This short letter was prompted by an Earthroots campaign in support of the Grassy Narrows First Nation; some of the language in it is borrowed from Earthroots, and minor revisions have been made to the version sent to Ontario Environment Minister Glen Murray. On June 27 Murray announced an $85 million program to remedy what he denounced as "gross neglect" over a half-century. Credit is due to the Grassy Narrows people and all the activists who have supported them by more than just writing letters.Read More
First published (without notes) in the Two Row Times (25 December 2013): 7, https://www.tworowtimes.com/opinions/opinion/justice-legality-sisters-antigone/. The issues broached in this article were further explored in comments on my article published by local historian Garry Horsnell on the website of the Two Row Times, and in my response to him.
Canada does seem to be having persistent problems with the law. The Supreme Court of Canada ruled in its Delgamuukw and Marshall decisions, in 1997 and 1999, that First Nations peoples who never made treaties ceding their lands and resources to the Crown retain aboriginal title to their ancestral territories.1
But Canadian governments, federal and provincial alike, have often simply ignored inconvenient court rulings on what constitutes the law of the land. The Burnt Church fishery dispute of 1999-2002 was nudged toward violence by the Department of Fisheries and Oceans' refusal to accommodate Mi'kmaq rights confirmed by the Marshall decision; and in recent months the New Brunswick government, the RCMP, and the lower courts that have glibly handed out injunctions criminalizing any obstruction of fracking exploration on unceded Mi'kmaq land, appear again to have been violating the law.
Two leading experts in natural resources law have commented on this recent bout of lawlessness. Bill Gallagher has remarked that there are “seven high-level court cases” which the natives won “on a very profound point of law,” with the courts giving “a series of admonitions” to the losing parties, “governments and interveners and industry”—despite which the New Brunswick government has left these court decisions “sitting on shelves.”2 And Michael McClurg has written that in the Elsipogtog case, “the rule of law [...] would arguably dictate” that the protesters had every right to be where they were, while others, “including the Crown and resource extraction companies, are trespassers.”3
What are we to do when the very people who should be applying the rule of law fling it out the window, and when foolish or malignant pundits like Rex Murphy or Ezra Levant do their best to obstruct public understanding of what's going on?
But a further problem arises from the fact that even when governments respect the law, its structures may embody and legitimize wrongs and injustices.
Only in Utopia, the land of Cockagne, or the Big Rock Candy Mountain are legality and justice wholly one and the same. Think of the words of the prophet Amos that Martin Luther King famously quoted in his “I have a dream” speech. Amos didn't say “Let legality roll down”: he said, “Let justice roll down like waters, and righteousness like a mighty stream” (Amos 5: 24). What the civil rights movement was struggling against, in the name of justice and righteousness, was quite precisely a perverted legality: the laws and state practices of Jim Crow racism.
The Canadian legal system has moved towards remedying some institutionalized features that run counter to justice. Attempts are being made to provide restorative justice through Gladue courts; and the Royal Commission on the Donald Marshall, Jr. Prosecution (1989) declared that “Native Canadians have the right to a justice system [...] which has respect for them, and which dispenses justice in a manner consistent with, and sensitive to their history, culture and language.”4
On the level of resource issues, it's clear that a system of law and justice that was respectful of and sensitive to native history, culture and language would not for a moment permit practices like fracking. But the corporations involved in resource extraction are bound by corporate law to understand value as a matter of maximizing shareholders' profits—and to discard the real values of justice, respect for aboriginal title, and the responsibility to preserve the land for future generations.
The hollowness of this perverted legality can be exposed by comparison to higher understandings of what binds us to the land we belong to.
We can find such forms of understanding in the Mi'kmaq system of justice (koqqwaja'ltimk), one of whose principles, as Leslie Jane McMillan explained in her 2002 doctoral thesis on Mi'kmaq Legal Consciousness, is sharing (utkunajik) within a common territory (netukulimk).5 We can find them, perhaps more fully elaborated, in the Six Nations or Haudenosaunee Kaienereh'ko:wa, known in English as the Great Peace.
In 2006, two women of the Six Nations, Katinies and Kahentinetha, explained their intervention in an issue involving environmental degradation in the Haldimand Tract lands as prompted by the Kaianereh'ko:wa's Wampum 44, which defines the women as the “progenitors of the soil,” and makes them, the elders said, “the Caretakers of the land, water and air of Turtle Island. As the trustees, we are obligated to preserve and protect the land's integrity for the future generation.”6
In the same year, another Six Nations woman, Hazel Hill, informed local newspapers in Grand River and Caledonia that the controversy that had erupted over a land reclamation near Caledonia was not just a question of ownership, but a conflict between two laws, one that has served oppression and another higher and much older law:
It's not about disrespecting [...] the laws of Canada, but more importantly about respecting [...] the Universal Law given to us by the Peacemaker and Gigonsaseh, and upholding our responsibilities as individuals in accordance with that law [....] It's not about an occupation, but about asserting our jurisdiction.7
Canadians of European heritage may find it easier to understand these appeals to a system of justice higher and more ancient than the law of the Canadian state if they remember a story that forms part of their own heritage. It is the story of Antigone, a daughter of the royal house of Thebes, as told by Sophocles, one of the great tragic playwrights of ancient Greece, four and a half centuries before the beginning of our Common Era.
Antigone's two brothers quarrelled over the throne of Thebes. One, who was banished, returned with an army and attacked the city. When the brothers killed each other in battle, their uncle, who became king, proclaimed that the one who had defended the city should be buried with due honours, while the other's corpse should rot outside the city and be consumed by dogs and carrion birds—and anyone who gave the body burial rites should die.
It is made clear that the king's decree violated a primal order of justice. Carrion-eating animals and birds refused to touch the corpse; then, after Antigone defiantly gave it burial rites, which the king reversed, exposing the dead body again, the carrion-eaters gorged themselves and vomited the rotting flesh onto the altars of the city's temples.
At a central moment in the play, Antigone tells the king that his law went against the highest god, Zeus, and against an order of Justice higher than any decree of the state. I quote from Robert Fagles' translation:
It wasn't Zeus, not in the least,
who made this proclamation—not to me.
Nor did that Justice, dwelling with the gods
beneath the earth, ordain such laws for men.
Nor did I think your edict had such force
that you, a mere mortal, could override the gods,
the great unwritten, unshakable traditions.
They are alive, not just today or yesterday:
they live forever, from the first of time....8
Set aside this tragedy's lurid details: its central conflict, between a law arrogantly and unjustly proclaimed by the state, and a higher sense of justice, of “unshakable traditions” that Antigone courageously obeys in principled resistance to the state's brute force, has a familiar ring.
The women of the Six Nations, and the Mi'kmaq women who have taken a stand, together with their menfolk, in opposition to fracking exploration in New Brunswick, are sisters of Antigone.
Sequel: An Exchange with Garry Horsnell
Local historian Gary Horsnell offered a response to this op-ed, to which I replied.
Garry Horsnell's response:
When it comes to the Mi’kmaq in the eastern provinces of Canada, they and other First Nations (Indian) bands in that area made a Peace and Friendship Treaty in 1760/61. Here is an excerpt from that 1760/61 treaty:
We the said Saugaaram als Loron Arexus Francois Xavier and Megamumbe Delegates from the said Tribes of Penobscot Naridgwalk St. Johns, Cape Sables and other Tribes inhabiting within His Majesty’s said Territories of Nova Scotia or Accadie and New England So in the Name and behalf of the said Tribes we represent acknowledge his Said Majesty King Georges Jurisdiction and Dominion over the Territories of said Province of Nova Scotia or Accadie and make our Submission to his Said Majesty in as ample a manner as We have formerly done to the Most Christian King.
The Mi’kmaq joined that treaty later, but the Indians agreed the Crown would reserve “Jurisdiction and Dominion over the Territories.”
Here is another excerpt from that 1760/61 treaty: “And we further promise in behalf of the said Tribes we represent that the Indians shall not molest any of His Majesty’s Subjects or their Dependants in their Settlements already or lawfully to be made or in their carrying on their Trade and other affairs within said Province”.
The Mi’kmaq in New Brunswick can protest peacefully against fracking in New Brunswick but it is against the Criminal Code of Canada to cause mischief by blocking roads, highways, other thoroughfares or access to property.
In 2010, the government of Nova Scotia signed an agreement to consult with the Mi’kmaq in Nova Scotia but I doubt that would affect the Mi’kmaq in the separate Province of New Brunswick.
In the 2004 Haida case, the Supreme Court of Canada said that “Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown.” The Crown now includes only the Canadian federal government (the big Crown) and provincial government (the little Crowns). Municipalities and private developers are not the Crown and are not obliged to consult with Indian bands.
I would think the New Brunswick government (a little Crown) should consult with the Mi’kmaq in New Brunswick about fracking but, in section 48 of the 2004 Haida case, the Supreme Court of Canada also said, “This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim.”
I don't think Garry Horsnell has adequately understood the historical and legal issues he alludes to. I'll go over them briefly.
By 1760 France, with whom the Mi'kmaq had been in alliance during part of the 1750s, had been decisively defeated in North America by the British. In the Peace and Friendship Treaty of 1760-61 from which Horsnell quotes, the Mi'kmaq did indeed acknowledge King George III's political sovereignty, his “Jurisdiction and Dominion,” over Nova Scotia (which at the time also incorporated the present-day province of New Brunswick). But according to what I believe is a large majority of contemporary expert interpreters, this didn't involve giving up what we now call aboriginal title to the land they inhabited, or their rights to its resources.
The point seems obvious enough. When George III at the same time asserted sovereignty over the province of Québec, he wasn't cancelling and erasing the existing system of land tenure and ownership. The British did of course put native people and settler populations (whatever European language they spoke) into different categories; and they made clear their intention to engage in what the Royal Proclamation of 1763 termed the “speedy settling” of their newly conquered colonies. But the aim of the policies the British announced in the early 1760s was to pacify those colonies, not to drive the French-speaking or the native people into acts of desperate resistance by declaring that they had no rights to their ancestral lands.
The treaties made by the British with the Maliseet and Mi'kmaq in 1726, 1752, and 1760-61 promised, explicitly or implicitly, the protection of their fishing, hunting, and planting grounds. (Such an interpretation, the Supreme Court stated in its 1999 Marshall decision, is required “to uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people.”) And the Royal Proclamation of 1763 declared 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....”
The Proclamation acknowledged native rights by setting out procedures, “to the End that the Indians may be convinced of Our Justice,” by which native lands could be purchased by colonial governments from specially summoned assemblies of the native people concerned, and it forbade any unauthorized form of land surveying and land transfer. These provisions applied not just to the territories west of the Thirteen Colonies, but to “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.”
There is ongoing debate among experts and in the courts over the precise meaning and applicability, in different contexts, of aboriginal title and resource rights. But it's an uncontested fact that within a few decades after 1761 the Crown's treaties with the Mi'kmaq were being systematically dishonoured by colonial (and subsequently Canadian) governments. Mi'kmaq lands were appropriated as private property or Crown land without any form of agreement or purchase as outlined in the Royal Proclamation. But the dishonouring of the treaties doesn't alter their legal force.
I think Garry Horsnell and I would agree that people really ought to obey the law. (I also believe—as I indicated by quoting Martin Luther King and Sophocles—that in cases where the law is manifestly unjust or iniquitous, people have a right, indeed a moral obligation, to disobey it.)
In the Elsipogtog case, obedience to the law should have begun with the Crown exercising its duty to consult. Horsnell's view that this duty was somehow merely optional for the New Brunswick government reveals an inadequate understanding of the basic principles of common law.
The relevant court decision here is the July 2008 judgment of the Ontario Court of Appeal in the case of Frontenac Ventures Corporation v. Ardoch Algonquin First Nation. As Annie Leeks of the law firm Blake, Cassels & Graydon has written, the Court of Appeal surveyed two decades of Supreme Court jurisprudence in its attempt to weigh asserted aboriginal rights against the interests of a uranium mining company:
The court found that this clear line of jurisprudence required that where constitutionally protected aboriginal rights are asserted, “injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests”. The Court of Appeal cautioned in particular that if the injunction is intended to create a “protest free zone” for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged and that every effort has been exhausted to obtain a negotiated or legislated solution.9
Barring a contrary decision by Parliament or the Supreme Court, that's the law of the land. Wouldn't it be nice if New Brunswick felt like obeying it?
And in the absence of the legally required consultation, doesn't it look rather as though the provincial government, the fracking exploration company, and the RCMP were molesting the Mi'kmaq, and not the other way round?
1 See Chelsea Vowel, “The often-ignored facts about Elsipogtog,” Toronto Star (14 November 2013), http://www.thestar.com/opinion/commentary/2013/11/14/the_oftenignored_facts_about_elsipogtog.html. (Vowel also blogs under her Cree name: see Âpihtawikosisân: Law, language, life.) My two next paragraphs echo what I have written in “Canada's Problems with the Law,” Two Row Times (20 November 2013): 7, http://www.tworowtimes.com/opinion/canadas-problems-with-the-law/; also published as “Canadian Justice, the Rule of Law and the Rob Ford Affair,” Centre for Research on Globalization (18 November 2013), http://www.globalresearch.ca/scandal-and-political-impasse-in-toronto-canadian-justice-and-the-rob-ford-affair/5358566.
2 See “Sharing Resources,” Interview with Bill Gallagher, CBC Radio One New Brunswick (6 November 2013), http://www.cbc.ca/shift/2013/11/06/sharing-resources/; and Bill Gallagher, “Will the Canadian Native Legal Winning Streak Hit 200?” Bill Gallagher/Strategist/Lawyer/Author (4 August 2013), http://billgallagher.ca/2013/will-the-canadian-native-legal-winning-streak-hit-200/.
3 Michael McClurg, “Do we need the 'rule of law' in New Brunswick to deal with native protestors?” Olthuis Kleer Townshend – LLP (23 October 2013), http://www.oktlaw.com/blog/do-we-need-the-rule-of-law-in-new-brunswick-to-deal-with-native-protestors/.
4 Chief Justice T. Alexander Hickman et al., Royal Commission on the Donald Marshall, Jr. Prosecution: Digest of Findings and Recommendations (Halifax, 1989), p. 11, http://www.novascotia.ca/just/marshall_inquiry/_docs/Royal%20Commission%20on%20the%20Donald%20Marshall%20Jr%20Prosecution_findings.pdf. I owe this reference to Leslie Jane McMillan, “Koqqwaja'ltimk”: Mi'kmaq Legal Consciousness (University of British Columbia Ph.D. Thesis, 2002), http://www.collectionscanada.gc.ca/obj/s4/f2/dsk4/etd/NQ79241.PDF, p. 169.
5 See Leslie Jane McMillan, “Koqqwaja'ltimk”: Mi'kmaq Legal Consciousness.
6 “Demand from Women Title Holders of the Rotinohnsonnion:we/Six Nations to Enbridge Gas Distribution Inc. of Barrie Ontario to Cease and Desist the Building of a Natural Gas Pipeline Under the Pine River in Homings Mills on the Haldimand Tract,” Mohawk Nation News (15 September 2006), http://www.mohawknationnews.com/news/print.php?lang=en&layout=mnn&newsnr=300.
7 “MNN 'Ongwehonwe Women's Manifesto' at Six Nations,” introduced by Kahentinetha Horn, MNN Mohawk Nation News (12 April 2006), http://www.gatheringplacefirstnationscanews.ca/PressReleases/sixnations/060412_01sixnationsmanifesto.htm?selected=77.
8 Antigone, lines 499-507 (450-57 in the Greek text), in Sophocles, The Three Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, trans. Robert Fagles (1982; rpt. London: Penguin, 1984), p. 82.
Published in the Two Row Times (20 November 2013): 7, http://www.tworowtimes.com/opinions/opinion/canadas-problems-with-the-law/; also published as “Canadian Justice, the Rule of Law and the Rob Ford Affair,” Centre for Research on Globalization (18 November 2013), http://www.globalresearch.ca/scandal-and-political-impasse-in-toronto-canadian-justice-and-the-rob-ford-affair/5358566. As first published, this article appeared without footnotes.
Rob Ford, now universally referred to as “the crack-smoking mayor of Toronto,” continues to astonish us—not just because he can't open his mouth in public without bullying, lying, confessing to some further crime, or saying something obscene about his wife—but also because of what his ongoing saga suggests about the state of Canadian justice.
It seems that if you're white, male, rich, and powerful, you can do outdoor drug deals in front of police surveillance teams without fear of interruption, let alone arrest. Ford doesn't even bother now to dismiss police summaries of his lawbreaking as “allegations”; he calls them “revelations.”1
But amid the fuss around these Fordian slips, a concurrent story that also reveals something about Canada's present-day problems with legality has gone almost unnoticed. On October 21, the Toronto Transit Commission (TTC) announced that it was refusing to carry advertisements from a human rights group, Canadians for Justice and Peace in the Middle East, which show the accelerating disappearance since 1947 of land held by Muslim and Christian Palestinians in historic Palestine.2
The ad copy apparently suggested that the ongoing taking of Palestinian land by the state of Israel has involved unfairness and illegality. After consulting its lawyers, the TTC declared that the land taking hasn't been illegal, and that no court ever said it was—therefore, no ads.
This statement rivals Mayor Ford in its mendacity. For in July 2004 the International Court of Justice found Israel's continuing theft, colonization, and settlement of occupied land to be in violation of the UN Charter, the Fourth Geneva Convention, and five other charters of international law, as well as repeated UN Security Council resolutions. An interesting story, one might think: but the Toronto media buried it with unseemly haste.3
Why should Canada's political class and mainstream media not want Canadians to be informed about an overseas instance of land theft and settlement (one which our present government, by the way, supports with particular vehemence)? Two other recent events may suggest an answer.
The first is the visit to Canada of James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, which ended on October 15. The second is the RCMP's October 17 assault on the non-violent anti-fracking blockade by the people of Elsipogtog near Rexton, New Brunswick—an attack which looks uncannily like an 'up-yours' response by the Harper government to Anaya's parting remarks. Both events raise important issues of legality.
The statement Anaya issued on concluding his visit included mention of “the frustration expressed to me uniformly by aboriginal leaders that their self-governance capacity and economic development [...] remain impeded by multiple legacies of the history of colonization, treaty infringements, assault on their cultures, and land dispossession suffered by their peoples.”
Adding that negotiations are often undermined by rapid resource development “within lands that are the subject of protracted negotiations,” Anaya recommended that the government adopt a “less adversarial” and “more generous and flexible approach,” one which would acknowledge that “the public interest is not opposed to, but rather includes, aboriginal concerns.” He proposed that “resource extraction should not occur on lands subject to aboriginal claims without adequate consultations with and the free, prior and informed consent of the aboriginal peoples concerned.”4
On the very next day, Stephen Harper borrowed rhetoric from the era of the fifty-year-old TV series Wagon Train for a Throne Speech that re-stated a settler-colony view of Canada excluding any aboriginal perspective: “This is Canada's moment; together we will seize it. And as we do, we draw inspiration from our founders, leaders of courage and audacity. [....] They were undaunted. They dared to seize the moment that history offered. Pioneers, then few in number, reached across a vast continent. They forged an independent country where none would otherwise have existed.”5
As Corey Snelgrove has remarked, Harper's words evoke the doctrine of terra nullius, a Latin term used by early colonizers of the Americas to define the lands they coveted as legally empty and their inhabitants as non-persons.6
One day later, on October 17, the federal police force, the RCMP, was ordered to attack the Elsipogtog blockade—the legal basis for this action being a provincial court injunction that was rescinded on October 22.7
The actual standing of this issue in Canadian law is precisely the opposite of what most Canadians believe it to be. Those who have been in violation of the highest law are the New Brunswick government, the Harper government, the RCMP, and SWN Resources, the would-be frackers.
Why do Canadians not know this? Because, once again, Canada's political class and much of the mainstream media have been (to put it charitably) economical with the truth.
One important exception to the mainstream media's combination of silence and misinformation is a recent article by Métis writer Chelsea Vowel in the Toronto Star (“The often-ignored facts about Elsipogtog,” November 14, 2013), which explains two essential judgments of the Supreme Court of Canada.8
The first of these, the Supreme Court's 1997 Delgamuukw decision, determined that under Canadian law, Aboriginal title to most of British Columbia had never been extinguished—meaning that other parts of the country where no treaties giving up land ownership were ever signed had likewise never been acquired by the Crown. The second, the 1999 Marshall decision, determined both that Mi'kmaq fishers in Atlantic Canada retained their right to make a living by fishing, and confirmed that the Mi'kmaq and Maliseet Peace and Friendship Treaties of 1760-1761 did not involve any surrender of land or resources.
As Vowel writes, “This cannot be emphasized strongly enough: the Mi'kmaq never gave up legal right to their land or resources. Canada does not own the land that the people of Elsipogtog are defending. This is not conspiracy theory, or indigenous interpretation. This is Canadian law, interpreted by the Supreme Court of Canada, applying Canadian constitutional principles.”9
Legal experts have no trouble understanding this. Michael McClurg, a specialist in natural resources law with the Toronto firm Olthuis Kleer Townshend, has written that “the rule of law in this case would arguably dictate that the protesters have every right to be on their traditional land and that in fact, others, including the Crown and resource extraction companies, are trespassers.”10
Bill Gallagher, a lawyer in the same field, notes that First Nations groups have won more than 180 recent victories in Canadian courts. In a recent CBC Radio interview he remarks that in New Brunswick, “There are seven high-level court cases that have been sitting on shelves through previous governments. These are appellate level decisions, Supreme Court of Canada level decisions, that are declaratory: the natives have won on a very profound point of law, [and] the parties that have lost, governments and interveners and industry, have been given a series of admonitions....”11
Governments have not merely ignored these admonitions; they have often directly violated them. In 2000, for example, Mi'kmaq people at Burnt Church who asserted their rights according to the Marshall decision “were subject to racist violence,” Dru Oja Jay writes, “from both the Department of Fisheries and Oceans, which literally ran over boats of people trying to fish, and non-Native mobs, who attacked people trying to fish and destroyed [lobster] traps and boats.”12
Michael McClurg observes that people in government can learn—from the Report of the Royal Commission on Aboriginal Peoples, for example, or the Ipperwash Inquiry Report—how to behave in “conflicts over resources, including appropriate police responses.” But their reactions to Elsipogtog give one, he says, “a strong sense of history repeating itself.”13
It's time for politicians like Prime Minister Stephen Harper and New Brunswick Premier David Alward to grow out of their Wagon Train mentality, and start obeying Canadian law.
1 This slip was pointed out by late-night comedian Jimmy Kimmel. Ford's impunity extends beyond drug-dealing, gang-related activities, sexual harassment, and DUI even to parking violations: his black Cadillac Escalade SUV sat for three hours on November 17 in a no-parking zone outside the Sun Media studio where he was taping a show without being ticketed; see Shawn Jeffords, “Mayor Rob Ford parks illegally,” Toronto Sun (17 November 2013), http://www.torontosun.com/2013/11/17/mayor-rob-ford-parks-illegally.
2 Tess Kalinowski, “TTC rejects controversial Middle East ad campaign,” Toronto Star (21 October 2013), http://www.torontostar.com/news/gta/2013/10/21/ttc_rejects_controversial_middle_east_ad_campaign.html.
3 See my article “Toronto Transit Commission vs. International Law,” Independent Jewish Voices Canada (2 November 2013), http://www.ijvcanada.org; also published as “Toronto Transit Commission (TTC) Rejects Ads Concerning the 'Disappearance of Palestine',” Centre for Research on Globalization (2 November 2013), http://www.globalresearch.ca/toronto-transit-commission-ttc-rejects-ads-concerning-the-disappearance-of-palestine/5356515.
4 James Anaya, “Statement upon conclusion of the visit to Canada,” James Anaya: United Nations Special Rapporteur on the Rights of Indigenous Peoples (15 October 2013), http://www.unsr.jamesanaya.org/statements/statement-upon-conclusion-of-the-visit-to-canada.
5 “Seizing Canada's Moment: Prosperity and Opportunity in an Uncertain World,” Speech From The Throne (16 October 2013), http://www.speech.gc.ca. While I object to this flatulent rhetoric, I don't mind noting at the same time that my own ancestors were among the earlier English-speaking settlers in Canada: my quadruple-great-grandmother and her two sons, the widow and children of George Kieffer, a New Jersey farmer who died defending Long Island from the army of George Washington, founded what became the town of Thorold, Ontario. As Loyalists, they came to Canada at the same time, and for the same reasons, as the Six Nations people who were expelled from their ancestral lands in New York state and granted the so-called Haldimand Tract (land extending for six miles on either side of the Grand River).
6 See Corey Snelgrove, “Rex Murphy and the Frames of Settler Colonial War,” Corey Snelgrove: Musings: Generally of the Political and Social Variety (21 October 2013), http://coreysnelgrove.wordpress.com/2013/10/21/rex-murphy-and-the-frames-of-settler-colonial-war/.
7 In exploring this issue, I have benefited from the work of Âpihtawikosisân, “Resources on Elsipogtog,” âpihtawikosisân: Law, language, life: A Plains Cree speaking woman in Montreal (23 October 2013), http://apihtawikosisan.com/author/apihtawikosisan/.
8 Chelsea Vowel, “The often-ignored facts about Elsipogtog,” Toronto Star (14 November 2013), http://www.thestar.com/opinion/commentary/2013/11/14/the_oftenignored_facts_about_elsipogtog.html. (I have learned since publishing this article that Chelsea Vowel and Âpihtawikosisân are the same person.)
10 Michael McClurg, “Do we need the 'rule of law' in New Brunswick to deal with native protestors?” Olthuis Kleer Townshend – LLP (23 October 2013), http://www.oktlaw.com/blog/do-we-need-the-rule-of-law-in-new-brunswick-to-deal-with-native-protestors/.
11 “Sharing Resources,” Interview with Bill Gallagher, CBC Radio One New Brunswick (6 November 2013), http://www.cbc.ca/shift/2013/11/06/sharing-resources/. See also Bill Gallagher, “Will the Canadian Native Legal Winning Streak Hit 200?” Bill Gallagher/Strategist/Lawyer/Author (4 August 2013), http://billgallagher.ca/2013/will-the-canadian-native-legal-winning-0streak-hit-200/.
12 Dru Oja Jay, “Elsipogtog: 'Clashes' 400 Years in the Masking: Corporate media coverage creates ignorance, which enables violence,” The Media Co-op (18 October 2013), http://www.mediacoop.ca/story/elsipogtog-clashes-300-years-making/19357.
13 McClurg, “Do we need 'the rule of law'.”
First published at the Two Row Times (5 November 2013): 8, http://www.tworowtimes.com/news/national/noam-chomsky-indigenous-people-are-in-the-lead. Also published as “Noam Chomsky: Harper energy policies are destroying the environment 'as fast as possible'.” The Canadian Charger (5 November 2013), http://www.thecanadiancharger.com/page.php?id=5&a=1630.
Noam Chomsky, the celebrated 85-year old American linguist, peace activist and social critic who is the author of more than one hundred books and the world's most frequently quoted intellectual, was in Montréal on October 26 to help celebrate the fiftieth anniversary of the magazine Canadian Dimension.
During his visit, Chomsky delivered a lecture at the Université de Montréal in which he analyzed the decline of American power. In the Western hemisphere, he argued, the US and Canada have become marginal to the major discussions now underway: only in the most vulnerable countries like Haiti and Honduras have US- and Canadian-supported military regimes taken power.1
Chomsky also spoke out forcefully against Canadian tar sands, shale gas, and mining developments, and underlined the importance of indigenous resistance to the devastation they are causing.
According to Chomsky, “Canadian mining operations are just destroying large parts of the world.” He said that “Canada is trying to take the lead in destroying the possibility of decent survival: that's what it means to exploit the tar sands, and the gold mining in Colombia, and coal mining, and so on.... That means destroying the world in which your grandchildren might be able to survive: that's the Canadian idea now.”
Chomsky added that “There is resistance: in Canada it's coming from First Nations. But it's worth remembering that that's a world-wide phenomenon. Throughout the world, the indigenous populations are in the lead. They are actually taking the lead in trying to protect the earth. That's extremely significant.”2
Chomsky argued that this resistance is supported by one of the most ancient documents of English law, the nearly 800-year old Magna Carta. For in addition to asserting civil rights like the presumption of innocence and the right to jury trial, the Magna Carta included a “Charter of the Forests,” which “had to do with protecting the commons”—all of the commonly shared things in nature that sustain human life—“from the depredations of power.”3
Since the development of capitalism, Chomsky said, the commons have been under attack. “What Canada and the US and others are doing now,” he added, “is trying to take away what is left of the commons, includ[ing] the global environment—privatize it, take it away.”4
While in Montréal, Chomsky gave an interview to Martin Lukacs of The Guardian in which he again denounced the Harper government's policies of developing tar sands and shale gas resources.
Harper's policies, he told Lukacs, mean “taking every drop of hydrocarbon out of the ground, whether it's shale gas in New Brunswick or tar sands in Alberta and trying to destroy the environment as fast as possible, with barely a question raised about what the world will look like as a result.”5
Chomsky praised Canada's First Nations people for taking the lead in resisting fossil fuel developments and thereby combatting climate change. He expressed concern for the Elsipogtog people in New Brunswick, whose peaceful blockade of shale gas exploration was assaulted by the RCMP on October 17. As Lukacs writes, he also “highlighted indigenous opposition to the Alberta tar sands, the oil deposit that is Canada's fastest growing source of carbon emissions and is slated for massive expansion despite attracting international criticism and protest.”
In Chomsky's own words, “It's pretty ironic that the so-called 'least advanced' people are the ones taking the lead in trying to protect all of us, while the richest and most powerful among us are the ones who are trying to drive the society to destruction.”6
1 Claude Lévesque, “À Montréal, le celèbre linguiste Noam Chomsky présente ses vues sur le déclin de l'empire américain,” Le Devoir (28 octobre 2013), http://www.ledevoir.com/international/actualites-internationales/391104/a-montreal-le-celebre-linguiste-noam-chomsky-presente-ses-vues-sur-le-declin-de-l-empire-americain.
3 Chomsky was alluding here to Peter Linebaugh's important study, The Magna Carta Manifesto: Liberties and Commons for All (Berkeley: University of California Press, 2008), which offers a detailed and scrupulous interpretation of the meaning and present-day implications of the Charter of the Forests.
5 Martin Lukacs, “Noam Chomsky slams Canada's shale gas energy plans,” The Guardian (1 November 2013), http://www.theguardian.com/environment/2013/nov/01/noam-chomsky-canadas-shale-gas-energy-tar-sands.
First published in The Record, Kitchener, Ont. (30 May 1998): A19.
Eramosa Township may be the only place in Canada where a man can saunter out of his house at 6 o'clock on a Monday evening, stumble home at 3 a.m., tell his wife he's spent the intervening hours at a meeting of the township council, and be believed.
It's not that people are abnormally gullible in this little corner of rural Ontario, or that we're so tired of life we have nothing better to do than cool our heels in the township's barren council chambers. Yet odd things have been happening in those chambers recently, and the oddest of them have to do with the heritage Bowstring Bridge in my own village of Eden Mills.
Just 50 miles west of downtown Toronto, a side road winds down from the Guelph Line into the Eramosa River valley.
The houses on either side are mostly mid-19th century and there are two stone churches of the same vintage, a stage-coach hotel (now a private home) and a couple of ruined mills.
If you've had the good sense to bring a canoe, you can drift on the millpond (restored by villagers with 3,000 hours of volunteer labor and $60,000 worth of fund-raising), encountering beaver, snapping turtles, kingfishers, a great blue heron—or perhaps even the osprey that pulled a bass out of the pond not 30 feet from where I was swimming two summers ago.
The population swells
Sleepy Hollow? Hardly. On the second Sunday of September every year, thanks again to the work of volunteers, this village hosts one of Canada's major literary events, the Eden Mills Writers' Festival, where many of our finest writers give open-air readings of their works, and the village's population swells for the day from 350 to as much as 5,000.
But Eden Mills has also become the focal point of a long-running political controversy. In the middle of the village, straddling the east branch of the Eramosa, stands the Bowstring Bridge—a graceful survivor of pre-First World War technology, and a structure, according to the Ontario Ministry of Culture's conservation review board, that is of provincial, national and international heritage significance.
In the United States, heritage experts tell us, this bridge would be protected by inclusion in the National Registry of Historic Sites. But since we are in Eramosa, township council wants to tear it down. And although the Ontario government has assessment procedures that are designed to prevent such aberrations, no one seems willing to apply them.
But I'm getting ahead of my story. It wasn't until late in 1993 that council, which had previously supported retaining the heritage bridge, for unknown reasons changed its mind.
Threat was frightening
A majority of village residents petitioned council to preserve the bridge; it responded in the spring of 1994 by threatening to impose an area tax levy of some $2,500 per household for the full cost of bridge repairs. Although clearly illegal, this threat frightened some villagers.
Over the following months, the evidence in favour of retaining the bridge mounted. Council members learned that the provincial Ministry of Culture rates the bridge high among Ontario's heritage bridges, and Ministry of Transportation officials stated that it could be rehabilitated for a fraction of the cost of a new bridge.
Village residents secured assessments of the bridge by three experts of international standing in heritage architecture, traffic engineering and urban planning. All three recommended its rehabilitation, on grounds that included heritage factors, pedestrian and traffic safety, and the village's social and economic well-being.
These recommendations were echoed by the 82-page report of a committee of council itself. The provincial minister of Culture wrote to offer her assistance and co-operation in preserving the bridge.
But council wasn't going to let its head be turned by mere facts, or by such trifling considerations as democratic due process. On Aug. 22, 1994, council announced that it would not have space on its Sept. 6 agenda to hear any delegations from Eden Mills.
But at that Sept. 6 meeting, a previously tabled motion was revived—even though the bridge wasn't on the agenda and even though no formal notice had been given. At 2:15 a.m., an unusual hour for business of any kind, let alone business not on the agenda, council voted to replace the bridge.
One might think that even the most mulish township council wouldn't want to repeat a trick like that. But this council has since openly proclaimed its intention to “open up Eden Mills to the trucking industry.” We're not talking subtle here.
Early this year, the Ontario Ministry of Culture's conservation review board held a three-day hearing about whether or not the bridge's heritage status should be removed so council can demolish it.
On April 6, 1998, the board announced that it found the evidence in favour of preserving the bridge “overwhelming.” The board found Eramosa Township council to be in contravention of the Ontario Heritage Act, declared that demolition would contravene the township's own official plan and the Grand Strategy (the Canadian Heritage River management plan for the Grand River basin, which includes the Eramosa), and stated that Council needed to do a full environmental assessment of the project.
Reeve David Adsett announced a public meeting on Aril 14 to discuss these findings. On April 12 he cancelled this meeting, promising to re-schedule it. And then, on April 20, with no public notice and at a meeting whose agenda contained no inkling of the matter, his council voted—in defiance of the conservation review board's report—to remove the bridge's heritage designation and to let tenders for its demolition.
A fight is brewing
The Friends of Eden Mills, a group of local ratepayers, has taken the township to court; a judicial review of the township's decisions is scheduled for the week of June 3.
As might be expected from a village like Eden Mills, there's a literary angle to the story. Jeffrey Stinson, the heritage architect who assessed the Bowstring Bridge in 1994, is an expert on the 1925-1930 construction of Toronto's Bloor Street viaduct over the Don Valley—an engineering feat that forms the context for Michael Ondaatje's novel In The Skin Of A Lion.
In his 1994 assessment, Stinson went so far as to compare the Bowstring Bridge to to the Bloor Street viaduct: “Although from the perspective of a government official at Queen's Park this bridge may seem small and distant,” he wrote, “it is of greater importance to this locale than the much larger bridges over the Don Valley are to the Toronto community, which interacts with them in less significant ways.”
If township succeeds in demolishing the Bowstring Bridge, something more precious than steel and concrete will be lost. The bridge is at the heart of Eden Mills: it keeps fast, heavy traffic out and safeguards the human scale of a village that is unique in retaining a largely 19th-century streetscape.
So what are Eramosa council's motives for destroying this bridge and gutting our village? What exactly is being hidden—development interests, aggregate hauling interests—inside the skin of this mule?
Michael Keefer of Eden Mills wrote Lunar Perspectives and is a professor at the University of Guelph.