Potestas Occasum: Canada's "Practical Model"

Posted on Tuesday, February 17 at 15:16 by sthompson
Appointments to the Order of Canada are made on the recommendation of an Advisory Council, which is chaired by the Chief Justice of Canada, currently the Right Honourable Beverley McLachlin, P.C. Who better to appreciate the significance of what Mr. Robinson has achieved for Her Majesty at the expense of the Nisga'a?

If the treaties are similarly delivered up, which is in progress, expect more such appointments to the Order of Canada.

The list of the appointed members of the federally funded Assembly of First Nations' (AFN) Renewal Commission was released this week. It includes a person whose past work has been for Metis rights. I expect the main task of the commission will be to bring the AFN's constitutional documents better into line with the domestic ethnic minority language necessary to, among other things, take care of resolutions made late last year that brought up and confirmed the AFN's originating mandate and structure. Certainly including Metis will also complete the minorities picture (I explain the movement to the lowest common denominator of rights through use of Metis rights in a separate article not yet released). The Renewal Commission may also work towards "king-making" such that the signature of the AFN chief will have meaning and bind former Indigenous peoples. For example, where Indian Act chiefs elect the AFN chief, then technically, the AFN is not representing the people. But where the people vote directly for the AFN chief, a different result occurs. The people would be providing their consent and endorsement of the AFN representing them and binding them. Establishing the AFN as a representative body would make for far easier and less expensive consultation exercises and administration.

Expect some of these commissioners, if they deliver, to receive appointments to the Order of Canada as well.

Andy Mitchell, Minister of Indian Affairs and Northern Development, informed students at the University of Alberta on January 21, 2004,

1. "I am eager to work with First Nations leaders and others on effective and practical, ways to apply the principles of good governance into First nations communities," [Emphasis added]

2. referenced the role for the AFN "in collaboration," and

3. promised reinstatement of Bill C-19, the First Nations Fiscal and Statistical Management Act, "offering First Nations who choose to use its provisions improved access to engines of economic development."

Uh, perhaps he ought to have said, "Improved access to administrative opportunities." Certainly the AFN is lining up for them. The first order of business for newly elected Grand Chief Phil Fontaine was to make a big proposal for securing these administrative opportunities. But first the house has to be put in order, so $2 million has been given to the AFN for the Renewal Commission consultation and recommendations for restructure.

There is nothing compromising where the machinery that Her Majesty and Her governments use to fulfill treaty obligations to Indigenous peoples is constructed and operated by individuals and organizations comprised of some of those people. It would however have to recognize exactly that exercise and acknowledge de jure or de facto that the treaties have been implemented, remain alive, and that the exercise is in fulfillment of the obligations thereunder to the Indigenous peoples. However this is not what is underway.

To understand what is underway, look to the international arena where Canada remains the main proponent of the destruction of Indigenous peoples coupled with sympathetic measures designed to comfort the individual survivors - minority "rights" and some administration of the lands and resources they formerly owned.

In Geneva on December 15 - 17, 2003, the government of Canada presented to the United Nations seminar organized by the Office of the United Nations High Commissioner for Human Rights its background paper that sets out what is underway: "Perspective of Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples." The following are important highlights from the 15-page "Canadian approach" that is complimented by its companion document now being distributed worldwide in English, French and Spanish, "Resolving Aboriginal Claims: A Practical Guide to Canadian Experiences." [Emphasis added]

It is interesting to see that the Canadian government has been pushed to be public about its agenda. Being unable to refute what is underway, Canada argues that States should nonetheless embrace the agenda as being the only practical solution. I wonder, was that Hitler's rationale? Debate continues among academics about Hitler's rationale for his "Final Solution." Will this exercise now extend to Canada's "Practical Guide" efforts?

In the paper there are different uses of "Indigenous Peoples" and "aboriginal." "Indigenous Peoples" is used when referencing the "Treaties, Agreements and other Constructive Agreements" because of course, the Indigenous peoples are parties to those. However, when it comes to the practical solutions of how to deal with (read: eliminate) the fact of the existence of such "Treaties" etc. and Indigenous peoples, the language turns to "aboriginal," and in the specific example of Canada, the new term is now "Aboriginal Canadians."

"This document ... offers some integrating comments about the manner in which domestic approaches to treaties and other constructive arrangements, particularly the Canadian experience, can usefully interact with the international human rights protection system." The paper outlines the mechanisms for achieving a domestic ethnic minority rights model:

"... access by Aboriginal Canadians to Canada's legal system; support for national and regional Aboriginal organizations that can act as advocates for Aboriginal rights; targeted attempts at healing and public education efforts aimed at changing the environment in which these activities occur; and, training and capacity building which is broadly supportive of dispute resolution and healing.

In Canada, Aboriginal people now enjoy access to the judicial system, as individual and collective plaintiffs. Accordingly, many individuals, communities and leaders are increasingly knowledgeable about the ability to seek judicial clarification of their treaty and aboriginal rights, which enjoy constitutional protection under Section 35 of the Constitution Act, 1982. As well, there is increasing litigation in which Aboriginal Canadians are making recourse to provisions of the Canadian Charter of Rights and Freedoms. In direct support of this process, the Test Case Funding (TCF) program has been put in place. Over the past 20 years, it has funded 160 cases (including 47 cases at the Supreme Court of Canada) at a cost of approximately $20.5 million.

... Thus, in Canada at least, the judicial arm of government plays an important and independent role in shaping the 'rules of the game' with respect to implementation of treaties and other constructive arrangements, and the resolution of disputes arising from these treaties and arrangements."

The paper proceeds to quote the Right Honourable Beverley McLachlin, current Chief Justice of the Supreme Court of Canada, from a lecture she gave February 8, 2002:

" 'Aboriginal rights rank as one of the prime pre-occupations of Canadian social policy, governance and law as we begin the twenty-first century... Completing the task of working out this relationship promptly and on fair and equitable terms will provide the basis for lasting national peace, stability and economic and individual growth. Canada, the provinces and aboriginal people are directing enormous energy and effort to this end. Still, the complexity and breadth of the task seem bewildering. It may come as some comfort to know that we are not alone with these issues or in our efforts to find an equitable and durable solution ...' "

The Recommendations of the Special Rapporteur on Treaties, Agreements and Other Constructive Arrangements include the following:

"Indigenous peoples who have made treaties/agreements have not lost their international legal status as nations/peoples, and their treaties are international in nature and those who have never entered into treaties/agreements have the status of nations unless proven otherwise."

To this, Canada responds with the "practical" card, saying that this finding of the Special Rapporteur is "not helpful."

"We cannot re-write history, and in only rare instances can indigenous peoples be restored fully to their situations prior to colonisation or other historic events. It is not therefore helpful to suggest that agreements between indigenous peoples and States can or should be characterized as international treaties in the sense of agreements between sovereign entities. It does not reflect the domestic or international legal or practical realities of those agreements. Equally importantly, it risks reducing the onus on countries to improve continually their domestic laws, policies and practices to achieve a lasting reconciliation with indigenous peoples. It also risks losing sight that historic treaties and agreements, while important foundations for reconciliation, are not the only means to ensure indigenous peoples achieve their rightful place within the modern societies and economies of sovereign States.

In achieving the reconciliation that States and indigenous peoples should be seeking, care must be taken to ensure that domestic law, policies and practices remain the primary focus.

International standards have an important part to play, but ultimately, their greatest utility is to influence the domestic level." [Emphasis added]

The paper confirms Canada's intent in working on the Draft Declaration on the Rights of Indigenous Peoples:

"... Canada has argued in discussions on the Draft Declaration on the Rights of Indigenous Peoples for inclusion of new provisions which call on States to provide fair and equitable processes to recognize, determine, adjudicate or agree upon the rights or interests of indigenous peoples in relations to lands and resources to which they have a traditional connection." It must be totally understood that Canada is advocating for the domestic ethnic minority rights model and that the Draft Declaration on the Rights of Indigenous Peoples is being used to further that effort. Since representatives of Indigenous peoples are involved in the drafting process as well, they will be considered adequately consulted. Even further, should representatives of Indigenous peoples endorse the final document, then not only will consultation have occurred, but consent will have been provided.

An illustration is in order from Canada. A lawyer, Wilton Littlechild, a Cree, a former Member of Parliament of Canada, has been very active in the international arena, including being appointed to the new United Nations Permanent Forum on Indigenous Peoples. However in all that he has been doing, he was only present in his personal capacity or as legal counsel for a client when so retained. As such, his signature or presence could not bind any Indigenous peoples and could not serve as evidence of any consent or endorsement. This has now been remedied. The appointment of Mr. Littlechild as "International Chief of Treaty 6" has been orchestrated through the Confederacy of Treaty 6, a federally funded organization. Thus International Chief Wilton Littlechild can now affixed his signature and all of his participation and attendance can be either de jure or de facto on behalf of the Indigenous peoples of Treaty 6, in the absence of any refuting move or statement on the part of these Indigenous peoples, which would be a very difficult thing to monitor and provide.

Treaty 6 is very strategically located in Canada across oil and gas deposits and has also consistently and historically been an area of strong Indigenous peoples in the tradition of the late Chief Big Bear. Treaty 6 Indigenous peoples will also soon be impacted by the outcome of litigation, which has placed Treaty 6 into the domestic minority rights model. Treaty 6 is positioned to become the one of the first of the numbered treaties to significantly fall on the basis of the practical solution of Indigenous peoples losing legal competence and becoming mere domestic minorities, remnants of former nations.

The member States of the United Nations are taking the position that either the Draft Declaration on the Rights of Indigenous Peoples is passed this year, marking the end of the Decade of Indigenous Peoples, or that's it. No extensions of time. No further decade to complete the work that has just begun.

So walk.

That is my advice to the Indigenous peoples involved in the process who risk losing everything. Why agree to be the ramrod used to ram the charge into a muzzle-loading firearm that will be turned on the Indigenous peoples?

Lawyers and advisors are not currently equipped to protect Indigenous peoples. At least in Canada, they have been trained in and practice only within the domestic ethnic minority model, and they use domestic ethnic minority language because that is all they know and because they believe that they have to. They accept and espouse international law for Indigenous peoples as the practice of exhausting domestic remedies first and then having an international court test the fairness of the domestic ethnic minority right. (See www.switlo.com, Sheds the Light, including "International Indigenous law: In the here and now," January 25, 2004 and "Minority Report: Indigenous Peoples or ethnic Canadian minorities?" September 14, 2003.)

And while universities are beginning to see the potential and the need for updating curriculum content, the law professors, generally speaking, do not have the knowledge to impart. This will take some time.

What is most disturbing however, are the lawyers and advisors of clients who are Indigenous peoples, who do not seem to possess the capacity and skill to engage in debate leading to an understanding. They are lawyers who would be better suited to a more standard transactional practice of law, such as conveyancing or probate. Some may hold Canadian titles and recognition, but do they truly possess great legal minds? Are they thinking, and more importantly, are they capable of thinking, or are they just obedient parrots not really appreciating the consequences of rendering negligent advice to Indigenous peoples, so long as the money flows and the awards shine? (See www.switlo.com, Sheds the Light, including "Parrots and pillows: Perpetuating bad law in Canada," September 25, 2003)

And then there is the example of Canadian lawyer Dave Nahwegahbow, who saw an opportunity to promote himself recently. He issued a press release comprised of his January 26, 2004 letter to the Editor of the Ottawa Citizen newspaper Re: Article by Cristin Schmitz in the Saturday Citizen, January 24, 2004, p 3 - "Consider Aboriginal Judge for Top Court: Cotler; It's Time to Think Outside the Box, Justice Minister Says" and sent it via email to a person with the following instructions:

"A copy of my letter to the Citizen Editor, for your distribution."

The email was distributed to the email list of another, who in turn did the same. By the end of the day I had received the email. Mr. Nahwegahbow provides the following professional profile:

"Mr. Nahwegahbow lives in Ottawa. He is a member of the Ontario Bar and has been a lawyer for more than 20 years. As an Indigenous rights lawyer, he has advocated for the rights of First Nations both within negotiations and in the Courts, including the Supreme Court of Canada. He is a founding member and former President of the Indigenous Bar Association in Canada (IBA), an organization of Indigenous lawyers. Last year he received the "IPC" designation (Indigenous People's Counsel) from the IBA in recognition for his advocacy work on behalf of Indigenous peoples."

In his press release, Mr. Nahwegahbow includes the following:

"... But there are sound juridical reasons for appointing an Aboriginal Justice to the highest court in the land. First and foremost, the Court is increasingly being called upon to rule on important cases involving Aboriginal and treaty rights. The law which has developed around the interpretation and application of these rights - 'Aboriginal law' - is not the same as other laws in Canada. The Supreme Court itself has said in the Delgamuukw case and in other judgments that Aboriginal rights flow out of the reconciliation of two legal systems: the British-Canadian common law system and Aboriginal legal systems. Logically, a fair and proper interpretation of Aboriginal legal systems involves a deep understanding and appreciation of Aboriginal cultures and their legal traditions and customs. Who better to do this than an Aboriginal jurist? The situation is exactly the same as the requirement to appoint Quebec judges to the Supreme Court - because Quebec has a Civil law system, which is different from the rest of Canada.

The rights of Aboriginal peoples received constitutional recognition in 1982 when the Canadian Constitution was patriated under Prime Minister Pierre Trudeau. It was a significant moment in Canadian history and it made Canada a world leader in the protection of the human rights of Indigenous peoples. Canada could distinguish itself further by taking the next step and appointing an Aboriginal Justice to the Supreme Court of Canada."

Mr. Nahwegahbow apparently does not realize that the domestic ethnic minority rights law model being instilled in Canada does not involve an exercise of "a fair and proper interpretation of Aboriginal legal systems," if he is thinking "Indigenous peoples" as he refers to elsewhere in his press release and in his title, "Indigenous rights lawyer." If he is thinking Nisga'a, then he may be correct. But the Supreme Court of Canada has simply used "reconciliation" as the justification or "practical" rationale for the development of the laws.

Looking at the treaties as the source of Her Majesty's sovereign governance and land possessory rights and thus understanding a system of joint sovereignty or dual sovereignty directs constitutional law would recognize surviving Indigenous legal systems.

Mr. Nahwegahbow fails to realize that the situation of Quebec and of Indigenous peoples is not "exactly the same" but that is for another time.

Mr. Nahwegahbow also fails to convey that "Aboriginal law," "Aboriginal legal systems," "First Nations," "Indigenous rights," "Indigenous peoples," "rights of Aboriginal peoples," and "human rights of Indigenous peoples" are not interchangeable terms. These are not matters of political correctness, of the best buzzwords to attract clients. There are serious and important domestic and international legal distinctions in these words that must be understood and used accordingly. I note that Mr. Nahwegahbow did not use the Canadian government's new term: "aboriginal Canadians," but expect it to begin surfacing domestically.

Canada is now, suddenly, almost overnight, awash in "Indigenous rights lawyers," but what are their qualifications? Caveat emptor.

Shauna Rempel, "Aboriginal leaders talk with Clarkson," Saskatchewan News Network, CanWest News Service, January 27, 2004 covered Governor General Clarkson's third day in Saskatoon, Saskatchewan:

" 'The relationship with the Crown is very important to aboriginal people and I think that that's another reason why I'm there to listen,' said Clarkson in an interview." The treaties and the relationship that results therefrom are even more important for the Crown, and those who derive their interests from the Crown. Without the treaties, the constitutional integrity of Canada collapses; unless, of course, the passing of the Indigenous peoples and the establishment of domestic ethnic minorities render the treaties obsolete. But this has not yet fully happened, so as Her Majesty's representative in Canada, Governor General Clarkson has failed to properly and fully represent the treaties to the public, which brings the Honour of the Crown into disrepute.

Judge Arnot also offered his view:

" 'There's a number of issues that show up in the news on a daily basis that say that the relationship between aboriginal and non-aboriginal people in Canada and Saskatchewan Saskatoon is flawed,' said Treaty Commissioner Judge David Arnot. 'Many people are looking for answers. I say the answers are actually in the treaties. Arnot said the treaties are like blueprints for relations between aboriginal and non-aboriginal people."

The answers are the treaties. The treaties are not mere blueprints. They are the binding, implemented, internationally-recognized deals between Indigenous peoples and Her Majesty - they are the highest law of the land, the founding constitutional documents justifying Her Majesty's presence on the continent of North America. Her Majesty must ensure that the actions of Her governments and Her courts remain fully constitutional and lawful. Her Majesty cannot achieve this by a governor general and judges who do not first know and understand this. These kinds of ill-informed comments such as exampled above, threaten breach of treaty and unconstitutionality, and in turn, threaten the peace, which, incidentally, is actionable. The duty of lawyers is to point out when this is happening and to work diligently to correct the course, not to facilitate it, regardless the client represented. That's what the rule of law and Her Majesty's Honour is all about.

Plato spoke of the rule of law more than 2,500 years ago as a system of rules inherent in the natural order: natural law. Natural law is independent and outside the exercise of declaring or applying a principle based on previous declaration within the legal system. Natural law formed an important foundation for the development of and is embodied in the English common law. "Constitution" came to be understood to refer to fundamental law comprised of custom since time immemorial and the principles of reason, justice, and equity of natural law that limit the monarch's power. (See for example, J. G. A. Pocock, The Ancient Constitution and the Feudal Law English Historical Thought in the Seventeenth Century, New York, W. W. Norton, 1967, pp. 48-51, and J. W. Gough, Fundamental Law in English Constitutional History, Oxford, Oxford University Press, 1955.)

Albert Venn Dicey, Vinerian Professor of English Law, All Souls College, Oxford University, in his work, the Law of the Constitution, described the rule of law as an English doctrine that all men are equal before the law, whether officials or not, except for the Queen. In the Preface to the First Edition, 1885, Dicey says his research

"forced upon my attention the essential difference between the historical and the legal way of regarding our institutions, and compelled me to consider whether the habit of looking too exclusively at the steps by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as it now actually exists. The possible weakness at any rate of the historical method as applied to the growth of institutions, is that it may induce men to think so much of the way in which an institution has come to be what it is, that they cease to consider with sufficient care what it is that an institution has become."

Lawyers in Canada have been paying too much attention to the cases establishing the domestic ethnic minority regime (Perhaps because they have been paying too well?) and failing to take sufficient care to consider the implications for Canada. Take, for example, the state and health of the rule of law in Canada.

The concept and application of the rule of law differs between East and West, as the academics characterize it. In the West, the rule of law serves to limit the powers of government and thus to increase personal autonomy and freedom. In the East, China being the common example, the rule of law serves to increase and protect the powers of government. Both East and West emphasize the importance of the rule of law, but they do not mean the same thing when they do so. Communist governments are said to oppose the concept of the rule of law because it hinders the Marxist class struggle. Totalitarian states, for example Nazi Germany, are said to object to the concept of the rule of law because it reduces fear and these states must function on the premise that the public should live in constant fear of the government.

The development of the domestic ethnic minority model by Canadian courts represents a marked departure from the Western rule of law concept and it moves Canada closer to the Eastern concept. For Indigenous peoples attempting to resist this agenda, the passage of laws, such as relating to terrorism and the recent Alberta statute allowing for circumvention of the courts in the event of impeded access, if abused to facilitate the agenda and snuff their protestation, could serve to move Canada closer to the totalitarian model of the absence of the rule of law. These directions do not make for a promising vision of the future of life in Canada: powerful government, and one to fear. Some would argue that we are already there in Canada.

The treaties in place in Canada between Indigenous peoples and Her Majesty were to last as long as the sun shines. But the sun is setting: the legal competence of Indigenous peoples is threatened. Ethnic minorities are not parties to the treaties. If the legal competence of the Indigenous peoples fails, so do their treaties. Then it could be rightfully said in response to any future assertions of treaty rights, including money transfers for education and health, and resource sharing, possidere pro possessore: the claims should fail because these are ethnic minorities trying to assert ownership of part or the whole of an inheritance without any right, and with the knowledge that one is not the owner. The claims can only proceed on the basis of allegations of lack of clarity, inadequacy of consultation, or that some compensation for infringement is warranted, the law established by the Supreme Court of Canada to be applied to their definitions of aboriginal and treaty rights, the rule for extinguishment: a minority rights model.

Canada says that this minority rights model is practical. Canada encourages States to follow suit, to help establish what is currently a domestic effort become international conventional law. Canada says that the only role for international protection is to protect the minority rights, to ensure that the majority in a state does not treaty its minorities unduly unfairly.

The international community is being asked to ignore the legal reality of international law in the form of the treaties and to not consider any protection through dispute resolution and treaty enforcement.

Why? Because it's not practical, says Canada.

Yet international protection through dispute resolution and treaty enforcement has not even begun to be explored. The true legal nature of treaties and Indigenous peoples is just beginning to be understood. Joint or dual sovereignty recognition and applications that give full effect and constitutionality to States such as Canada are not only practical but essential if society is to proceed on a solid footing with their governments not being able to change the rule of law when it seems convenient, or practical.

The Preamble to the Charter of the United Nations says the following:

". . . to save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights . . . in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from international law can be maintained. " [Emphasis added]

This should not be rejected just because Canada says it is not practical to comply.

So what of the practical, on the ground results of Canada's efforts to date to pioneer and showcase the domestic ethnic minority model? Rempel reported,

"Statistics Canada data indicates that nearly 62 per cent of Saskatoon's aboriginal children live in poverty, and a recent report commissioned by the Federation of Saskatchewan Indian Nations (FSIN) indicates that gang activity has reached mammoth proportions."

Other States and Indigenous peoples, be not fooled by this bogus, unlawful power grab by the government of Canada and recognize what is at stake.

Madame Justice McLachlin, I put it to you that the domestic ethnic minority model points the path to conflict, not peace. I put it to you that it undermines the constitutional foundations of Canada and threatens legitimate nation building. I further put it to you that there are other, more practical ways.

First however, lawyers and judges, and Her Majesty's representatives and Privy Council advisors, must be trained and educated to understand the treaties in their true legal nature, the highest law of the land against which the constitutionality of the actions of Her Majesty's governments is to be measured. Treaties with Indigenous peoples are not as Canadian governments and their appointed justices have previously posited or intended in obiter dicta and when the issues were not justiciable.

And when the lawyers and judges then turn their great, prepared minds to the task at hand, I put it to you with the greatest of respect, Madame Justice McLachlin, that the complexity and breadth of the task will no longer seem so bewildering.

And there will be a healthy, stable rule of law that encourages personal freedom.

And there will be peace and prosperity.

And that is all I have to say.

----
This article originally appeared on www.switlo.com. See: Potestas occasum. Reprinted with permission. Copyright remains with the author. For more about the author, see Janice's Achievements.

Note: www.switlo.com Parrots and pillows: Pe... Potestas occasum Janice's Achievements

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