being considered a liberal.” They seem incapable of correcting course!
In his book How Democracies Perish [/note] Harper Perennial, 1985[/note]French politician, writer and philosopher Jean-Francois Revel wrote, aptly to my point:
Democracy tends to ignore, even deny, threats to it because it loathes doing what is needed to counter them. It awakens only when the danger becomes deadly imminent. By then, either there is too little time to save itself, or the price of survival has become crushingly high.
We continue in this way at all our peril. 14
We see in America what happens when elites breach their trust duties and lose their discipline- cease acting like the First Men and First Women of their society-fail to fulfill their proper stewardship, guardianship, “sober second thought” function in a liberal democracy- fail to defend the sovereignty of their governments-fail to defend and maintain hierarchy and high standards- fail to defend society’s basic norms, values and institutions-fail to check the marketplace- fail to defend the institutions and rule of law- fail to defend the polity against threats to reason, restraint and civility-fail to defend democracy against its own inevitable excesses: Donald Trump!
…the liberal-democratic-capitalist matrix we all inhabit depends for its livability and sustainability and decency upon pre-liberal forces and habits, unchosen obligations and allegiances:the communities of tribe and family, the moralism and metaphysical horizons of religion, the aristocracy of philosophy and art…Alexis de Tocqueville’s fear that liberalism would eventually dissolve all these inheritances, leaving only a selfish individualism and soft bureaucratic despotism locked in a strange embrace, may now be fully upon us. 15
Haida Nation jurisprudence and our political, bureaucratic and police elites’ weak and confused- and at crucial times, frozen– response to it, represents a full frontal assault by our ruling classes against the system of state-maintaining hierarchy which Professor Wilson suggests must be present for a democracy to function properly- against what Brian Lee Crowley (above) describes as Canada’s real wealth -our “endowment of rules, institutions and behaviours” that make up the civilization we inherited from our ancestors – an assault on the century-old “settled customs” and “pre-liberal values” (i.e. “old-fashioned” values!) of the Canadian people, and to their will as expressed in our laws, history and practices.
These attributes of civilization applicable here – these settled customs and values – near-absolute Crown sovereignty subject only to a competing set of individual rights, property rights and the rule of law – all fully supported by our political classes and the rest of our elites– should be inviolable. 16
To diminish Crown sovereignty – the fount and guardian of our democracy, our property rights and of the rule of law – the latter themselves the basis of a superior economic system which has provided so well for us 17– as Haida Nation and Tsihlcot’in jurisprudence and Justin Trudeau’s proposed UNDRIP and “reconciliation at all costs” doctrine have diminished Crown sovereignty- is to attack and diminish our democracy- our very civilization itself. Ordinary Canadians know or at least sense that. Unfortunately our “ruling classes” – our increasingly post-liberal (and post-literate) elites – seem not to know that any more.
Why has this happened? Why don’t our leaders – our “best and brightest” – seem to appreciate the need to fight against this diminution and fragmentation of sole Crown sovereignty and control over the ultimate welfare of all Canadians?
Why would someone like George Smitherman, a former highly respected and effective Ontario Cabinet Minister, who in that capacity represented and embodied strong and caring Crown sovereignty, so easily sell his services to forces which sought to thrive on the diminution of that very sovereignty? Why did he say nothing when one of his clients, chief Moonias, publicly threatened illegal blockades and acts of mischief? Given his former position, this was unseemly and, more ominous and importantly, an all-too-typical, morally indifferent and dispiriting “trahison des clercs” example for the general populace.
Bob Rae, after leaving politics, went to work for those same Indian bands, helping them negotiate their “government to government” development agreement-in-principle (above) with Ontario, spelling out his clients’ elaborate and long-term danegeld rights and expectations relating to this possibly never-to-be developed (because of such things as this very agreement!) mining area. This fine and accomplished Canadian 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 social justice and equality under the law.
The people to whom he then, at a very high hourly rate, sold his good name and services, represented the very illiberal and retrograde opposite of all of that, despite the sanctimonious gloss they continue to apply to themselves. It pains one that the following lines from Reflections apply to Mr. Rae and so many other non-Indian elite cheerleaders of this so-harmful status quo in this area of Canadian life:
I know they set him up as a sort of oracle; because, with the best intentions in the world, he naturally philippizes, and chants his prophetic song in exact unison with their designs.
(In this passage of Reflections Burke is referring to one particular English gentleman-cheerleader of the French Revolution, our Western Enlightenment’s first state-destroying, past-renouncing, “reason” – worshipping, mob-ruled, bloodbath. )
It’s very disappointing, dangerous and discouraging. People like Mr. Smitherman and Mr. Rae, and now even our Prime Minister, members of our “best and brightness” class, should be working to promote Nelson Mandela’s “one set of laws for all races” goal and vision, rather than supporting the goals of these outwardly anarchic and inwardly oligarchic Indian band elites, who, mainly for the sake of more power and money, seek to further entrench and expand this extremely divisive, American pre-civil rights era, “separate but equal,” legal and social model that is so harming Indigenous peoples, and all Canadians generally.
It’s not that these privileged people are “prisoners to their bread.” These elites are mostly well-to-do, and have options and choices where often others do not.
Perhaps it’s ideological self-delusion. They’re in a form of servitude, voluntary or otherwise, to this new, romantic, Walt Disney, “First Nations” orthodoxy, their self-delusion – their illusions – characterized and measured by their collective unwillingness to imagine alternatives.
Simon Leys, in an essay on Andre Gide in The Hall of Uselessness, above, discusses stubborn “true believers”, “whose sincerity does not necessarily coincide with truth”. He continued, quoting Saint Augustine:
People have such a love for truth that when they happen to love something else, they want it to be the truth; and because they do not wish to be proven wrong, they refuse to be shown their mistake. And so, they end up hating the truth for the sake of the object which they have come to love instead of the truth.
The true believers in Donald Trump illustrate this. In Charles J. Sykes How The Right Lost Its Mind, (cited in Chapter 2 above), the author attempts to answer the question of why so many people were willing to believe Trump’s lies in the face of clear facts to the contrary. The answer:
Because it was easy. We might assume that people naturally want to seek out information that is true, but this turns out to be a basic misunderstanding of the human psyche, which feels more comfortable with familiar information, or stories that confirm their biases. Nobel Prize-winning psychologist Daniel Kahneman refers to this as “cognitive ease,” the process by which we avoid and resist inconvenient facts that might make us have to think harder. It is far easier to bask in a flow of information that tells us we have been right all along and confirms our view of the world.
Social psychologist Jonathan Haidt describes the power of tribalism in shaping our ideas of truth.” “Once people join a political team,” he wrote in The Righteous Mind, “they get ensnared in a moral matrix. They see confirmation of their grand narrative everywhere, and it’s difficult-perhaps impossible- to convince them that they are wrong if you argue with them from outside the matrix.”
Perhaps this can also be characterized as “motivational blindness.” They don’t see what they don’t want to see because it’s not in their interest, financial or otherwise, to see it. (Those who know better are fearful of speaking out. They keep their heads down and obediently serve.)
Perhaps it’s partly a consequence of the divide between urban and rural/wilderness Canada. Most Canadian people, most of our politicians, judges, bureaucrats and most of the rest of our governing classes, regardless of where they spent their formative years, live and work in our big cities, and eventually come to exhibit a totally urban outlook. The reality of life in rural communities and on Indian reserves is likely something they have little real or personal knowledge of – something they may have an overly romantic view of or a limited or faulty intellectual appreciation of.
Again, Simon Leys, in The Hall of Uselessness, is apt on this point. He refers to Argentinian writer Jorge Luis Borges’ paradox that:
Cosmopolitanism is more easily achieved in a provincial setting, whereas life in a metropolis can insidiously result in a form of provincialism.
Borges, from Buenos Aires, “not exactly the centre of the earth”, stressed how great an advantage might be drawn from culturally marginal origins:
A writer born in a great nation is in danger of assuming that the culture of his native country suffices. In this, paradoxically, he is the one who tends to be provincial.
Delicious words for we Canadian provincials. There are few small-town or small-city Canadians who at one time or another have not been exasperated and amazed by some display of no-class condescension, narrow-horizoned lack of imagination, bad manners and all-round “provincial” behavior on the part of some “metropolitan” person. Mr. Leys, a fearsome intellectual from Canberra, Australia, must surely have experienced aspects of this.
Emerson, in his frustration over this, rather harshly vented thusly in his essay, The Conduct of Life:
Society in large towns is babyish
And wealth is made a toy.
Historian D. M. Thomas, in his riveting biography of moral and literary giant Alexander Solzhenitsyn,18in struggling to explain to the reader, (and to himself), how Western intellectuals could have been so cruelly, recklessly and willfully blind to the realities of Stalin’s genocides, posited:
…The idiocy of urban life, perhaps.
Abraham Lincoln, America’s great moral hero, referred to elsewhere in this essay, experienced the same thing, initially dissed and dismissed as a provincial lightweight by the big city leaders of his party.
The harmful and unworkable practical effects of Haida Nation seem to be completely unappreciated by these well-meaning people.
The disastrous consequences of Tsilhcot’in seem to be a matter of complete indifference to them as well. Ontario’s response to Tsilhcot’in, published in the National Post,19 was to extol and celebrate it! In his stunningly witless, puff piece, then Ontario’s Minister of Aboriginal Affairs, David Zimmer, a la Alfred E. Neuman, (What, me worry?), declared enthusiastically that Tsilhcot’in “…will inform the way business is conducted in Canada….” (Yes it will, sir, but not in the inanely sunny way you thought. Think Enbridge sir. Think, if you will, of your own Ring of Fire, which will likely never happen largely because of these radical judicial pronouncements which, from your comfy office overlooking Queen’s Park Circle, you so heartily applauded.)
Mr. Zimmer’s words of praise for these grievous blows to Crown sovereignty were heartily endorsed by his then boss, Premier Kathleen Wynne, who proved that even without Dalton McGuinty she was no slouch on her own at the business of actively diminishing the rights and privileges of the Crown.
In August of 2015, as Premier, she signed a “political accord” with the Chiefs of the Ontario First Nations.20
The accord signed by Wynne and Ontario Regional Chief Isadore Day creates a formal bilateral relationship between the government and First Nations.
The accord affirms that First Nations have an inherent right to self-government and that the relationship with Ontario is based on respect for that right, but exactly what that means remains unclear. (italics added)
“As I understand it, as we have discussions about education or social issues or as we talk about economic well-being and resource revenue sharing, we need to define that self-government responsibility within each of those contexts” said Wynne.
In other words, more uncertainty, more Indian industry consultation and accommodation, more endless “process”, more delays, more race talk, more race thinking, more police passivity in the face of illegal behavior, more stress and demoralization for the economic and body politic, more attacks on our tax and revenue base, more projects and investments that don’t go ahead, more damage to our economy, and more damage to the common weal generally.
Edmund Burke’s description of the English naïfs who initially applauded the French revolution applied aptly to Mr. Zimmer and now, on this issue, apply to virtually all of our federal and provincial politicians and senior bureaucrats.
It cannot however be denied, that to some this strange scene appeared in quite another point of view. Into them it inspired no other sentiments than those of exultation and rapture. They saw nothing in what has been done in France, but a firm and temperate exertion of freedom; so consistent, on the whole, with morals and with piety, as to make it deserving not only of the secular applause of dashing Machiavellian politicians, but to render it a fit theme for all the devout effusions of sacred eloquence.
It’s partly a failure of imagination on their part – the natural indifference of urban-based elites in any political power centre to the problems of “lowly provincials” living in the hinterlands – the outer reaches of their imagined imperiums.
I said earlier that ordinary Canadians sense what our elites don’t- that as a country we’re going backward in this area of our national life. In this regard consider that these urban elites are invariably highly motivated, educated and sophisticated people, which makes their unsurpassable folly and wrong-headedness even harder to understand, Why do ordinary Canadians sense what these people don’t? Part of the answer is that serious thinkers have long noted the tendency on the part of such people to, “in their bubble”, act in such an innocently stupid manner. Robert Conquest writes in Reflections on a Ravaged Century (above):
A leading scholar of Russian affairs (Ronald Hingley of Oxford) noted during the Soviet period that basic misapprehensions about it in the West were rarely among truly serious scholars, and also among ordinary people, being confined to those with fair intelligence. He commented, “For it is surely true, if not generally recognized, that real prowess in wrong-headedness, as in most other fields of human endeavor, presupposes considerable education, character, sophistication, knowledge, and will to succeed”…It was basically common sense that kept the mass of people in Britain and America less liable than the intelligentsia to delusion about the Stalinists. As Orwell said, they were at once too sane and too stupid to accept the sophistical in place of the obvious…the explicit habits of mind of the public are often more sensible than the prescriptions elaborated in the minds of the intelligentsia.
Perhaps, from their narrow job-security perspective, our bureaucrats in charge instinctively regard the whole business as essentially a new, make-work project, happily involving the creation and implementation of complicated, endless, budget-sustaining processes and procedures, inherently good in themselves, (for them!), oblivious to and/or regardless of their benefit to society.
Perhaps, in their Ottawa or provincial capital bubbles, they don’t see it as a real social problem involving flesh and blood human beings who are suffering now, and need solutions now. Perhaps they only see it all in terms of legal or bureaucratic or “allocation of resources” problems – problems to be the subject of mere meetings, studies, reports and memoranda – abstract problems concerning faraway small-town, rural or wilderness people – those people themselves more abstract than real.
In this regard, perhaps our elites see it as a problem revolving around mere abstract, disembodied words and phrases- where abstraction becomes truth (Julian Benda, above)- like federal Assistant Deputy Minister Joe Wild’s (above) “journey of deconstructing colonialism”- a phrase classically and cruelly embodying the triumph of pure abstract ideology over human welfare- over human lives!-like “Indianness”, “nation to nation relations”, “indigenous culture,” “indigenous nations,” “indigenous governments,” “indigeneity,” “self-determination,””self-government” and “reconciliation”- abstract verbal concepts and problems, as opposed to real, physical, happening-now, “sickness of the reserves” problems- like poverty, alcoholism, drug abuse, incest, child abuse, violence, segregation, corruption, despair and suicide!
The surest path to intellectual perdition is the abandonment of real problems for the sake of verbal problems.21
Perhaps, related to this, it reflects the human phenomenon of “the cry in the tragic play muffling or even blotting out the cry in the street”, where all the valid, caring emotions felt by Mr. Wild and his fellow deconstructionists coming out of their meetings and coming off the pages of their studies and reports are:
…of such overwhelming totality that they have blotted out the messy, sad, uncouth reality of daily needs in others. There is something inhuman in the cultivation of the imagination; where the imagination is made so receptive, so responsive to fiction, that reality tends to pale. 22
Perhaps its an example of how people, after achieving power, can quickly become insulated from the powerless.
…While people usually gain power through traits and actions that advance the interests of others, such as empathy, collaboration, openness, fairness and sharing; when they start to feel powerful or enjoy a position of privilege, those qualities begin to fade. the powerful are more likely than other people to engage in rude, selfish and unethical behavior. 23
Perhaps it’s what French philosopher Gabriel Marcel called “crispation”(!):
“…the human tendency to become stuck in habits, received ideas, and a narrow-minded attachment to possessions and familiar scenes… that prevents one from being “available” to situations as they arise…a tense encrusted shape in life-as though each one of us secreted a kind of shell which gradually hardened and imprisons him.” 24
Perhaps, echoing Robert Conquest, it’s an example of the political “wooden-headedness” described by the great historian Barbara Tuchman in The March of Folly,25 her wincing chronicle of nations and leaders throughout history, pursuing policies almost self-evidently contrary to the plain facts and evidence before them and to their self-interest, to disastrous effects:
Wooden-headedness, the source of self-deception, is a factor that plays a remarkably large role in government. It consists in assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs. It is acting according to wish while not allowing oneself to be deflected by the facts. It is epitomized in a historian’s statement about Phillip II of Spain, the surpassing wooden-head of all sovereigns: “no experience of the failure of his policy could shake his belief in its essential excellence.”
She aptly describes the deficient thinking processes of Canada’s present elites as follows:
A last folly was the absence of reflective thought about the nature of what we were doing, about effectiveness in relation to the object sought, about balance of possible gain against loss…Absence of intelligent thinking in rulership is another of the universals, and raises the question whether in modern states there is something about political and bureaucratic life that subdues the functioning of the intellect in favor of “working the levers” without regard to rational expectations. This would seem to be an ongoing prospect.
The equally brilliant political philosopher Hannah Arendt piles on in this regard in Lying in Politics, (above), her scathing indictment of the high-level American government functionaries who, out of a mere sense of saving face for themselves and their bosses, knowing that it was all in vain, allowed tens of thousands of their own young military men and over a million Vietnamese to be killed, and many more wounded, in their country’s stupid, criminal, pointless, destructive, imperialist adventure in Viet Nam.
Like our own leaders, indigenous and non-indigenous, on this “First Nations file”:
…the divergence between facts…and the premises, theories and hypotheses according to which decisions were finally made is total…The internal world of government, with its bureaucracy on the one hand, its social life on the other, made self-deception relatively easy. No Ivory Tower of the scholars has ever better prepared the mind for ignoring the facts of life.
Like Mr. Wild’s “journey of deconstructing colonialism” and establishing “nation to nation relationships” – (make-work Holy Grails for bureaucrats, with their lack of definitions, agreed meanings, boundaries, specific goals and end-points)-and all the other abstractions listed above:
…(their) rigorous methods of defactualization…dealing with hypotheses and mere “theories” as though they were established facts…the inability or unwillingness to consult experience and to learn from reality…because disregard of reality was inherent in the policies and goals themselves.
Perhaps it’s a reverse example of that impersonal and unengaged attitude of cultural superiority, neglect and indifference, described above, that descended on those original smug-minded, urban-based, high-Victorian era bureaucrats who inherited the “Indian file” from the original more engaged and compassionate generations of Crown treaty-makers.
Perhaps our elites -aged baby boomers still in the game, and now, (somewhat disconcertingly to this aged baby boomer writer), the “best and brightest” of the generation following us- all persons who, in the main, have never experienced the kind of real poverty, gut fear for physical security, political fanaticism and war that their depression–era parents and grandparents experienced- think that the “nice” way it now is always was that way and always will be- people reflected in the words of 19th century novelist George Elliot:
And the present time was like the level plain where men lose their belief in volcanoes and earthquakes, thinking tomorrow will be as yesterday, and the giant forces that used to shake the earth are forever laid to sleep. 26
In this era of almost deliberately planned historical and cultural amnesia they don’t seem to realize, or they have forgotten, that the modern social welfare state, as so trenchantly and eloquently articulated by Tony Judt, below, was brought into being, at great effort and great cost, as a compassionate and enlightened response to those dangerous, fearsome and chaotic circumstances.
In the wealthy countries a mediocrity that hides the horrors of the rest of the world has prevailed. 27
The post- World War Two incredibly wealthy and secure “comparatively dull decades”- a “trivial time that delights in prosperous escapism”-28which can quite reasonably be regarded as an unprecedented, fluky, historical “one-off”- seem to have caused our elites to become more shallow- to no longer understand that a deep sense and knowledge of history is a prerequisite to being competent and responsible governors, and to have lulled them into “the fake sense of security common to people who have lost their sense of the tragic. And the sense of the tragic (a product of the knowledge of history) must always be cultivated in order to avoid tragedy.” 29
One needs to know reality before one can cross its boundaries into idealism. 30
Part of this lulled-into false sense of security is that they just unthinkingly assume (again, to a large degree because of literary and historical illiteracy31) that some of the fundamental things about our Canadian civilization that we take for granted – our physical infrastructure and our laws and systems of general physical and economic security and well-being – the creation of which would not have been possible except under the aegis of a strong, healthy, hierarchical and active regulatory state supported by the strongest and widest revenue base possible – always existed and somehow always will.
They don’t seem to “get” or appreciate that these things – and our modern social welfare state itself, “whose merits are confirmed by the solid test of long experience, and an increasing public strength and national prosperity”-32 are actually very recent, unusual and delicate things – the result of hundreds of years of “Eurocentric” enlightenment thinking and often just plain lucky, state-building events, personalities and circumstances – and that unless they are constantly and consciously defended and nurtured, which our elites- acting with such shallowness on this crucial issue– are plainly failing to do at this time, they can easily be lost.
A frivolous society can acquire dramatic significance only through what its frivolity destroys. 33
No society-no state- is inherently stable or unchangeable. Different historical contingencies, variations and deviations- bad things– can occur- will occur-as they have constantly and relentlessly occurred in the past.
There are in nature and life no monopolies, no measures for preventing and suppressing new biological species and new historical destinies and political systems- they are limited only by practical possibility. The future is a variation improvised on a theme of the past. 34
Novelist David Mitchell:
Our civilized world is not made of stone, it’s made of sand, and one bad storm is all it will take. 35
Perhaps, most prosaically, this reality of gold-plated, quasi- segregation has come to seem so normal that we don’t even notice it, for the depressingly simple reason that Tolstoy provides in Anna Karenina:
There are no conditions in life to which a man cannot get accustomed, especially if he sees them accepted by everyone around him.
This from Tony Judt’s 2007 essay, The “Problem of Evil” in Postwar Europe, published in When The Facts Change (above), the quote used in reference to the fact that when Mr. Judt was studying the history of Vichy France at Cambridge in the mid-1960’s there was no mention of France’s role in the Final Solution. He writes:
Even though I am Jewish and members of my own family had been killed in the death camps, I did not think it strange back then that the subject passed unmentioned. The silence seemed quite normal. How does one explain, in retrospect, this willingness to accept the unacceptable? Why does the abnormal come to seem so normal that we don’t even notice it? Probably for the depressingly simple reason that Tolstoy provides in Anna Karenina: “There are no conditions of life to which a man cannot get accustomed, especially if he sees them accepted by everyone around him.”
Tolstoy’s bleak 19th century Russian truth was never more borne out than in Russia’s 20th century, where:
It was easy to become used to Stalin’s world, to forget that it was mad. 36
This is clearly a part of the problem in Canada. So accustomed are we to this ridiculous race talk- so desensitized are we by its prevalence and constant repetition- that we have lost the power to see it for what it is- ridiculous- an affront to common sense- and to call for its cessation. It’s a fundamental aspect to the failure of our elites to call out the situation of Indians in Canada for what it is- ridiculous– abnormal– “mad” even!– and to call us into action to start noticing it, and doing something new, normally old-fashioned liberal- progressive and constructive about it.
So many dispiriting and depressing thoughts characterize any serious consideration of this situation. One is that maybe, in the minds of Canadians, this situation is not so abnormal. Maybe there are no “old-fashioned liberal-progressives” any more- no more significant, “old-fashioned, liberal-progressive” mentality.
Maybe too, a feature of Canadian Indian life, both on and off reserve, being high unemployment and different forms of dependency, this doesn’t affect Canadians generally as much as it did past generations, for whom work, and the independence that came from it, were seen as a right, the denial of which was felt to be abnormal and worthy of protest and political action.
Now, there’s so much of the same high unemployment and general dependency happening to non-Indians in the rest of Canada.
More and more civically unengaged, isolated and unemployed young people, (or if employed, woefully underpaid), who can’t find work, laid off and downsized workers, forced-out-early retirees, the shrinking middle class generally, an increasingly greater share of the national income being paid out as interest and dividends to “coupon clippers” rather than as wages to active workers, (see in this regard the reference to Thomas Piketty’s Capital in the Twenty-First Century, in Dances With Danegeld, above) -the resulting sickeningly-high levels of unemployment and dependency, in the absence of any memory of those former times when work was regarded more as a right and protest and political action a duty, becoming indeed, a passive, quiescent, “new normal”.
Another thought, another trend, to reach down deep and fight against!
Regardless of the causes, the consequences of Haida Nation and Tsilhcot’in, and now UNDRIP in British Columbia, for the economy and daily life in the rural and more remote places where Indians reside, and where many non-urban Canadians reside, and where many important activities and undertakings relating to Canada’s resource-based economy are based and taking place, are especially important. The hinterlands, the outer fringes, places like Espanola, areas like Northern Ontario, rural Manitoba or Saskatchewan or the B.C. interior, need more Crown sovereignty, not less.
We pity and decry “failed states,” characterized by weak government authority, yet that is the direction towards which our elites are permitting section 35, Haida Nation and its devolutionary legal successors to push Canada.
Not only does the Haida Nation case and its legal descendants, a vast construct of dream-castle words, phrases and harmful, impractical and unworkable concepts and practices, set us all on the path to various forms of civic perdition, it condemns Indians to remain in more entrenched fashion than ever before in their seemingly never-ending state of actual, social, political and economic perdition.
Because, in the final analysis, it is only the state, represented in Canada by our Crowns, that can protect the rights and integrity of the individual -that can protect our environment – that can be the foundation, overseer and best promoter of our economy – that can best act as a counterbalance to multi-national corporations – that can protect our vulnerable citizenry, personal and corporate – that can best protect the national welfare generally!
The original framers of Canada’s constitution understood this.
Section 56 of the Constitution Act, 1867 permits the federal government to disallow any law passed by any province- with the simple stroke of a courageous, unilateral, “politics-be damned!” Order-in-Council pen! Section 92(10) permits the federal government to declare any “work or undertaking”, whether wholly situate within a province or not, such as a railway or a pipeline, to be”for the general advantage of Canada”, and thus immune from provincial legislation. The obvious, sensible thinking behind these federal powers is that parochial, local interests should never be allowed to be put ahead of the national interest as a whole. These powers were used by the federal government on numerous occasions in Canada’s early nation-building days, particularly with reference to the carrying out of Canada’s first and so-crucial national undertakings: the construction of the Canadian Pacific Railway and the immigrant settlement of the Prairies. In keeping with its “national emergency” purpose, the disallowance power was last used during World War 2 to disallow an Alberta provincial law.
The CPR, which made Canada a permanent, bound-together nation from coast to coast and saved us from being absorbed into the United States, because of our new Haida Nation and Tsilhcot’in jurisprudential reality, could never be built today!
And Canada itself might not even exist today if Haida Nation and Tsilhcot’in and UNDRIP had represented the state of the law in the early decades of our national existence! Nothing could have gotten built! – no railways, highways, dams, airports – nothing. Everything would have gotten bogged down in go-nowhere consult and accommodate and aboriginal title talks!
We see this dismal possibility as a reality now, with the examples of the Enbridge, Kinder Morgan and Mackenzie Valley pipelines, the Cliffs Natural Resources Ring of Fire project, liquid natural gas projects in British Columbia, and Energy East – all worthy, necessary, near-national undertakings – being helplessly scuppered by parochial local Indian interests with the backing of jurisprudential law and our craven elites.
With the rise in power of the provinces and the development of a more decentralized form of confederation than many of the original framers of the constitution intended, a form of constitutional convention has arisen to the effect that the disallowance and “declaratory” powers will never be used again. But nevertheless, there they still legally sit, something that could in theory be used in the future, convention or not, to deal with some grave national crisis (for example, the passage by Quebec of an act of secession from Canada, or the passage by B.C. of legislation effectively delaying the construction of a federally-approved pipeline), or to promote and enable some future crucial national undertaking.
And, more importantly for this discussion, there they still legally sit- tangible symbols and examples of necessary, ultimate, undivided, national Crown power and sovereignty.
Even more importantly to this discussion, these great federal powers highlight the somewhat pathetic, emasculating reality that, as the result of the Haida Nation and Tsilhcot’in jurisprudential revolution, and of UNDRIP, the federal government has more power over the provinces to act in the best interests of the nation as a whole than it or the provinces have over Indian bands!
This is both absurd and harmful to the national welfare. Freely-elected governments must be the repository of ultimate power and sovereignty.
It’s also highly ironic because Canada’s constitutional history has been so characterized by a constant, vigorous struggle between the federal government and the provinces, in which each side has aggressively defended their own turf – each side has essentially sought maximum power and control at the expense of the other – each side has sought to maintain and strengthen its sovereignty, it’s sovereign powers – at the expense of the other.
Yet when it comes to Canada’s Indians each of these sides has simply dropped their gloves, leaned back against the ropes of the constitutional ring and played rope-a-dope – dumbly and passively taking punch after legal punch – seemingly willing to surrender to Indian bands, without any kind of a fight at all, more and more of their legal powers.
It’s inexplicable on any rational basis.
What dreadful and profound power Unreason has!
It was strong, sovereign governments that rescued capitalism after the Great Depression of 1929. It was to governments that people turned in 2008 to be rescued from the financial collapses that the wretched excesses of immense private wealth and global, transnational capitalism had wrought. It’s to governments that people always turn in times of ultimate need.
Even Indian band elites now, as they carry on about Indian bands being “sovereign nations,” keep their hands outstretched to our governments for more Canadian taxpayer money or financial guarantees to fund or secure their “sovereign” undertakings! For example, in July of 2019 the “Anishnabek Nation” announced the Anishnabek Nation Governance Agreement, which will establish a so-called “government to government relationship with Canada”. Early in the Agreement, making clear that this Agreement does not change the “Canada pays for everything” status quo, (it only increases what Canada pays), it is stated: “The fiduciary relationship between Canada and the First Nations will continue”.
The worst, anti-“big government,” right wing crackpots in America blame “Washington” for not solving America’s economic problems, an implicit admission by them that, notwithstanding what they otherwise profess, bottom line, they expect their state to solve these problems!
We as a society cannot lose sight of the need for strong, well-funded, central governments, as our higher courts and a disturbingly large segment of our governing classes, judging by their weak and incoherent responses to the emasculation of Crown sovereignty which is taking place, inexplicably seem to have done.
We can no longer permit our shallow, transient, ahistorical politicians to debase and fritter away the concept and reality of necessary Crown sovereignty by pretending that small Indian bands dealing with them are politically and constitutionally co-equal “governments” treating on an equal basis with the legitimate, duly elected governments of Canada.
The destructive recklessness, irresponsibility and clear unreality inherent in this merely serves to feed the beast of the Indian Industry’s outsized and ever-expanding sense of entitlement, and makes desperately needed reform that much of a more difficult and daunting process.
The brilliant and illuminating intellectual, Tony Judt, mentioned above, offers a compelling explanation for this loss of an appreciation for a strong, regulating state in his wise and prescient essay, (written before the crash of 2008), The World We Have Lost:37
…the twentieth-century “socialist” welfare states were constructed not as an advance guard of egalitarian revolution but to provide a barrier against the return of the past: against economic depression and its polarizing, violent outcome in the desperate politics of Fascism and Communism alike. ..The welfare states were thus prophylactic states. They were designed quite consciously to meet the widespread yearning for security and stability that John Maynard Keynes and others foresaw long before the end of World War II, and they succeeded beyond anyone’s expectations. Thanks to half a century of prosperity and safety, we in the West have forgotten the political and social traumas of mass insecurity. And thus we have forgotten why we have inherited those welfare states and what brought them about. The paradox of course is that the very success of the mixed-economy welfare states, in providing the social stability and ideological demobilization which made possible the prosperity of the past half century, has led a younger political generation to take that same stability and ideological quiescence for granted and demand the elimination of the “impediment” of the taxing, regulating and generally interfering state. Whether the economic case for this is as secure as it now appears- whether regulation and social provision were truly an impediment to “growth” and “efficiency” and not perhaps their facilitating condition-is debatable. But what is striking is how far we have lost the capacity even to conceive of public policy beyond a narrowly construed economism. We have lost the capacity to think politically.
New York Times writer Nicholas Kristof makes the same point in his column, “Big Government” Looks Good When There Is None. 38 Writing of tribal warfare- plagued South Sudan and how it relates to the American Right’s obsession with “Big Government”, he states;
One lesson of South Sudan is that government and regulations are like oxygen: You don’t appreciate them until they are not there. In a place that might seem an anti-government fantasy taken to the extreme, people yearn for all the burdens of government and tolerance of social diversity that Americans gripe about.
Two political scientists, Jacob Hacker and Paul Pierson, argue that America’s achievements rest of a foundation of government services but that we Americans suffer from American Amnesia (the name of their book), and don’t appreciate this.
“We are told that the United States got rich in spite of government, when the truth is closer to the opposite,” they write. Every country that journeyed from mass illiteracy and poverty to modernity and wealth did so , they note, because of government instruments that are now scorned.
These instruments also create a sense of national identity that eclipses tribal identities, even if this process is incomplete in America.
We American excel at our institutions. We have schools, laws, courts, police, regulators, bureaucracies, safety nets- arms of a government that is often frustrating but always indispensable, These institutions are the pillars of our standard of living.
These considerations, of which the government of Prime Minister Justin Trudeau appears to be completely and dangerously oblivious, and these words, which all our other politicians, senior bureaucrats, media and courts really need to read and think about, are apt in the sense that they highlight and remind us of the fundamental rationale and benefit of strong, totally sovereign governments.
They point out the historical forgetting that has occurred in our recent (now ending), fifty year middle class prosperity bubble, causing our new elites, made up largely of members of my spoiled, self-absorbed (I include myself in this description) baby boomer generation, who are definitely “bequeathing to our successors something far less substantial than what we ourselves inherited39”), to take what we have for granted, to eschew inherited tradition and the study of history and literature, to be apparently ignorant or unappreciative of the fact that it was strong governments funded by stable and sufficient tax revenues, exercising sole sovereign powers for the general welfare, that created the conditions for that prosperity to happen.
They aptly point out and provide a credible rationale for the almost total absence of any consideration or discussion by either the higher courts or our governing elites of the quite radical constitutional and political theory behind Haida Nation, Tsilhcot’in and UNDRIP i.e. that there can be three founts of constitutional sovereignty in Canada – two Crown and one aboriginal – and that this is somehow a reasonable, workable and fiscally sound political idea and in the public interest of Canada, all of which it is plainly not!
Even when the anarchic and destabilizing consequences of this theory play out on the ground, as at Caledonia and as in the Frontenac Ventures and Platinex situations, as in Sarnia and Kingston recently where both police and illegal “Idle No More” protestors totally ignored injunctions to end rail blockades, as may play out in the Ring of Fire situation, as is playing out with the defiant Wet’suwet’en hereditary chiefs in the Coastal GasLink situation, our leaders seem to be dumbly unable to articulate to anyone either the obvious reasons for the messes on their hands or their weird, passive, ad hoc ways of dealing with them.
To repeat Tony Judt’s profound truth:
We may find that a healthy democracy, far from being threatened by the regulatory state, actually depends upon it: that in a world increasingly polarized between isolated, insecure individuals and unregulated global forces, the legitimate authority of the democratic state may be the best kind of intermediate institution we can devise. What, after all, is the alternative? (italics added)
And to repeat Yuval Noah Harari in this regard, from Sapiens:
When kings fail to do their jobs and regulate the markets properly, it leads to loss of trust, dwindling credit and economic depression. (quoted in Dancing With Danegeld, above)
In this new and uncertain world, where a strong and benevolent state can be our only “friend” with sufficient size and resources to meaningfully help us cope, it’s unnerving and dispiriting to see “private and sectional interests trump public goals and obscure the public good” 40-to watch any part of our state be diminished and, not only that, seemingly act so willingly as a co-enabler in its own diminishment.
That’s why Haida Nation and Tsilhcot’in and their legal kin, and UNDRIP, are so wrong and unhealthy for our country – they constitute an attack on the autonomous and legitimate authority of our Canadian state and thus an attack on its capacity and ability to govern effectively for the good of all, an attack against necessary hierarchy, an attack on the state’s taxation base, and an attack on the rule of law, which only a strong and healthy state can maintain in any form or civilized manner.
Recall the Caledonia case. The government and the OPP refused to enforce their own laws, thereby violating the most fundamental element of the basic compact between the citizen and the state – a compact going back a thousand years to the feudal era – the affording of security and protection by the state in exchange for loyalty and taxes from the citizen. The private developer was economically terrorized. Non-Indians who were swept up in it were blockaded, subject to vandalism, physical threats and psychological and emotional abuse.
Many of our new Canadians who had immigrated from failed or dysfunctional states were no doubt reminded of their countries of origin by this anarchic display and of why they had come to Canada.
One victimized couple sued the Ontario government and the OPP for failing to enforce the laws and protect them. After many days of trial, where the Crown’s main defence strategy was to engage in personal attacks on the couple, the government and the OPP, the evidence of their indefensible and perfidious behaviour mounting both in the courtroom and, through newspaper accounts, in the eyes of the public, and fearing a judicial ruling against them, settled out of court with the couple for an undisclosed amount of damages.
And after that, another class action lawsuit brought on the same grounds by the local non-Indian community against the province was settled out of court with a payment by the province of millions of dollars in damages to class members.
The fact of these settlements constituted an implicit admission by the government and the OPP of wrongdoing on their part, just as the fact that the government paid Platinex five million dollars in damages was an implicit admission of similar wrongdoing by it against Platinex.
One would expect that these debacles would produce some public soul-searching on the part of government, some public explanation on its part to the effect that it “had no choice” but to sacrifice the rights of the victimized Caledonia couple, the Caledonia community generally and of Platinex, because of the mandatory admonition of Haida Nation to “consult and accommodate” entitlement-claiming Indians to the point of exhaustion, even in the face of continued illegal behaviour on their part!
It seems as though no government representative will say that however, even though it’s substantially the truth, because our ruling political, bureaucratic and law enforcement elites have no doubt calculated that to merely state that unpleasant truth to the citizenry, who they know don’t think about matters of law and public order in such a “highly textured” or “nuanced” fashion as they and the Supreme Court do, would be to unleash a storm of negative reaction.
To come out and admit that they were just following the orders of our higher courts to implement a two-tier law enforcement policy is just too politically hot. It would have drawn too much attention to the inherent wrongness of the policy and to their own docile carrying out of it. They were too embarrassed by this policy and their unquestioning and slavish adherence to it to explain it to the citizenry in plain English.
So, evidencing “the sheer animal reflex of bureaucracy in stonewalling against embarrassing truths”,41 generally, they either don’t talk about these kinds of important truths, keeping ordinary people confused or in the dark about what’s really going on or, if they are forced to talk about it publicly they downplay or omit the “reconciliation of interests” rationale behind their behaviour and talk in code or safe, press- release bureaucratese.
Consider the bland, robotic, non-response of the spokesman for the Ontario Ministry of the Attorney General to the suggestion of one of the lawyers for the victimized couple, reported in March of 2010 in Law Times, a periodical for Ontario lawyers, that Ontario and the OPP failed to uphold the rule of law in Caledonia, failed to protect both his clients’ property rights and their personal safety and security and applied a two-tier law enforcement approach to the situation generally:
In (the victimized couple’s) case, it wasn’t just property rights that were at stake but also their safety and security. The government however maintains that it has upheld the rule of law in Caledonia. “There is one law that applies equally to all Canadians,” Ministry of the Attorney General spokesman Brendan Crawley wrote in an e-mailed response to questions. “In all provinces the administration of justice has a number of dimensions that include respect for minority rights, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, and respect for the separation of the executive, legislative and judicial branches of government. The rule of law takes of all of these dimensions into account.
If the government upheld the rule of law then why did it pay money damages to the victimized couple? Why did it throw in the towel in the civil lawsuit brought by them? Mr. Crawley’s response to the central question put to him was full of general, anodyne references to high principles. But if the government and the OPP acted in accordance with those high principles, as he says they did, why didn’t they fight the lawsuit to demonstrate and uphold them?
Governments frequently fight and intervene in lawsuits purely to maintain or establish points of principle that they reasonably regard as essential to the public interest. Why not here? Why not in the Caledonia class action? Why not in the Platinex and God’s Lake Resources cases? The answer is as stated above. They knew they’d acted lawlessly, wrongly and in a totally unprincipled, expedient manner. They failed to uphold the rule of law as ordinary people naturally understand it to be. Their behaviour, judged with reference to this traditional thousand year view of the rule of law, was essentially shameful and indefensible and these court cases were dramatically and publicly highlighting that.
So, to avoid further exposure and embarrassment, to avoid any debate over first principles (it appears that our democracy has become so immature that such a debate is considered impossible), they shut the cases down by paying off their victims and, in the Caledonia couple’s case, securing the victims’ written promise not to publicly disclose the amount or terms of the settlement.
They likely would have guiltily demanded the same confidentiality term in the Platinex settlement but for the existence of securities law public disclosure requirements.
And, sadly for the concept of open communication by government to its citizenry, Mr. Crawley’s response to the central “two-tier justice” question put to him was not really his response at all! In the bland and exposureless spirit of “Yes Minister,” all he did was type into his e-mail almost word for word the menu-choice list of “dimensions” to the administration of justice set out by the Court of Appeal in the Caledonia case, quoted above, thereby completely dodging the question. And that’s understandable from his perspective because the truth can hurt, professionally and politically, which from the perspective of those in positions of power, is always more important than the principle that the truth, hurtful or not, should be told.
But remarkably, and so tellingly, and the reason for the italicization of the word “almost” immediately above, Mr. Crawley, as he then was, omitted the key “dimension” listed by the Court of Appeal that had actually driven both the Caledonia and Platinex situations, that was the “principled” reason for the inaction and passivity of the government and the OPP in both those sorry debacles. He omitted “the reconciliation of Aboriginal and non-Aboriginal interests through negotiation” dimension.
The omission had to be deliberate. Why? It had to be because he and his political overseers didn’t trust the general populace to handle that little nugget of truth “appropriately”, or that they lacked real belief in it themselves and lacked confidence in the “saleability” of it, and in the ability of ordinary people to understand and process it in the precise, legalistic and in fact revolutionary way the Supreme Court and his own Court of Appeal intended. It had to be because he and his political overseers rightly figured that if he included it, and it lead to more questions causing him to have to explain this “dimension” in plain English, the people wouldn’t buy the explanation and would be angry that the government and the OPP let themselves be so tyrannized by it.
After all, when the Supreme Court used the word “reconciliation,” ordinary people, without legal training or specialized knowledge, would naturally but wrongly read no further and assume it meant something normal, understandable and “nice,” like the reconciliation or coming together of peoples. Those in the know however, like Mr. Rae and all the other lawyers in the Indian industry, or top- ranked civil servants like Mr. Crawley, would have known of course that it meant nothing of the sort.
They would have known that it actually meant the finding of a middle ground, acceptable to the Indians and non-Indians involved, between their respective sovereign property/money/power/control interests after lengthy, even “exhaustive” negotiations between them. (With a little unfortunate but unavoidable economic and social collateral damage along the way e.g. the victimized people of Caledonia- Platinex – and the rule of law as ordinary citizens would plainly and sensibly see it.)
So, demonstrating in exemplary fashion the patronizing and condescending attitude being continually shown by political and government elites everywhere towards the citizenry whose interests they are sworn to serve, Mr. Crawley elected not to bother the simple folk with things they wouldn’t understand correctly, with concepts that would only confuse and upset them and get them asking foolish questions about a so-called two-tier justice system and the rule of law.
Better to just not mention that whole “reconciliation” thing. So, for the “good of the people,” it was left out.
It’s this kind of elitist condescension that results in destabilizing and emotion-based reactions like the British Brexit vote, and in an increasingly frustrated populace giving influence and power to such demagogic and proudly ignorant persons as Toronto’s late Rob Ford, now his brother Doug Ford, America’s Sarah Palin and now President (!) Donald Trump, people who, at least in their own artless ways, demonstrate(d) a measure of honesty and transparency. (Well, not the pathological liar Trump.) It also results in the rejection of such hitherto establishment-endorsed golden boys like Michael Ignatieff and Bob Rae, because of their frustrating, stand-for-nothing fundamental opaqueness.
The establishments of the West …have lost faith in their own capacities of understanding and action. Sensing a loss of confidence in the centre, strong-willed people on the edges step forward to take control.– David Brooks42
Had Mr. Crawley, as he then was, chosen to be plain-spoken with the people he serves his e-mail response to the central two-tier justice question might have been as follows:
Our higher courts have created a new constitutional order in the area of aboriginal law. There is still of course only one law for all Canadians, but in the area of Indian entitlement claims, you will be pleased to know that our higher courts have made it new and improved – it is now, with respect to our Indian citizenry only (well, we’re not exactly sure any more about the “citizenry” part), more comprehensive, highly textured and nuanced. In this area our “one law for all” now has two branches- one for Indians and one for the rest of us. And unfortunately you don’t get two branches for the price of one. You have to pay a little more. If a non-Indian person or business is affected by an Indian entitlement claim, his property rights are no longer what he thought they were and are no longer regarded by the law as they traditionally were. Put bluntly, they have been diminished. In the face of any asserted aboriginal right he should now and until further notice regard his property rights as merely a contested private activity, with no higher status in the eyes of the law than the competing asserted aboriginal right. In the face of an asserted aboriginal right that may affect what you may regard as your private property rights, we in the government, (your former protector), will no longer assist you with respect to any interference with them, and we have instructed the OPP to “stand down” in any such situation, unless and until your alleged private property rights, (really, now only your contentious private activity), have been reconciled with the asserted aboriginal right that is so upsetting and bothering you. We in government will take care of that reconciliation process, for the honour of the Crown requires it. But as to when it may be completed, don’t call us, we’ll call you. And in the interim, while we are negotiating with your tormentors, you may feel that we in government are acting a little less than honourably towards you, uncomprehending fellow citizen. Please understand that this is a necessary and inevitable part of the reconciliation process and that in this regard we and the police, who of course are charged with the duty of setting the example of respect for the law, are only following the orders of our highest courts. Even though we can’t help you, and you may thus feel the need to help yourself, please don’t. That would be illegal and we would have to arrest and charge you accordingly. The branch of our “one law for all” applicable to you would require that. There could be no negotiating or accommodating on that.
Such an honest response might have stimulated some much-needed political debate and discussion, which until now our political leaders have deliberately avoided or suppressed.
It’s our elites’ obligation to be competent and responsible in this crucial regard!- to carry out the trusts inherent in their elite positions!- to give the citizenry that honesty! -to lead in the search for the right, far-seeing and wise goal! Crown sovereignty, the foundation of our civilization, is under siege. Our elites are pretending its okay. It’s not! Lives are in the balance. Serious debates need to be encouraged and engaged in. Our elites- our governments- instead of basically propagandizing for the increasingly radical new status quo in this area, should be leading the way in, at the very least, strongly questioning it, with this “strategy of truth.”
The duty of government is to provide a basis for judgment, and when it goes beyond that, it goes beyond the prime scope of its’ duty. 43
In the complicated, insecure world in which we are living, any diminishment of Crown sovereignty over the basic framework of our political structure and our economy or over the application and enforcement of our laws is alarming and harmful, and should be much more critically examined, publicly discussed and resisted by all means possible.
Our politicians and other elites seem to think that it’s wrong or inappropriate to criticize our courts and governments for the direction in which they are pushing us here. It’s not. It’s their civic and patriotic duty to do so. In fact, it’s everyone’s civic and patriotic duty to speak out on this if he or she thinks that what is happening here is not right or good.
Courts, politicians and government bureaucracies are made up of human beings. They can get it wrong some time, as I think they’ve all got it wrong here.
We need to restore Canadian Crown sovereignty to the pre-eminent and beneficial state it was in before the passage of section 35 of the Constitution Act, 1982 and the harmful jurisprudence, legislation and government policies that have emanated from it.
- Ill Fares the Land. Penguin Press, 2010.
- The Globe and Mail, 18 April 2014.
- Ivor Tossell.Is it Time For a Renaissance of Reason? The Globe and Mail, 26 April 2014.
- President Obama and Marilynne Robinson: A Conversation in Iowa, The New York Review of Books, November 5th, 2015
- quoted by Tony Judt in Ill Fares the Land
- From Frederick Douglass- Prophet of Freedom, Simon and Schuster, 2018. Unfortunately not so in Canada, where the only power that is conceding nothing is the power of the Indian Industry!
- From Marilynne Robinson’s essay Memory, in The Givenness of Things, (above), in her case, referring to traditional Christian leaders passively allowing American Christianity to be hijacked by the American right for dark and crass political purposes.
- Robert Kaplan, in The Return of Marco Polo’s World, above.
- Liveright, 2012.
- Robert Kaplan, in The Return of Marco Polo’s World, above.
- Niall Ferguson. Civilization. Penguin Press, 2011.
- Ross Douthat, Profiles in Paralysis, New York Times, March 20th, 2016
- This quote (I did not read Professor Revel’s book) and this idea fromWhat Jews Know About Mobs and History, by the intellectually muscular, rebellious and illustrious Barbara Kay, C2C Journal, April 19, 2019
- Ross Douthat, Is There Life After Liberalism?-The New York Times, January 13, 2018, discussing discussing Professor Patrick Deneen’s 2017 book, Why Liberalism Failed.
- Robert Conquest, in Reflections on a Ravaged Century, above, quoting Lytton Strachey on the aristocracy of 18th century England- a dynamic and “confident” era- illustrates the kind of elite class that Canada may have had in the past, but which, tragically for our country, we clearly don’t have now:
An aristocracy which was not only capable and enlightened, like most successfully aristocracies, but which possessed the peculiar attribute of being deep-rooted in popular sympathies and of drawing its life-blood from the popular will.
“Change aristocracy to “the political class” and ask ourselves whether such an assessment applies to any country in the West. It is true, as Strachey says, that “stagnation” set in afterwards; but if we are to seek the cause of the incomparably lower morale of our countries at present, we must surely seek it, at least in part, in the cancer of the clerisy.
- ‘Economies are functionally dependent on governments and are only conceptually autonomous.”- John Kenneth Galbraith, from his biography John Kenneth Galbraith-His Life, His Politics, His Economics, by Richard Parker, Harper Collins Publishers Ltd. Toronto, 2005
- Alexander Solzhenitsyn- A Century In His Life, cited above.
- National Post, 14 July, 2014
- Canadian Press, Aug. 24, 2015
- John Lukacs, quoting Karl Popper in At the End of an Age.Yale University Press, 2002.
- George Steiner, from Original Minds, Conversations with CBC Radio’s Eleanor Wachtel, above
- Rebecca Solnit, Nobody Knows, Harper’s Magazine, March 2018
- From Sarah Bakewell’s, At The Existentialist Café, Alfred A. Knopf Canada, 2016
- Barbara Tuchman. The March of Folly. Ballantine Books, 1983.
- From The Mill on the Floss, noted at note 17, in the Introduction, above.
- Elena Ferrante, in The Story of the Lost Child, Europa Editions, New York, 2015
- As characterized by Arthur Miller in Timebends- A Life, above
- Robert Kaplan, In Europe’s Shadow, above
- Safranski,Goethe, Life as a Work of Art, above
- (American) stupidity, he realized, was neither willed nor wicked; it reflected, instead, a lack of imagination-or perhaps more accurately, a lack of material for our imagination.-Robert Zaretsky, America’s New Normal, The New York Times, June 22, 2016- an essay on Polish-American political philosopher Czeslaw Milosz and his famous essay on totalitarianism, The Captive Mind. And this incisive and succinct observation of author Giuseppe Tomasi di Lampedusa in his wonderful book, The Leopard, (Alfred A. Knopf, 1991), about the unique susceptibility of “unread” people to political b.s:…she was also no lover of literature; so she had no immunity against rhetoric and was in fact open to its fascination.
- Edmund Burke, Reflections.
- Novelist Edith Wharton, quoted by Lewis H. Lapham in the Prefaceto Age of Folly, America Abandons Its Democracy, above.
- The Discovery of Chance, above. He also wrote elsewhere: History has no libretto.
- paraphrasing his protagonist in The Bone Clocks(above) the final chapter of which brilliantly imagines the dystopia to come if we all keep on our current course of political, economic and environmental behavior.
- M. Thomas, Alexander Solzhenitsyn, A Century in His Life
- Tony Judt, The World We Have Lost, in
- New York Times, March 17, 2016
- Tony Judt,Meritocrats. in The Memory Chalet.
- Tony Judt, in his essay on this theme, The Wrecking Ball of Innovation, in When the Facts Change, above.
- From Arthur Miller, Timebends- A Life, above
- Enter the Age of the Outsiders, The New York Times, October 20, 2015
- Poet/ Librarian of Congress Archibald MacLeish, quoted in Jill Lepore,The Strategy of Truth, The New Yorker, June 5 &12, 2017 (italics added)