Category Archives: Legal/Constitutional

Israelis Have Made their Verdict Clear: Benjamin Netanyahu’s Time is Up

For most Israelis, the general election on Tuesday was about one thing and one thing only. Not the economy, nor the occupation, nor even corruption scandals. It was about Benjamin Netanyahu. Should he head yet another far-right government, or should his 10-year divisive rule come to an end?

Barring a last-minute upset as the final ballot papers are counted, Israelis have made their verdict clear: Netanyahu’s time is up.

In April’s inconclusive election, which led to this re-run, Netanyahu’s Likud party tied with its main opponent in the Blue and White party, led by retired general Benny Gantz. This time Gantz appears to have nudged ahead, with 32 seats to Netanyahu’s 31 in the 120-member parliament. Both parties fared worse than they did in April, when they each secured 35 seats.

But much more significantly, Netanyahu appears to have fallen short of the 61-seat majority he needs to form yet another far-right government comprising settler and religious parties.

His failure is all the more glaring, given that he conducted by far the ugliest – and most reckless – campaign in Israeli history. That was because the stakes were sky-high.

Only a government of the far-right – one entirely beholden to Netanyahu – could be relied on to pass legislation guaranteeing him immunity from a legal process due to begin next month. Without it, he is likely to be indicted on multiple charges of fraud and breach of trust.

So desperate was Netanyahu to avoid that fate, according to reports published in the Israeli media on election day, that he was only a hair’s breadth away from launching a war on Gaza last week as a way to postpone the election.

Israel’s chief law officer, attorney general Avichai Mendelblit, stepped in to halt the attack when he discovered the security cabinet had approved it only after Netanyahu concealed the army command’s major reservations.

Netanyahu also tried to bribe right-wing voters by promising last week that he would annex much of the West Bank immediately after the election – a stunt that blatantly violated campaigning laws, according to Mendelblit.

Facebook was forced to shut down Netanyahu’s page on two occasions for hate speech – in one case after it sent out a message that “Arabs want to annihilate us all – women, children and men”. That sentiment appeared to include the 20 per cent of the Israeli population who are Palestinian citizens.

Netanyahu incited against the country’s Palestinian minority in other ways, not least by constantly suggesting that their votes constituted fraud and that they were trying to “steal the election”.

He even tried to force through a law allowing his Likud party activists to film in Arab polling stations – as they covertly did in April’s election – in an unconcealed attempt at voter intimidation.

The move appeared to have backfired, with Palestinian citizens turning out in larger numbers than they did in April.

US President Donald Trump, meanwhile, intervened on Netanyahu’s behalf by announcing the possibility of a defence pact requiring the US to come to Israel’s aid in the event of a regional confrontation.

None of it helped.

Netanayhu’s only hope of political survival – and possible avoidance of jail time – depends on his working the political magic he is famed for.

That may prove a tall order. To pass the 61-seat threshold, he must persuade Avigdor Lieberman and his ultra-nationalist Yisrael Beiteinu party to support him.

Netanyahu and Lieberman, who is a settler, are normally ideological allies. But these are not normal times. Netanyahu had to restage the election this week after Lieberman, sensing the prime minister’s weakness, refused in April to sit alongside religious parties in a Netanyahu-led government.

Netanyahu might try to lure the fickle Lieberman back with an irresistible offer, such as the two of them rotating the prime ministership.

But Lieberman risks huge public opprobrium if, after putting the country through a deeply unpopular re-run election, he now does what he refused on principle to do five months ago.

Lieberman has nearly doubled his party’s seats to nine, by insisting that he is the champion of the secular Israeli public.

Most importantly for Lieberman, he finds himself once again in the role of kingmaker. It is almost certain he will shape the character of the next government. And whoever he anoints as prime minister will be indebted to him.

The deadlock that blocked the formation of a government in April still stands. Israel faces the likelihood of weeks of frantic horse-trading and even the possibility of a third election.

Nonetheless, from the perspective of Palestinians – whether those under occupation or those living in Israel as third-class citizens – the next Israeli government is going to be a hardline right one.

On paper, Gantz is best placed to form a government of what is preposterously labelled the “centre-left”. But given that its backbone will comprise Blue and White, led by a bevy of hawkish generals, and Lieberman’s Yisrael Beiteinu, it would, in practice, be nearly as right wing as Netanyahu’s.

Gantz even accused Netanyahu of stealing his idea in announcing last week that he would annex large parts of the West Bank.

The difficulty is that such a coalition would depend on the support of the 13 Joint List legislators representing Israel’s large Palestinian minority. That is something Lieberman has rejected out of hand, calling the idea “absurd” early on Wednesday as results were filtering in. Gantz appears only a little more accommodating.

The solution could be a national unity government comprising much of the right: Gantz’s Blue and White teamed up with Likud and Lieberman. Both Gantz and Lieberman indicated that was their preferred choice on Wednesday.

The question then would be whether Netanyahu can worm his way into such a government, or whether Gantz demands his ousting as a price for Likud’s inclusion.

Netanyahu’s hand in such circumstances would not be strong, especially if he is immersed in a protracted legal battle on corruption charges. There are already rumblings of an uprising in Likud to depose him.

One interesting outcome of a unity government is that it could provoke a constitutional crisis by making the Joint List, the third-largest party, the official opposition. That is the same Joint List described by Netanyahu as a “dangerous anti-Zionist” party.

Ayman Odeh would become the first leader of the Palestinian minority to attend regular briefings by the prime minister and security chiefs.

Netanyahu will continue as caretaker prime minister for several more weeks – until a new government is formed. If he stays true to form, there is plenty of mischief he can instigate in the meantime.

• First published in The National

Improper Purposes: Boris Johnson’s Suspension of Parliament

There was something richly amusing in the move: three judges, sitting in Scotland’s highest court of appeal, had little time for the notion that Prime Minister Boris Johnson’s suspension, or proroguing, of parliament till October 14, had been lawful.  Some 78 parliamentarians had taken issue with the Conservative leader’s limitation on Parliamentary activity, designed to prevent any hiccups prior to October 31, the day Britain is slated to leave the European Union.

It did take two efforts.  The initial action in Edinburgh’s Outer House of the Court of Session was unsuccessful for the petitioners.  Conventional wisdom then was that such issues were, as a matter of high policy, political and therefore non-justiciable.  Legal standards, in other words, could not be applied to the decision.  (British judges tend to be rather reserved when it comes to treading on matters that might be seen as the staple of political judgment.)

All three First Division judges thought otherwise, taking the high road that this was exceptional.  Lord Carloway, the Lord President, accepted in principle that advice by the Prime Minister to the Queen would not normally be reviewable by courts.  Such a realm was customarily one above and beyond the judicial wigs.  That said, as a summary of the judgement records, “it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution”.  That principle was drawn, by implication, from the “principles of democracy and the rule of law.”  Feeling emboldened, Lord Carloway, on examining the documents supplied by Johnson and his team, felt that improper reasons could be discerned.

Lord Brodie similarly noted the singular nature of the circumstances. Under normal circumstances prorogation advice would not be reviewable, but if it constituted a tactic designed to frustrate Parliament, it could well be deemed unlawful.  In this case, Johnson’s move was “an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities.”  It could be inferred on the evidence that “the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary inference.”  Bold stuff, indeed, and hard to fault.

The third judge, Lord Drummond Young, was bolder still.  No need to be nimble footed here: the entire scope of such powers, relevant to prorogation or otherwise, could be legally tested.  The onus was on the UK government to show a valid reason for the prorogation “having regard to the fundamental constitutional importance of parliamentary scrutiny or executive action.”  The clues of evident impropriety in Johnson’s action lay in the length of the suspension and the general circumstances suggesting a prevention of scrutiny.  There could be no other inference that the move showed a wish “to restrict Parliament.”

The full bench, accordingly, made an order “declaring that the prime minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and thus null and of no effect.”  Few more damning statements have ever issued against a prime minister of the realm.

In an effort to remove some egg on the faces of government officials, a spokesman for Number 10 claimed to be disappointed by the decision, insisting that Johnson needed “to bring forward a strong domestic legislative agenda.  Proroguing Parliament is the legal and necessary way of delivering this.”  This was a somewhat milder version from those offered by other sources close to the Prime Minister, claiming political bias on the Scottish bench.  “We note that last week the High Court in London did not rule that prorogation was unlawful.  The legal activists choose the Scottish courts for a reason.”  The cheek of it all!

As for certain conservative outlets, accepting the judgment of the Court of Session was, well, unacceptable.  The Supreme Court, it was hoped by the likes of Richard Ekins, would clean up the mess made by their northern brethren with clear heads.  The Scottish decision had been “a startling – and misconceived – judgment.”

Which brings us to the second front opened up by petitioners in England, itself.  A High Court challenge, with an appeal now expected to be heard in the Supreme Court next week, initially failed to yield any movement.  But Johnson had little reason, or time, to gloat.  The government is now reverting to a stalling game, refusing to act on the Scottish decision till the English equivalent is handed down.  Not all business, however, will be suspended: the work of select committees, for instance, will continue.  The government also finds itself in the trenches, facing a Parliament intent on extending the Brexit date in order to achieve a deal.

The publication of the full, previously leaked doomsday document, the Yellowhammer contingency plan, anticipating measures if a no deal Brexit takes place, has also done its bit to pockmark Johnson’s efforts to maintain a steady ship.  The prime minister, said Labour leader Jeremy Corbyn accusingly, “is prepared to punish those who can least afford it.”

The government’s hope is that the Supreme Court case will move at its usual snail’s pace, thereby making any point ventured by Johnson’s detractors a moot point.  Richard Dickman of Pinsent Masons has observed that such appeals “take months sometimes years, but the court can move quickly in urgent cases like this one.”  The occasion promises to be quite a judicial party: 11 of the 12 law lords will be sitting.

Testing the judicial weather, Dickman suggested that there might “be a simple ‘yes’ or ‘no’ decision from the court with a more detailed judgment to follow.”  Another chapter in the annals of British law and parliamentary farce is being written.  In the meantime, the sentiment of the EU’s chief negotiator, Michel Barnier, reverberates through Europe. “We do not have reasons to be optimistic.”

Guns and Chips and Irony

I had Doctor Daniel Brown from Harvard spend 70 hours with Sirhan over almost three years [and] he comes away with this staggering, staggering evaluation. He says Sirhan was hypnoprogrammed ….. a technique of using chemicals as well as hypnosis ….. The program on him makes him forget everything within a certain time frame ….. He remembers when he gets a pinch on the neck [that] what he sees is not Senator Kennedy. It’s a paper target of a human being.

— William Pepper, 2013, speaking at Concordia University in Montreal, Quebec, Canada

Two issues made explicit in the U.S Constitution had to do with personal protection and the creation of money. Regarding the Second Amendment, its single sentence is blunt: “A well regulated Militia, being necessary to a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Infringe: to limit or control) The authors, informed by history, knew that governments typically grow despotic, and that being armed provides a measure of protection for citizens against a government grown oppressive and unaccountable. In Thomas Jefferson’s words, “…. to protect themselves against tyranny in government.”

Yet there is a growing call for governmental control of guns in the hands of citizens, the call coming from within the citizenry itself, and the reason is evident: Every so often in recent years an apparently deranged individual goes on a shooting spree in a school or public space. With each shooting the chorus to rein in gun ownership grows ever louder, and ever more politicians, sniffing out prevailing public sentiment, make gun control a campaign issue. Ideas range from the registration of all firearms to the outlawing of weapons that might give citizens parity with, say, a militarized police force.

But here’s an interesting question: Might devious elements within a government, intent on disarming its populace, resort to the creation of false-flag scenarios designed to frighten and to produce justification for ever-tightening control? Might it be a question of “LIHOP” (let it happen on purpose) or “MIHOP” (make it happen on purpose), to use the lingo of what CIA-tutored media figures call “conspiracy theorists”? It’s just a question. I’m not so cynical as to imagine such intent, but the notion that such could be the case definitely exists among many who are inclined to ferret out details of certain events like the sinking of the Maine, the Lusitania, Operation Northwoods, Pearl Harbor, the Gulf of Tonkin. Things like that.

The fact that elements of the U.S. Government have developed and refined mind control techniques, such as those apparently applied to Sirhan Sirhan, is old news. The CIA’s Program MKUltra was born more than 60 years ago, and although it was reported as having been officially terminated in the 1970s, anyone who would accept that as fact resides in the kind of comfortable mental Happy Place that seems to be an American specialty.

Shootings themselves make excellent ‘news’, as they produce an uptick in public attention (and anxiety), which is important to those with a stake in maintaining narratives and crafting prevailing public opinion. And when poignant biographies of victims are aired as news items, with touching facial photos, evocative descriptions of their generosity and good works, and how they were so beloved, the victims are transformed for viewers into something akin to neighbors, and the shootings become a viewer’s neighborhood issues. Something must be done! And so public demand for gun control continues to grow.

Would central banks jump to the rescue and offer a fully anonymous digital currency? Certainly not. Doing so would be a bonanza for criminals.

— Christine Lagarde, IMF Director, 2018, speaking at the Singapore Fintech Festival

It is Congress that was granted the power “to coin money [and] establish the value thereof”, or at least that‘s how the U.S. Constitution would have it. But times changed, as did our governors, so in 1913 the Congress and President decided, despite multiple warnings from Jefferson to Lincoln (and others in between and since) to turn that process over to a private banking interest given the grossly misleading title “Federal Reserve”.

Those whom we allowed to become the masters of our money are now herding us toward an electronic global currency. The concept has been widely discussed since at least 1988 when a cover article in The Economist predicted a single world currency by 2018 along the lines of a theoretical “Phoenix”. The stepwise route described would be at first allowing — then later encouraging — the use of some form of private-sector money to be used in addition to existing national currencies. Thereafter, over time, the public would come to prefer it on the basis of its greater convenience. While the 2018 prediction was itself a miss, cryptocurrency had by that time become all the rage in some quarters, and the concept of cryptocurrency as a global reserve currency is now being discussed.

Meanwhile, the use of credit- and debit cards continues to rise, in some European countries virtually the sole means of making purchases. Banks and credit unions are now offering incentives for their use, even as powerful governmental forces are advocating the banning of cash altogether. Follow the threads and the world that emerges is one in which our every transaction is an electronic record. Consider, though, that a personal “chip”, that dreaded item of ultimate control in the worst of all dystopian futures, needn’t be a microscopic subcutaneous transmitter. A plastic card willingly (and, in a cashless society, necessarily) produced with every exchange works perfectly for recording the where and what of each individual’s every movement.

With cash a relic of the past, there would be no place to protect savings were The Economy to require negative interest rates and “bail-ins”; accounts would be docked automatically. Anyone deemed an irritant to the government would simply have his or her “chip” turned off (It happens!) leaving the offender absolutely disabled in a cashless world. With the loss of one’s card an ever-present possibility, instinct would naturally tend toward protective self editing, and the inevitable result would be a population rendered ideal from the standpoint of an oppressive and unaccountable government: obedient and submissive.

And the irony? If governmental and social forces now in motion continue unabated and unopposed, Americans, who proclaim themselves “lovers of freedom”, will have essentially disarmed and chipped ourselves. Having been made fearful, we don’t merely allow, we insist, on governmental control of personal arms. And through a process of multigenerational social engineering, our attachment to our plastic identifiers has been so reinforced and normalized that we have failed to realize what they represent and how they can be used against us.

New Culture, New Constitution, New Everything

North, Central, and South America were named after Amerigo Vespucci.  In “Letter to Lorenzo de’ Medici,”1 Amerigo Vespucci describes the New World.  Lorenzo de’ Medici is a member of the Medici family, a stupendously wealthy family of bankers and importers, who ruled the city of Florence, Italy for most of the 1400s.  The Medici family’s patronage of the arts promoted the Renaissance by sponsoring many of the most significant artistic achievements. They also gave financial loans to the Church.  Moreover, in 1513, another Medici, Giovanni de’ Medici, became Pope Leo X, which shows how influential and powerful this family was.2

Amerigo Vespucci referred to Lorenzo de’ Medici as “Your Excellency.”  He told Lorenzo how he and his crew in the Americas discovered “a very large village, the houses of which were built over the sea, like Venice with much ingenuity.  While we were struck with admiration at this circumstance, we determined to go see them; and as we went to their houses, they attempted to prevent our entering. They found out at last the manner in which the sword cuts, and thought it best to let us enter.”  The document also mentions that after entering, Amerigo Vespucci and his crew took a great quantity of cotton and dye-wood and returned to the ships.3 Apparently their religious motto of “do unto others, as you would have them do unto you” does not apply when the others are considered to be subhuman savages.

Niccolo Machiavelli was famous for writing the book The Prince which gave advice to political leaders of Florence that they must be ruthless, expedient, strong, and clever.  He also said, “It’s better for a ruler to be feared than loved.” The Prince is a treatise explaining how to gain and hold absolute political power.  Machiavelli dedicated The Prince to Giuliano de’ Medici, another member of the Medici family.4

If we examine the Middle Ages, as a contrast to the Renaissance period, the perfect ruler was Louis IX of France who was so virtuous that he was made a saint.  But with the Renaissance, men like Cosimo de’ Medici and Cezare Borgia took power boldly. It was considered a realistic politics that often meant a brutal disregard for ethics.4

In A People’s History of the United States, Howard Zinn on page 1 mentions that Columbus wrote “They have no iron. Their spears are made of cane…They would make fine servants.”  On page 2 of the People’s History, it mentions that Columbus wrote, “As soon as I arrived in the Indies on the first Island which I found, I took some of the natives by force in order that they might learn and might give me information of whatever there is in these parts.”5

The Medici family, Machiavelli, and Columbus represent the foundation and mentality upon which our nation and culture were built. You could also say that our oligarchical founding fathers imbued this same commercial spirit of capitalistic enterprise.  The Portuguese explorer Bartholomeu Dias explained the purposes that drove men to sail their ships across uncharted oceans: “To serve God and the King, to give light to those who are in darkness, and to grow rich, as all men desire to do.”6

Even today many people have the false hope that becoming rich is what will make them happy and fulfilled.  It is hard to fathom that the world’s billionaires do not seem troubled by the fact that half the world lives on less than $5.50 per day, according to the  World Bank. Many people aspiring to be millionaires and billionaires themselves see no justification in taxing the super rich at a higher rate.  Considering the needs of the planet and the rest of the world, I think the ratio of rich to poor annual incomes should be about 10:1, which means that any income above $120,000 would be taxed at 100 percent, based on the lowest wage being $15 per hour, about $30,000 a year. Moreover, everyone above the age of 18 could be guaranteed a basic annual income of $12,000 per year.  Reducing military spending by 90 percent would allow us to use tax revenues in a more humanistic way. After other nations reciprocate, we can reduce it even more.  I believe the other nations would reciprocate. It is the United States that is promoting outrageous military spending!

Instead of creating a survival-of-the-fittest, dog-eat-dog society, we can create a civilization that fosters cooperation and altruism.  If someone has the entrepreneurial skill of making a lot of money, that skill and motivation could be redirected and channeled into making the local community and the world a better place.  In a materialistic culture, the more we give, the less we have; it is a win-lose relationship. However, in an altruistic culture, the more we give the more we have; it is a win-win relationship.  Children learn what they live. We can teach different values to our children.

Today, as some of us complain about the never ending wars, a cursory study of history reveals that there have been many, many territorial and religious wars for very selfish and foolish reasons. Throughout history, in every age, there has been a small ruling class that has exploited the masses through the forces of hierarchy and domination.

Some would argue that the wars and hierarchical control are both just expressions of human nature, but you can also argue that humans just took a major wrong turn in the history of our so-called “civilization.”  We could have built a culture based on cooperation and sharing rather than competition and greed. We could have built our culture from the bottom-up, rather than from the top-down.  Even non-Western cultures and some primitive cultures have had their share of social problems, but now we know so much more.  We should be able to learn from history.

In hindsight, we must realize that we can still work to reverse the 9 social sins that have developed in the West, and especially in the United States: imperialism, nationalism, racism, corporate capitalism, anti-environmentalism, speciesism, materialism, patriarchalism, and the discrimination against the LGBTQ community.  Some of us are sickened by the never-ending wars of our national leaders who wreak havoc on the world — though few average Americans seem to be aware of it or troubled by it. Moreover, some of us no longer feel comfortable saying the “Pledge of Allegiance,” even though we deeply care about the other people who share this land.

To create a new culture, we have to have a democratic constitutional convention to create a new constitution.  But how do we select the delegates for this constitutional convention? Our current federal and state legislators or their chosen representatives should not be the delegates.  That is the main reason most people are fearful of a constitutional convention: they do not trust our current leaders. But a more democratic, bottom-up approach to having a constitutional convention would be to have the delegates come from the largest national political parties, as determined by proportional representation. This method would not create a new government that inherently favors the left or the right.  However, in time, if either the left or the right attracts more people into their fold through persuasion and argument once the playing field has been completely leveled, so be it.

A new culture and a new constitution created through a maximum level of democracy will not create an ideal society at first, considering all the pejorative influences of the last 5,000 years, but in time our society can gradually get better.  Moreover, we can become collectively wiser if we create a constitution that makes it much easier to create new laws, new amendments, and new future constitutions in a democratic and fair way.

Through the scientific studies of consciousness and meditation and the mounting evidence about Near Death Experiences and the New Physics which bridges science and spirituality, and through new research into ayahuasca as a form of therapy for problems such as Post Traumatic Stress Disorder (PTSD), which used to be called “shell shock” — all of the above can help us realize that we are one — we are interrelated ecologically and spiritually — one earth, one world, one humanity. We are all connected to the Source Energy at the deepest level of our being, which may be the same Source Energy that created the universe.

When we realize that an intellectual understanding of history and a psychological understanding of ourselves are far more fulfilling than a materialistic lifestyle; when we realize that the earth has an ecological carrying capacity that we must honor; when we realize that world peace is hampered to the degree there is a disparity between the rich and the poor; when we realize all of these things simultaneously — then the social sins of nationalism, imperialism, racism, and patriarchalism will no longer be the dominant themes of our culture.  Moreover, with a focus on internationalism, we will see the need for a democratic world government  built from the bottom-up,  not from the top-down through fascist oligarchs, also referred to as the one percent.  If we can create a constitutional convention in a democratic way, it can ultimately promote a new way of looking at the world and our human potential; it can merge science and spirituality; it can promote more loving-kindness, cooperation, sharing, honesty, and transparency in our personal, social, and international relationships.

Archetypically, the seven largest national political parties are the Republican, Democratic, Constitution Party, Libertarian, Green, Democratic Socialist, and Revolutionary Socialist.  Now imagine if these political parties were represented at a constitutional convention based on proportional representation. What would be even more democratic would be to have the national political parties that have garnered at least one percent of the national vote be represented at a constitutional convention.

At this link, I show how it can be done:  “The Most Democratic Way to Have a Constitutional Convention.”  I also share “15 Proposals that Could Make Our Nation and the World a Better Place.”  Not everyone will  support the proposals that you or I will recommend, but we have to realize that once we broaden the political spectrum and drastically reduce the influence of money in politics, citizens will have an opportunity to become better educated.  Creating a new constitution in a fair and democratic way may not create an ideal society — at least not immediately — but it will be a society that is much better than what we now have.

• First published at OpEdNews.com

  1. Sherman, Dennis and Salisbury, Joyce. West in the World: A History of Western Civilization, fourth edition, (2011), p. 388.
  2. Muntone, Stephanie. European History DeMystified, (2012), pp. 7-8.
  3. Sherman, Dennis and Salisbury, Joyce. West in the World: A History of Western Civilization, fourth edition, p. 388.
  4. Ibid. p. 323.
  5. Zinn, Howard. A People’s History of the United States: 1492-Present, (2003), pp. 1-2.
  6. Sherman, Dennis and Salisbury, Joyce. West in the World: A History of Western Civilization, fourth edition, (2011), p. 381.

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.

The Constitutional Crisis, Impeachment and Russophobia

I think this is what you call a constitutional crisis.

The president says the Mueller Report exonerates him of Russian collusion and obstruction of justice. Democrats in Congress insist it does show evidence for obstruction, that needs further investigation through hearings. Trump has ordered his officials, lawyers and aides to refuse to testify, citing executive privilege, obliging the seven House committees investigating Trump to subpoena witnesses, who may still refuse to appear. Such people, if cited by Congress, with contempt could be forced by courts to pay fines or even be imprisoned. But it is not clear what will happen; hence, a crisis.

Trump now indicates that he will not cooperate with the Democratic majority in the House on key issues such as infrastructure until they conclude their annoying investigations of his alleged obstruction, as well as his finances. His puerile tantrum at the Wednesday White House meeting with the Democratic leadership was occasioned by a remark by the Democratic Speaker of the House that Trump was guilty of a “cover-up.” He essentially told Nancy Pelosi that if she was going to speak rudely of him, he would takes his toys and go home.

One can understand his feelings, of course. Why work with people who are (falsely, in your own mind) accusing you of misbehavior? Pundits are noting that Nixon and Clinton during their impeachment proceedings could stay focused on government business and compartmentalize their minds. But Trump may be unable or unwilling to do that. And it may well be that he is positively courting impeachment, assuming the Republican-dominated Senate would acquit him and that the proceedings might actually consolidate his base for the 2020 election.

The constitutional crisis pits Congressional oversight against executive privilege. The parliament against the king. It’s an exciting spectacle to watch, but there are no heroes in it. The Democrats hoped to bring Trump down (and discredit the result of the 2016 election) by using Cold War-type Russophobia. They are bitterly disappointed they could not wed their effort to drive Trump from office to that Russophobia, and that the Mueller probe found no evidence for Russian collusion with the Trump campaign much less the full-fledged conspiracy imagined by many. Now the goal is to bring him down through the investigation of his finances. (Of course, allegations of a mysteriously cordial relationship between Trump and Putin will also continue, and nascent plans for a Trump Tower in Moscow, where Trump hosted a Miss Universe pageant in 2013, will be adduced as evidence for somehow inappropriate ties with an “adversary” nation.)

Documents subpoenaed by the Congress from Deutsche Bank and Capital One might well show illicit financial transactions. Trump has called the investigation of his finances a red line; in his view they are none of the people’s business. One reason (we now know, thanks to New York Times reporting) Trump lost billions in the 1990s; he is not a very good businessman after all, and it’s embarrassing to him for the world to know it. But soon we know much more about his finances, and may discover scandals sufficient to turn more Republicans against the president and allow for impeachment in both houses. Who knows, we may even discover evidence for illegal Russian loans to Trump, which would make the Democrats’ dream come true.

Pelosi has been cautious about seeking impeachment, pending more investigations that could produce a bipartisan effort. To see that, as many Dems do, as excessively careful would be a mistake, since the move would allow the Democrats to vent but fail in the end. And any move towards impeachment now would dwell on alleged obstruction of a probe into his Russian ties, and necessarily center around the premise that Russia is an adversary with whom all contact is suspicious. More promotion of Russophobia, just as Trump and Putin are finally talking, would be unfortunate.

Now that a federal judge has ruled against Trump’s effort to prevent the Congress from obtaining his bank records, we can expect some details about the two billion loans made to him by Deutsche Bank before the 2016 election. But can he be impeached for white-collar crimes committed before taking office? There are a number of constitutional issues here. But more important than these, and the fate of this particularly odious president, are the problem of corporate control over the political process in this country, and the problem of capitalist imperialism which requires the positing of adversaries, chief among them Russia.

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):

Challenging Orthodoxies: Alabama’s Anti-Abortion Law

It seems like a grand ploy of massive distraction.  On the surface, the move by Alabama to place the most onerous restrictions on the granting of an abortion has become a lighting-rod of conviction for Democrat agitators.  And not just them.

The fear, and one with suggestive implication, is that various legislatures are paving the way to push Roe v Wade into the domain of a Supreme Court so conservative it is being touted as reactionary.  Colorado lawmakers, earlier this year, made a similar attempt to pass a bill banning elective abortions every bit as nasty as the Alabama version. The feeling is that the 1973 decision will be terminated in the name of foetus worship taking way the injunction against states from interfering in a woman’s right to an abortion within the first trimester.

Roe was never, in truth, such a radical innovation in the field of social reform.  It, for one, heavily circumscribes the way choice operates for a woman in terms of her relationship with the foetus.  Its celebration of a woman’s autonomy leaves the designation of how it is used, not in the hands of the carrier, but the Supreme Court.

What certain stone throwing conservatives have repeatedly disliked about it is that the decision was reformist at all. “Roe,” tut tuts Rich Lowry of the National Review, “is judicially wrought social legislation pretending to the status of constitutional law.”  It was a product of such judicial activism that produced the Miranda and Griswold cases, “as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks.”

Lowry’s swipe belies the broader problem facing anti-abortion advocates, many of whom simply think that the legislators in that good red state have lost the plot.  The Alabama move is being seen on the part of some on the right as too extreme, painting advocates who favour limiting abortion into a narrow, extreme corner.  In the words of conservative pundit Jonathan V. Last, having such a law was the very counter-reproductive thing the movement feared, “the most damaging development to the pro-life movement in decades.”

HB314 is a heavy artillery shell for the anti-abortion movement, reclassifying abortion as a Class A felony. The implication of this is gruesome enough: those found guilty of falling foul of the law, notably those providing such services, may spend up to 99 years in prison.

Alabama governor, Kay Ivey, ennobled bill HB314 with words mindful of the great Sky God that continues to mark significant stretches of US political thought. (In Freedom’s Land, the unseen and unknowable have traditional anti-democratic tendencies.)  “To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” HB314’s sponsor, Rep Terry Collins, was attempting to be more pragmatic in a political sense, claiming that HB314 was part of the grand plan to subvert and ultimately sink Roe v Wade.

The media presses in Alabama have been filled with pungent responses, many indignant, others glazing in their holy reflection.  A Guest Voices segment for AL.com, part of the Alabama Media Group, made rich reading.  Rene Washington of Birmingham refused to accept the anti-abortion rights law as one of protecting life. “The abysmal statistics on children’s health and welfare prove that.”  The ban was a traditional, based on old issues of control, be they “religious, patriarchal and cultural.”

Savannah Crabtree, keen to remind us of her age (23 years old), wrote of having a uterus and living in the state of Alabama. “And I am scared.”  A troubled Crabtree was puzzled that the governor had expressed no reservation, racing the bill into law. “I hoped that maybe, because she is a woman, she’d empathize with a 12-year-old rape victim seeking an abortion more so than the 25 men who voted on the bill in the Senate did.”

The worriers and activists have come out.  “This,” laments Democratic strategist Jess McIntosh, “is the endgame of many years chipping away at our freedoms.” For McIntosh, a tyrannical instinct is finally being played out in US jurisprudence – a play, as it were, to alter the court’s reformist agenda.  “They’ve waited for the moment they believed the courts would overturn precedent and go against the overwhelming will of the people.”

For a strategist, McIntosh is far from sharp.  (She did work for Hillary Clinton’s 2016 campaign.)  The Alabama law, along with any aspiring facsimiles, risks falling at the first hurdle, given that an appellate court is bound to give defenders of the bill a good going over.  The issue of placing “undue burdens” on a woman’s access to abortion services would come into play.  As Kim Wehle explains, the Alabama law is “by any stretch” an “undue burden” because it entails no abortions except in instances where the “unborn child has a lethal anomaly” in order “to avoid serious risk to the unborn child’s mother” or in instances of “ectopic pregnancies” (where the fertilized egg finds itself implanted outside the uterus, often in fallopian tubes which might burst causing bleeding, infection and death to the mother).

Keeping the Democrats noisily busy is a Trump tactic, and he has kept markedly reticent on not wishing to push views on the Alabama move.  A tweet re-iterated his stance as being “strongly pro-life, with three exceptions – rape, incest and protecting the life of the mother.”  It was, he suggested, “the same position taken by Ronald Reagan.”  Similar exceptions can be found in thirty-three states and the District Colombia, which allow funding for the tripartite list of exceptions.  A range of superstitions dot the legislative provisions of other states: five, for instance, demand that women be counselled on a claimed link between abortion and breast cancer, one firmly lodged in the realm of fantasy.

Alabama’s HB314, however, in its crudely blanket application, leaves minimal room for exceptions.  It is savagely onerous, even for conservatives.  The wheels may well be in motion for certain brands of foetus defenders, but citizens with uteri can well be comforted that they will move in retarded fashion.

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.