Category Archives: Original Peoples

Roméo Dallaire denies Canadian Genocide and distorts Rwanda’s

Is Roméo Dallaire a genocide denier?

After a (question free) talk at Concordia University this week I followed the famous Canadian general out of the room to ask why he still supports ruthless dictator Paul Kagame. Kagame is the individual most responsible for the mass slaughter in Rwanda in mid-1994 since his forces invaded the country, engaged in a great deal of killing and blew up the presidential plane that unleashed the genocidal violence.

In 1996 Kagame’s forces invaded the Congo to overthrow the government in Kinshasa and when their installed president kicked them out they reinvaded in 1998, causing an eight country war that left millions dead. According to a 600-page report by the UN high commissioner for human rights, Rwanda was responsible for “crimes against humanity, war crimes, or even genocide” in the Congo.

With Dallaire refusing to answer my question I asked a Radio Canada journalist seeking to interview the former general to ask why he supports Kagame. The reporter was there to question Dallaire about the use of the term “genocide” in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Dallaire said he had “a problem” with the use of the word “genocide” to describe what happened to First Nations. “Is that an act of genocide? Is it?” he said. “My definition of genocide, I read it very deliberately at the start of the Rwandan genocide, and it was a deliberate act of a government to exterminate deliberately, and by force and directly, an ethnicity or a group or an entity of human beings.”

Numerous media outlets picked up Dallaire’s comments. A La Presse headline read “Dallaire denounces the use of the term ‘genocide’” while Rebel Media’s The Ezra Levant Show reported on, “Rwandan genocide witness General Roméo Dallaire’s strong denouncement of Justin Trudeau’s agreement that the Missing and Murdered Indigenous Women findings indeed constitute a ‘genocide.’”

While Dallaire is opposed to labeling Canada’s dispossession of First Nations a genocide, he has repeatedly employed the term to describe rights violations in enemy states. In recent years he’s compared the situation of Darfur in Sudan and Baha’i in Iran, as well as Syria and Libya, to Rwanda. If Western interventionists are targeting a nation Dallaire is happy to employ the “G” word or “R” comparison.

Interestingly, Dallaire’s criteria for a genocide — “a deliberate act of a government to exterminate deliberately” — better applies to indigenous people in Canada than to the Tutsi in Rwanda. Dispossessed of 99% of their land, indigenous people have faced state-backed efforts to starve and sterilize them. They’ve also been made wards of the state, had their movement restricted and religious/cultural ceremonies banned. Residential schools and other so-called child welfare initiatives sought to eradicate their ways, or in the infamous formulation of the deputy superintendent of the Department of Indian Affairs from 1913 to 1932, Duncan Campbell Scott:

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question.

Prior to confederation, British forces conquered today’s Nova Scotia through terror, putting the heads of Mi’kmaq soldiers on spikes and offering bounties to kill women and children. Founder of the Halifax fort, Lieutenant General Edward Cornwallis led the charge and by the mid-1760s the Mi’kmaq had been largely wiped out in Nova Scotia.

After British forces conquered Quebec General Jeffery Amherst’s forces gave indigenous chiefs in the Great Lakes region blankets and a handkerchief from a smallpox hospital. Commander of British forces in North America, Amherst wrote:

You will do well to try to inoculate the Indians by means of blankets as well as to try every other method that can serve to extirpate this execrable race.

By the 1820s the Beothuk in Newfoundland were extinct. On the West Coast in 1862 colonial officials are accused of enabling the spread of smallpox among First Nations, which devastated the indigenous population.

Unlike the Tutsi in Rwanda, indigenous people in Canada didn’t end up in power after the “genocide”. Nor did Jews in Germany, the Herero in Namibia, Armenians in Turkey, Maya in Guatemala, etc. Rwanda is a peculiar case where the minority — 10% of the population — targeted for extermination ended up ruling after the bulk of the violence subsided.

That’s partly because the genocidal killings were not a long planned attempt to exterminate all Tutsi, which even the victors’ justice dispensed by the International Criminal Tribunal for Rwanda (ICTR) effectively concluded. Instead, it was the outgrowth of a serious breakdown in social order that saw hundreds of thousands slaughtered by relatively disorganized local ‘militias’ fearful of the Kagame-led foreign invasion that eventually conquered Rwanda and drove a quarter of the population out of the country. Probably an equal — and possibly a greater — number of Hutu were killed.

Dallaire has propagated a wildly simplistic account of the tragedy that gripped Rwanda and Burundi in the mid-1990s. He has promoted the Kagame-inspired fairy tale used to justify a brutal dictatorship in Rwanda and its expansionism in the region (as well as Western liberal imperialism). According to the most outlandish aspect of this story, Hutu extremists murdered the Hutu presidents of Rwanda and Burundi and much of the Hutu-led Rwandan military command, weakening the Hutu government to its most frail point in three decades, and then decided to begin a long planned systematic extermination of Tutsi. In this depiction of Rwanda’s tragedy, the individual most responsible for unleashing the genocidal violence is the hero who ended “the Genocide”.

Dallaire is not innocent of Kagame’s violence. In his 2005 book Le Patron de Dallaire Parle (The Boss of Dallaire Speaks), Jacques-Roger Booh Booh, a former Cameroon foreign minister and overall head of mid-1990s UN mission in Rwanda, claims Dallaire had little interest in the violence unleashed by Kagame’s RPF despite reports of summary executions in areas controlled by them. Booh Booh says Dallaire turned a blind eye to RPF weapons coming across the border from Uganda and he believes the UN forces under Dallaire’s command may have even transported weapons directly to the RPF, “becoming an objective ally of one of the parties in the conflict.”

Dallaire’s criticism of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls is consistent with his political interventions. He has long been a cheerleader for Canadian and Western domination of the world. As I detail in this article, the former general opposed calls to withdraw Canadian soldiers from Afghanistan, supported the overthrow of Haiti’s elected government in 2004 and bombing of Libya in 2011. He has also called for increased military spending and for Canada to join US ballistic missile “defence”. Now he appears to be denying a genocide perpetrated by a government he represented in the Senate and worked for in the military. Boil it all down and it simply becomes: ‘Our side is good and our enemies are bad.’

But, of course, this is what passes for foreign policy in Canada.

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):

Justin Trudeau’s Battered Beanstalk

We left off our saga of Justin and the Beanstalk with the young wunderkind’s triumph over the giant ogre (Prime Minister Harper), as he swept away the broken democratic shards littering his kingdom in the sky, to the cries of joy from the Canadian peasants. Justin began energetically fulfilling at least some of his many promises. He rejoined the Paris Agreement on Climate. Scientists breathed a sigh of relief as their withered vines received nourishment after 10 years of drought, and the muzzle on their right to speak about the perils of global warming was removed.

Justin’s first budget had goodies for just about everyone, including a (small) increase on taxes on the rich. His finance minister Bill Morneau proposed a $2-billion Low Carbon Economy Fund to help the provinces meet Canada’s climate change targets to reduce the heat-trapping greenhouse gases so beloved by the ogre’s friends in Alberta, with plans for a carbon tax to allow ‘green growth’ (surely an oxymoron, but at least green is no longer a bad word).

To help alleviate the plight of Canada’s natives, Justin promised $8.4 billion in education, infrastructure, training, and a national inquiry into Missing and Murdered Indigenous Women and Girls. He appointed fair damsels (regardless of experience) to 50% of his cabinet seats, declaring himself a “proud feminist” living in an era of equality. This included LGBTQIA,1 as he made attendance at their summer parades a new ritual, giving them pride of place in his Valhalla.

Justin moved quickly to legalize a much prized weed, blessed with magical THC, beloved of youth, now accepted by less cool elders. This will no doubt be his one undisputed legacy of spreading joy to one and all.

But his early promise as a new leader with new ideas quickly lost its sheen. After 5 years, the weed is still not available. It turned out Justin legalized it more for the ogre’s allies, the corporations. Peasants are limited to four plants, not enough for normal use, farmers included. Soon corporate growers with such flashy names as Tweed, Maricann Inc., Peace Naturals Project Inc. and WeedMD Rx Inc. took the lead, building massive, high security factories, as provinces squabbled with Justin about how to regulate and tax this new wonder drug.

So much for the peasants, who could have grown the plant as plants should be grown, in sunlight, under open skies, using no ‘green growth’, just Mother Nature. Maybe making a small income from their hard work.

Legalizing rape and pillage

For the real Canadians, Canada’s Indigenous peoples, there was little to cheer, with only window dressing on the plight of women, and no improvement in entrenched racism or the ongoing despoliation of their lands. Justin’s worst decision was to continue the ogre’s slavish devotion to the tarsands in Alberta, which rape and pillage Mother Nature. (Hey, I thought he was supposed to protect us!)

Justin even paid the Kinder Morgan Trans Mountain pipeline shareholders, the ogre’s allies, $4.b, much to their joy. They could see that it was not a good idea, even for nongreen growth. So the peasants quickly joined forces with the natives from the Atlantic to the Pacific to save not only native women from rape and pillage, but all Canadians, and their Mother Earth.

Even elite judges joined the peasants and natives, as the Federal Court of Appeal overturned the government’s approval of the expansion project, citing that it did not sufficiently fulfill its constitutional duties to consult local First Nations groups, and because increased tanker traffic would imperil the endangered orcas in the Pacific Ocean.

Justin betrayed even his youthful friends, interested in ending the ogre’s ‘best friend’ relationship with the ogre in Palestine, where the peasants suffer far more than their cousins in Canada. One of his first royal edicts was to rubber stamp the ogre’s motion targeting the Boycott, Divestment and Sanctions (BDS) campaign against Israel, the brainchild of Canada’s idealist youth, labelling these erstwhile allies anti-semites.

He also signed on to the ogre’s $15b arms sale to the world’s worst ogre, the Saudi prince bin Salman, who gleefully murdered and dismembered a pesky journalist, shocking the world’s peasants, but forgiven by our human rights champion, eager to produce machines of death — anything — to keep the petrodollars rolling in.

This penchant to help the ogre’s corporate friends led to a scandal which peaked in 2019, the Lavalin Affair, a cesspit of bribery and fraud. Justin dismissed his minister of justice, an indigenous woman, Jody Wilson-Raybould, for trying to be honest. Whew!

Meanwhile, little ogres have sprung up in Alberta and Ontario, which, along with one in Saskatchewan, were determined to scuttle Justin’s carbon tax, his green centerpiece, while gutting any hated environmental support they can find in their provincial fiefdoms.

Fighting foreign foes

Justin’s record abroad is just as disappointing as his domestic bungling. His powerful Maid Chrystia has been barnstorming around the world, wrestling with ogre Trump over NAFTA free trade, winning ‘concessions’ (not) which gutted Canadian milk farmers.

She squawks at every chance at her personal ogre, the dastardly Vlad (Putin) over Ukraine and Crimea, and his evil Venezuelan henchman — with no effect, but it sure is fun! She pecked timidly at bigtime ogre bin Salman over his persecution of female crows — with no effect, but it is the politically correct thing to do … The list is long and her successes at best a mirage.

When bin Salman orchestrated the spectacular medieval torture and execution ritual of journalist Khashoggi, Justin and Maid Chrystia told their ogre friend (who owes them $4.5b) ‘this was not at all nice,’ whispering, ‘but we will turn a blind eye, just this once.’

As for the great anti-ogre forces China and Russia, Justin told them they were the ogres, in keeping with instructions from the great white ogre to the south of Canada. Even if they are a tad ogrish, Justin and Chrystia’s shrill falsetto harping merely makes them chuckle.

When Justin arrested Chinese Canadian Huawei Chief Financial Officer Meng Wanzhou, intending to hand her over to ogre Trump to be devoured as a sacrificial offering to American liberty, the Chinese dragon flashed its fiery breath, arresting and even sentencing to death several Canadian peasants unwittingly caught in the crossfire

Promising a peaceful foreign policy, to end defeated ogre Harper’s sabre-rattling in Afghanistan, Syria, and Africa, instead Canadians were given the opposite, with a new NATO mission in Iraq and troops sent to Latvia (!), solemnly claiming Russia was a threat to plucky Latvia (given its independence by the Soviet Union in 1991). This is in stark contrast to Justin’s father’s clear policy of peaceful coexistence with the then-Soviet Union. Again, in contrast to father Pierre Elliot, Justin refused to support the worldwide campaign for nuclear disarmament (WHY?).

Oh yes, 25,000 Syrian refugees. That, along with Maui wowie, will be the beanstalker’s positive legacy. Multicultural munchies for all!

As for ‘peacekeeping’, Canadian troops were sent to Mali to police a stand-off with al-Qaeda insurgents, but it is not the peacekeeping mission Trudeau promised his peasantry. Despite pledging up to 600 peacekeepers and 200 police, Trudeau has delivered less than half that number of peacekeepers and no civilian police officers.

With the deaths of 177 peacekeepers in Mali — 22 of whom were killed in 2018 alone — Mali is the most dangerous ‘peacekeeping’ mission in UN history. Justin (wisely, for once) refused to extend the mission beyond 12 months. But what was the point in the first place? That’s hardly enough time to get over jetlag.

Ministry of Silly Walks

We haven’t even got to Justin’s physical deformity, being mysteriously born with two left feet. During a visit to India, Trudeau dressed as if for Halloween, and for his party prank sent a formal dinner invitation to Jaspal Atwal, an attempted murderer from a Sikh organization that India ranks as a terrorist group. Although the invite was eventually rescinded, it certainly made a lasting impression on his Indian counterpart, Narendra Modi.

On another cringe-worthy occasion, the self-proclaimed “proud feminist” interrupted a young woman at a political event for using the term “mankind,” explaining pedantically that the correct nomenclature was “peoplekind.” In the era of social media, where such gaffs quickly go viral, Justin has sadly developed a reputation for his “silly walks” rather than any real successes.

As elections loom in 2019, Justin and his realm look to be in very bad shape. He appears to becoming a reincarnation of the ogre. Ogre Harper has watched the drama (farce?) from the sidelines, his image actually improving as Justin’s budget explodes, as his heavenly realm is once again threatened by the capitalist ogredom through his lack of experience, his lack of wisdom.

Can we please start over?

Will Justin’s Liberals go crashing down, like their friends in Ontario and Alberta? Will Canada continue to be laughed at as a junior partner to ogres US and Israel, bereft of its seat at the UN Security Council because of its unprincipled kingship? Will Justin be fed his pet crow Maid Chrystia at the election day smorgasbord in August?

Justin’s beanstalk is battered, wilted, in danger of collapsing. It seems the ‘proud feminist’ could use a strong dose of testosterone.

  1. Lesbian, Gay, Bisexual, Transgender, Questioning, Intersex and Allies.

The Sun Dance

It was the summer of 1876. The great white father was demanding that we sell our land to them – land that was not ours to sell – and then move to the reservation – where only hardships and starvation awaited us. The buffalo was dying fast as white hunters shot them on the plain, taking only their skins and leaving their carcasses to rot on the plains.

The prophet Sitting Bull called for us to resist. He called for us to meet in council. He called for a sun dance. There they would offer themselves to the creator. There the creator through the buffalo would provide answers to them.

Plains Indians – the Sioux, the Cheyenne and the Arapaho — answered Sitting Bull’s call in great number joining his Hunkpapa Lakota at his camp near the Wolf Mountains.

A large forked cotton wood center pole was raised by ropes and its base slid into a hole – the center of the sacred lodge and the center of the universe. The world was out of balance. The creator would tell them how to restore it.

Twelve cotton wood poles were raised in a circle around the center pole, representing the twelve months of the year.

The dancers entered the sweat lodge, made of willow branches and buffalo robes. Water was poured over rocks heated by fire. Afterward, the sun dancers entered the sacred lodge. The chief and host prayed to the great creator. They stuffed the nostrils of the buffalo that hung high on the center pole with sweet sage.

The sun dancers with painted faces and adorned with feathers danced back and forth to the center pole, blowing their whistles made from the wing bones of an eagle. Each dancer held an eagle plumb in each hand. Drummers drummed and singers sang the four sacred songs, each four times. First they faced to the east and then to the west.

They rested then danced again. Juniper wreaths crowned their heads. Some dancers – wore necklaces of elk teeth – as they looked at the sun – the source of all life and energy on earth. Sitting Bull’s face was covered with yellow paint.

The dancer — hungry and thirsty – fasted. Sitting Bull gave 100 pieces of flesh from his arms, dripping with blood. They were seeking visions sent by the creator. “Grandfather,” Sitting Bull said “I offer the only thing that belongs to me – my body.”

Time seemed to slow down. Sitting Bull could hear each individual drum beat and shriek of the eagle born whistles. The voices of the singers sounded faraway. He could smell the sweet smell of grass that carpeted the sacred lodge. The light of the sun flashed as the lodge began to spin. The buffalo head began to speak to him in mumbled tones he could not yet understand.

Sitting Bull knew hiss vision was coming. The host covered him in cattails and sweet sage.

The prophet could see hundreds of white soldiers, a thick as locusts, riding their horses upside down into the village. Suddenly they began to fall dead from the sky. The warriors would win a great victory over the soldiers.

“Do not to take the spoils of the bodies or touch the bodies,” the buffalo warned, “or your people and their children will forever suffer for this. Leave them where they lay.”

On the third day the dancers were given water. The ordeal is over.

The camp soon moved to the Greasy Grass River. The Greasy Grass River was also known as the Little Big Horn.

Gen. George Armstrong Custer and the Seventh Calvary were on their way.

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.

The Lost Morality of Economics

One of the most powerful and effective tools in the hands of capitalist economists is the suggestion that economics in general and capitalism in particular is some sort of science. This illusion – and illusion it is – is strongly assisted by the fact that modern economics is taught with the aid of impressive-looking mathematical equations and “proofs”. Economic textbooks are cluttered with tables, statistics, and graphs which make the books look like physics textbooks, or maths books even. Therefore economics must also be a science, right?

Well, no, actually. For the very simple reason that real sciences, such as physics and chemistry, demand a standard of proof and intellectual rigour that not only doesn’t exist in modern economics, it has never existed at all since the earliest days when some sort of economic theory could be perceived. Early economic principles were conceived in religion, and religion strongly influenced economic practices for at least two thousand years. Capitalism, the dominant economic belief of today, is still more of a religion than a science, because it demands from its adherents a level of blind faith which is little different from any other religious fanatic.

In the beginning

As an atheist I’m not much impressed by the bible, or any other religious work. I accept that there’s some limited utilitarian value in such books, for the slight contribution they make to studying the essential subject of history, but the main purpose they have always served – tools of psychological oppression for the rich to control the thoughts and actions of the poor – is reprehensible, and devalues any use they may have as lessons of history. The bible’s usefulness as a collection of historical documents is helpful for this discussion not because of any particular value to economic thought in the stories themselves, but in the almost undeniable fact that those stories were told, and presumably believed, a very long time ago.

RH Tawney was an economic historian whose work was well known in the first half of the last century, and was strongly influential on the embryonic ethical values of Britain’s Labour Party. He was a devout Christian and lifelong friend of William Temple, who became the Archbishop of Canterbury. Unsurprisingly he clearly felt no conflict of interest between his Christian faith and his staunch support of socialism, and if Tawney’s work is now largely unknown it’s probably due more to the latter fact than the former. However, much of what he had to say is as relevant today as it was in Tawney’s day – if not even more so.

One of his once quite well-known books, Christianity and the Rise of Capitalism, written in the 1930s, is a seriously important piece of work. It’s not an easy read, especially at the beginning where some of the old references he uses appear in the original Latin, Greek, German or French – without translations. And although he wrote with a beautiful elegance which is quite rare today I found I often needed to read some sections two or three times over to properly understand him.

The message of Tawney’s book is, essentially, this: although ruthless exploitation of the poor by the rich is probably as old as human history itself, there appears to have been a significant change in the wider social acceptance of the “rightness” of it starting somewhere around the time of the European Reformation in the sixteenth century.

The early morality of moneylending

I happened to be reading Tawney’s book at the same time as I was reading Ellen Brown’s excellent The Public Banking Solution, which coincidentally has a brief reference to a related point: that over two thousand years ago lending money at interest (which today we’re all conditioned to accept as the only way to do it) was not necessarily recognised as a good thing, and acceptable only in certain circumstances.

The Old Testament Book of Deuteronomy, Chapter 23 : 19 says:

Thou shalt not lend upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury.

It’s not clear what was meant by “brother”, but it’s assumed it had a wider meaning than just one’s male sibling, and possibly meant any Jewish person (given that the book is mainly about the Jewish people). Because the very next verse goes on to say:

Unto a stranger thou mayest lend upon usury; but unto thy brother thou shalt not lend upon usury: that the Lord thy God may bless thee in all that thou settest thine hand to in the land whither thou goest to possess it.

These biblical references are interesting because they indicate the morality practised by the ancient Jews with respect to the business of lending. Furthermore, the second part of that last verse is intriguing, as it suggests that usury is a good way to help possess new lands. This theme is echoed earlier in Deuteronomy; for Chapter 15 : 6 reads:

For the Lord thy God blesseth thee, as he promised thee: and thou shalt lend unto many nations, but thou shalt not borrow; and thou shalt reign over many nations, but they shall not reign over thee.

So lending at interest was clearly recognised thousands of years ago as a tool to control other lands, and presumably for that reason it was forbidden for Jews to borrow from others.

This biblical chapter has other interesting comments on the morality of lending. It opens, for example, with this:

“1. At the end of every seven years thou shalt make a release.

  1. And this is the manner of the release: Every creditor that lendeth ought to his neighbour shall release it; he shall not exact it of his neighbour, or of his brother; because it is called the Lord’s release.”

This is obviously a clear statement that all debts should be wiped out every seven years.

There are further verses in Chapter 15 which clearly describe a high standard for the morality of money lending:

“7. If there be among you a poor man of one of thy brethren within any of thy gates in thy land which the Lord thy God giveth thee, thou shalt not harden thy heart, nor shut thine hand from thy poor brother:

  1. But thou shalt open thine hand wide unto him, and shalt surely lend him sufficient for his need, in that which he wanteth.
  2. Beware that there be not a thought in thy wicked heart, saying, The seventh year, the year of release, is at hand; and thine eye be evil against thy poor brother, and thou givest him nought; and he cry unto the Lord against thee, and it shall be sin unto thee.
  3. Thou shalt surely give him, and thine heart shall not be grieved when thou givest him: because that for this thing the Lord thy God shall bless thee in all thy works, and in all that thou puttest thine hand unto.
  4. For the poor shall never cease out of the land: therefore I command thee, saying, Thou shalt open thine hand wide unto thy brother, to thy poor, and to thy needy, in thy land.”

Some of this morality was clearly adopted by the early Christian church, because lending at interest (usury) was regarded as a serious sin, and charity towards the poor was routinely practised by most Christian churches and monasteries, and taught as a Christian virtue. This situation lasted for the best part of fifteen hundred years – until the Protestant Reformation.

 The age of Calvin

Arguably the single most powerful driving force behind the Protestant Reformation, the one thing which, probably more than any other that drove Martin Luther to hammer his 95 theses to the door of Wittenberg Castle church on Halloween in 1517, was the cesspool of corruption that had overtaken the Christian Church. The many problems that Luther publicly exposed to the glaring light of day, like the little boy who cried out that the emperor wasn’t wearing any clothes, gradually galvanised like-minded thinkers into action all across Europe.

Although Martin Luther is widely credited with initiating the Protestant Reformation, his interests appear to have been largely focused on reformation of the Church, to try to end the rampant corruption that was decaying the institution which meant so much to Luther for its spiritual values rather than its income-generating qualities. However, there were others, such as Huldrych Zwingli, and John Calvin, who interpreted Luther’s lead as an opportunity to liberate the business world from the traditional grip of the Church. Of these, Calvin arguably had the most influence on the economic changes that were soon to come about, and which would provide much of the moral justification for what is today widely recognised as capitalism.

Tawney captured the essence of the significant societal change that took place in the new dawn of the European Reformation:

To countless generations of religious thinkers, the fundamental maxim of Christian social ethics had seemed to be expressed in the words of St Paul to Timothy: ‘Having food and raiment, let us be therewith content. For the love of money is the root of all evil.’ Now, while, as always, the world battered at the gate, a new standard was raised within the citadel by its own defenders… Not sufficiency to the needs of daily life, but limitless increase and expansion, became the goal of the Christian’s efforts. Not consumption, on which the eyes of earlier sages had been turned, but production, became the pivot of his argument… The shrewd, calculating commercialism which tries all human relations by pecuniary standards, the acquisitiveness which cannot rest while there are competitors to be conquered or profits to be won, the love of social power, and hunger for economic gain – these irrepressible appetites had evoked from time immemorial the warnings and denunciations of saints and sages. Plunged in the cleansing waters of later Puritanism, the qualities which less enlightened ages had denounced as social vices emerged as economic virtues. [My emphasis].1

Although it’s highly unlikely that Calvin ever intended his writing to have the savage effect that modern capitalism has produced on humanity, our planet, and all living creatures, it’s clear to see a watershed moment coinciding with his work. Before Calvin the generally practised morality of everyday economic affairs was largely influenced by the same values the Church had been promoting for over a thousand years, significantly based on Old Testament teaching. But with Luther’s bold attack on the Church’s lucrative and highly corrupt protection racket, the door was flung open to confront any and all inconvenient Church restraints – such as money-lending and profit-making businesses, subjects about which Luther’s famous protest showed no particular interest:

What reason is there [asked Calvin] why the income from business should not be larger than that from landowning? Whence do the merchant’s profits come, except from his own diligence and industry?2

Today these seem innocuous questions, but in Calvin’s day they were almost sacrilegious. However, given the seismic rumblings that Luther had triggered they would have passed almost unnoticed – except by those who could see their potential for economic liberalism.

Tawney provides profound evidence for the effect this new thinking produced:

A practical example of that change in emphasis is given by the treatment of Enclosure and of Pauperism. For a century and a half the progress of enclosing had been a burning issue, flaring up, from time to time, into acute agitation. During the greater part of that period, from Latimer in the thirties of the sixteenth century to Laud in the thirties of the seventeenth, the attitude of religious teachers had been one of condemnation…

[but] When Major-General Whalley in 1656 introduced a measure to regulate and restrict the enclosure of commons… there was an instant outcry from members that it would ‘destroy property’ and the bill was refused a second reading.3

Enclosures in England, like the Highland Clearances in Scotland, were the massive thefts of land from the millions of poor who depended on it for their very survival. It’s easy, and not entirely incorrect, to see the plump hands of the well-nourished aristocracy behind this, but Tawney also draws our attention to the actions of another group who, if anything, are even more despicable than over-pampered patricians, a group who, two hundred years later, would be contemptuously identified as the “bourgeoisie”:

It was not the lords of great estates, but eager and prosperous peasants, who in England first nibbled at commons and undermined the manorial custom, behind which, as behind a dyke, their small savings had been accumulated. It was not great capitalists, but enterprising gildsmen (soc), who began to make the control of the fraternity the basis of a system of plutocratic exploitation.4

Many of those born into lives of luxury and over-pampered indolence, then and now, have no idea of the price paid in human misery and environmental destruction for their grotesque over-consumption. Whereas most of those who emerged from humble backgrounds and ruthlessly clawed and gouged their way to riches are only too well aware of the suffering they left far behind, and their own vital roles in perpetuating it.

Capitalism in its teenage years

There was still a significant ethical component in the teaching of economics two hundred years after Calvin. The subject was still not widely known as economics, merely part of the much wider subject of moral philosophy. Adam Smith, often called the father of capitalism, was not an economist, but occupied the chair of moral philosophy at Glasgow University for a number of years.

Smith’s best-known work “Wealth of Nations” is most well-known for one of its least important (and least accurate) phrases – the suggestion that everyone is driven by their own self-interest, and that an “invisible hand” guides their selfish actions toward the overall best interests of society.

Although much of Smith’s book sings the praises of profit-seeking, showing how far times have moved on from pre-Reformation days, the moral philosopher inside him is still cautious about the limitless power of corporations which, in Smith’s day, were just beginning to exercise their full nation-making (or breaking) strength:

The government of an exclusive company of merchants is perhaps the worst of all governments for any country whatever. 5

And he was concerned about the corruptive influence of big business upon the nation’s rulers:

In the mercantile regulations the interest of our manufacturers has been most peculiarly attended to; and the interest, not so much of consumers, as that of some other sets of producers, has been sacrificed to it.6

Although Smith was much mistaken, in my view, about the easy availability and sufficiency of work, it has to be remembered that when Wealth of Nations was written the worst effects of enclosures in England, and the clearances in Scotland were yet to be felt. Most people could still sustain themselves to some extent on the land if they had to, and at least provide basic shelter and prevent starvation for themselves and their families. The worst horrors of the so-called “Industrial Revolution” were still almost a hundred years away. Nevertheless Smith still had a high regard for the importance of human labour, rather than money, as the real source of a nation’s wealth:

Labour was the first price, the original purchase money that was paid for all things. It was not by gold or by silver, but by labour, that all the wealth of the world was originally purchased; and its value, to those who possess it and who want to exchange it for some new productions, is precisely equal to the quantity of labour which it can enable them to purchase or command…

Labour alone, therefore, never varying in its own value, is alone the ultimate and real standard by which the value of all commodities can at all times and places be estimated and compared. It is their real price, money is their nominal price only.7

It’s possible that Smith conceived this thought all by himself, but it’s also possible he obtained it somewhere else. Ben Franklin, for example, wrote the following well before Smith’s book came out:

The riches of a country are to be valued by the quantity of labor its inhabitants are able to purchase and not by the quantity of gold and silver it possesses.8

So it’s reasonable to assume that in Adam Smith’s day the slowly-evolving theory of capitalist economics still retained some of the teachings of the early Christian Church, not least of which was its recognition of the importance of human labour. Consider, for example, the harsh but generally not unreasonable words of 2 Thessalonians 3:10:

[I]f any would not work, neither should he eat.

However, not only was the brutality of the “Industrial Revolution” yet to reveal its advantages to the fledgling capitalists of Smith and Franklin’s day, so too was the steadily growing transatlantic slave trade.

Capitalism reaches full maturity

By the middle of the nineteenth century Capitalism had possibly achieved its zenith. The most powerful empire of the day, based in London, was ruthlessly exploiting the people and resources of so much of the Earth’s surface that the sun never set over it. The United States had seized control over the central landmass of North America by massive acts of genocide of its native people, and waging war with Spanish colonizers. As British colonizers wallowed in the wealth generated by millions of oppressed natives, British workers were literally starving to death in depopulated common land and the industrialised ghettoes of the new manufacturing hell-holes of England. As new US multi-millionaires wallowed in their wealth, the African slave population that was worked to death producing it reached its greatest number, about ten per cent of the total population of the US. Capitalism must have surveyed its work around the globe and smiled in satisfaction.

But to every action there is reaction.

There have always been small groups of oppressed people who have bravely resisted their oppression. For most of human history their small victories have usually been short-lived affairs ending not so much in ideological failure but by the same vicious brutality against which they fought. Even the more successful rebellions, such as the English and French Revolutions, were eventually crushed by the same reactionary forces that were initially overwhelmed. However, these more successful popular uprisings sent out ripples of change, which astute governments were quick to notice. Many of the political and social reforms that were slowly achieved in Britain in the nineteenth century were won not so much because of the ruling aristocracy seeing the wisdom of the reformers’ campaigns, but because of the salutary lesson taught to their French counterparts in the 1790s when they failed to heed the wrath of the masses.

Emerging from early seventeenth and nineteenth century reformers such as the Levellers, Diggers, Luddites and Chartists appeared an even more radical and coherent ideology: communism. Argued and explained in the writings of Friedrich Engels and Karl Marx, for example, communism inspired rebels all around the world, and with the victorious Russian Revolution in 1917 reason for real hope inspired reformers in almost every country.

Like the English and French Revolutions before it, the ripples spread out from Moscow across the world, and capitalist governments sat up and took notice. Obviously the new Russian upstart must be crushed, and it would indeed be ruthlessly opposed and attacked at every opportunity throughout its life, but in the meantime the rabble-rousers at home had to be carefully handled. Using the tried and tested method of divide and rule, together with liberal use of the more dark and sinister devices that have always been at the fingertips of powerful governments, communism was kept at bay in most of the western world. It was eventually defeated in 1989 when Mikhail Gorbachev served up his communist country on a platter to the treacherous western powers who would immediately sell his capitulation as a victory of the ideology of capitalism over communism.

Of course, it was nothing of the sort. Given that Russian communism, and later Chinese communism, were savagely and relentlessly attacked throughout their lives by the most powerful nations on the planet, it was not communist ideology that failed, it was western military and economic warfare that won.

But the key point to note, and indeed the point of this essay, is that at the heart of this ancient struggle lies a very simple economic question: whose benefit should the wealth of a nation serve? The capitalist believes that all wealth should be concentrated in the hands of a tiny minority of powerful people, utterly ruthless people driven only by their own greed and ambition and who will stop at nothing to achieve it. They do not openly say this, but it is without question how they behave. The communist believes that wealth should be evenly distributed between all people. Unlike the capitalist, who keeps his ambitions secret, the communist is perfectly open about his aims.

So it all comes down to morality. Who is right, from an ethical perspective, the capitalist or the communist? The communist is perfectly happy to argue his point on ideological grounds, but the capitalist has tried to turn his ideology into a bogus science, not only utterly devoid of any morality whatsoever, but also devoid of any intellectual rigour – and with its real purpose kept permanently hidden from view.

That modern capitalism is wholly conspiratorial in nature was once openly confessed by one of its leading champions, the American economist James Buchanan. Describing the exclusive gatherings of disciples that Buchanan hosted, historian Nancy MacLean explained:

Buchanan made one more important point to his invited guests. The key thing moving forward, he stressed, was that “conspiratorial secrecy is at all times essential.”9

But apart from being an ethical vacuum, modern economics as it’s widely taught, which is almost exclusively capitalist economics, is also not a science. It’s a construction composed entirely of fabricated nonsense, unproven and unprovable theories, and perfectly ridiculous claims, all dressed up in mathematical symbols to create the illusion that it’s somehow deep and meaningful. Even professional economists admit to the deceitful gobbledegook that is the subject of economics.

Thomas Balogh, for example, economic adviser in Harold Wilson’s Labour Government, here quoting the economist and Nobel Laureate Wassily Leontief, partly explained how this trickery has succeeded:

The increasingly technical formulations [of mathematics in economics] and the debate over their validity and precision provided employment for many of the thousands of economists now needed for economics instruction in universities and colleges around the world…

Mathematical economics also gave to economics a professionally rewarding aspect of scientific certainty and precision, adding usefully to the prestige of academic economists in their university association with the other social sciences and the so-called hard sciences. One of the costs of these several services was, however, the removal of the subject several steps further from reality. Not all but a very large number of the mathematical exercises began (as they still do) with the words “We assume perfect competition.” In the real world perfect competition was by now leading an increasingly esoteric existence, if, indeed any existence at all, and mathematical theory was, in no slight measure, the highly sophisticated cover under which it managed to survive.10

Australian economist Steve Keen is more direct:

There is one striking fact about this whole literature [of economics], and that is that there is not one single empirical fact in it.11

Even one of the best-known economists of all time, JM Keynes, is positively scathing about the pseudo-science in economics:

Too large a proportion of recent ‘mathematical’ economics are merely concoctions, as imprecise as the initial assumptions they rest on, and which allow the author to lose sight of the complexities and interdependencies of the real world in a maze of pretentious and unhelpful symbols.12

Under the careful management of capitalist economists, such as James Buchanan, the philosophy of economics has been entirely sacrificed to the lies and myths and pseudo-science of capitalist theory, a theory which serves no one except the super-rich. Keynes was unequivocal in his condemnation:

Capitalism is the astounding belief that the most wickedest of men will do the most wickedest of things for the greatest good of everyone.13

And that was before modern capitalism properly hit its stride. Andy Grove, co-founder and CEO of Intel, provided a more recent, and accurate definition of capitalism:

The purpose of the new capitalism,” he said, “is to shoot the wounded.14

Well, it’s high time the wounded started shooting back. Economics is first and foremost about morality, not money.

  1. Christianity and the Rise of Capitalism, R.H. Tawney, p. 246.
  2. Ibid, p. 246.
  3. Ibid, p. 253 and 256.
  4. Ibid, p. 78.
  5. Wealth of Nations, Adam Smith, p. 722.
  6. Ibid, p. 841.
  7. Ibid, p. 44 and 47.
  8. The Public Banking Solution, Ellen Brown, p. 123.
  9. Democracy in Chains, Nancy MacLean, p. 117.
  10. The Irrelevance of Conventional Economics”, Thomas Balogh, p. 8.
  11. Debunking Economics, Steve Keen, p. 67.
  12. General Theory of Employment, Interest and Money, JM Keynes, p. 298.
  13. Extreme Money, Satyajit Das, p. 128.
  14. The Best Democracy Money Can Buy, Greg Palast, p. 146.

America’s Power Elite and their False Facts

America’s power elite are a tiny but very mighty fraction of America’s total population. The power elite belongs to America’s corpocracy, the “Devil’s” marriage between corporate America and government America, with the former firmly in the driver’s seat.1

The primary aims of the power elite are to monopolize the world’s dwindling resources by whatever means necessary, usually by force, and to control all peoples’ and nations’ way of life and their conditions of life. That’s a tall order for America’s power elite, but it’s a far taller order for Americans and the rest of the world to stop them.

It matters not to the power elite that the U.S. is seen by people around the world as the greatest threat to world peace.2  It matters not to the power elite that distinguished scholar/activists agree about the deplorable state of America, with, for example, one calling it a “rogue nation,” another calling it “the leading terrorist state,” and another calling it a “sociopathic society.3   It matters not that most Americans don’t like them.4 The power elite are very adept at loosening the political pressure valve just enough to allow dissidents like me to blow off steam without blowing off the lid.

Ever since their invasion of the Native Americans’ land, one of the trademarks of the power elite is their constant lying to the public about what they are doing and why and the true conditions of America. They specialize in giving the rest of us “false facts.” While I suspect that most Americans realize they are being hoodwinked, I think it’s still useful to summarize here what the most salient false facts are and to contrast them with the true facts.

False Fact: The American Revolution was fought to free the people from suppression by King George and his chartered corporations.

True Fact: The war was fought for the benefit of the power elite who subsequently had the new president, George Washington, start military operations to expand the newcomers’ territory. George dutifully did so. One of his military orders was to attack civilians of all ages who belonged to the Six Nations of the Indigenous Peoples in New York.5

False Fact: “We the people of the United States—do ordain and establish this Constitution for the United States of America.”

True Fact: The power elite who contrived the Constitution had no intention of letting “we the people” govern themselves, as evidenced, for instance, by the long delay in allowing women to vote and by the contrived “electoral college,” an obstacle to a popular vote. Former President George W. Bush once said the Constitution is just a piece of paper. And for once he was telling the truth!

False Fact: America is a democracy.

True Fact:  America has never been a democracy. From the start it was and remains a corpocracy. Truth be known, the power elite has turned America into a fascist state. The late fascist dictator of Italy, Benito Mussolini, knew what he was talking about: “Fascism should more properly be called corporatism because it is the merger of state and corporate power.” “Precisely!” is what I imagine Professor Lawrence Brit, a political scientist, would say. He has concluded from his studies that America has all of the following 14 characteristics of a fascist state: “Disdain for the Recognition of Human Rights; Identification of Enemies/Scapegoats as a Unifying Cause; Supremacy of the Military; Rampant Sexism; Controlled Mass Media; Obsession with National Security; Intertwining of Religion and Government; Protection of Corporate Power; Suppression of Labor Power; Disdain for Intellectuals and the Arts; Obsession with Crime and Punishment (of all but the power elite); Rampant Cronyism and Corruption; and Fraudulent Elections.6   If you can’t find evidence in America of any of these 14, then you must be living on an isolated island.

False fact: America’s Civil War was fought to free the slaves.

True Fact: Our Civil War killed more Americans by far than any other of our wars. “Honest” Abe started the war to preserve the “union” for a stronger defense against foreign enemies and to strengthen the power elite’s hegemonic aspirations. Furthermore, Abe was a self-proclaimed racist. Don’t believe me? Maybe you will when you read this piece of what he wrote to a correspondent: “I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races—and I as much as any other man am in favor of having superior position assigned to the white race.7  Abe is just one of all but two US presidents (who died shortly after inauguration) whose legacies America’s power elite have had to spin over time to prevent popular uprisings.8

False fact: America’s wars have been unavoidable and just.

True Fact: America’s wars have been contrived by America’s power elite and have thus been unavoidable and unjust. America’s wars are the lies of America’s power elite.9  America’s wars and any wars are also, Albert Einstein once said, “an act of murder,” an irrefutable declaration in my opinion.10 That being so, does it also mean that any U.S. president except for two U.S. presidents in office too short of a stay to have done any harm, are surrogate murderers? And since the murders were done in our name what does that make us?

False Fact: Whistleblowers are traitors.

True Fact: It’s the power elite’s excuse for locking up conscientious dissidents. The true traitors are the corrupt politicians who by having people killed in other lands are violating our Constitution and International Criminal law and thereby endangering our nation.

False Fact: Our nation’s military represents the best this country has to offer.

True Fact: The drone operator who guides a bomb that kills people during a wedding procession in a far-away land certainly doesn’t represent the best this country has to offer. The military responsible for the deaths of millions of people over the years certainly doesn’t represent the best this country has to offer. What does, then? A nation of people that values and supports a caring society and economic system that encompasses “caring for children, the sick, the elderly, employees, customers and our environment.” That is the view of one of the best authors of all time in my opinion, Rianne Eisler. Everyone should read her book, The Real Wealth of Nations.11

False Fact: America’s war veterans are heroes.

True Fact: Some are, and some aren’t. People need to be sensitive to the difference. Referring indiscriminately to all war veterans as heroes only perpetuates what is indefensible, namely the glorification of war, the most ignoble of all human enterprises. Exalting the young men and women going overseas and risking their lives, limbs, and minds to kill foreigners in our name for the benefit of America’s power elite is indefensible.

Consider the sentiments of an Army officer being medically evacuated from battle in Afghanistan: “I’ve been in the Army twenty-six years and I can tell you it’s a con.” He goes on to say that his two young sons in college won’t have to serve,” and then adds, “Before that happens, I’ll shoot them myself.” He says he won’t deploy again. “War is absurd. Boys don’t know any better. But for a grown man to be trapped in stupid wars — it’s embarrassing, it’s humiliating, it’s absurd.”12 If only he could be a US president!

False Fact: To rationalize its own excesses, including its hand-outs from the government, corpocratic capitalists spout the theory of trickle-down economics as a rationalization for their own hefty welfare benefits, arguing that more money at the top will eventually trickle down to the bottom in the way of jobs.

True Fact: The evidence clearly shows it to be false.13 The excesses gush upwards. What small residual trickles down stops at the back door of the shrinking middle class, never going down farther to “the projects,” a euphemism for public housing where the poorest of poor who aren’t homeless live in dangerous and fetid conditions.

False Fact: The rich say the poor get what they deserve.

True Fact:  A distinguished professor of social welfare refutes the popular belief that poor people are primarily responsible for their own poverty. Poverty instead, this professor contends, “is largely the result of structural failings at the economic, political, and social levels.”14 In other words, we should blame the corpocracy and its power elite, not poor, jobless people.

False Fact: Public services need to be privatized because government is inefficient and costly.

True Fact: Michael Edwards, activist and author, explains in his book Small Change that the inherent nature of business with its profit-seeking motive and its short-term perspective and demands makes business unable to come even close to solving hardcore problems like poverty, epidemics, war, social discord, and the like.15 I would simply add this question: How many business firms, large or small, can you name that are making significant inroads on such problems?

Yet the public sector is increasingly being taken over by the private sector. Privatization, argue Si Kahn and Elizabeth Minnich, co-authors of The Fox in the Henhouse, is the private sector’s way to “undercut, limit, shrink, or outright take over any government and any part of the public sector that stands in the way of corporate pursuit of ever larger profits and could be run for profit.16

There you have it, at least 11 of the power elite’s false facts repudiated. It will take far more than a massive effort to educate the public. Just what additionally would be required is beyond the scope of this short article.

If you want to know what more I have to say about America’s power elite and whether the living field can be leveled so that power is more evenly distributed among the citizenry, you can e-mail me (ten.ttanull@rewopycarcomed) and I’ll e-mail you in return an advance copy of my new book when its galley proof is ready.

  1. Brumback, GB. The Devil’s Marriage: Break Up the Corpocracy or Leave Democracy in the Lurch. Author House, 2011.
  2. See, e.g., Post Editorial Board. U.S. Is the Greatest Threat to World Peace? New York Post, January 5, 2014.
  3. Blum, W. Rogue State: A Guide to the World’s Only Superpower. Common Courage Press, 2005; Chomsky, N. Noam Chomsky: “The Leading Terrorist State”, Truthout, November 3, 2014; and Derber, C, Sociopathic Society: A People’s Sociology of the United States, Routledge, 2013.
  4. Ellis, C. “Americans: Government Corrupt, Elite Serving Only Themselves”, WND, March 3, 2016.
  5. Schwarz, J. “A Short History of U.S. Bombing of Civilian Facilities”, www.theintercept.com, October 9, 2015.
  6. Brit, L. “The 14 Characteristics of Fascism,” Free Inquiry, Spring, 2003.
  7. Zinn, H. A People’s History of the United States, Harper Perennial, 2005, p. 188.
  8. Brumback, GB. Spinning the Legacies of America’s Presidents, Dissident Voice, July 31; OpEdNews, August 1, 2016.
  9. Swanson, D. War is a Lie, David Swanson publishing. 2010.
  10. Einstein, A. Original source unknown.
  11. Eisler, R. The Real Wealth of Nations. Berrett-Koehler, 2007.
  12. Jones, A. “A Trail of Tears: How Veterans Return from America’s Wars.” Best of TomDispatch: “Ann Jones, War Wounds.” February 14, 2016.
  13. Sowell, T. “The Trickle-Down Lie.” National Review, January 7, 2014.
  14. Rank, MR. One Nation, Underprivileged: Why American Poverty Affects Us All. Oxford University Press, 2005, p. 64.
  15. Edwards, M. Small Change: Why Business Won’t Save the World. Berrett-Koehler, 2010.
  16. Kahn, S. & Minnich, E. The Fox in the Henhouse: How Privatization Threatens Democracy. Berrett-Koehler, 2005.

Canada Declares War on the Wet’suwet’en Territory

On January 7, the Canadian settler-colonial state sent its federal police force, the RCMP, to enforce an injunction against the Wet’suwet’en nation. Members of the Gidimt’en and Unis’tot’en clans have been defending their lands – which have never been ceded to the Canadian state – from an incursion from members of the extractive industry who are seeking to push through the multi-billion dollar CoastalGasLink pipeline, which aims transport fracked gas across their territories to refineries in Kitimat and ultimately to export markets in Asia. Today the RCMP succeeded in raiding the first checkpoint, set up on the Gidimt’en territories. At the time of posting, a second raid on the Unis’tot’en camp is expected any moment.

See also “Canada’s Respect for the Rule of Law and Its Sacred Obligation to First Nations.”

Updating Some Canadian Political Prisoners January 2019

Disproportionate numbers of First Peoples are in Canadian prisons. Society arranges this fact to not seem that extraordinary. It could be argued that aboriginal peoples are political prisoners in North America, in or out of prison. Or that this is true for all minorities. Or that as the war on terror proceeds all Canadians may find themselves in a political prison.

Privilege and prejudice are clarified when we note that aboriginal men and women damaged in government (police) custody are not often plaintiffs in trials for damages. And properly, this account would run to several thousand pages listing the individual cases of First Peoples’ imprisonment, rising out of a society which feels compelled to treat the education of, the medical care of, the social services for, the nourishment of, the housing of, the remuneration for, First Peoples unjustly.

Unlike the U.S., Canada hasn’t used extreme long term incarceration of Indigenous leaders to discourage Indigenous movements’ protest actions. In the U.S. Leonard Peltier was sentenced to two life imprisonment terms for a crime he likely didn’t commit. Non-Indigenous U.S. leaders of the people such as the Kennedy’s, Dr. King and Malcolm X, were simply shot, and Canada’s historical icon of revolt Louis Riel was simply hanged. The many indigenous leaders in Canada maintain relatively low profiles and are more diffusely represented in these vast spaces of the land.

Currently, the only group of Canadian political prisoners which approaches the length of sentences given U.S. political prisoners is Canadians who are Muslim.1 They have been treated poorly in domestic prisons or left to the dogs in the custody of foreign agencies. In some cases Canada’s security agencies seemed to be outsourcing torture for information. Of Canadian Muslims damaged in custody, Maher Arar was awarded 11.5 million dollars in an out of court settlement concerning the Canadian government’s responsibility for his torture in Syria.

Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin settled for about half of what each asked, 31.25 million apiece because of Canada’s assistance to the Syrian government in having them falsely arrested and tortured.

Omar Khadr was to receive 10.5 million for Canada’s cooperation with the U.S. on Khadr’s incarceration and torture in  Guantanamo while a minor.

One lawsuit filed by Abousfian Abdelrazik, whom the Canadian government left in the hands of Syrian torturers, was settled out of court in 2017.

In 2015 the Canadian government settled out of court a suit by Benamar Benatta whom it had turned over to the FBI as a terrorist suspect: he was imprisoned 5 years before they decided he wasn’t a terrorist.

Daniel Ameziane, who sought political asylum in Canada from Algeria, is suing Canada for 40 million dollars2, after his torture in U.S. Guantanamo which he alleges was reliant on Canadian supplied information. and yielded the Canadians in turn information obtained by his torture (Ameziane, denied asylum in Canada, was subsequently arrested in Pakistan by a bounty hunter and sent to Guantanamo). The five Muslim men detained (arrested without charge) for varying lengths of time in extreme conditions, under the mechanism of Canadian Security Certificates, were not found guilty of any crime and have not, to my knowledge, initiated suits to compensate them for their arbitrary loss of rights, their suffering and the government’s attempts to ruin their lives.

What is unusual about the Canadian persecution of Canadian Muslims is that they have some chance for redress in Canadian courts for severe violations of their human rights. Here I’ll try to update several cases Night’s Lantern has encountered in the past, and these of Muslims, targeted under the U.S./ NATO programs of the wars on terror and Muslim countries. The cases suggest a domestic application of an aggressive foreign policy which has the intention of corporate resource acquisition by force.

Entirely ignored by the media is the case of Said Namouh who was arrested in 2007 and is serving a sentence of life imprisonment with parole possible after ten years (yet facing deportation if paroled). The charges against him were for participating in terrorist activities. But he committed no crime of violence against anyone.3 There was no evidence linking him to alleged bomb-making or making real the prosecution’s suppositions of active terrorism. The star witness against him was an Israeli CEO of a U.S. defense industry intelligence provider who analyzed Namouh’s computer hard drive. Namouh’s “crimes” were primarily of internet communication, personal declarations, extremist associations, in other words – his beliefs, convictions. This case puzzles innocents because it is entirely legal to have beliefs and convictions and it is legal to share them. In 2018 Namouh was denied his first application for parole; the parole board noted his record in prison wasn’t exemplary, and it wasn’t, but he didn’t try to kill anyone and he didn’t steal anyone’s dessert. The parole board (“La Commission des libérations conditionnelles”) isn’t likely to hear his case again until 2023. Yet there is a forfeit of the prisoner’s human rights and civil rights here, not because Namouh’s beliefs are unwise, unsafe, in some instances illegal, or against Canadian security interests, but because the punishment is the same as a mass murderer’s. He was in no way proven guilty of mass murder or any act of violence. His was a propaganda trial with a propaganda punishment.

Another level of shame is reached in the more obvious injustices of Canadian Security Certificates. One recognizes Stasi or Gestapo tactics which aren’t Canadian practices, and the government has restrained itself from using the certificates since early in the new millennium. All five of the Muslim men arrested under Canadian Security Certificates back in 2000 to 2003 have been released from prison through the efforts of their lawyers in one trial after another. Despite government challenges Canada’s judicial system has safeguarded some of humanity’s progress since the dark ages. The government’s attempts to justify in court application of Canadian Security Certificates has cost Canadian taxpayers millions of dollars.

Mohamed Harkat, former Canadian Security Certificate detainee, imprisoned without a charge against him in 2002, now lives at home protected from prison by judicial decisions, with his Quebec born Canadian wife of nearly twenty years. Their lives are under threat every day with complete disruption by the government’s continuing intention to deport him to Algeria, where it’s believed he is in danger of torture or death.((“Justice for Mohamed Harkat: stop his deportation to torture.)) Aside from the label of suspected terrorist assigned him by Canada’s security agencies, any refugee returned to Algeria is known to be at risk. In June 2018 Al-Jazeera reported 13,000 migrants left by Algeria in the Sahara desert within the last 14 months, subject to forced marches without water and food.4

The ordeal of Mohamed Harkat’s arrest without charges or public evidence against him has lasted year after year, placing him in prison, in solitary, on hunger strike, in house arrest with court ordered regimens, has subjected his wife to suffering and police abuse, subjected the family to legal expenses, debts, and charity without compensation. (Summary). If one wanted to inflict the conditions of a lasting torture on a family, either to obtain information or as one more threat to encourage the Muslim community to cooperate with government policies bordering on genocide in several Muslim countries, one might imagine inflicting on them the lives of Mohamed and Sophie Harkat.

In a report to the UN Human Rights Council last Spring, Nils Melzer (the UN Special Rapporteur on torture) noted: “Whenever States failed to exercise due diligence to protect migrants, punish perpetrators or provide remedies, they risk to become complicit in torture or ill-treatment.”5

The injustices inherent in the government’s prosecution of a group branded the “Toronto 18” in 2006 by the press are less clearly defined and are difficult to explain. People are afraid to ask obvious questions about the group of minors and young men who were quite possibly guided into a horrible conspiracy by the several police agents among them to plan and organize a series of terrorist acts beyond the abilities of any in the group who weren’t police agents, to execute.

As soon as early reporting of the arrests entered court, the judge placed a gag order on reporting details of the trial or revealing the defendants’ names. Portions of the ban protecting minors seem to remain in force. The mechanism has also provided a means to keep out of public scrutiny any low-profile informants and the role they played in a “conspiracy” which some of the defendants were unwilling to recognize. The alleged crimes the “conspiracy” was charged with were horrific and frightening, particularly to a population with misgivings about U.S. and Canadian wars against Islamic countries, crimes against international law, guilt from Canada’s role in “Operation Desert Storm,” the initial US and Coalition bombing of Iraq, the destruction of Iraq’s civilian infrastructure, depriving the country’s children of a future. By the time the US and its coalition invaded Iraq in 2003 Canada refused full participation. Canada’s commitment to fighting in Afghanistan may also be considered complicity in a war of aggression and a number of the “Toronto 18” expressed anger at Canada’s involvement in Afghanistan. So the script for the “Toronto 18” was noticeably muzzy, vague except in the allegations of dastardly plots and plans, and the curiousness that young Canadian citizens who were in other respects bright students and entrepreneurs could be manipulated into over-expressing their imaginations and feelings about injustice.

In court eleven Canadian citizens accused were sentenced to prison. Charges against others were dropped or withdrawn. Of the accused, most just pleaded guilty. Four claimed their innocence but were convicted. Interestingly each case was different which one would not expect of a conspiracy. Charges relied heavily on the actions and testimony of a police informant (one is featured in official narratives) considered by some to have been a causative agent. The convicted did not have the knowledge or means to execute the terrorist actions they were found guilty of, and their actions required the professional help of the police informant(s). This troubled my own understanding of the case as it was revealed in the press, and the presence of this basic injustice may explain why post sentencing information about members of the “Toronto 18” remains scarce.

The justice of their trials in 2009-2010 may be further questioned after a recent ruling in Vancouver BC which found the RCMP basically responsible for the terrorist acts committed by John Nuttall and Amanda Korody.6 The couple were recent converts to Islam and recovering drug addicts, guided into a terrorist plot and supplied the knowledge and materials to commit terrorist crimes by RCMP undercover. A three judge appeals court affirmed the decision of the lower court that the RCMP had basically entrapped the defendants, who were then freed. The RCMP’s case was found to be “a travesty of justice.”.

To begin to gather then this disparate group of the “Toronto 18” I mention eight of the eleven who were found guilty and sentenced:

Arrested when he was 18, Saad Gaya pleaded guilty in court in 2010 and was sentenced to 12 years in prison with pre-sentencing imprisonment of 3.5 years credited double. Gaya was to serve a remaining 4.5 years but was parole eligible in 18 months. However, the Crown was able to increase his sentence to 18 years. In 2016 the National Post reported he was granted day parole to attend graduate school.7

Mohamed Dirie convicted for weapons smuggling in the “Toronto 18” plot was sentenced to seven years including pre-sentencing time served. He was released in 2011, and is reported to have died fighting for “an extremist group” in Syria, 2013.8 Unconfirmed.

Zakaria Amara9 pleaded guilty in 2009 to charges in the “camp plot” conspiracy and to charges in the “bomb plot” conspiracy. In 2010 he was sentenced to 21 months in addition to time served for the first, and for the second, life imprisonment. He was incarcerated in Quebec and eligible for parole in ten years. In 2013 the Supreme Court of Canada refused to review his sentence.

Fahim Ahmad, sentenced to 16 years with double credit for pre-sentencing time served, was previously denied parole but will have completed his sentence and should be freed in 2018, according to The Toronto Star, and released early in 2018 according to the National Post. By 2019, I’ve found no notice of his release.10

Shareef Abdelhaleem who maintained that he “had no intention of causing injury or bodily harm” and asked the judge to sentence him as the judge would a white Catholic…, was sentenced to life in prison, and with pre-sentencing time included, was parole eligible in ten years. His father was an engineer with Atomic Energy of Canada who had posted bail for Mohammad Mahjoub, the Security Certificate detainee. The father’s implication in the “conspiracy” was attempted. Of his son, the prisoner, Wikipedia quotes him: “I am the last person to be a threat…this whole thing was staged to impress the public, to give them fear.”11

Steven Vikash Chand, a former Canadian forces reservist and new convert to Islam, was found guilty of participation and advising a financial fraud to assist a terrorist group. He was sentenced to 10 years including time served, yielding a release in 2011.

Despite a recognized lack of serious involvement with the conspiracy group, Asad Ansari was sentenced in 2010 to six years five months for participating/contributing to a terrorist group, which amounted to time served. Like several others in the “Toronto 18” group, the government’s threat to withdraw his Canadian citizenship was canceled under a change in government and Royal Assent granted to Bill C-6 June 19, 2017.

Saad Khalid pled guilty in 2009 to intending to cause an explosion and was sentenced to 14 years in prison including 7 years served. He was said to be radicalized in prison and the Crown increased his sentence from 14 to 20 years.

These are long sentences in mens’ lives. This listing leaves three of the accused and found guilty prisoners uncounted, as well as the seven of those arrested and one way or another released. We can guess that most of those found guilty have by now served their time or reaching their parole date were quietly released. No one asks why children and young adults who were so normal in other respects leading the lives of innocents, imagined such horrific responses to their country’s crimes against innocent men women and children abroad.

  1. Canada and the politics of Islamophobia,” J. B. Gerald, February 5, 2017, nightslantern.ca.
  2. “Guantanamo: Ex-inmate sues Canada for alleged torture,” Jillian Kestler-D’Amours,” November 10, 2017, Al-Jazeera.
  3. “Pas de libération conditionnelle pour Saïd Namouh,” Louis Cloutier, February 7, 2018, TVA Nouvelles / MédiaQMI.
  4. “Deported by Algeria, migrants abandoned in the Sahara Desert,” Victoria Gatenby, June 25, 2018, Al-Jazeera.
  5. “Migration policies can amount to ill-treatment and torture, UN rights expert warns,” UN Human Rights Council, March 1, 2018, Reliefweb.
  6. “B.C. Court of Appeal: Couple convicted in Victoria terror case entrapped by RCMP,” Amy Smart, Canadian Press, December 19, 2018, Vancouver Sun.
  7. “Toronto 18″ convict granted day parole so he can go to graduate school,” January 1, 2016, National Post.
  8. “Man convicted as part of Toronto 18 plot reportedly killed in Syria,” The Canadian Press September 26, 2013, Macleans.
  9. “Bomb plotter sentenced to 12 years,” Michael Friscolanti, January 18, 2010, Macleans.
  10. “Toronto 18 plotter reflects on a decade in prison,” Michelle Shephard, May 29, 2016, Toronto Star.
  11. “Toronto 18″ member released on day parole in middle of 18-year sentence,” The Canadian Press, January 2, 2016, CBC.