This essay was written for a book on human rights edited by Geoffrey Davis and forthcoming from Routledge.Read More
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 in the Two Row Times (16 April 2014), http://www.tworowtimes.com/news/regional/law-and-order-mr-harper-first-lets-put-an-end-to-tory-election-fraud/. The notes in the present version did not appear in that text.
The Harper Government—as our Prime Minister modestly likes it to be called—has been showing its teeth during the past several years.
In 2011, though crime rates in Canada had been steadily declining, we were presented with an omnibus crime bill, numbered C-10. Responding to a nonexistent crime wave, this bill set about turning Canada into a prison state on the model of the US, with measures including mandatory minimum sentences that legal experts guaranteed would victimize the vulnerable, overwhelm the courts and legal aid systems, fill to overflowing even the big new jails the government proposed to build, and increase the already scandalous proportion of First Nations people behind bars.
Now we have another Bill C-10, the “Tackling Contraband Tobacco Act,” which targets First Nations directly, offering a toxic recipe of kick-down-the-door-policing, incarceration, economic stagnation, and welfare dependence. Both law-and-order bills have been accompanied by government fear-mongering—including, in the present case, a billboard campaign in major cities that blames gun violence on the illicit tobacco trade. (This happens to be untrue, as a recent monograph by Professor Jean Daudelin of Carleton University makes clear.)1
In between the two Bill C-10s we've had Bill C-45, an omnibus bill that attacked the land and resource base of First Nations, enabling the surrender of reserve lands without majority support, stripping environmental protections from Canada's lakes and rivers, and also, as environmental lawyer Jessica Clogg observes, defying the Supreme Court's requirement that governments should engage honourably with First Nations over land and resource decisions.2
Rammed through the House of Commons, with spin-doctoring and false advertising substituted for the normal democratic procedure of careful study by committees and full parliamentary debate, bills like these have been made possible by one simple thing: the fact that in the election of May 2, 2011 Stephen Harper and his party won majority-government status.
But here's another simple fact that Canadians have to confront: the Harper Conservatives appear to have won that parliamentary majority by fraud.
* * *
Whenever he's asked a question in the House of Commons on the subject of the so-called robocalls scandal of the 2011 election, Harper repeats the same mantra: We know that one or two bad eggs sent out illegal phone calls in Guelph; we're keen to see them punished; and any suggestion that the Conservative Party was to blame is a vicious smear.
Mr Harper is not telling the truth.
There were in fact two campaigns of fraudulent phone calls in the 2011 election—both of them set in motion and coordinated, not by some rogue operative scarcely out of short pants, but by an organization with national reach. That organization was the Conservative Party.
The first set of fraudulent calls, which pretended to come from Liberal Party offices, harassed Liberal supporters across Canada during the last two weeks of the campaign: they woke people in the middle of the night, and pestered Christians on Easter morning and Jews on the Sabbath. They were often rude, and sometimes racist—and there's little doubt that they contributed to the decline in Liberal support.
The second set of fraudulent calls began at the end of the campaign, first with live-operator calls, and then with a surge of robocalls on May 1 and on election day, May 2. These calls gave opposition-party supporters false information about the location of their polling stations, with the aim of suppressing opposition-party turnout; and the robocalls claimed to be from Elections Canada.
On April 29, 2011, when complaints about these vote-suppression calls began pouring in to its offices, Elections Canada knew that the Conservative Party was responsible, because the live-operator calls included call-back numbers which led directly to Conservative Party offices.
The fraudulent robocalls came from the same source. Early in 2012, a CBC investigation and an Ekos Research poll found a pattern in which people who had identified themselves to Conservative voter-identification callers as non-supporters subsequently received vote-suppression calls. Because all information from voter-ID calls goes straight into the Conservative Party's central database, known as the Constituent Information Management System (CIMS), this was an indication that the fraudsters had used CIMS nationwide.
In the riding of Guelph—the only one in which there has been anything approaching a full investigation—the Conservative Party's central office has acknowledged to Elections Canada that the CIMS list of non-Conservatives in Guelph was used by Edmonton voice-broadcaster RackNine in sending out the infamous 'Pierre Poutine' robocalls on the morning of election day. Elections Canada has evidence that a team of five Guelph Conservatives had repeated surreptitious access both to CIMS and to RackNine, and that one of them shared an IP address with 'Pierre Poutine', and Elections Canada has a recording of a harassment call that the operatives sent to RackNine at the end of the campaign but decided not to use.
* * *
What about the scale and impact of the fraud?
During our last federal election, Harper's Conservatives tried to cheat supporters of opposition parties out of their right to vote with fraudulent phone calls—more than a million of them—that were received by voters in 261 ridings across Canada. There's strong evidence that this fraud tipped the balance in enough close races to give Harper his parliamentary majority.
That raises urgent questions. What right does a ruling party that broke the law on this scale have to ram its extremist legislation through parliament? What right do these fraudsters have to lecture Canadians and First Nations people about law and order?
1 See Jean Daudelin, with Stephanie Soiffer and Jeff Willows, Border Integrity, Illicit Tobacco, and Canada's Security (Ottawa: Macdonald-Laurier Institute, 2013), http://www.macdonaldlaurier.ca/wp-content/uploads/2013/03/MLIBorder-Integrity-Illicit-Tobacco-Canadas-Security.pdf. Daudelin says that present policies, which amount to “focussed deterrence,” with severe punishment of “mixed smuggling” (involving drugs, guns, or people, along with tobacco), provide “the most plausible explanation for the remarkable absence of 'mixed smuggling' in CBSA and RCMP seizures” (p. 27). See also Wayne K. Spear, “First Nations Need Tobacco More Than Harper's Law and Order,” Huffington Post (20 February 2014), http://www.huffingtonpost.ca/wayne-k-spear/bill-c-10-first-nations_b_4820185.html.
2 An interview with Jessica Clogg is posted at West Coast Environmental Law (4 March 2013), http://wcel.org/resources/environmental-law-alert/jessica-clogg-explains-bill-c-45-first-nations-rights-fipa.
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 by CWILA: Canadian Women in the Literary Arts (6 January 2013), http://cwila.com/open-letter-regarding-the-announcement-of-11-january-talks-with-the-afn/. I was one of 236 co-signatories, from Maleea Acker to Jan Zwicky.
CWILA: Canadian Women in the Literary Arts
6 January 2013
The Right Honourable Stephen Harper
Prime Minister of Canada
Office of the Prime Minister
80 Wellington Street
Ottawa, ON K1A 0A2
Dear Prime Minister Harper:
Canadian Women in the Literary Arts (CWILA), alongside other Canadian artists, editors and academics, congratulates you and the Hon. John Duncan on your announcement Friday that you intend to meet on January 11th with First Nations delegations regarding issues that have been raised by the Idle No More movement. These issues are the focus of Chief Theresa Spence's continuing hunger strike, about which we wrote to you in an open letter just prior to your announcement.
We continue to oppose the ways in which Bill C-45 absolves the federal government of its former responsibilities to consult with First Nations over land and water rights within reserve lands. We also oppose the way in which Bill C-45 and other recent legislation erases indigenous rights formerly protected by treaty. These changes to old treaty laws affect everything from Indigenous ownership of reserve lands to education to safe drinking water and open the way to further erosion of First Nations cultures and deeper impoverishment of people living on reserves. CSWILA urges you to rectify the appearance created by recent legislation that your government is willing to defer to corporate interests in mining, logging and oil extraction at almost any cost, including the transgression of legal and moral rights that reside in the concept of Aboriginal jurisdiction.
We continue to believe that it would be gracious of you to meet personally with Chief Spence, informally and off the record, as a prelude to the formal contributions she will be making during your talks with the delegations.
CWILA stands in fervent support of First Nations' constitutionally protected rights to their lands and waters. We are steadfast in our solidarity with the founders of Idle No More, and with other indigenous women who have called upon us to support them in this struggle.
We thank you for scheduling talks, and urge you, in the strongest terms, to use them as an opportunity to amend current legislation in a spirit of principled cooperation between your government and the First Nations of this country.
First published in the Toronto Star (24 September 1996). On the same day I received an email message from Professor Emberley: “Thank you for your mud-slinging, ideological squib on my book in the Toronto Star. You are obviously so mesmerized by the Zeitgeist that you cannot even see what's at stake in the university debate. Where there could have been an opportunity for us to have an interesting discussion, you evidently have dismissed me as 'intensely conservative' and 'ignorant.' Well, I suppose that's why the public thinks so poorly of academe—warring over turf, while ignoring the true needs of the students. I was utterly appalled.”
Review of Peter C. Emberley, Zero Tolerance: Hot Button Politics in Canada's Universities (Toronto: Penguin, 1996)
It might seem hard to imagine a better guide to the embattled terrain of Canadian higher education than Peter C. Emberley, a product of three distinguished institutions of higher learning, the director of Carleton University's new College of the Humanities, and author now of three books on what he calls “hot button” issues affecting Canadian universities.
Emberley's diagnosis in Zero Tolerance is direct and simple. Canadian higher education has been politicized by the corporate right and the “cultural left,” and “the plainly evident collapse of the university” is the result of “turf wars” and “a fierce jockeying for power and control” between groups that neither know nor love the university, but “are pursuing their own political agendas.”
This diagnosis is elaborated in nine wide-ranging and often exhaustively researched chapters. A tenth and final chapter restates Emberley's positions on key issues including tenure, public accountability, the relation between teaching and research, tuition fees, inclusivity, core curricula and academic freedom.
Zero Tolerance is valuable for the information it brings together on many of the issues currently under debate in and around Canada's universities and colleges. However, Emberley's assessments of the material he has assembled are often oddly inconsistent—most commonly at points where his posture of judicious neutrality breaks down in the face of a desire to advance his own intensely conservative cultural politics.
Thus Emberley correctly identifies recent steep increases in tuition fees, along with income-contingent loan repayment schemes, as a privatizing of public debt, and as a transfer of that debt from the baby-boomers who benefited from generous social and educational policies to a younger generation which is being denied the benefit of inexpensive access to higher education. However, he prefers to interpret these developments as “a form of moral education” which will teach this generation of students that “there ain't no such thing as a free lunch.” (Clichés of this sort, notably that weary equation of university study with “an odyssey,” resound through the book.)
Emberley's pose as a defender of the culture of humane scholarship is more directly self-contradictory. He denounces terms like “discourse,” “marginalization,” and “inclusivity” as “pseudo-intellectual jargon.” He heaps scorn on those who protest against cuts of 25 percent in university library acquisitions, since “about that proportion of library holdings is 'research' that has done little more than pad faculty résumés.” (One wonders, in passing, what proportion of his own writings Emberley would dismiss as “padding.”) He is no less contemptuous of faculty who feel threatened by “the bogeyman of the corporate world.” In his view, “It is only because teaching and research have been gutted of most of their meaning that the issues of the relevance of what faculty do have become so volatile.”
After this, Emberley's suggestion that “the major culprit” in his story is “the cultural left's identity politics” comes as no surprise. Some readers may accept his definition of postmodernism as “an intellectual tool currently being used in various social sectors to rewrite history and to re-engineer the evident experiences of living.” Many, however, will be shocked to find that his prime example of a “postmodern” rewriting of history is the United Church's recent apology to First Nations people for the suffering it inflicted on them through such “Eurocentric” projects as residential schools.
Emberley's loathing for those tendencies in contemporary scholarship that he lumps together as “postmodern” is exceeded only by his ignorance of recent work even in fields so directly relevant to this book as social history, cultural theory, and the sociology of education. (Thus, for example, Paul de Man's name heads a list of French academics “who helped inspire the May 1968 Paris student revolts”—though de Man made his academic career in the United States, published his first book only in 1971, and never had a significant following in France.)
None of these objections would count if this book projected a compelling vision of what liberal education is or ought to be. But here Emberley offers little beyond gush about the aspirations of young people and vague remarks about core curricula. Perhaps he is holding his best thoughts back for the benefit of his students and colleagues at Carleton.