22. The Emasculation of Crown Sovereignty

Negotiations to continue the widening of Highway 69 north of Parry Sound to four lanes are at a standstill as the Shawanaga First Nation seeks compensation to allow the project on its traditional lands. In an e-mail seeking advice from Transport Canada on August 8th…the Ministry of Transportation said the Shawanaga First Nation had “vetoed the highway.” – The Sudbury Star1

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? – Tony Judt, Reappraisals2 

A government’s most basic function is the protection of its sovereignty. – Simon Schama, Citizens: A Chronicle of the French Revolution3

When states are absent, rights-by any definition-are impossible to sustain. States are not structures to be taken for granted, exploited or discarded, but are fruits of long and quiet effort. It is tempting but dangerous to fragment the state…Timothy Snyder4

We must respect UNDRIP. We must respect the bargain that is section 35. In the journey of deconstructing colonialism Canadians must support the solutions proposed by Indigenous nations. It’s about empowering choice for Indigenous governments. -Joe Wild, Senior Assistant Deputy Minister, Indigenous and Northern Affairs Canada 5

Liberalism, by constantly betraying its stated values, is destroying itself.- Christopher Hedges 6


For at least the first two hundred years of Canada’s early history the relationship between Indians and Europeans in Canada was very much like a true economic and political partnership.

Europeans, especially in the early years, desperately needed Indians’ help to explore the country and in fact to just survive in it. Indians on their part quickly became dependent for their survival on European trade goods and on European trade itself.

Neither the Indians nor the Europeans were in “control” of the country and neither exercised dominant power or control over the other, nor did they really think in such terms. For Europeans it was more a time of discovery, adventure, trade and the unconsciously slow but sure attainment of cultural and economic sway over Indians.

In this period, where Canadian history had not yet “hardened,” the relationship between Indians and non-Indians in Canada was more characterized by collaboration and mutual dependency than anything else, and, if there was any control being exercised, it was a form of shared control.

This rather idyllic, loose and fluid situation did come to an end however, as evidenced and epitomized by the Royal Proclamation of 1763, which in no uncertain terms, despite the generous provisions in it for Indians, defined and symbolized the complete attainment and consolidation of British sovereignty over British North America.

The treaties entered into in the 1800’s again, despite the extremely limited rights reserved to Indians in them, and consistent with the demographic, social and political facts in existence during that period, finished off the consolidation process and put a complete end to the era of collaboration and shared control that had previously existed between Indians and non-Indians.

A legal, constitutional and political regime of complete Crown sovereignty had become established, with there being no thought on anyone’s side, and no discussion ever, about the Crown having to consult with or accommodate Indians with respect to activities on surrendered lands.

It was during this complete Crown sovereignty era, comprised of most of our country’s history since Confederation, that Canada evolved as a nation-state into a world beacon of material progress, civility and enlightenment.

That progressive and forward-looking era is now, with respect to Canada’s relationship with its Indian population, very disturbingly seeming to be ending, and morphing into something retrograde and harmful to us all.

To an alarming degree Canada is in a very real sense going back to the pre-treaties era of collaboration and shared power with Indians – to a situation of limited , reduced and emasculated – partially self-emasculated- Crown sovereignty – which is already having very negative consequences for all Canadians, Indians and non-Indians alike,  and will continue to do so, in even worse fashion, in the years to come.

Before the enactment of the Constitution Act 1982, (the old British North America Act as patriated and amended by the addition of the Canadian Charter of Rights and Freedoms) there was no such thing as “aboriginal law,” as there is now. Things were pretty quiet on this legal front. Jurisprudence emanating from the various Royal Proclamation and Indian Act issues that had arisen during the first century or so of Canada’s existence, while recognizing and affirming the legal rights that had been conceptualized and then granted to Indians, benignly and unconsciously assumed and supported ultimate Crown sovereignty.

During this long period this jurisprudence stayed relatively harmonious with the ever-changing Canadian social and political zeitgeist, one of the continuous and primary characteristics of which was, certainly beginning after World War Two, the constant and gradual dissolution of legal and social barriers amongst Canadians in general and, with respect to Indians, the weakening of all those ancient prejudices and barriers that for a century had falsely implied that they and non-Indian Canadians were fundamentally different, and  ill-fated to permanently live legally and physically apart from one another.

Unfortunately for the best interests of Canada and all Canadians, including our Indian citizens, that continuum towards harmony has been broken.

New and unprecedented legal barriers to Canadian economic progress and social unity have recently been created by our higher courts, which are already causing harmful economic effects and serious divisiveness between Indian and non-Indian Canadians. Legally, socially and politically, we’re going backwards.

Economically, an indirect form of expropriation has occurred – a court-ordered massive transfer of economic wealth and legal power from Crowns and non-Indian Canadians, individual and corporate, to relatively tiny Indian bands – a downloading of responsibility for improving the material circumstances of Indians from governments to corporations wanting to do business on either Crown lands or on their own private rural or wilderness lands.

Section 35 of the Constitution Act, 1982, states:

1.-The Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.

2.-In this Act “Aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

The politicians who, almost as an afterthought, added section 35 to the Constitution Act, thereby unwittingly created the legal basis for highly activist courts, in the Indian rights litigation explosion that ensued after 1982, to almost completely destroy the Crown sovereignty-legislative supremacy constitutional model that had enabled Canada, up until that time, as a relatively united country, to so thrive and prosper on all fronts- economic, social and political.

Over the past twenty years, jurisprudence emanating from Canada’s higher courts has interpreted section 35 in such an ahistorical, overly-romantic, revisionist, activist way – has read into it so much that is not there and was never intended to be there – has created so many new rights for Indians that even they never knew they had or expected to be handed, that the ability of the Canadian state- of Canada’s federal and provincial governments – Canada’s Crowns – to solely embody ultimate political power and authority in the country and to legislate and govern in all Canadians best interests, has been seriously eroded, and, judging by Mr. Joe Wild’s remarks above, which reflect the current views of our bureaucratic elites, and thus to a large “Yes Minister” degree the views of our politicians, this serious erosion will only worsen in the future.

As well, Canada’s higher courts have stacked the deck in favour of the right and ability of these relatively tiny Indian bands, with virtually no checks on them, to pursue their own economic interests at the expense of our already stressed and pressed-upon government treasuries – of otherwise lawfully operating corporations – of non-Indian Canadians – and at the expense of the Canadian general welfare as a whole.

The new constitutional model this new jurisprudence has created is one that has, as stated, created serious social divisions and legal and economic perils in the country, which have worsened as the consequences of it, with time, have unfolded and become clearer.

The federal and provincial Crowns in Canada, as the result of these court decisions and, more shockingly,  the inexplicably unwise, unprincipled, craven and anemic response to them by our politicians, senior bureaucrats and law enforcement officials, are becoming slowly but surely legally emasculated in the face of ever more aggressive, well-financed  (usually, ultimately, by the Crowns themselves) and well-organized legal, economic and vigilante attacks (illegal roadblocks and occupations) being made by Indian band leaderships and interest groups against their fellow Canadians.

Reconciliation, the professed high value supposedly now governing relations between Indians and non-Indians in Canada, and a word one reads in all these recent court decisions – a word used by the courts in a very odd, unusual and counter-intuitive way, but understood by ordinary Canadians only in its plain and ordinary meaning – is being more and more rendered impossible by these court decisions and the emergent effects of them.

The Gambler’s inspiring grass analogy-vision, comparing us all to harmoniously intermingling grasses on one boundless plain – a vision shared and promoted by the late, great Nelson Mandela – there is no difference – has been junked. The vision of Canada as a unified “community of destiny,” a phrase used by the brilliant political historian and thinker Tony Judt in Reappraisals7 -a vision long possessed by ordinary Canadians -has been replaced by our elites with a meaner, more pinched and prosaic vision of Canada as a mere race-based community of economic and legal stakeholders – separate communities of racial origin, or, as Amartya Sen describes it, a community characterized by “plural monoculturism.”

The main court decision which solidified this dispiriting, disharmonious and devolutionary trend, and which is now one of the basic jurisprudential starting points for any enquiry into this serious issue, is the Supreme Court of Canada’s Haida Nation decision.


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  1. Johnathon Migneault. 4-Lane Talks at Standstill, The Sudbury Star, 31 January 2013.
  2. Tony Judt. Reappraisals. Penguin Press, 2008.
  3. Simon Schama. Citizens: A Chronicle of the French Revolution. Vintage Books, 1989.
  4. Black Earth- The Holocaust as History and Warning, above
  5. Part of speech, Advancing Reconciliation Through Partnership with Indigenous Peoples, Seminar, An Update on Aboriginal Law, St. Andrews Club and Conference Centre, Toronto, November 30, 2016 (“the St. Andrews conference
  6. Talks, above
  7. Tony Judt. Reappraisals: Reflections on the Forgotten Twentieth Century. Penguin Press, 2008.