Category Archives: Human Rights

Quebec Movement for Peace disrupts a Speech by Irwin Cotler on “Canada as a Human Rights Leader”

Last week members of Quebec Movement for Peace disrupted a speech by Irwin Cotler on “Canada as a Human Rights leader” (at the last-minute ‘deputy’ foreign minister, Rob Oliphant, canceled his participation). With “Free Palestine” signs in hand, filmmaker Malcolm Guy and I took the stage to denounce Cotler’s anti-Palestinian positions and support for intervention in Venezuela and Iran. After we were ushered off the stage lawyer Dimitri Lascaris rose to interrogate the supposed human rights activist for refusing to criticize injustices inflicted upon Palestinians. Part of the way through Lascaris’ grilling a handful of us at the back of the room began chanting “Cotler, Cotler, you will see Palestine will be free”, as one can hear in this video viewed over 10,000 times.

The Electronic Intifada, Media Coop, Algemeiner and Canadian Jewish News (twice) reported on the intervention (CPAC was purportedly live streaming the event). Prominent anti-Palestinian activists such as Gerald Steinberg, Hillel Neuer, Avi Benlolo and Bernie Farber decried our challenge of their hero. Head of the Canada Israel Interparliamentary Group (CIIG), Michael Levitt created the Twitter hashtag StandWithCotler and called on other MPs to support it, which was duly followed by his CIIG colleagues, including disgraceful NDP MP Randall Garrison. In the House of Commons CIIG Vice-Chair David Sweet asked the government to condemn our disruption of Cotler. The Conservative MP noted, “on Monday he was disrupted and berated during a speech at Concordia University in an attempt by protesters to shut him down.” (After 10 minutes we voluntarily left the room and Cotler spoke extensively.) Parliamentary Secretary to the Minister of Foreign Affairs Oliphant, who was scheduled to speak alongside Cotler, expressed the government’s solidarity with the former Liberal party justice minister.

Cotler is a vicious anti-Palestinian who aggressively criticizes “enemy” states while largely ignoring rights violations committed by Canada and the US. In “Canadian apologist for Israeli war crimes nominated for Peace Prize” I detail Cotler’s long-standing devotion to Israeli violence and recent promotion of war on Iran and regime change in Venezuela. But, since that story was published in March more details have emerged about Cotler’s ethno-centrism and promotion of violence. In recent days Cotler has been widely quoted criticizing the use of the term “genocide” in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

According to an Israel National News story, Cotler supports relocating Canada’s embassy to Jerusalem. During “Keep Jerusalem” leader Chaim Silberstein’s visit to Canada last month, Cotler reportedly “expressed enthusiasm” for moving the Canadian embassy and “promised to help promote” the idea within the Liberal party.

In response to our action activist Ron Saba shared a photo of Cotler at last year’s Jewish National Fund fundraiser in Toronto. The explicitly racist JNF excludes the 20-25% of non-Jewish Israelis from its vast landholdings mostly stolen from Palestinians in 1948. In 2017 the Canada Revenue Agency initiated an (ongoing) audit of the JNF for supporting the Israeli military in contravention of Canadian charitable law.

For his part, Masud Sheikh responded to our action by uploading a video — apparently scrubbed from the Internet after previously reaching a Canadian audience — of the Nobel Peace Prize nominee advising Israel on planning a war. Just after Israel killed 1,200 Lebanese in the summer of 2006 Cotler spoke to a conference of top Israeli military officials on the importance of managing the message in modern war.

He did something similar after an earlier Israeli invasion of its northern neighbour. In an April article retired Guelph professor Michael Keefer wrote: “In the wake of Israel’s 1982 invasion of Lebanon, in the course of which some 15,000 civilians were killed and several thousand Palestinians massacred in the refugee camps of Sabra and Shatila, Cotler participated in a 1984 Jerusalem conference on Hasbara: Israel’s Public Image. Alluding to two of the lesser PR disasters of the war—the IDF’s violation of the Canadian ambassador to Lebanon’s diplomatic immunity, and a Canadian Red Cross doctor’s allegations of Israeli atrocities—Cotler recommended, not that Israel change its behaviour, but rather that it ‘make Hasbara a priority’ and enhance its capacity to offer ‘an authoritative rebuttal’ to such stories.”

In that article Keefer points out that Antony Lerman, founding editor of Antisemitism World Report, called Cotler “one of the key figures” promoting the idea of a “new antisemitism”. Since the 1970s he’s been arguing that criticism of Israel is the “new antisemitism”.

In a remarkable 2002 essay titled “Human Rights and the New Anti-Jewishness” Cotler lays out his thinking, suggesting a confrontation between the “secular religion” of human rights and Jewish “civil religion” of Zionism. He argues that criticizing Israeli human rights violations is “the contemporary analogue to the medieval indictment of the Jew as the ‘poisoner of the wells.’ In other words, in a world in which human rights has emerged as the new secular religion of our time, the portrayal of Israel as the metaphor for a human rights violator is an indictment of Israel as the ‘new anti-Christ’ — as the ‘poisoner of the international wells’ encompassing all the ‘teaching of contempt’ for the ‘Jew among the Nations,’ this new antisemitism implies.”

Cotler further argues that antisemitism has retained its consistent essence as “an assault upon whatever is the core of Jewish self-definition at any moment in time—be it the Jewish religion at the time of classical antisemitism, or the State of Israel as the ‘civil religion’ of the Jewish people under this new anti-Jewishness.” So, because most Jews identify with Israel criticizing that country’s violence or dispossession of Palestinians is anti-Semitic.

Challenging Cotler is important. All high-profile anti-Palestinians should be asked tough questions and hopefully our intervention inspires others to take similar actions. But, it’s also about de-mystifying an individual who retains a progressive gloss. Last month NDP MP Hélène Laverdière and Green Party leader Elizabeth May attended a press conference organized by Cotler calling on Canada to impose sanctions on Iranian officials and list the country’s Revolutionary Guard as a terrorist organization. New NDP foreign critic Guy Caron participated in a subsequent event on Iran and NDP MP Murray Rankin and May regularly attend events led by Cotler. May and Rankin are also part of the Cotler-led Raoul Wallenberg All-Party Parliamentary Caucus for Human Rights.

The Cotler ‘brand’ should be toxic on the Left. Politicians need to know that many Canadians — as Lascaris put it in his concluding statement to Cotler — consider him “a fraud when it comes to human rights.”

Facing the Facts: Israel Cannot Escape ICC Jurisdiction

The Chief Military Advocate General of the Israeli army, Sharon Afek, and the US Department of Defense General Counsel, Paul Ney, shared a platform at the ‘International Conference on the Law of Armed Conflict’, which took place in Herzliya, Israel between May 28-30.

Their panel witnessed some of the most misconstrued interpretations of international law ever recorded. It was as if Afek and Ney were literally making up their own law on warfare and armed conflict, with no regard to what international law actually stipulates.

Unsurprisingly, both Afek and Ney agreed on many things, including that Israel and the US are blameless in all of their military conflicts, and that they will always be united against any attempt to hold them accountable for war crimes by the International Court of Justice (ICC).

Their tirade against the ICC mirrors that of their own leaders. While Israeli Prime Minister Benjamin Netanyahu’s anti-ICC position is familiar, last April, US President Donald Trump virulently expressed his contempt for the global organization and everything it represents.

“Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response,” Trump said in a writing on April 12.

While Trump’s (and Netanyahu’s) divisive language is nothing new, Afek and Ney were entrusted with the difficult task of using legal language to explain their countries’ aversion for international law.

Prior to the Herzliya Conference, Afek addressed the Israel Bar Association convention in Eilat on May 26. Here, too, he made some ludicrous claims as he absolved, in advance, Israeli soldiers who kill Palestinians.

“A soldier who is in a life-threatening situation and acts to defend himself (or) others (he) is responsible for, is receiving and will continue receiving full back-up from the Israeli army,” he said.

The above assertion appears far more sinister once we remember Afek’s views on what constitutes a “life-threatening situation”, as he had articulated in Herzliya a few days later.

“Thousands of Gaza’s residents (try) to breach the border fence,” he said, with reference to the non-violent March of Return at the fence separating besieged Gaza from Israel.

The Gaza protesters “are led by a terrorist organization that deliberately uses civilians to carry out attacks,” Afek said.

Afek sees unarmed protests in Gaza as a form of terrorism, thus concurring with an earlier statement made by then-Israeli Defense Minister, Avigdor Lieberman, on April 8, 2018, when he declared that “there are no innocents in Gaza.”

Israel’s shoot-to-kill policy, however, is not confined to the Gaza Strip but is also implemented with the same degree of violent enthusiasm in the West Bank.

‘No attacker, male or female, should make it out of any attack alive,’ Lieberman said in 2015. His orders were followed implicitly, as hundreds of Palestinians were killed in the West Bank and Jerusalem for allegedly trying to attack Israeli occupation soldiers or armed illegal Jewish settlers.

Unlike democratic political systems everywhere, in Israel the occupation soldier becomes the interpreter and enforcer of the law.

Putting this policy into practice in Gaza is even more horrendous as unarmed protesters are often being killed by Israeli snipers from long distances. Even journalists and medics have not been spared the same tragic fate as the hundreds of civilians who were killed since the start of the protests in March 2018.

Last February, the United Nations Independent Commission of Inquiry on Gaza’s protests concluded that “it has reasonable grounds to believe that during the Great March of Return, Israeli soldiers committed violations of international human rights and humanitarian law. Some of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel.”

In his attack on the ICC at the Herzliya Conference, Afek contended that “Israel is a law-abiding country, with an independent and strong judicial system, and there is no reason for its actions to be scrutinized by the ICC.”

The Israeli General goes on to reprimand the ICC by urging it to focus on “dealing with the main issues for which it was founded.”

Has Afek even read the Rome Statute? The first Article states that the ICC has the “power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute.”

Article 5 elaborates the nature of these serious crimes, which include: “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”

Israel has been accused of at least two of these crimes – war crimes and crimes against humanity – repeatedly, including in the February report by the United Nations Independent Commission of Inquiry.

Afek may argue that none of this is relevant to Israel, for the latter is not “a party to the Rome Statute,” therefore, does not fall within ICC’s legal jurisdiction.

Wrong again.

Article 12 of the Rome Statute allows for ICC’s jurisdiction in two cases; first, if the State in which the alleged crime has occurred is itself a party of the Statute and, second, if the State where the crime has occurred agrees to submit itself to the jurisdiction of the court.

While it is true that Israel is not a signatory of the Rome Statute, Palestine has, since 2015, agreed to submit itself to the ICC’s jurisdiction.

Moreover, in April 2015, the State of Palestine formally became a member of the ICC, thus giving the court jurisdiction to investigate crimes committed in the Occupied Territories since June 13, 2014. These crimes include human rights violations carried out during the Israeli war on Gaza in July-August of the same year.

Afek’s skewed understanding of international law went unchallenged at the Herzliya Conference, as he was flanked by equally misguided interpreters of international law.

However, nothing proclaimed by Israel’s top military prosecutor or his government will alter the facts. Israeli war crimes must not go unpunished; Israel’s judicial system is untrustworthy and the ICC has the legal right and moral duty to carry out the will of the international community and hold to account those responsible for war crimes anywhere, including Israel.

Facing the Facts: Israel Cannot Escape ICC Jurisdiction

The Chief Military Advocate General of the Israeli army, Sharon Afek, and the US Department of Defense General Counsel, Paul Ney, shared a platform at the ‘International Conference on the Law of Armed Conflict’, which took place in Herzliya, Israel between May 28-30.

Their panel witnessed some of the most misconstrued interpretations of international law ever recorded. It was as if Afek and Ney were literally making up their own law on warfare and armed conflict, with no regard to what international law actually stipulates.

Unsurprisingly, both Afek and Ney agreed on many things, including that Israel and the US are blameless in all of their military conflicts, and that they will always be united against any attempt to hold them accountable for war crimes by the International Court of Justice (ICC).

Their tirade against the ICC mirrors that of their own leaders. While Israeli Prime Minister Benjamin Netanyahu’s anti-ICC position is familiar, last April, US President Donald Trump virulently expressed his contempt for the global organization and everything it represents.

“Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response,” Trump said in a writing on April 12.

While Trump’s (and Netanyahu’s) divisive language is nothing new, Afek and Ney were entrusted with the difficult task of using legal language to explain their countries’ aversion for international law.

Prior to the Herzliya Conference, Afek addressed the Israel Bar Association convention in Eilat on May 26. Here, too, he made some ludicrous claims as he absolved, in advance, Israeli soldiers who kill Palestinians.

“A soldier who is in a life-threatening situation and acts to defend himself (or) others (he) is responsible for, is receiving and will continue receiving full back-up from the Israeli army,” he said.

The above assertion appears far more sinister once we remember Afek’s views on what constitutes a “life-threatening situation”, as he had articulated in Herzliya a few days later.

“Thousands of Gaza’s residents (try) to breach the border fence,” he said, with reference to the non-violent March of Return at the fence separating besieged Gaza from Israel.

The Gaza protesters “are led by a terrorist organization that deliberately uses civilians to carry out attacks,” Afek said.

Afek sees unarmed protests in Gaza as a form of terrorism, thus concurring with an earlier statement made by then-Israeli Defense Minister, Avigdor Lieberman, on April 8, 2018, when he declared that “there are no innocents in Gaza.”

Israel’s shoot-to-kill policy, however, is not confined to the Gaza Strip but is also implemented with the same degree of violent enthusiasm in the West Bank.

‘No attacker, male or female, should make it out of any attack alive,’ Lieberman said in 2015. His orders were followed implicitly, as hundreds of Palestinians were killed in the West Bank and Jerusalem for allegedly trying to attack Israeli occupation soldiers or armed illegal Jewish settlers.

Unlike democratic political systems everywhere, in Israel the occupation soldier becomes the interpreter and enforcer of the law.

Putting this policy into practice in Gaza is even more horrendous as unarmed protesters are often being killed by Israeli snipers from long distances. Even journalists and medics have not been spared the same tragic fate as the hundreds of civilians who were killed since the start of the protests in March 2018.

Last February, the United Nations Independent Commission of Inquiry on Gaza’s protests concluded that “it has reasonable grounds to believe that during the Great March of Return, Israeli soldiers committed violations of international human rights and humanitarian law. Some of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel.”

In his attack on the ICC at the Herzliya Conference, Afek contended that “Israel is a law-abiding country, with an independent and strong judicial system, and there is no reason for its actions to be scrutinized by the ICC.”

The Israeli General goes on to reprimand the ICC by urging it to focus on “dealing with the main issues for which it was founded.”

Has Afek even read the Rome Statute? The first Article states that the ICC has the “power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute.”

Article 5 elaborates the nature of these serious crimes, which include: “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”

Israel has been accused of at least two of these crimes – war crimes and crimes against humanity – repeatedly, including in the February report by the United Nations Independent Commission of Inquiry.

Afek may argue that none of this is relevant to Israel, for the latter is not “a party to the Rome Statute,” therefore, does not fall within ICC’s legal jurisdiction.

Wrong again.

Article 12 of the Rome Statute allows for ICC’s jurisdiction in two cases; first, if the State in which the alleged crime has occurred is itself a party of the Statute and, second, if the State where the crime has occurred agrees to submit itself to the jurisdiction of the court.

While it is true that Israel is not a signatory of the Rome Statute, Palestine has, since 2015, agreed to submit itself to the ICC’s jurisdiction.

Moreover, in April 2015, the State of Palestine formally became a member of the ICC, thus giving the court jurisdiction to investigate crimes committed in the Occupied Territories since June 13, 2014. These crimes include human rights violations carried out during the Israeli war on Gaza in July-August of the same year.

Afek’s skewed understanding of international law went unchallenged at the Herzliya Conference, as he was flanked by equally misguided interpreters of international law.

However, nothing proclaimed by Israel’s top military prosecutor or his government will alter the facts. Israeli war crimes must not go unpunished; Israel’s judicial system is untrustworthy and the ICC has the legal right and moral duty to carry out the will of the international community and hold to account those responsible for war crimes anywhere, including Israel.

Finding Space Between Despair and Validation

There is nothing very remarkable about being immortal; with the exception of mankind, all creatures are immortal, for they know nothing of death. What is divine, terrible, and incomprehensible is to know oneself immortal.
— Borges, “The Immortal”, IV, in The Aleph (1949)

All that happens to us, including our humiliations, our misfortunes, our embarrassments, all is given to us as raw material, as clay, so that we may shape our art.
— Jorge Luis Borges

I knew it would come at me sooner or later, that feeling of dread that I had steeled myself against . . . staving off that realization that the books are so cooked that every level of societal organization in the USA (elsewhere, too, as in the UK, take, for example, the excellent movie, I, Daniel Blake) is rotting from the inside-out, outside-in. I’ve kept that juggling inside my mental space for a long time, but the blood-brain barrier has been pretty much intact, cloistering away intellectual realization from emotional acceptance; i.e., vulnerability.  It’s this inoculation many of us in the middle of the muck — radical journalism, even more radical social services, and, for this article, beyond radical education —  have to succumb to and for which we have to continue to ramify our emotional ‘scapes with boosters to make it through a day or week or month of travails.

I have to insert a full disclaimer: I know I am not living in Guatemala, San Salvador, Bangladesh, Syria, Yemen, Libya, Somalia or Palestine. Things — basic living conditions — are so-so grotesque in other countries where capitalism and despotic fascism have ensconced those places with the plague of Little Eichmann’s and narcissistic racists who do the bidding of the moneyed classes (sic). Millions of babies are dying of gut diseases a year because of shitty water systems or none at all . . . because of Capitalism; the plague of misogyny is destroying the futures of women and girls in places like Saudi Arabia or a thousand other nations . . .  because of religion; resources are continually being polluted, tainted or collapsing  . . . because of Western Culture’s rapacious appetites, all flowing out of the sewage drain that defines Capitalism. All of that to the 10th power in so-called “third world” societies compared to “our” dragging lives, and, mine, sure (since I maybe enlightened, but too I am pressed into the strata of the death system . . .  USA capitalism), so, sure, how can I complain. Anything the rest of the non-Western world has to go through daily overshadows even the hard times many of “our” people in “our” country face with this old time religion of corporate-government fascism.

Good stuff daily at Dissident Voice, as in:

It is strange to watch the sleepy drama of airports, in which a bourgeoisie and a working class effortlessly intermingle, both seemingly inured to the routines of capitalist life. Something soulless inhabits the pace of capitalist life. One observes it here in the deadened gaze of the wage workers, watching their lives tick away in [airport] terminal jobs; but also in the ceaseless arrivals and departures of businessmen charging off to another sales conference; and in the harried rush of families to make it on their annual holiday junket. One wonders if any of these classes, more the workers than the professional caste, might ever revolt against the system that keeps them ensnared in their drudgery.

— Jason Hirthler, “The Curious Malaise of the Middle Class

We’ll be getting to that soulless rendering of Capitalist lives soon. For now, I’m not talking about a complete blow-out of my emotions here, but I knew that through teaching, yet again, in a PK12 system out here on the Oregon Coast, as a hired gun substitute teacher, I’d open myself up to that sinking feeling not so much of despair, but validation that the entire country has been sold down the river with a super majority of its people colonized by the thinking, or lack thereof, created by the taker class, the destroyer species, so more victims by the thousands in their cribs are created for the elite to chew up every so much and completely every day.

Then millions daily in our public schools, chewed up and spit out. But still marks for a society of Mafiosi-PayPal-PayDay loan sharks that profit in pain, dissolution, human toil, poverty, struggle, economic hell, emotional insanity, and ethical dissuasion.

I knew going into this research project — to discover out how to wrap up my concept for a short book on The Good, Bad and Ugly of American Ed — it would be rough sailing on the edges of this strange continent since I am working in a rural county with high poverty rates, high parental drug use,  homelessness and consistent precarity in the economic realm, with parents working 12-hour gigs or four jobs to a family, and a class of people who have shuttered themselves with beach-combing, Pinot Gris-loving, tourist junkets to Mexico, la Provence in France and ski resorts and mud cleansing camps in Montana. Plus, it’s Oregon, on the coast, a very racist place/history of sundown laws (not to say New York City or Chicago or LA aren’t racist super max militarized black man/woman/Latinix hating police mafia), where the rare sane and giver tribes person is a diamond yet to be found.

Inoculation for me is that I might find personal fortitude from all my many years geriatrically speaking and many more experiences living on the planet dredging up all the detritus deposited in the process of bearing witness to the failure that is America —  the Prison Complex, America — the Warring Complex, America — the Enemy of All Good People Complex, America — the Vapidity Complex, America — the All Polluting Complex. One can still hold out hope for some semblance of solidarity from cohorts and like-minded individuals within my geographical region.

The truth is that while the national media, and the national news and national academics blather on and on about, sure, important issues such as USA Democrats and Republicans parsing out why locking up whistle blowers or jailing journalists like Assange is good/bad, or how the USA ended up bombing thousands of civilians in Raqqa, or, say, the story about Claudia Patricia Gomez Gonzalez’s family suing the Border Patrol for $100 million after the Guatemalan was murdered by an agent last year on the Texas border, the work to be done at the local level, even within a fifth grade classroom, is monumental, almost impossible in this murderous carnival of capitalism gone rogue. Wave after wave of spasms after viewing or hearing any number of stories pumped out on the ticker-tape voyeurism that is Bing or Yahoo or Fox or CNN “news” (sic) feeds is interesting in an ironic way — as a student of journalism-media-public opinion trends.

But the toll on communities, on individual children, is so-so deep and grave and beyond the abilities of a Melinda Gates or Michelle Obama or Elon Musk to even begin to comprehend, let alone beyond their capabilities to just sit down and honorably and truthfully engage in healing, or dialogue.

Witnessing the absurdity that is American and Capitalistic exceptionalism, in real time, during work, while trying to accomplish  something worthy, like teaching youth six years to 18 years old, puts a heavy toll on some of us when we many times confront the injustice and insanity of it all, head on. It’s a toll tied to our personal activities of daily living in a colonized world, where, no kidding, someone like me (and I have very few friends or acquaintances who would agree with me on the following spot on quote half a century old, and counting) can’t remove what has become a default fine print disclaimer that should be plastered on anything coming out of America, and American-drenched marketing campaigns of the murderers who run Corporations, large and small:

If America is the culmination of Western white civilization, as everyone from the Left to the Right declares, then there must be something terribly wrong with Western white civilization. This is a painful truth; few of us want to go that far…. The truth is that Mozart, Pascal, Boolean algebra, Shakespeare, parliamentary government, baroque churches, Newton, the emancipation of women, Kant, Marx, Balanchine ballets, et al, don’t redeem what this particular civilization has wrought upon the world. The white race is the cancer of human history; it is the white race and it alone—its ideologies and inventions—which eradicates autonomous civilizations wherever it spreads, which has upset the ecological balance of the planet, which now threatens the very existence of life itself.

— Susan Sontag, Partisan Review, Vol. 34 No. 1 1967.

This is no flippant thing I’m expressing here, yet so many people have attacked this critique, Sontag’s, that is, and my ascribing it, so deeply, and they rebuff even considering it with so much contrarianism filled with paranoia, or that disease of white guilt, or exceptionalism, or something more, something really nefarious.

The bottom line, a fourth grade thinker like Trump and his coterie of asinine, ignorant, rich, degraded, full-on psychopathic followers, in and out of his administration, hate my students. These students who are 30 to a class. Students who have four or five bullies in each class. Students who have driveling principals who are afraid of their own shadows. Students who are 576 to one counselor on hand. Students who have Chromebooks and giant caterpillar math games in seventh grade. Students who are fed the entrails of fast food and the most dangerous food for lunch that it just makes a grown person cry. Students who are forced in classrooms with bachelor degreed teachers, mostly all with their hearts in the right place, but floundering under the weight of shitty wages and economies that take up more than half our income to just make rent.

Students with local beaches that have Memorial Day warnings of fecal matter in the tides. Students with clear cuts peppered all around them and the follow up aerial spraying of Agent Orange like derivatives to keep the invasives down. Students who have no parks to speak of, no museums, no trolley services to help them get from one beach to the next. Students who are forced to listen to military recruiters, and students bred in the faux patriotism that calls all boys and girls to seriously consider the all-volunteer military (economic draft, that is)  as a gateway to college, when the majority of youth see no end in sight in school.

We hate these kids, if one were to look at our education policies run by an Amway sales person, Betsy DeVos, and if we look at all the other cabinet level people, all those heads of our supposed government agencies for, by and because of the people, and listen to what they want in terms of tearing down every economic, environmental, educational, retirement, housing, health, energy, conservation, community development safety net, how in god’s name (sic) can any thinking adult believe that this administration or any of them really cares about the 80 percent of the country, the majority, our youth, our babies, our teens, our future?

Therein lies the catalyzing moment Friday that spurred me to write this angst-leveling piece — I again, after dozens of gigs, got from the horse’s mouth — the students — that the schools are bullying enterprises, where many in these classes call young girls and boys “fat jelly rolls, fatsos, stupid, sissies, retards, fags,” and alas, nothing is being done to rectify this. Nothing at the administration level, at the classroom level, at the parental level, at the assembly level, nothing.

And so one of these counselors, one in the school, just displayed so many levels of malpractice, stupidity, telling me, a substitute, that unless I heard the boys yelling these things, and even if the girls and boys that are the victims say that happened, are crying, are withdrawn, there is nothing he can do.

Then this ignoramous spewed some platitude about, “I told Mary to not let those boys take her power away . . . to not give them her power.” This is the state of retarded adult thinking, pure reckless operating procedures.

Then, students tell me to not be so worried that the class is going bonkers or is disruptive, or that student x and y are being not only idiots, but disrespectful of me, an elder, in some sense. That this goes on with the regular teacher, and that the students have complained about x and y bully, but to no avail.

I ask them how they even learn with all the disruptions, all the students x and y getting pulled from the classroom, or all the bells and breaks and idiotic things that supposedly have been built into the curriculum because the powers that be believe young minds can’t stick to a problem or a topic for more than 10 minutes, and anything beyond 10 minutes has to be programmed into some Chromebook moving cartoon or video game.

Teachers in middle schools who tell students, “go figure it out yourself,” when confronted with a math problem. Teachers who look like they just spent a day in Yemen under Saudi-USA bombardment after a day’s teaching.

This system for the most part is ruinous of human celebration, ruinous of honoring and stewarding young minds and bodies.

Alas, yes, fixing education is easy, but not under capitalism, not under the weight of the core curriculum or shackled by No Child Left Behind or through all the degrading junk that is shoveled down young people’s throats. Nothing in the classroom is mattering, and fixing the education system again, is what the book I am about to launch is all about.

I guess what triggered me was all the bullying, all the poor ass kids who must have demons for parents, because the amount of disrespect for teachers and peers and visitors is deafening. I am not saying all the youth are like that, or even half like those bullies, but if you get six out of 30 in a class who control the message, control the chemistry of the group dynamics, who are always vying for warped levels of attention and disruptive shenanigans, then the learning experiment begins to wither on the vine.

Add to that significant numbers of youth with behavioral plans and learning plans, youth with reading issues, with intellectual disabilities, or psychological disabilities. Youth with chronic illness. Youth from broken families. Youth with some family member in jail and with an addiction. Youth with no sense of community. Entire elementary schools, middle schools and high schools that hardly ever have anyone from the community come in to facilitate learning, let alone cadres of visiting local and regional experts in biology or other fields, or artists or just plain wise elders from tribes.

This in and of itself shows that Trump and all the suits and skirts backing him HATE America, and the way they are making America great again with untold numbers of more and more victims, beaten down by the forces of oppression and repression and suppression at earlier and earlier ages, that’s his MAGA, Trump’s army of deplorables.

Again, though, “the principal never does anything to these bullies . . . he just tells them that he will give them something if they stop bullying us . . . but they don’t stop . . . there are no consequences . . . and we just have to take it.”

Now, take that to the heart of your soul dear reading and really begin to think how we are going to get out of all the colluding and colliding messes we face in this destructive warring society when we are creating more and more causalities at younger and younger ages who will never ever be able to be part of the solution.

Truly, when the school administration knows/does diddle squat, and when some goofy counselor tells students that “getting upset about a bully is like your kryptonite . . .  letting the bullies bother you is handing them your power,” a grown man not only wants to cry, but he wants to smack that puke of a person from here to kingdom come.

Seriously.

I finish off after talking today to several people about the state of youth, the state of our schools, the state of our young people’s lack of critical thinking skills. So many civilians, or citizens, think they know what’s wrong with education, or what’s up with parents, or why millennials or those in this generation are broken. Yet, adults, so many of them, have zero tolerance for creativity, outside the box thinking, and investing in REAL education, REAL outdoor schools, REAL schools where youth are building solar panels, living in tepees, growing vegetables, planting permaculture gardens, raising chickens, collecting eggs, doing art, making instruments from which to make music, doing community film projects on the old timers, going to old folks homes and reading and performing, or bringing in homeless people to feed and clothe.

Real work, real learning, real systems thinking teaching.

Imagine hundreds or thousands of students working on drive-by photography shoots, telling neighborhood history projects, building wheelchair ramps for the handicapped, getting into real businesses and learning how to be entrepreneurs,  having bio-diesel bus trips to the state capitals weekly.

We know how to lead and follow, teach and learn, share and provide. But the systems of oppression in Capitalism make it virtually impossible to do any good with not only our young but our old, or those with disabilities, or those just out of prison, or those who are traumatized by the most brutal parents and neighborhoods.

Take the following to the bank. Yes, John wrote this decades ago, and, yes, he believed we could do wonders with schooling at home and within the communities. He did not anticipate the powers of Capitalism to generate more and more finely grained sacrifice zones at the census track level, regionally wide, entire states succumbing to an un-United States. He did not anticipate the dog-eat-dog nature of capitalism, nor did he really delve into the murderous powers that have harnessed all economic models and all business plans that the USA produces. Trillions spent on war, billions spent on propagandizing this rotten economic system, billions spent on policing and jailing, billions spent on entrapping more and more people into the madness of screens and phones and idle self-aggrandizement and narcissism.

Community schools, and schools inside the companies, and forcing bosses to give time off for workers to tend to the schools. Of course, we need to own our schools, and we need Pearson Publishing and the thousands of other leeches and bottom feeders in educational publishing and curriculum design and management and testing and computerization of learning and on-line madness to be sent to the dung heap.

I’ve noticed a fascinating phenomenon in my thirty years of teaching: schools and schooling are increasingly irrelevant to the great enterprises of the planet. No one believes anymore that scientists are trained in science classes or politicians in civics classes or poets in English classes. The truth is that schools don’t really teach anything except how to obey orders. This is a great mystery to me because thousands of humane, caring people work in schools as teachers and aides and administrators, but the abstract logic of the institution overwhelms their individual contributions. Although teachers to care and do work very, very hard, the institution is psychopathic — it has no conscience. It rings a bell and the young man in the middle of writing a poem must close his notebook and move to a different cell where he must memorize that humans and monkeys derive from a common ancestor.

Children learn what they live. Put kids in a class and they will live out their lives in an invisible cage, isolated from their chance at community; interrupt kids with bells and horns all the time and they will learn that nothing is important or worth finishing; ridicule them and they will retreat from human association; shame them and they will find a hundred ways to get even. The habits taught in large-scale organizations are deadly.

Whatever an education is, it should make you a unique individual, not a conformist; it should furnish you with an original spirit with which to tackle the big challenges; it should allow you to find values which will be your road map through life; it should make you spiritually rich, a person who loves whatever you are doing, wherever you are, whomever you are with; it should teach you what is important, how to live and how to die.”

What’s gotten in the way of education in the United States is a theory of social engineering that says there is ONE RIGHT WAY to proceed with growing up.

― John Taylor Gattoo, Dumbing us Down: The Hidden Curriculum of Compulsory Schooling, February 1, 2002

Protection Of Venezuelan Embassy Continues, Opposition To US Coup Builds

While the final four inside members of the Embassy Protection Collective were arrested on May 16, 2019 (and released the next day), the Collective’s efforts to protect the Venezuelan Embassy in Washington, DC and to end the US coup continue.

From left to right: Kevin Zeese, Margaret Flowers, David Paul and Adrienne Pine at windows of the Venezuelan Embassy. Signs below them call for a mutual Protecting Power Agreement.

A Mutual Protecting Power Agreement Still Needed For US and Venezuelan Embassies

Tell the State Department to recognize Turkey as the Venezuelan Embassy’s Protecting Power in Washington, DC.

We have consistently sought a mutual Protecting Power Agreement between the US and Venezuela so the US Embassy in Caracas, Venezuela can be protected by Switzerland and the Venezuelan Embassy in DC can be protected by Turkey. This is still the legal pathway to end the embassy crisis.

Protecting Power Agreements have existed since the time of Genghis Khan and have been embedded in international law since the 1870s. Currently they are enshrined in Article 45 of the Vienna Convention on Diplomatic Relations of 1961. They are used when diplomatic relations have been broken in order to protect foreign embassies. Twenty-nine Protecting Power Agreements are currently in place around the world.

When the United States government illegally invaded the Venezuelan Embassy to arrest and evict us, it violated the Vienna Convention and put all embassies around the world at risk. Federal agents assaulted the embassy with a battering ram and more than 100 officers, many armed with para-military gear even though we said we would not resist arrest or barricade ourselves in the embassy. This was after the US had illegally turned off electricity and water to the embassy and allowed a mob of coup supporters to assault the embassy and Embassy Protectors.

The violation of the Vienna Convention, a precedent set by the Trump administration, puts US embassy personnel and embassies at risk around the world. The Trump administration added to that violation of international law on May 24 when it allowed the fictional ambassador, Carlos Vecchio, of a failed US coup, to enter the embassy. This complicates negotiations for a mutual Protecting Power Agreement as the members of the coup will have to be removed from the embassy, but we still must urge the US to follow international law rather than be a rogue state.

Activists used light projection on the embassy to tell the truth about Vecchio as a fake ambassador who cannot do anything official such as issuing visas or passports but who will use the embassy as a coup-plotting center, further escalating US violations of international law.

Alex Rubinstein

✔ @RealAlexRubi

Anti-coup protesters @JasonRCharter and @backboneprog project messages onto the former Venezuelan embassy which was illegally seized by US authorities.

“D.C.’s newest coup plotting center

This is not an embassy

Vecchio can’t issue visas”@carlosvecchio

Take Action Now: Join us in telling the State Department to recognize Turkey as the Venezuelan Embassy Protecting Power

The Venezuelan Embassy with signs on it urging peace with Venezuela, end of the US coup and an end to sanctions.

Court Proceedings Against Protectors Continue While The Movement Organizes Against US Coups And Militarism

The Embassy Protectors arrested inside and outside will continue to defend themselves in court. The next hearing of the four inside Embassy Protectors has been moved to this Friday, May 31 at 9:30 am before the chief judge of the US District Court in Washington, DC, Judge Beryl A. Howell.  Ironically, as we were serving as interim embassy protectors with the permission of the democratically-elected Venezuelan government, the four were charged with violation of 18 U.S. Code §”118. “Interference with certain protective functions.” Anyone who followed the activities during the Embassy Protection Collective’s actions can see the State Department was failing to protect the embassy as it allowed pro-coup advocates to break windows and doors, break and enter into the building, deface the building and assault people outside the building while threatening those inside the building.

Other Embassy Protectors arrested outside for trying to get food and supplies into the embassy are also facing charges, including “hurling missiles at a building” (bread and cucumbers) and assault, even though they were the ones assaulted. There are currently four outside Embassy Protectors facing charges. One, an older man bringing toothbrushes, has already had the charges dropped.

In addition to these actions, we are escalating our efforts to stop the US coup and protect the embassy. We are working with other peace and justice advocates to organized national and international days of action to protect the embassies, stop the US coup attempt and end the illegal unilateral coercive measures (misnamed sanctions) and threats of military attacks on Venezuela. If you live in a country that recognizes the coup leader, Juan Guaido, we urge you to take action to protect the Venezuelan Embassy in your country and to pressure your government to recognize the democratically-elected President Nicolas Maduro.

We will be posting these actions called by Popular Resistance and other organizations on our website. Sign up for our daily digest (on the front page of PopularResisance.org) to be sure to receive the information quickly.

Popular Resistance and other organizers will tie the US actions against Venezuela to the threats of war and ongoing unilateral coercive measures against Iran and other countries as well as the never-ending war in Afghanistan and the Middle East and threats to countries like Nicaragua and Cuba. In the next decade, as US empire crumbles, this coup attempt against Venezuela and the actions of US citizens against the US coup will be seen as one of the events that led to the demise of US military domination.

We along with numerous other organizations are organizing toward a national mass mobilization in New York City on September 21 when the United Nations General Assembly is meeting. We are calling it “The People’s Mobilization to Stop the US War Machine.” It will bring tens of thousands of people together to call for the end of the US coup against Venezuela and stop regime change operations anywhere in the world. It will also oppose unilateral coercive mentions (sanctions), which the US is using against many countries and that violate the UN Charter and other international laws.

Alex Rubinstein

✔ @RealAlexRubi

Embassy protectors @KBZeese and @MFlowers8 talk about organizing a “national mass mobilization in New York City on September 21st when the United Nations General Assembly is meeting.”

They’re calling it “The People’s Mobilization to Stop the US War Machine.”

224 people are talking about this

Mark your calendar now for the national mass mobilization in New York City on September 21, the International Day of Peace, when the United Nations General Assembly is meeting.

The mass mobilization is challenging the “US War Machine” because the machine is more than just war and regime change, it has escalated militarism at home creating violence and death in black and brown communities at the hands of militarized police. US militarism is also a major cause of the climate crisis as the Pentagon is a major source for climate gases and fights wars for oil when we need to break our addiction to oil. And the war machine robs the United States of necessary funds for health, education, housing, and other necessities of the people as well as the funds needed to put in place an eco-socialist Green New Deal that confronts the climate crisis with a rapid transition to 100% clean, renewable energy within the next decade. Challenging the US war machine links many issues and causes.

If people are organized and mobilized, we can make these issues central to the political narrative in the United States and ensure that in the upcoming election cycle no legitimate candidate can support the US coup in Venezuela and must put forward plans to end US militarism.

View the Frontline Documentary on Gaza that PBS Pulled

PBS stations around the U.S. were scheduled to show a riveting new Frontline documentary, “One Day in Gaza,” but at the last minute PBS pulled it.

The film is missing important context about the issue, but it includes footage that Americans, as Israel’s top funders, should see – including a young, unarmed teen being shot in her head.

BBC, the coproducer of the film, broadcast it to British viewers. We are posting it below so that Americans can also view it.

Recently, hundreds of PBS stations around the United States were scheduled to broadcast a powerful new Frontline documentary: “One Day in Gaza.” But viewers tuning in found that it had been replaced by a slightly updated Frontline report on Robert Mueller that had been broadcast two months before and had been streaming online ever since.

PBS no longer has the Gaza film listed on its schedule.

The documentary was to be aired on the one-year anniversary of events that took place on May 14, 2018, when tens of thousands of men, women, and children in Gaza gathered with the intention of deploying the tactics Gandhi had used in freeing India from British control.

The demonstration that day was the 8th march in what Gazans named the Great March of Return.

Palestinians months earlier had announced their plan for a mass, peaceful demonstration in which Gazans would march for an end to Israel’s crippling 12-year blockade and, especially, for  their right to return to homes stolen by Israel in order to create a Jewish state. Palestinians’ right to return to their homes and ancestral land is well established in international law. This fundamental right, affirmed in the Universal Declaration of Human Rights, is at the center of the Israeli-Palestinian conflict.

Israel had responded by immediately deploying a hundred snipers.

In the first seven weekly marches, Israeli forces killed about 50 of the marchers and injured over 7,000.

During the 8th march on May 14, the day depicted in the film, Israeli forces killed 60 more and shot 1,000 – an average of one person every 30 seconds.

While this was going on, a glittering Israeli celebration was taking place as a new, transplanted U.S. Embassy opened in Jerusalem, a city that Israel illegally annexed following the Six-Day War that Israel launched in 1967.

Who were the protesters?

Over 70 percent of Gazans are from families that Israel forced out in its founding war to establish “the Jewish state.” Israel confiscated their homes and land and has prevented them from returning ever since. This violates international law.

For 12 years Israel has perpetrated a strangling blockade of Gaza, causing 52 percent unemployment, hunger, the kind of malnutrition that causes growth stunting in children, and increasing hopelessness.

And this blockade is just the most recent one.

On April 15, 2002 the UN Food and Agriculture Organization reported, “The total blockade has paralysed the Palestinian economy… it is now in a deep recession, with millions of people severely impoverished and extremely food insecure.”

For many years it has been tremendously difficult, sometimes impossible, for Gazans to leave Gaza, and for others to enter it. As a result, many people describe Gaza as the largest open-air prison on earth.

While U.S. news coverage in general, and the Frontline documentary in particular, emphasize the rockets fired by Gaza’s diverse resistance groups, the fact is that Israeli violence preceded the rockets and has greatly exceeded their impact.

In the past year alone, Israeli forces have killed at least 293 Gazans, while Gazans have killed 6 Israelis. Palestinian rockets from Gaza, which are largely homemade, have killed a total of about 40 Israelis in the whole time they’ve been being shot, while during the same time period Israeli forces have killed over 6,000 Gazans. (See this Timeline of deaths and this Israeli source for more info.)

The film says that Israel “fought three major conflicts with Hamas,” but doesn’t mention that during these, Israeli forces killed about 3,600 Gazans (many of them women and children), while Gazan fighters killed approximately 80 Israelis, the large majority of them soldiers.

Powerful but flawed

The Frontline documentary One Day in Gaza is an extremely powerful, if flawed, record of the events of May 14, 2018.

It provides Israeli views, Palestinian views, and riveting, often tragic footage of the day’s events. However, perhaps because of its striving to be “balanced,” or due to constraints imposed by Israel’s powerful lobbies in England and the U.S., the film often leans toward the Israeli narrative and obscures some important points.

The Israeli interviewees in the film are calm, articulate, and seem well-trained in presenting their talking points. Perhaps this is not surprising given that one is an army spokesman, a second is a high-ranking officer, and two are Americans who immigrated to Israel (although this fact is not revealed in the film).

Not interviewed in the film are any of the members of the Israeli group, Breaking the Silence, composed of former Israeli soldiers who describe widespread military practices of gratuitous violence and cruelty.

Below is some background on two of the Israelis featured in the film:

Col. Kobi Heller

Perhaps because of time constraints, Col. Heller’s, background and political persuasion are left out of the film.

While Heller comes across as reasonable, professional, and reluctant to commit the murders we see from his troops, his resumé suggests that there is more to his story.

Heller is a member of Israel’s Religious Zionist movement, a group that has become known for its zealotry and sometimes extremist views of Jewish supremacy. He is called a “kippa shruga,” a term for the type of Jewish fundamentalist known for believing that Arabs should be expelled from Israel and for opposition to any Palestinian state, no matter how small.

It turns out that he has a previous connection to Gaza. Heller is a settler who studied at a religious Zionist yeshiva in a Gaza settlement that combined religious studies with military training. In 2005 the yeshiva was moved to Israel when the Israeli government forcibly expelled the settlers. This caused fierce objections in the settler movement. Many in the army were outraged at this action.

Heller is from Israel’s notorious Golani brigade, increasingly a bastion of the Israeli far right. An Israeli professor states:  “The officer corps of the elite Golani Brigade is now heavily populated by religious right-wing graduates of the preparatory academies.” The New York Times reports that many Israelis are concerned at this development, particularly since a booklet was handed out to soldiers during Israel’s 2009 assault on Gaza that contained a rabbinical edict against showing the enemy mercy.

The Times reports: “The rabbinate brought in a lot of booklets and articles and their message was very clear: We are the Jewish people, we came to this land by a miracle, God brought us back to this land and now we need to fight to expel the non-Jews who are interfering with our conquest of this holy land.”

Adele Raemer

An Israeli woman featured in the film is Adele Raemer. She is described as an “Israeli grandmother” who lives two kilometers from the Gaza fence.

In the film she describes her fear of Gazans who wish to return to their homes in Israel. The film does not mention that Raemer is originally an American from the Bronx.

In 1975 she immigrated to Israel and took up residency in the Nirim kibbutz on the border with Gaza. Since the area had originally possessed no history of Jewish habitation, the Zionist movement had established it in 1946 to create a Jewish presence in the Negev in order to claim it as part of a future Jewish state.

Raemer has written that her life in the kibbutz is “95 percent heaven.” Despite being located in a desert, it has green grass and a swimming pool. A little over a mile away, Gazans are enduring a water crisis that has caused Gazan children to suffer from diarrhea, kidney disease, and impaired IQ.

Hamas and Islamic Jihad leaders

The film shows the the flaws and sometimes fatal logistical failures of Hamas and Islamic Jihad leaders during the Great March and says that Hamas has “refused to recognize Israel.”

However, the film doesn’t include the fact that Hamas has offered Israel a decade-long truce, that it is Israel that breaks the truces, and that Hamas has said it was willing to accept a Palestinian state within the 1967 borders.

In reporting these leaders’ flaws and mistakes, the film fails to mention the extreme difficulties Gaza’s leaders face, including the fact that by assuming this role they face very possible assassination by Israel. Many resistance members have been blown to pieces by Israeli drones.

Those who survive are trying to run a resistance movement, deploy efficient logistical support, and make wise decisions during chaotic conditions in one of the world’s most isolated and longest-besieged enclaves.

Most important, the Palestinian journalist and peace activist who originated the march and is interviewed in the film, Ahmed Abu Artema, says that the film attributed far too much significance to Hamas, and neglected the “primary role played by civil society activists in Gaza.”

In a detailed critique of the film, he writes: “The documentary did not show the reality of the prison that Gaza has become. One shot of the cattle market that exists at the Erez crossing would have been enough to convey the reality of this cage, where there is no freedom of movement, no economic growth, no future prospects – no hope.”

The U.S. connection

The film also fails to inform American viewers of our connection to Israeli actions – that the U.S. gives Israel over $10 million per day. (The U.S. has given Israel on average 7,000 times more per capita than it has given other people around the world.)

And in its framing, the film neglects the fact that a prime driver of Trump’s decision to move the U.S. embassy is billionaire campaign donor Sheldon Adelson, who attended the celebration with his Israeli wife Miriam. (Adelson once said that he regretted serving in the U.S. army rather than the Israeli one – video here.)

Despite its flaws, Americans should see it

But the film cannot do everything, and it does some things extremely well. Overall, it’s not difficult to see why Israel partisans would not wish it broadcast to Americans.

It shows footage that the American public almost never sees. It was this kind of footage that eventually led to Americans ending the Vietnam war.

One of the main take-aways from the film is the extreme ruthlessness of Israeli forces.

Fully armed Israeli soldiers from one of the most powerful armies on earth are seen targeting multitudes of thin, unarmed men, women, and children. The film shows Israeli snipers shooting people in the head, in the back, in the legs.

It shows a youth whose leg was amputated and reports that many of the demonstrators lost limbs that day. (The UN recently reported that 1,700 Gazans shot by Israeli snipers are currently at risk of amputations.)

While U.S. news reports often downplay these actions, the film shows them in all their tragic and horrific reality.

The film shows people who are just standing there suddenly being picked off by snipers. It shows a 14-year-old girl chatting with a friend, then suddenly being shot in the head. And it shows her little brother, who had been with her, later describing how his sister had been killed. This is not footage that Israeli hawks wish American audiences to view.

Another takeaway from the film is the poverty of Gaza’s imprisoned population, particularly compared to the gathering in Israel to celebrate the U.S. Embassy move to Jerusalem.

Amid the expensive suits and fashionable dresses, American-born Israeli official Michael Oren bemoans the fact that the situation in Gaza has blemished his enjoyment of the festive occasion.

This contrast with Gaza is stark.

With no powerful lobby to represent them and little clout in U.S. media, Palestinians are at the mercy of Israel. The film shows that many in Gaza feel they have little to lose after years of escalating oppression. Some voice impossible dreams that had motivated them, that they could recover their lost homes. Some simply hoped to see them. A few voice the fury that results from dispossession, imprisonment, and brutalization.

While this goes unremarked in the film, there are indications that the “tear gas” Israeli drones poured on people may have been particularly virulent. In the film we see some people convulsing, and one man is delirious. This seems reminiscent of a mysterious gas used in Gaza in early 2001 that caused similar symptoms (reported in the James Longley documentary Gaza Strip).

Courage

While Israeli soldiers shelter behind diverse barriers, armed with advanced weaponry and guided by female soldiers watching it all on TV screens in a remote bunker, it is the Palestinians who demonstrate incredible, sometimes tragic courage.

We see them without weapons, without body armor, without helmets, without uniforms. Old and young, men and women, strong and disabled, they wield slingshots, wave flags.

They’re out in an open field, Israeli forces in front of them, drones overhead. When yet another demonstrator is shot, the blood pouring out, they run to rescue him or her, and then sometimes they, too, are shot. Yet they continue.

The contrast between the Israeli and Palestinian women taking part in the day’s hostilities is acute. Israeli female soldiers are far away, watching the action on computer monitors, telling soldiers when and where to shoot. Their faces are blurred to keep their identities secret. One seems to question what she’s doing, but there’s no indication that she stops.

Gazan women join the mass gathering. They’re out are in the open field, marching, carrying flags, helping the injured… and getting shot.

Theft of a nation

For over 70 years, Israel has gotten away with its astoundingly massive theft of the land and homes of the non-Jews it dispossessed to create an ethnically defined nation, and its decades of violence to maintain this ethnic cleansing. A Palestinian historian has validly termed this the Palestinian Holocaust.

One Day in Gaza shows some of Israel’s millions of victims, their attempt to be free, and what’s being done to them. Americans are not supposed to see that.

While Artema’s biting critique of the film is valid and necessary, it is useful to be aware that for many Americans much of the film will be revelatory.

PBS’s action

PBS’s cancellation, however, has prevented Frontline‘s more than 4.6 million viewers from seeing it.

While PBS calls itself “a trusted window to the world,” someone at PBS shuttered the window on One Day in Gaza.

PBS spokespeople state that Gaza will be broadcast at some point in the coming months, but say they don’t know when. Since the film’s scheduled broadcast date was specifically focused on the one-year anniversary of the day it depicts, it seems odd for PBS to be so unconcerned about broadcasting it in a timely manner. BBC, on the other hand, aired the film on May 13.

According to a Frontline statement, One Day In Gaza was pulled because Frontline “decided to air a timely update to our documentary on the Mueller investigation.” The Mueller investigation report had been broadcast on March 16 and 17 and has been available online ever since. It can be viewed here.

The updated version that bumped One Day in Gaza can be seen here. The update consists of a few minutes added at the end of the report. This new information had already been reported widely in U.S. media, including PBS’s own primetime news program News Hour.

PBS vs local stations

PBS wields considerable power. A national study rated PBS “the most-trusted institution in America.”

Its Frontline program claims to be “American television’s top long-form news and current affairs series.”

According to its website, PBS is a “near-universal media service, available in 9-of-10 U.S. television households. For many Americans, public television is their connection to the world.”

PBS emphasizes the alleged independence of its nearly 350 television and radio stations, stating they are among “the last locally owned media organizations in the country.”

However, in reality it appears that local stations have less control than this implies. When someone at PBS prevented the broadcast of Gaza, that decision prevented all the local stations around the country from airing it.

The fact is that local PBS stations do not have independent access to the film – even though it received funding from the stations.

While most Americans may think that PBS is a public institution, given its name – Public Broadcasting Service” – it is not. It is, in its own words, “a private, nonprofit media enterprise.” One that is, however, largely funded by American taxpayers.

Its ownership is a bit convoluted and multi-layered. While it says it is “owned by its 350 member stations,” its funding comes from the Corporation for Public Broadcasting. CPB is another private nonprofit, but 95 percent of CPB’s funding comes from the federal government. Most of this money is then given to the member stations.

Phone calls to a PBS station, KQED in San Francisco, revealed that KQED had received many calls complaining about the cancellation and asking when Gaza would be shown. KQED’s customer service representative explained that none of this is in KQED’s hands.

“We Answer to You”

Frontline has refused to divulge who was involved in the decision to pull Gaza. It seems likely that its Senior Editorial Team – consisting of Raney Aronson-Rath, Executive Producer; David Fanning, Founder and Executive Producer at Large; and Andrew Metz, Managing Editor – would have been involved. Fanning has previously been accused of censoring content regarding Israel/Palestine, a charge he denies.

Frontline‘s website announces: “We answer to no one but you.”

It’s unclear who the “you” is. It does not appear to be the member stations who fund it, or the many people whose federal dollars financed the film and wish to see it.

While PBS holds on to the film and fails to release it, people in Gaza continue their David against Goliath struggle.

On May 15th, Gazan men, women, and children again protested, and Israel again unleashed its heavily armed military, injuring 144, including 49 children. The same day, Israeli soldiers also fired at fishermen who were fishing off the coast of Gaza, injuring one of them – a frequent occurrence that Americans rarely, if ever, see on the News Hour.

And so it goes.

Perhaps at some point PBS/Frontline management will decide that the massacre of 60 people and the shooting of a thousand others in a single day is important enough to merit scheduling the film – particularly when the perpetrator has received more U.S. tax money than any other nation in the world.

This post will be updated if PBS schedules a new broadcast date.

It will be updated again if PBS actually shows it.

WATCH: One Day in Gaza    Download: Torrent | Magnet Link

The New Politics of Starvation

President Donald Trump’s use of the most vicious aspects of economic warfare prompt another examination of the politics of starvation.

After George W. Bush’s administration, Presidents Barack Obama and Donald Trump lessened Bush’s aggressive war policies and leaned to economic warfare. Sounds harmless when compared to exploding bombs, but it is not — economic warfare can crush an adversary without firing a shot. Gone to its extreme, economic warfare has the force of a neutron bomb; it disables the nation’s infrastructure and debilitates its population. Isolation from the international financial system, material embargos, and other sanctions reduce living standards and bring populations close to starvation The most serious aspects of economic warfare are major crimes and a form of terrorism.

Iran, Cuba, North Korea, and Iraq endured the most punishing sanctions from the United States. Results of sanctions against these countries, models for the effects of sanctions, show that sanctions have rarely accomplished their stated purposes and their intentions may be for other reasons — stalling economic progress, weakening challenges to antagonistic actions, advancing dominance, and promoting regime change.

Iran

Disturbed with the rule of Ayatollah Ruhollah Khomeini, and infuriated by the hostage taking of 52 of U.S. embassy personnel by extreme Islamic students and militants, President Jimmy Carter froze several billions of dollars in Iranian bank deposits, gold and other properties, and followed with a 1980 embargo on trade with and travel to Iran. These punitive actions accomplished nothing for the United States, strengthened the Ayatollah’s Authority and hardened the student demands for releasing the captured embassy officials.

President Reagan, who partially owed his climb into the executive office to the hostage crisis, showed contempt for Iran’s resolution of the problem. Driven by the unproven assertion that Iran was involved in the 1983 bombing of a marine barracks in Beirut, and favoring Saddam Hussein’s Iraq in the Iraq-Iran war, the U.S. president imposed additional sanctions on the Islamic Republic. and, in 1987, banned all imports from Iran.

Duriing the Clinton administration, the Iran-Libya Sanctions Act (ILSA) penalized all foreign companies that provided investments over $20 million for the development of petroleum resources.

Iran’s entrance into the atomic age provoked a series of new sanctions. Economic warfare soon reached full scale by subduing Iran’s earnings from its most precious resource and export – oil. The U.S. Congress passed unilateral sanctions that targeted Iran’s energy and banking sectors. Sanctions did not halt Iran’s nuclear activities, or prevent it from signing contracts with foreign firms to develop its energy resources. Exports slowly grew to an estimated $82 billion in 2012, with liberated Iraq and independent China filling the gap as trading partners.

Nevertheless, economic warfare affected Iran’s industries and welfare. In October 2012, Iran’s currency, the rial, fell to a record low against the US dollar, losing about 80 per cent of its value in one year. Lack of spare parts and inability to replace planes affected aviation safety. Real growth rate in GDP, at a steady six per cent a year during the first decade of the twenty first century, fell to two per cent in 2011-2012. One report, citing officials from the U.S. Departments of State and Energy, concluded that gasoline imports in the Shah’s former kingdom declined from 130,000 barrels a day in 2009 to 50,000 barrels a day in 2011. Machinery wears, and the  costs and time for repairs rapidly increased. A nation of educated professionals, who depended upon access to foreign technology and scientific cooperation, had their access to knowledge severely curtailed.

In a October 5, 2012 report to the UN General Assembly, UN Secretary General Ban Ki-moon summarized effects of sanctions on Iran’s population.

The sanctions imposed on the Islamic Republic of Iran have had significant effects on the general population, including an escalation in inflation, a rise in commodities and energy costs, an increase in the rate of unemployment and a shortage of necessary items, including medicine,

The embargoes have also hampered humanitarian operations, as the imposed restrictions on Iran’s banking system have halted the imports of medicines needed for treating diseases like cancer and heart and respiratory conditions.

The Obama administration eventually eased restrictions on the sale of medicines to Iran, and, after the Joint Comprehensive Plan of Action, in which Iran halted and downsized its uranium enrichment, the UN lifted sanctions. In a following year, Iran GDP increased 15 percent.

On May 8, 2018, U.S. President Donald Trump announced that the United States would withdraw from the Iran nuclear deal. and U.S. sanctions came into effect again in November 2018. President Trump articulated his plan for renewed sanctions as, “to bring Iran’s oil exports to ‘zero’ and remove a main source of revenue for the regime.” Trump imposed the ultimate harm afforded by economic warfare — starve the people and have them revolt against the regime.

That has not happened nor is predicted to occur. World Bank statistics indicate a severe slowing of the economy and steady rise of inflation.

As shown in the charts, oil production, and GDP growth dropped monotonically and severely. Currency value suffered an initial shock and had some recovery. Inflation was up 40%, especially in food (up 60%) — a suffering economy, a suffering people, and no political gain for the U.S.

Cuba

Immediately after the 1960 Cuban revolution, the United States imposed an embargo against Cuba. Fifty plus years of sanctions have not succeeded in accomplishing the purposes for which the United States proposed the sanctions — compensation to U.S. firms nationalized by Cuba and the overthrow of the Castro regime. The only result of the embargo has been deprivation of the Cuban people.

Although the United Nations General Assembly on November 2, 1995, voted 117 to 3 to recommend an end to the U.S. embargo against Cuba, President Clinton, on March 12, 1996, signed into law the misnamed Cuban Liberty and Democratic Solidarity Act. This Act imposed penalties on foreign companies doing business in Cuba, permitted U.S. citizens to sue foreign investors who make use of American-owned property seized by the Cuban government, and denied foreign investors in Cuba’s industry to enter the U.S.

The World Health Organization (WHO) complimented pre-90’s Cuba for its public health system, which had been credited with eliminating hunger and malnutrition and wiping out infectious diseases. A tightened embargo reinforced Cuba’s suffering after Russia withdrew subsidies. and, soon, Cuba of the mid-90’s portrayed another image. The American Association for World Health and the American Public Health Association ascertained that the embargo caused significant deterioration in Cuba’s food production and health care:

  • Cuba was banned from purchasing nearly 1/2 of new drugs on the market.
  • Physicians had access to only 890 medications, down from 1,300 in 1989.
  • Deterioration of water supply increased water borne diseases.
  • Daily caloric intake dropped by 33% between 1989 and 1993.

In 2000, the Clinton administration finally allowed Cuba to have some relief from an aggressive economic warfare. The administration allowed the sale of agriculture and medicine to Cuba for humanitarian purposes. According to the USDA’s Foreign Agricultural Service, U.S. agricultural exports to Cuba reached $380 million in 2004. However, after hitting a peak of $710 million in 2008, U.S. food sales to Cuba declined over 50 percent by the year 2011. Reasons for the decline were largely economic – lack of foreign currency and better financial terms being offered by other countries.

Representatives of a dozen leading U.S. business organizations, including the U.S. Chamber of Commerce, signed a letter in December urging Barack Obama to scrap the embargo. The letter pegs the cost to the U.S. economy at $1.2 billion per year. The CPF’s estimates are much higher: up to $4.84 billion annually in lost sales and exports. The Cuban government estimates the loss to Cuba at about $685 million annually. Thus the blockade costs the United States up to $4.155 billion more a year than it costs Cuba.1

After a period of harsh policy toward Cuba under President George W. Bush, President Obama announced in late 2014 that Washington and Havana would begin normalizing relations. To that end, the Obama administration achieved three pillars of normalization: 1) the removal of Cuba’s designation as a state sponsor of terrorism, which allowed Cuba to access international finance; 2) the reestablishment of diplomatic relations; and 3) relaxed restrictions on travel and trade through executive action. The embargo remained in place.

In 2017, the Trump administration reversed some of the changes made under President Obama, but the vast majority remained U.S. policy. Despite some tighter trade sanctions and limitations on authorized travel, there are still legal pathways for Americans to export and travel to Cuba. On the list of  new sanctions is allowing Americans to sue foreign companies in Cuba that are profiting from or using properties that were seized during the Cuban revolution.

Havana — The Cuban government announced Friday it is launching widespread rationing of chicken, eggs, rice, beans, soap and other basic products in the face of a grave economic crisis. Commerce Minister Betsy Díaz Velazquez told the state-run Cuban News Agency that various forms of rationing would be employed in order to deal with shortages of staple foods.

Díaz blamed the hardening of the U.S. trade embargo by the Trump administration. Economists give equal or greater blame to a plunge in aid from Venezuela, where the collapse of the state-run oil company has led to a nearly two-thirds cut in shipments of subsidized fuel that Cuba used for power and to earn hard currency on the open market.2

Another suffering economy, suffering people, and no political gain for the U.S.

North Korea

The proud and impoverished nation of North Korea has been continually subjected to sanctions, threats of economic sanctions, and hastily withdrawn sanctions. The media is peppered with the words: “U.S. Lifts sanctions,” “U.S. recommends sanctions,” “South Korea wary of sanctions.” It’s difficult to know if North Korea is being sanctioned or being forced into being sanctioned. After its 2006 claim of conducting a nuclear test, the DPRK (Democratic People’s Republic Korea) leaders responded to intended sanctions by labeling them as “a declaration of war.”

The DPRK has,suffered from economic warfare, which includes restrictions on trade and financial transactions. Export of sensitive dual-use items (items that have both military and non-military uses) have, at times, been prohibited.  During March 2012, the politics of starvation entered the situation; angered by an intended North Korea missile test, the U.S. suspended food aid to the “hermit kingdom.”

WASHINGTON (Reuters) – The United States has suspended planned food aid to North Korea as Pyongyang vows to push ahead with a plan to launch a long-range missile in defiance of international warnings, U.S. military officials said on Wednesday.

Under President Obama, sanctions increased as a policy of “strategic patience;” the US waited for North Korea to change its bad behavior before engaging with the state. As a result, trade between North Korea and China increased and sanctions did not encourage Kim Jong-An to discuss de-nuclearization.

On September 21, 2017, President Donald Trump, as part of his administration’s “maximum pressure” campaign, allowed severing from its financial system and/or freezing assets of companies, businesses, organizations, and individuals who traded in goods, services, or technology with North Korea.

U.S. negotiations with North Korea have a built-in error; they request de-nuclearization in exchange for improved relations and reduction in sanctions. Not considered is that North Korea’s development of a nuclear arsenal was a response to its regard of U.S. actions in the Korean peninsula as a direct threat to its regime and the developments had no relation to sanctions. Therefore, the DPRK will not trade de-nuclearization for relief of sanctions, and that approach is a non-starter.

Sanctions, intended to collapse the North Korea regime, have not halted its development of nuclear weapons and guided missile delivery systems. They have collapsed the economy and harmed the North Korean people; starvation during droughts have occurred. Although some international assistance has been provided to North Korea, the intensive economic warfare waged against the “hermit kingdom” has exacerbated its problems, without any apparent benefit to its principal antagonist, the United States.

Iraq

If Iraq were Pompeii, then the US would be Mt. Vesuvius.

The sanctions against Iraq began August 6, 1990, four days after Hussein invaded Kuwait, and featured a near-total financial and trade embargo. Resultant suffering has been outlined in a UN Report on the Current Humanitarian Situation in Iraq, submitted to the Security Council, March 1999.  Due to the length of the report, only significant features are mentioned.

Before the Iraq War

  • before 1991 Iraq’s social and economic indicators were generally above the regional and developing country averages.
  • Up to 1990, the Food and Agricultural Organization (FAO) cited Iraq as having one of the highest per capita food availability indicators in the region.
  • According to the World Health Organization (WHO), prior to 1991, health care reached approximately 97% of the urban population and 78% of rural residents. A major reduction of young child mortality took place from 1960 to 1990; with the infant mortality rate at 65 per 1,000 live births in 1989 (1991 Human Development Report average for developing countries was 76 per 1,000 live births). UNICEF indicates that a national welfare system assisted orphans and children with disabilities and supported the poorest families.
  • Before 1991, southern and central Iraq had well developed water and sanitation systems, composed with two hundred water treatment plants (“wtp’s”) for urban areas and 1200 compact wtp’s to serve rural areas, as well as an extensive distribution network. WHO estimates that 90% of the population had access to an abundant quantity of safe drinking water.

From Sanctions After the Gulf War

  • Economist Intelligence Unit estimates that Iraqi GDP may have fallen by nearly 67% in 1991, and the nation had “experienced a shift from relative affluence to massive poverty” and had infant mortality rates that were “among the highest in the world.”
  • The United Nations Population Fund (UNFPA) estimated the maternal mortality rate increased from 50/100,000 live births in 1989 to 117/100,000 in 1997. The under-five child mortality rate increased from 30.2/1000 live births to 97.2/1000 during the same period. The United Nations Department of Economic and Social Affairs (DESA) calculates that the infant mortality rate rose from 64/1000 births in 1990 to 129/1000 in 1995 (the Human Development Report set the average infant mortality rate for Least Developed Countries at 109/1000). Low birth weight babies (less than 2.5 kg) rose from 4% in 1990 to around a quarter of registered births in 1997, due mainly to maternal malnutrition.
  • Calorie intake fell from a pre-war 3120 to 1093 calories per capita/per day in 1994-95. The prevalence of malnutrition in Iraqi children under five almost doubled from 1991 to 1996 (from 12% to 23%). Acute malnutrition in Center/South rose from 3% to 11% for the same age bracket.
  • The World Food Program (WFP) estimated that access to potable water decreased to 50% of the 1990 level in urban areas and 33% in rural areas.
  • School enrollment for all ages (6-23) declined to 53%. According to a field survey conducted in 1993, as quoted by UNESCO, in Central and Southern governorates, 83% of school buildings needed rehabilitation, with 8613 out of 10,334 schools having suffered serious damages. The same source indicated that some schools with a planned capacity of 700 pupils actually have 4500 enrolled in them. Substantive progress in reducing adult and female illiteracy ceased and regressed to mid-1980 levels. More families are forced to rely on children to secure household incomes. Figures provided by UNESCO indicate that drop-outs in elementary schools increased from 95,692 in 1990 to 131,658 in 1999.

Sanctions, and its toll on the Iraqi people, continued until the U.S. invasion of Iraq in 2003.

Excerpts from Invisible War: The United States and the Iraq Sanctions, Joy Gordon. Harvard University Press, 2010, describe the extent of irrational economic warfare conducted by the United states against a defenseless Iraq.

While the United States consistently justified its policies in terms of preventing Iraq from developing weapons or threatening its neighbors, the U.S. policy went well beyond any rational concern with security. There was an elaborate architecture of policies that found a dozen other ways to simply do gratuitous harm that had not the least relation to the threat Iraq might have posed to its neighbors or to anyone else.

For thirteen years the United States unilaterally prevented Iraq from importing nearly everything related to electricity, telecommunications, and transportation, blocked much of what was needed for agriculture and housing construction, and even prohibited some equipment and materials necessary for health care and food preparation.

As the criticism grew, there is no sign that anyone in the U.S. administration, and only a tiny handful within Congress, actually took it to heart– actually questioned the sanity and legality of reducing an entire civilization to a preindustrial state, of bankrupting an entire nation for the purpose of containing one tyrannical man.

On May 12, 1996, Madeleine Albright, then U.S. Ambassador to the United Nations, appeared on the CBS program 60 Minutes. Commentator Lesley Stahl asked, “We have heard that half a million children have died. I mean, that’s more children than died in Hiroshima. Is the price worth it?” Madeleine Albright replied, “we think the price is worth it.”  Is that an expected response from a normal human being?

The U.S. 2003 invasion of Iraq accomplished what sanctions failed to accomplish —  push Iraq to total ruin. A question, “Why war, if had sanctions, or why sanctions if need to go to war?”

Conclusion

As shown, sanctions never accomplished their stated purposes and gravely harmed populations. The economic warfare had equivalents to military war. The country that took the offensive became the aggressor, as in any war, and the destruction to the defending state was equally brutal. In the one-sided engagement, the civilian population of the defending nation suffered greatly and the aggressor country suffered few losses. The economic wars never achieved the results that the offended party desired, and no peace treaties were signed. The struggles remained an open issue.

A limited form of economic warfare may, at times, have a legitimate purpose. A complete economic war, that invades all aspects of a country’s life and continues until it debilitates the population, cannot be accepted. In a military campaign, atrocities and human rights violations are often committed. Although no shots are fired and battlefields are not identifiable, economic warfare cannot camouflage its atrocities and disguise its human rights violations.

  1. Dollars and Sense, 2009, The Costs of the Embargo, by Margot Pepper
  2. From CBS News, May 11, 2019.

The Sovereign Indigenous Power of Veto in Canada

1. The Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 S.C.C. 44, [2014] 2 S.C.R. 256 erred as a matter of law by interpreting section 35(1):— in breach of the maxim1 interpretatio cessat in claris [interpretation stops when a text is clear]; since, as held in R. v. Nicholas, 232 A.P.R.248, ¶9 (1988), by Justice Dickson of the New Brunswick Court of Queen’s Bench, the “use of the expression existing aboriginal and treaty rights in s. 35(1) can only be taken to mean those rights as they existed on April 17, 1982,” the day Canada’s Constitution Act, 1982, came into force and effect by the royal assent. [Emphasis added.]

2. Section 35(1) of the Constitution Act, 1982, unambiguously enacted, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

3. The following excerpts read together from Tsilhqot’in Nation are extrajudicial errors based on “interpreting” section 35(1):

[1] What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title? These are among the important questions raised by this appeal. [Emphasis added]

[23] … cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. [Emphasis added]

[71] What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title? The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982. The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35 of the Constitution Act, 1982. [Emphasis added]

[88] In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group. [Emphasis added]

[113] And what about the long period of time during which land claims progress and ultimate Aboriginal title remains uncertain? During this period, Aboriginal groups have no legal right to manage the forest; their only right is to be consulted, and if appropriate, accommodated with respect to the land’s use: Haida. [Emphasis added]

[125] As discussed earlier, to justify an infringement, the Crown must demonstrate that: (1) it complied with its procedural duty to consult with the right holders and accommodate the right to an appropriate extent at the stage when infringement was contemplated; (2) the infringement is backed by a compelling and substantial legislative objective in the public interest; and (3) the benefit to the public is proportionate to any adverse effect on the Aboriginal interest. This framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. [Emphasis added]

[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society. [Emphasis added]

4. The preceding excerpts identify a revolutionary political regime arrived at by improperly interpreting section 35 by means of “openly declaring a new principle of law.” The new principle introduces expropriation into the native and newcomer relationship and by so doing, were it not extrajudicial, effectively would put an end to the independent indigenous statehood that has survived. A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century, 1905, (at page 483), delivered a critical legal opinion about the limits on the judicial power:

Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. [Emphasis added]

5. James Kirby (2018), in an article entitled “A. V. Dicey and English constitutionalism,” History of European Ideas, accounted for the significance of Dicey:

Abstract: The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – “the rule of law” – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.

6. The Supreme Court’s interpretation of Tsilhqot’in Nation thus purports to supersede the previously established definition of “existing aboriginal rights” within the meaning of section 35(1) of the Constitution Act, 1982 by inventing new law. The “superseded” (if that were possible in lieu of a legislative constitutional amendment) constitutional law is provided by three constitutive authorities, namely:

(a) by the Canadian common law case on the doctrine of discovery, being Connolly v. Woolrich, (1867), 11 L.C.J. 197, 205-207 (S.C. Quebec) which confirmed the continuity of the indigenous jurisdiction to create their own law governing themselves and their beneficial interest:

…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not, that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of learned and august tribunal the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall perhaps one of the greatest lawyers of our times in delivering the judgment of the Court, said:

America separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?
But power, war, conquest give rights, which after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously for all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession. Johnson vs. McIntosh, 8 Wheaton’s Rep., 543.
This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one that could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all, the claims of Great Britain, both territorial and political; but no attempt so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist; are asserted by the one, and admitted by the other.
Soon after Great Britain determined upon planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect claim; nor was it so understood.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt.

(b) the constitutional legislation being the Indian part of the Royal Proclamation of 1763 which, excerpted, enacted:

[Paragraph 1] And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

[Paragraph 3] And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

[Paragraph 4]…if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively, within which they shall lie:…

(c) the proclamation’s original and authoritative precedent being St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 A.C. 46 (J.C.P.C.), which held:

[52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.

[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.

[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the meaning of sect. 109; and must now belong to Ontario in terms of that clause,…

[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever…. The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

7. The status of statehood is implicit in the designation by the proclamation of “Nations or Tribes of Indians.”

The Cherokees are a State. They have been uniformly treated as a State since the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a State, and the Courts are bound by those acts.2

8. John Burke, Osborn’s Concise Law Dictionary, 6th ed., Sweet & Maxwell, London, 1976, defined sovereignty in the unitary state of the United Kingdom:

Sovereignty. The supreme authority in an independent political society. It is essential indivisible and illimitable (Austin). However, it is now considered both divisible and limitable. Sovereignty is limited externally by the possibility of a general resistance. Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself. In the British Constitution the Sovereign de jure is the Queen or Crown. The legislative sovereign is the Queen in Parliament, which can make or unmake any law whatever. The legal sovereign is the Queen and the Judiciary. The executive sovereign is the Queen and her Ministers. The de facto or political sovereign is the electorate; the Ministry resign on a defeat at a general election.

9. Indigenous internal sovereignty is unique relative to Canada in virtue of its doctrine of discovery, its royal proclamation and the St. Catherine’s precedent.

10. The sovereign Indigenous power of veto in Canada over land development, then, consists in the right to say ‘no’ to the making of a treaty surrendering their beneficial interest (actual possession and exclusive use) in all land “not ceded to or purchased by Us” within the meaning of the Royal Proclamation of 1763. The indigenous peoples are entitled to veto developments by vetoing the applications for their consent to the use of the land without which development can not take place. Development is settlement and the proclamation orders settlers off land not proven by the Crown or its third-party grantees to be ceded.

  1. A compactly expressed and deeply entrenched principle of law.
  2. See, Cherokee Nation v. State of Georgia, 30 U.S. 1, 1-2 (1831):

The Sovereign Indigenous Power of Veto in Canada

1. The Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 S.C.C. 44, [2014] 2 S.C.R. 256 erred as a matter of law by interpreting section 35(1):— in breach of the maxim1 interpretatio cessat in claris [interpretation stops when a text is clear]; since, as held in R. v. Nicholas, 232 A.P.R.248, ¶9 (1988), by Justice Dickson of the New Brunswick Court of Queen’s Bench, the “use of the expression existing aboriginal and treaty rightsin s. 35(1) can only be taken to mean those rights as they existed on April 17, 1982,” the day Canada’s Constitution Act, 1982, came into force and effect by the royal assent. [Emphasis added.]

2. Section 35(1) of the Constitution Act, 1982, unambiguously enacted, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

3. The following excerpts read together from Tsilhqot’in Nation are extrajudicial errors based on “interpreting” section 35(1):

[1] What is the test for Aboriginal title to land?  If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title?  What are the constitutional constraints on provincial regulation of land under Aboriginal title?  Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title?  These are among the important questions raised by this appeal. [Emphasis added]

[23] … cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim.  What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal.  It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. [Emphasis added]

[71] What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title?  The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982. The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35 of the Constitution Act, 1982. [Emphasis added]

[88] In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group. [Emphasis added]

[113] And what about the long period of time during which land claims progress and ultimate Aboriginal title remains uncertain? During this period, Aboriginal groups have no legal right to manage the forest; their only right is to be consulted, and if appropriate, accommodated with respect to the land’s use: Haida.

[125] As discussed earlier, to justify an infringement, the Crown must demonstrate that: (1) it complied with its procedural duty to consult with the right holders and accommodate the right to an appropriate extent at the stage when infringement was contemplated; (2) the infringement is backed by a compelling and substantial legislative objective in the public interest; and (3) the benefit to the public is proportionate to any adverse effect on the Aboriginal interest.  This framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. [Emphasis added]

[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title.  Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group.  The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society. [Emphasis added]

4. The preceding excerpts identify a revolutionary political regime arrived at by improperly interpreting section 35 by means of “openly declaring a new principle of law.” The new principle introduces expropriation into the native and newcomer relationship and by so doing, were it not extrajudicial, effectively would put an end to the independent indigenous statehood that has survived. A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century, 1905, (at page 483), delivered a critical legal opinion about the limits on the judicial power:

Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. [Emphasis added]

5. James Kirby (2018), in an article entitled “A. V. Dicey and English constitutionalism,” History of European Ideas, accounted for the significance of Dicey:

Abstract: The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – “the rule of law” – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.

6. The Supreme Court’s interpretation of Tsilhqot’in Nation thus purports to supersede the previously established definition of “existing aboriginal rights” within the meaning of section 35(1) of the Constitution Act, 1982 by inventing new law. The “superseded” (if that were possible in lieu of a legislative constitutional amendment) constitutional law is provided by three constitutive authorities, namely:

(a) by the Canadian common law case on the doctrine of discovery, being Connolly v. Woolrich, (1867), 11 L.C.J. 197, 205-207 (S.C. Quebec) which confirmed the continuity of the indigenous jurisdiction to create their own law governing themselves and their beneficial interest:

…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not, that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of learned and august tribunal the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall perhaps one of the greatest lawyers of our times in delivering the judgment of the Court, said:

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?
But power, war, conquest give rights, which after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously for all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession. Johnson vs. McIntosh, 8 Wheaton’s Rep., 543.
This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one that could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all, the claims of Great Britain, both territorial and political; but no attempt so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist; are asserted by the one, and admitted by the other.
Soon after Great Britain determined upon planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect claim; nor was it so understood.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt.

(b) the constitutional legislation being the Indian part of the Royal Proclamation of 1763 which, excerpted, enacted:

[Paragraph 1] And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

[Paragraph 3] And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

[Paragraph 4]…if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively, within which they shall lie:…

(c) the proclamation’s original and authoritative precedent being St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 A.C. 46 (J.C.P.C.), which held:

[52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.

[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.

[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the meaning of sect. 109; and must now belong to Ontario in terms of that clause,…

[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever…. The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

7.  The status of statehood is implicit in the designation by the proclamation of “Nations or Tribes of Indians.”2

The Cherokees are a State. They have been uniformly treated as a State since the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a State, and the Courts are bound by those acts.

8.  John Burke, Osborn’s Concise Law Dictionary, 6th ed., Sweet & Maxwell, London, 1976, defined sovereignty in the unitary state of the United Kingdom:

Sovereignty. The supreme authority in an independent political society. It is essential indivisible and illimitable (Austin). However, it is now considered both divisible and limitable. Sovereignty is limited externally by the possibility of a general resistance. Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself. In the British Constitution the Sovereign de jure is the Queen or Crown. The legislative sovereign is the Queen in Parliament, which can make or unmake any law whatever. The legal sovereign is the Queen and the Judiciary. The executive sovereign is the Queen and her Ministers. The de facto or political sovereign is the electorate; the Ministry resign on a defeat at a general election.

9. Indigenous internal sovereignty is unique relative to Canada in virtue of its doctrine of discovery, its royal proclamation and the St. Catherine’s precedent.

10. The sovereign Indigenous power of veto in Canada over land development, then, consists in the right to say ‘no’ to the making of a treaty surrendering their beneficial interest (actual possession and exclusive use) in all land “not ceded to or purchased by Us” within the meaning of the Royal Proclamation of 1763. The indigenous peoples are entitled to veto developments by vetoing the applications for their consent to the use of the land without which development can not take place. Development is settlement and the proclamation orders settlers off land not proven by the Crown or its third-party grantees to be ceded.

  1. A compactly expressed and deeply entrenched principle of law.
  2. See, Cherokee Nation v. State of Georgia, 30 U.S. 1, 1-2 (1831):