Constitutional Law does not a Marriage Make

Comparing our troubled relationship with First Nations to a marriage in trouble, as some writers do, is like taking a page from the Judge Judy show and applying it to Canadian Constitutional Law. It doesn’t fit.

The only way you can equate a spousal spat over property with the running battle we have with First Nations is to first recognize that one spouse (the Crown) made a contract with the other (the Natives) before they were married. The Royal Proclamation was a kind of pre-nuptial agreement that said he (the Crown) would agree to protect her lands and her rights to the land that she—too generously some think—brought to the marriage.

But he doesn’t. Rather, he sells it off to any Tom, Dick or Harry that asks for it. And his courts (the courts he himself set up) let him get away with it.

Then there is the marriage contract itself—the treaties—in which First Nations clearly believed they had reserved rights to own some lands and to use the rest to house and feed themselves and their children. Notwithstanding the pre-nup, the marriage contract and section 35 of the Constitution, the Crown (now a Deadbeat Dad to continue the editorial writer’s analogy) allows his friends to use and profit from the land his wife had brought into the relationship. He does this without her permission, often with violence, and sometimes in violation of his own laws.

Suddenly, somewhere along the way in their much troubled marriage (2004 to be exact), the Supreme Court of Canada—the Crown’s own court—rules that he must consult with her before he does anything more with the land she brought to the marriage. But he ignores this law too. In fact the Ontario Crown is proving to be the most deadbeat of Deadbeat Dads in this regard.

With neither land nor economy to support her, she ekes out a living in whatever way she can. She doesn’t want this. She wants to build a
better life for herself and her children. But every time she tries to hunt or
fish for food or commerce, or tries to protect what’s left of her claim to the
land, she finds herself back in court and the Crown’s friends clamouring at the judge to apply the rule of law. You could pardon her for asking cynically, “which law?”—the law of the treaties and the Supreme Court and the Constitution, or the property law of little men with big bucks?

The editorial writer wants to talk about the rule of law. Fine, let’s talk about the rule of Constitutional law from which we, in a democratic society, are supposed to take our cues. The rule of Constitutional law says that aboriginal people have rights that spring from their very aboriginality and from the treaties (the marriage contract in the editorial writer’s parlance). These are constitutionally protected rights because they are housed in section 35 of the Constitution. All other laws must conform to the Constitution and, if necessary be revised.

The rule of Constitutional law also says that First Nations must be consulted before the Crown allows any project, policy or practice that might harm aboriginal rights or claims or way of life. And if harm is likely, First Nations’ concerns must be accommodated before the project is allowed to proceed. These twin duties to consult and accommodate are, the Supreme Court said in Haida in 2004, required to protect the interests of aboriginal peoples who were here before the Crown came along, and who still retain valid interests in the land we like to think we own.

The Supreme Court sees the duties to consult and accommodate as a process of reconciliation between Canadians and First Nations. The Court,
and now some lower courts, are insisting that governments fulfill these duties before allowing projects (such as mining, or road-building or logging or subdivisions) to proceed. The duties, the Supreme Court tells us, arise from the Honour of the Crown—something the Crown has maintained it has since it first planted its flag in Newfoundland. Only by properly fulfilling those duties can that Honour be maintained.

These duties are legally binding on Canadian governments. In the absence of consultation and, if necessary, accommodation, the project or policy is subject to a legal defect.

First Nations who are suddenly confronted with a mine or quarry or drilling operation or subdivision that does impact on their rights and claims are forced into a court system they can’t afford. That’s another thing about the rule of law—it generally rules in favour of those who can afford to call on it.

First Nations have every right to ask, “If we don’t stop this mine, or that subdivision now, what will be left of our rights and claims to that land? What will be left for our children if our claims are successful?” The answer is obvious: not much. A degraded environment degrades and devalues Native rights and claims to the land. It also threatens the rest of us, as we are now beginning to find out.

But how to stop environmental degradation until proper consultation and accommodation occur? If the rule of Constitutional law cannot, then civil disobedience is a valid option.

If Ghandi had slavishly obeyed the rule of law in South Africa, he wouldn’t have caught the imagination of India. If he had obeyed the rule of law in India that put the production of salt solely into the hands of the English, the Raj might still be there. If Rosa Parks had obeyed the rule of law in Alabama and rode at the back of the bus as she was supposed to, she would not have sparked a movement that eventually overturned the law she broke.

“Sure,” I hear my editorial-writing friend say, “but those were bad laws and deserved to be ignored.” “Yes,” I retort, “but the editorial writers of the day thought they were sound laws; and even if they didn’t quite believe that, they at least pretended the choice was stark: anarchy or the rule of law.”

This sort of guff about the rule of law is a smoke screen for lazy thinking of the common sense variety (“common” as in “mediocre”, “second-rate” or “vulgar”). The rule of law is frequently espoused by right-wing ideologues whose love of common sense has surely by now been discredited by their own heroes. Mike Harris talked a lot about the rule of law and look where that got us: one Native protestor shot to death, social programs undermined by ideology, and a huge debt. George Bush talks about the rule of law and that has brought us in Canada trickle-down paranoia, where the rule of law is used to suspend the checks and balances of our own justice system.

And in case you’re unsure where our government sits on the law of consultation, consider this: less than 4 days after the editorial preaching rule of law or anarchy appeared, the federal Crown voted against the
UN’s Declaration on the Rights of Indigenous Peoples. The Declaration passed anyway 143-4. It’s non-binding on governments, but Chuck Stahl, Canada’s Minister of Indian Affairs, horrified by the document said, “We’d have to consult with 650 First Nations … I mean, it’s simply not doable.” The Supreme Court of Canada disagrees, and in fact says that the Honourable Mr Stahl’s honour depends on him doing exactly that.

Ironically, the Haudenosaunee at Caledonia and the Algonquins at Sharbot Lake are helping to protect the Honour of the Crown by giving governments every reason to consult—to negotiate rather than litigate. They are also reminding us that development without regard to consequences for the environment is no longer an option for any of us. Perhaps, instead of disparaging them for breaking the rule of law, we should be thanking them for reminding us, and our governments, that we must be honourable in our dealings with everyone. And that, my editorial-writing friend, not blind obeisance to “the rule of law,” is the true foundation of a democratic society.

September 2008
© David McLaren

David McLaren has worked in government, in private industry, with environmental non-government organizations and, for the past 20  years, with First Nations in Ontario.

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About David McLaren

David McLaren is an award-winning writer. He has worked in government and the private sector, with NGOs and First Nations in Ontario. He is currently writing from Neyaashiinigamiing on the shore of Georgian Bay and can be reached at david.mclaren@utoronto.ca. In February 2015, he won the nomination for the NDP to represent the riding of Bruce-Grey-Owen Sound in the 2015 federal election. See that page for writings during the campaign.
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