Category Archives: Justice

Annexation: How Israel Already controls More than Half of the West Bank

A state of de facto annexation already exists on the ground in most of the occupied West Bank.

Almost two-thirds of the Palestinian territory, including most of its most fertile and resource-rich land, is under full Israeli control. About 400,000 Jewish settlers living there enjoy the full rights and privileges of Israeli citizens.

At least 60 pieces of legislation were drafted by right-wing members of the Knesset during the last parliament to move Israel from a state of de facto to de jure annexation, according to a database by Yesh Din, an Israeli human rights group.

Yesh Din points out that the very fact that some of these bills have passed as laws constitutes a form of annexation: “The Israel Knesset [now] regards itself as the legislative authority in the West Bank and the sovereign there.”

Paradoxically, many of those bills were opposed by Israeli Prime Minister Benjamin Netanyahu, even though they were drafted from within his own ruling coalition.

Netanyahu argued that it would be wrong to pre-empt US President Donald Trump’s peace plan, implying that annexation is high on the agenda.

Leaked details suggest that Washington is now preparing to green-light the formal annexation of at least some of that territory as part of its deal-making, though Netanyahu’s political difficulties and his decision to call another election in September could mean putting details on ice once again.

The Golan precedent

Three recent developments have also brought the idea of Israel annexing parts or all of the West Bank onto the agenda.

In March, US President Donald Trump recognised Israel’s sovereignty over the Golan Heights, seized from Syria during the 1967 war and annexed by Israel in 1981 in violation of international law. The US decision suggested a precedent whereby it might similarly approve a move by Israel to annex the West Bank.

In April, in the run-up to Israel’s general election, Netanyahu said he would use the next parliament to “extend sovereignty” to all illegal Jewish settlements in the West Bank, using a phrase preferred by Israeli politicians to “annexation”.

About 400,000 settlers live in the West Bank in 150 official settlements and another 120 so-called “unauthorised” outposts that have been covertly sponsored by the Israeli state since the 1990s. These settlements have jurisdiction over 42 percent of West Bank territory.

In early June, the US ambassador to Israel, David Friedman, a stalwart supporter of the settlements and one of the architects of Trump’s supposed “deal of the century”, told the New York Times that he believed Israel was “on the side of God” and said: “Under certain circumstances, I think Israel has the right to retain some, but unlikely all, of the West Bank.”

Support in Israel growing

Support in Israel for annexation is growing, with 42 percent backing one of several variants in a recent poll, as opposed to 34 percent who were behind a two-state solution. Only 28 percent of Israelis explicitly rejected annexation.

Behind the scenes, debates about formally annexing the Palestinian territories have been rife in Israel since it occupied the West Bank, East Jerusalem, and Gaza in 1967.

Successive Israeli governments, however, have demurred out of concern both that there would be strong international objections (most UN member states would be opposed to the annexation of territory recognised as illegally occupied in international law) and that Israel would be under pressure to give Palestinians in annexed areas citizenship, including the right to vote, that would undermine its Jewish majority.

Senior government ministers such as Moshe Dayan and Yigal Allon were among the early proponents of annexing parts of the West Bank. They drew up maps for a permanent settlement programme that would allow Israel to hold on to swathes of the West Bank, especially the most fertile land and the aquifers.

Through the late 1970s and 1980s, a justice ministry official, Plia Albeck, declared large areas of the West Bank “state land”, allowing the government to treat it as effectively part of Israel and build settlements.

Speeding tickets and police stations

Israel has applied its laws to the settler population and dozens of Israeli police stations located in the West Bank operate as if the territory has been annexed, issuing speeding tickets and enforcing other infractions on Palestinians. Palestinians’ ultimate recourse to adjudication on legal matters is Israel’s Supreme Court.

In 2011, that court decided that Israel was allowed to exploit more than a dozen quarries, one of the Palestinians’ key resources, because the occupation had become “prolonged” – a ruling that treated the West Bank as if it had been de facto annexed.

Since the Olso accords, Israeli leaders have tended to pay lip service to Palestinian statehood, at some distant future point. But in practice, they have encouraged the rapid expansion of the settlements. This policy is sometimes referred to as “creeping annexation”.

A number of variants have been advanced by the Israeli right, ranging from the annexation of all Palestinian territories, including Gaza, to annexation limited to certain areas of the West Bank.

How Oslo gave Israel control

The main framework for the Israeli debate about annexation is the Oslo process which temporarily carved up the occupied West Bank into Areas A, B and C as a prelude, it was assumed, to eventually transferring sovereignty to the Palestinian Authority.

Area C, 62 per cent of the West Bank, is under full Israeli control and where the settlements are located. It is also where most of the water, agricultural and mineral resources are to be found.

Area B, 20 percent, is under Israeli security control and Palestinian civil control. And Area A – mainly Palestinian built-up areas on 18 percent of the West Bank – is nominally under full Palestinian control.

The option favoured by most of Netanyahu’s Likud party involves the annexation of areas populated with settlers, or about 40 percent of the West Bank mostly located in Area C.

This option would keep West Bank Palestinians outside the annexed areas and make it easier to avoid conferring any residency or citizenship rights on them. The Palestinian Authority would be given “limited autonomy” – a kind of glorified municipal role – over the remaining fragments of the West Bank.

To the right of Likud, opinions range from annexing all of Area C to annexing the entire West Bank and Gaza, and the creation of Palestinian “Bantustans” modelled on South Africa’s racist apartheid system. Some propose a “salami” method, with Israel gradually slicing off more of the West Bank.

The Israeli centre-left fears formal annexation not only violates international law but will damage Israel’s image abroad by encouraging comparisons with apartheid-era South Africa. In the absence of a Palestinian state, a minority of Jews might soon be ruling over a majority of Palestinians.

The centre-left is also concerned about the costs of annexation. Commanders for Israel’s Security, a group of retired security officials, argue that annexation will lead to the inevitable collapse of the Palestinian Authority.

As a result, they believe Israel would incur annual costs of between $2.3bn and $14.5bn, depending on the extent of the West Bank area annexed. There would also be a loss of $2.5bn in foreign investments. Palestinian uprisings could cost Israel’s economy as much as $21bn.

Right-wing economists like Amatzia Samkai of the Caucus for Eretz Israel say Israel will benefit economically. If Area C is annexed, only a small number of Palestinians will be entitled to Israeli welfare payments, he says. Such costs, he adds, can be more than offset by an expanded labour force and a drop in real-estate prices after West Bank land is freed up for house building by Israelis.

Knesset ‘sovereign’ in West Bank already

Of the 60 pieces of draft annexation legislation brought before the Knesset, eight have passed into law.

The main laws that have been passed include:

  • annulling a special council overseeing higher education in West Bank settlements and transferring its powers to the main Israel Council for Higher Education.
  • approving retroactively the theft of private Palestinian land used to build settlements. The previous official position was that settlements should be built only on land Israel had declared state land because it was not owned by Palestinians.
  • extending benefits available in Israel – from tax exemptions and egg production quotas to renewable energy investments – to West Bank settlements.
  • unifying the criminal register used by police in Israel and the West Bank.
  • transferring powers to adjudicate matters involving the West Bank to lower courts in Israel.
  • prohibiting businesses from refusing to supply services to West Bank settlements.

In addition, Yesh Din notes, Israel has recently shifted its diplomatic position and legal arguments to the courts in relation to the West Bank.

It has rejected the West Bank’s status as being under occupation, asserted Israel’s authority to operate there and eroded the obligation to protect the rights and property of the Palestinian population.

Another significant piece of legislation Netanyahu is known to favour – chiefly for personal reasons because it could be used to protect him from corruption indictments – is an Override Law.

The measure is being aggressively promoted by settler groups because it would strip Israel’s Supreme Court of judicial review powers to block legislation annexing the West Bank.

Palestinian support?

On the Palestinian side, a tiny number, mostly business leaders, have backed annexation of the West Bank. They have been cultivated by the Trump administration as a potential alternative leadership to the Palestinian Authority. Most Palestinians consider them traitors or collaborators.

Hebron businessman Ashraf Jabari, for example, has entered into a partnership with settler counterparts in the “Judea and Samaria Chamber of Commerce”, using the settlers’ Biblical name for the West Bank.

The chamber promotes joint ventures such as shopping centres along West Bank main roads, tourism initiatives and infrastructure projects.

Jabari and others have consciously sought to package annexation on Israeli terms as similar to the one-state agenda of a growing section of the Palestinian population, especially those supporting the boycott, divestment and sanctions movement (BDS).

“We have to think about this area as one entity, not two entities and two realities,” he told journalists recently.

Certainly, there are Palestinians who consider annexation and Israel’s direct re-occupation of the West Bank, unmediated by the PA, as a necessary condition for Palestinians launching a civil rights or anti-apartheid struggle to realise a genuine one-state solution.

• First published in Middle East Eye

Kushner as a Colonial Administrator

In a TV interview on June 2, on the news docuseries “Axios” on the HBO channel, Jared Kushner opened up regarding many issues, in which his ‘Deal of the Century’ was a prime focus.

The major revelation made by Kushner, President Donald Trump’s adviser and son-in-law, was least surprising. Kushner believes that Palestinians are not capable of governing themselves.

Not surprising, because Kushner thinks he is capable of arranging the future of the Palestinian people without the inclusion of the Palestinian leadership. He has been pushing his so-called ‘Deal of the Century’ relentlessly, while including in his various meets and conferences countries such as Poland, Brazil and Croatia, but not Palestine.

Indeed, this is what transpired at the Warsaw conference on ‘peace and security’ in the Middle East. The same charade, also led by Kushner, is expected to be rebooted in Bahrain on June 25.

Much has been said about the subtle racism in Kushner’s words, reeking with the stench of old colonial discourses where the natives were seen as lesser, incapable of rational thinking beings who needed the civilized ‘whites’ of the western hemisphere to help them cope with their backwardness and inherent incompetence.

Kushner, whose credentials are merely based on his familial connections to Trump and family friendship with Israeli Prime Minister, Benjamin Netanyahu, is now poised to be the colonial administrator of old, making and enforcing the law while the hapless natives have no other option but to either accommodate or receive their due punishment.

This is not an exaggeration. In fact, according to leaked information concerning Kushner’s ‘Deal of the Century,’ and published in the Israeli daily newspaper, Israel Hayom, if Palestinian groups refuse to accept the US-Israeli diktats, “the US will cancel all financial support to the Palestinians and ensure that no country transfers funds to them.”

In the HBO interview, Kushner offered the Palestinians a lifeline. They could be considered capable of governing themselves should they manage to achieve the following: “a fair judicial system … freedom of the press, freedom of expression, tolerance for all religions.”

The fact that Palestine is an occupied country, subject in every possible way to Israel’s military law, and that Israel has never been held accountable for its 52-year occupation seems to be of no relevance whatsoever, as far as Kushner is concerned.

On the contrary, the subtext in all of what Kushner has said in the interview is that Israel is the antithesis to the unquestionable Palestinian failure. Unlike Palestine, Israel needs to do little to demonstrate its ability to be a worthy peace partner.

While the term ‘US bias towards Israel’ is as old as the state of Israel itself, what is hardly discussed are the specifics of that bias, the decidedly condescending, patronizing and, often, racist view that US political classes have of Palestinians – and all Arabs and Muslims, for that matter; and the utter infatuation with Israel, which is often cited as a model for democracy, judicial transparency and successful ‘anti-terror’ tactics.

According to Kushner a ‘fair judicial system’ is a conditio sine qua non to determine a country’s ability to govern itself. But is the Israeli judicial system “fair” and “democratic”?

Israel does not have a single judicial system, but two. This duality has, in fact, defined Israeli courts from the very inception of Israel in 1948. This de facto apartheid system openly differentiates between Jews and Arabs, a fact that is true in both civil and criminal law.

“Criminal law is applied separately and unequally in the West Bank, based on nationality alone (Israeli versus Palestinian), inventively weaving its way around the contours of international law in order to preserve and develop its ‘(illegal Jewish) settlement enterprise’,” Israeli scholar, Emily Omer-Man, explained in her essay ‘Separate and Unequal’.

In practice, Palestinians and Israelis who commit the exact same crime will be judged according to two different systems, with two different procedures: “The settler will be processed according to the Israeli Penal Code (while) the Palestinian will be processed according to military order.”

This unfairness is constituent of a massively unjust judicial apparatus that has defined the Israeli legal system from the onset. Take the measure of administrative detention as an example. Palestinians can be held without trial and without any stated legal justification. Tens of thousands of Palestinians have been subjected to this undemocratic ‘law’ and hundreds of them are currently held in Israeli jails.

It is ironic that Kushner raised the issue of freedom of the press, in particular, as Israel is being derided for its dismal record in that regard. Israel has reportedly committed 811 violations against Palestinian journalists since the start of the ‘March of Return’ in Gaza in March 2018. Two journalists – Yaser Murtaja and Ahmed Abu Hussein – were killed and 155 were wounded by Israeli snipers.

Like the imbalanced Israeli judicial system, targeting the press is also a part of a protracted pattern. According to a press release issued by the Palestinian Journalists Union last May, Israel has killed 102 Palestinian journalists since 1972.

The fact that Palestinian intellectuals, poets and activists have been imprisoned for Facebook and other social media posts should tell us volumes about the limits of Israel’s freedom of press and expression.

It is also worth mentioning that in June 2018, the Israeli Knesset voted for a bill that prohibits the filming of Israeli soldiers as a way to mask their crimes and shelter them from any future legal accountability.

As for freedom of religion, despite its many shortcomings, the Palestinian Authority hardly discriminates against religious minorities. The same cannot be said about Israel.

Although discrimination against non-Jews in Israel has been the raison d’être of the very idea of Israel, the Nation-State Law of July 2018 further cemented the superiority of the Jews and inferior status of everyone else.

According to the new Basic Law, Israel is “the national home of the Jewish people” only and “the right to exercise national self-determination is unique to the Jewish people.”

Palestinians do not need to be lectured on how to meet Israeli and American expectations, nor should they ever aspire to imitate the undemocratic Israeli model. What they urgently need, instead, is international solidarity to help them win the fight against Israeli occupation, racism and apartheid.

Assange hospitalized, “dagger in journalist hearts” – George Galloway

The attorney of WikiLeaks founder and journalist Julian Assange’s has revealed that he was too ill to appear in a video chat for his extradition hearing. Assange has spent the past seven weeks at Belmarsh prison, where his health has continued to deteriorate. The WikiLeaks founder faces extradition to the US over “espionage” charges dating back to 2010. Former UK MP George Galloway joins In Question to break this all down.

Ontario Government Drastically Cuts Legal Aid and Ends Aid for Refugee and Immigration Matters

There are some important changes that are going to impact refugees and even Permanent Residents in Canada. In the Ontario budget, released on April 11, 2019, Legal Aid Ontario’s funding was $133 million less in fiscal year 2019-2020 than the $456 million it had anticipated.1 In 2020 Legal Aid Ontario will somehow have to operate on further reduction of another $31 million.2

As the Toronto Star has pointed out in an editorial, “The fact is refugee claimants who are represented by lawyers have an acceptance rate of 57 per cent. Only 15 per cent of those representing themselves get in, though they may be in just as much danger.”

Doug Ford’s Conservative government insists that Ottawa will pick up the cost of legal help for refugee claimants. Ontario is the primary destination of asylum seekers in Canada. Up until now Ontario had the most generous Legal Aid program for refugee claimants. However, lawyers complained that it barely covered the administrative costs of a law office.

Legal Aid Ontario says the annual cost of helping refugees is about $45 million per year. The federal government contributes only $16 million.3

Legal Aid CEO David Field says in a memo to staff dated March 17, 2019 that the province has told the agency it can only use federal funding to cover new immigration and refugee services this year.

That federal funding totals between $13 million and $16.5 million, short of Legal Aid Ontario’s projected costs of between $30 million to $34 million on the services for the year.

Field says Ontario Legal Aid will honour clients who are already being served and will help some additional clients in limited circumstances.

Ontario Attorney General Caroline Mulroney outlined the funding changes in a letter to Field dated March 15, 2019 stating that the province expects the federal government to fully fund immigration and refugee law services for cases before federal tribunals or in federal court.

Mulroney said, after announcing the budget cuts, that “her ministry was eager to work with Legal Aid to modernize the way these services are provided within federal funding levels”.  She added: “We are amenable to LAO utilizing current provincial resources to transition to a system that is sustainable solely on federal funding.”4

It is clear that the cuts to Legal Aid will affect thousands of refugee claimants.  They will have to rely on their own resources, family and community support. However, many who have fled their homes on an urgent basis will not have access to their resources.

The Ontario government has a point. Refugee and Immigration law is clearly an areas of Federal responsibility and the Federal Government has not been covering the cost of refugees for many years. However, criminal law is also Federal responsibility and the province is funding Legal Aid for this area of law.

Hopefully the Federal Government will step up and cover the costs of refugees and other Immigration matters. If the funding is not provided it will create chaos in the Immigration and refugee system. This lack of legal representation will increase costs and create delays and increase administration costs substantially.

Refugee and Immigration law is a highly specialized area of law. Most refugees have little or no idea how to properly present their cases. Without legal assistance it means that many legitimate refugees will have their claims rejected and be deported from Canada to countries where they are at risk of being put in prison, tortured and even killed. Many refugees are fleeing violence and rampant criminal activity. However, there is some abuse of the system in not all refugee claims are legitimate.

Some asylum seekers are economic refugees and who want to give their children a better life but are not Convention refugees. Refugees who qualify for the protection of Canada must prove that they have a genuine fear of persecution on the following grounds:

They must show by reason of a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group or political opinion, and is (a) outside each of their countries of their nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries or (b) the same for their country of habitual residence.5

That being said most Canadians do not want to send refugees back to countries where they are at risk. We must remember that Canada turned away Jewish refugees back in the 1930’s and they were forced to return to Nazi Germany where they faced persecution and even death. Canada should take in those who have a genuine fear of persecution and reject those who are not genuine refugees.

In British Columbia lawyers threatened to go on strike and won an additional $7.9 million to cover their costs. If the Ontario lawyers were to go on strike it would create chaos and vastly increase costs in administrating the legal system.

Lawyers who represent clients who cannot afford to pay privately are an important part of making the legal system work. Access to justice is an important part of Canada’s and Ontario’s legal system. Budget cuts will affect the most vulnerable and in the end cost a great deal and hurt Canada’s reputation as a fair and humane country.

  1. Despite budget cuts, Ford ‘guarantees’ anyone who needs legal aid will get it,” by Alan Carter, Global News, April 22, 2019.
  2. Ontario’s cuts to legal aid will hurt the poorest,” Star Editorial Board, Toronto Star, April 19, 2019.
  3. Ontario asks federal government for $45-million to fund legal aid for refugees, immigrants,” by Laura Stone, Globe and Mail, March 17, 2019.
  4. Ibid.
  5. s. 96 Immigration and Refugee Protection Act.

Denmark Peace and Justice Conference Connects Activism Against Poverty, Pollution and War

Most people in the West think of Denmark as a tolerant, peace-loving country, even—according to Bernie Sanders and Donald Trump—as a socialist country. Trump views this as a disease to be excised, and avoided in the US at all costs, while Sanders sees this as an ideal for America.

The truth is far from these tales. Denmark runs on a solidly capitalist economy, and it has been at war against all the countries the US has invaded since Iraq in 1990. Its troops remain in Afghanistan and Iraq; and its planes bombed Syria not long ago. The various governments have cut back the social network of “free” education and healthcare to the bare bones in the last decade. The elderly, for instance, who cannot bathe themselves, must wait up to seven weeks before a social welfare assistant can come to wash them and clean house, and must do so in the few minutes strictly allotted. (See my series, ”Scandinavia on the Skids: The Failure of Social Democracy”.)

There are a few, quiet progressive or radical groupings in Denmark, no peace movement, but a burgeoning climate movement. Yet one alternative institution, Tvind, tries to influence people in Denmark, throughout Europe and in some “third world” countries to be activists and teachers of activism. Tvind started in 1970 (see sidebar below) and for the past five years has sponsored an international Peace and Justice Conference.

One of the unusual aspects of Tvind, at its schools, residences and conferences, is that no alcohol or any drugs are allowed. I was there four days and never did anyone, not even the 20-30 year-old majority, speak of any need for these normal crutches, and they danced after all the work until after midnight stone sober. Maybe they got their energy from a sense of fulfilling togetherness and the delicious vegetarian-ecological food they prepared for two dozen students and another 150 people, who came to the conference from Denmark and a dozen more European countries east and west, a handful from India, Africa and Latin America.

This year’s conference took place in mid-May for three days. The kick-off speech dealt with “the Russian ‘peace threat’”, other global perspectives, and how to resist; how to bring the deadly and polluting institution of militarism and its wars into the consciousness and the agenda of those opposing climate change. Previous conference themes had dealt with how to stop wars not refugees; to transform from militarism to conflict resolution and peace; and no justice no peace.

”A culture of peace will be achieved when citizens of the world understand global problems, have the skills to resolve conflict constructively; know and live by international standards of human rights; gender and racial equality; appreciate cultural diversity; and respect the diversity of the earth. Such learning cannot be achieved without intentional sustained and systematic education for peace,” read the invitation.

This year’s program included over 30 workshops, half-a-dozen key speeches, music, a theater piece, artwork, poems, sports and networking. Workshop topics included: fighting with the poor; humanity in action in India; youth in climate action with refugees in Europe; movements for change in the USA; the difference between what the US government tells us about why it wages war and what the real reasons are; war and ecocide; songs for peace; pedagogy of liberation; what is going on in Venezuela; perspectives for our future, and how to take part of creating one.

Making music together with Italian musician Paolo Rossetti

Hans Blix-Noam Chomsky did not attend but Blix was interviewed for the conference, and a Democracy for Now interview with Chomsky was viewed. Blix was the UN’s chief investigator sent to Iraq in 2002-3 to find out if the government had “weapons of mass destruction,” the excuse that President George Bush used to invade it. In 2004, Blix stated that, “there were about 700 inspections, and in no case did we find weapons of mass destruction.” Nevertheless, “let’s kick ass” Bush set up the “coalition of the willing” to destroy much of Iraq and murder over one million people. The Danish government declared war on Iraq to please the US—the only country to actually declare war. While Blix is a man of the Swedish Establishment, a strong supporter of capitalism, EU and nuclear energy, and Chomsky is a rebel anarchist, the two agreed that the greatest threats and challenges to humanity are: climate change and the growing possibility of a nuclear war. Blix said that the former is slow suicide; the latter is quick suicide. The doomsday clock stands at two minutes to midnight, the first time since it did during the Cuba missile crisis, in 1962.

Trine Wendelboe is a Dane who moved to Dowagiac, Michigan 13 years ago. She directs research and development at the One World Center connected to Tvind. This small town is headquarters for the Pokagon band of Potawatomi Indians. The center aims to take action against worldwide poverty and climate change.  Wendelboe spoke of the growing poverty and anxiety overwhelming Americans, and about some of the movements resisting the disasters people confront.

The closing workshop and last speech were held by the Dutch transformation coach and Camino Real guide Gert-Jan van Hoon. Along with young DNS teachers Nadezda and Justas they asked how participants can stick together, how do they not get “blown away”, in order to heal the soul and Mother Earth.

Gert and open future workshop at Tvind’s Peace and Justice conference

I spoke with a dozen participants about what the conference had meant to them. Some were DNS students, a few were in the 10-month international development volunteer program, and some had only attended the conference. Here are comments regarding what they got out of it and how they might “not get blown away”.

Annie Wood, an English student in the DNS program, immediately took up planning her first action following the conference—a student strike in the nearby city of Holstebro. This would be part of the Friday For Future movement actions, which began in March with about 1.6 million strikers at 2000 locations on all continents

She had been inspired by her studies at Tvind and by the conference to write a poem, “The Choice”, which she read to the participants. Here are excerpts:

Here’s my first rhyme for the world to hear
written from inspiration about something I hold dear.
To me it makes clear sense and I think it should to you too,
because right now I’m heartbroken, this has got me feeling blue.

We are killing our home, this great big planet earth.
We are plundering, draining and polluting it for everything its worth.
Yes you’ve heard this story before, maybe you’re bored with the same old lines
but if you don’t help make it better, this story will tell the end of our times…

Maybe we don’t know what is right or what we want,
but we should know by now it’s not war but it is provident.
It’s not hate, destruction or poverty.
It is love, peace, justice what brings a happy life to me.

A Danish youth, Lars, heard of Tvind from The Establishment’s prejudiced view that its founders and teachers are authoritarian “brainwashers”. “Strange”, he surmises in typical Danish irony, “I never knew that brainwashing actually could open up hearts as it has done these days. We clearly felt a warm welcome to share our ‘stories’, as they say in America. We did that but most importantly we engaged in enthusiastic discussions one-to-one and in groups what it is that we want and need to do to save this world, to make it better than it is.”

Maxsim, a 22-year old Lithuanian, said, “We are all impressed with one another in that each of us has so much to share that is useful and positive.”

Maxsim had been deluged with a hateful view of Russia so pervasive in his country. But at the conference he heard a different picture of Russia today, one that indicates neither its people nor its leaders wish nor are acting to make war but rather are acting to protect their sovereignty and defend themselves against an escalating war threat from the US/NATO.

Mariana is a college student from Portugal studying management. She won a free week-long trip to Tvind to help prepare the conference. “These days have shown me that I am not content with becoming a manager for capitalism. I have to find something else for my future, some kind of education that can lead to a job that people actually need. I don’t know what but it shall come.”

Jette, a retired nurse and amateur illustrator, felt it was “lovely to see that people actually looked at one another and smiled or spoke a few words together as they passed by, instead of what we are used to here that one looks away from one another when passing by. And then such a pleasure to see how effective everyone is in doing their tasks while also so willing to play.”

Yusef is a 22-year old Kurdish refugee from Syria who looks ten years older. His parents fled the war-torn land first and made it to Denmark. Yosef was homeless for a time, hungry, on the run. He came to Denmark five years ago, and now lives with his parents.

One summer three years ago, Yusef wanted to do something useful, to participate in a summer camp. A camp at Tvind was among the choices his social worker showed him, something unusual for government paid workers to do.

Yusef said that he, “fell in love with the place and I’ve come here three years in a row now—to the camp and to this conference. I’ve learned a lot especially at this one. As a teenager, I had joined some demonstrations against Assad. I thought it was cool, you know. But I saw that the opposition was brutal too, and some of them were/are being supported by the US. One of the issues that we Kurds had was that we couldn’t automatically get government work when we graduated from universities with degrees, say, in medicine but Arabs could. Otherwise, we also had free education and health care. Shortly after demonstrations began in 2011, Assad agreed to change the rules so we could get government paid work. I realized after a while and since being here, that we were, and are being used and misused by the Americans and all the media hysteria. I now regret that I took part in demonstrations. Assad is not nearly as bad as he is painted to be.”

Vladimir is a 19-year old Russian, offspring of South Korean parents, living in the Czech Republic where he saw an announcement about this conference. He and I worked together in the kitchen one morning, two persons from two entirely different worlds and one four times the age of the other.

Vladimir is shy and not much for words but he opened a bit in our talk. “It is new for me to see people embrace one another and to work together. People here are not thinking so much about themselves. They are not selfish but thinking about the environment, about humanity and the planet.

“I’ve decided to join the ten-month traveling-learning-teaching program. I’ll be back to prepare for the African program, to open new horizons.”

*****

Sidebar: About Tvind

Tvind started (1970) near Ulfborg village (2000 pop.) on Denmark’s west coast by the North Sea. A small group of young teachers settled there to live collectively and with a shared economy. They sought to become pioneers in social development, education and with sustainable environmental projects. Today, there are hundreds of members in the “Teacher’s Group” in several countries.

The first task was to build living quarters, mainly from prefabricated wooden buildings. They dug foundations and made water and sewage systems. They bought and repaired ten buses, which would be used to travel to other countries to learn and teach.

The “Teacher’s Group” developed an educational system based on the concept of a rural collective and a travelling school. They expanded internationally becoming a global people’s corporation.

On September 1, 1972, 100 youth—ten young teachers and 90 students—created a four-year training program to become teachers in primary and secondary schools. This program is called the Necessary Teaching Training College (DNS in Danish letters).

DNS was started from a “necessity to train another kind of teachers to bring more relevant knowledge, mobilization and life to children.”

The times were a-changing but the Establishment and its schools were not. There were pressing issues and contradictions, such as the growing inequality between rich and poor, which were not on the agenda of society’s schools.

DNS became an international program. Today most students at Tvind are from many European countries. There are few from Denmark since the state has refused to support studies at Tvind financially following allegations of tax evasion and misuse of funds by former leaders—a matter still pending. Clearly Tvind/DNS are as controversial today as they were half-a-century ago.

In 1996, Tvind started an international network “Humana People to People”. Humana assists people to lift themselves out of poverty. During a ten-month program, international volunteers learn and work with poor people to learn new skills to farm organically, using windmill energy, assuring clean water, building solar water pump and solar light systems, producing jatropha seed oil for biodiesel energy and animal feed, building homes, and establishing mini-loans for self-employment especially for women. Another aspect is planting tens of millions of trees.

Humana programs exist in the Caribbean, India, Malawi, Mozambique, Guinea Bissau and Zambia. One form of financing these activities is the UFF—development aid from people to people—which collects used clothing that is sold to support Humana projects.

With a DNS bachelor monograph graduates (now over 1000) can become teachers at some schools in a few countries; take jobs with UN aid programs; work with the poor in many countries. Their notion is that the battle for the future of humanity is, “the fight of the poor against the three sisters of capitalism: free trade, free enterprise, freedom of endless profiteering.”

Tvind in Ulfborg also has a care center for people with special needs, a day school, and a school for youth with special needs and others who seek an alternative education—all supported by the local municipality. Students, other than those in the day school, live on campus. The DNS students also live there. There is a second school in Denmark, One World Center at Lindersvold.

The “Teachers Groups” has three other schools in England, Norway and Michigan, USA using the “determination of modern method”, the pedagogical approach shaped at DNS. This gives the student the main responsibility for training and results. Learning is structured with 50% individual studies, 25% common courses, and 25% personal experiences.

Tvind is renowned for building the first modern windmill (1975-8), the largest in the world at that time (54 meters tall with a 54 meters wingspread). Four hundred people began the construction, and through the years several thousands participated. An estimated 100,000 people visited Tvind to watch the process. When the mill was completed, it had only cost the equivalent of $1 million in today’s value—paid for out of Tvind teachers’ salaries.

Tvindkraft (windmill’s name) offered the designs and ideas to any and all, but the state didn’t want them because it was committed to going with nuclear energy. Nevertheless, the Danish people soon rejected this idea, in part because Tvind showed that windmill energy was possible, cheaper and much better for the environment. Tvindkraft is the basis for all of Denmark’s famous windmills.

By 2015, the windmill had produced 20 million kWh. Tvindkraft still provides all the energy Tvind uses. Yet Tvind gets no credit from Denmark’s Establishment since they teach that collective living, common production and sharing is better for people and the environment than capitalism’s greedy foundation.  Nevertheless, in 2008, they won the European Solar Prize, one of the most prestigious awards in renewable energy.

Tvindkraft still standing and functioning 41 years later. Tvind comes from the local dialect word for the surrounding “twisting” brook in that area (Jette Salling Photo)

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):

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. [Underlining 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.” See, Cherokee Nation v. State of Georgia, 30 U.S. 1, 1-2 (1831):

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.