Aboriginal Blockades and the Rule of Law: Acknowledging the paradigm of struggle

By: Chris Albinati

J.D. Candidate (2014)

Faculty of Law Secwepemcetkwe [Thompson Rivers] University

Secwepemculecw [Kamloops, BC]

Articled Student (2014-2015) Appeals Division

Legal Services Society of British Columbia Coast Salish Territory [Vancouver, BC]

* Working Draft ** Distributed at the 2014 Osgoode Forum, May 9-11, 2014, at Osgoode Hall Law School in Toronto, Ontario. *** Submission under review as of January 28, 2015, for a book composed of papers from the Osgoode Forum potentially to be titled: Law, Power & Dissent (Cambridge University Press).

“The greatest barrier to recognition of aboriginal rights does not lie with the courts, the law, or even the present administration. Such recognition necessitates the re-evaluation of assumptions, both about Canada and its history and about Indian people and our culture-assumptions with which people have lived for centuries. Real recognition of our presence and humanity would require a genuine reconsideration of so many people's role in North American society that it would amount to a genuine leap of imagination. The greatest preservative for racial myths is the difficulty of developing a new language in which the truth can be spoken easily, quietly, and comfortably.”

~ Grand Chief George Manuel, The Fourth World: An Indian Reality

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Contents Foreword: The qéqit of the Secwepemc People ............................................................................. 1

Colonialism, Democracy and the Rule of Law ............................................................................... 4

Roadmap ..................................................................................................................................... 9

PART I | Aboriginal Blockades: Exposing the true nature of Canadian society .......................... 12

(Post)colonial Identities and Democracy .................................................................................. 12

Aboriginal Blockades: The un-Canadian way .......................................................................... 14

PART II | “Reconciling” Canada’s Constitutional Antinomy ...................................................... 20

The Rule of Law: Explaining the antinomy .............................................................................. 22

Democratic Positivists: The rule of law is upholding the colonial legal framework ............ 22

Common-Law Judge: The rule of law should declare Canada’s laws invalid ...................... 27

Reconciliation and Assumptions: The common limitation with these two theories ............. 32

Democracy and the Rule of Law: Revealing society’s true nature ........................................... 34

PART III | Civil Disobedience or Sovereign Expression: Dissent and assertion in a wicked legal system ........................................................................................................................................... 38

Civil disobedience and the rule of law ...................................................................................... 40

PART IV | Acknowledging the paradigm of struggle................................................................... 44

Legal Fictions and the Big Lie .................................................................................................. 46

The Paradigm of Reconciliation ............................................................................................... 50

The Paradigm of Struggle ......................................................................................................... 54

Conclusion: We will all continue to struggle so long as justice is witheld................................... 56

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Foreword:1 The qéqit2 of the Secwepemc People

So long as what we consider justice is withheld from us, so long will dissatisfaction and unrest exist among us, and we will continue to struggle to better ourselves. For the accomplishment of this end we and other Indian tribes of this country are now uniting and we ask the help of yourself and government in this fight for our rights. We believe it is not the desire nor policy of your government that these conditions should exist.3

In 1910, the Chiefs of the Secwepemc (Shuswap), Nlaka’pamux (Thompson), and Syilx

(Okanagan) Nations delivered a letter to Prime Minister Sir Wilfrid Laurier upon his visit to their

territories. In the letter, the Chiefs describe how colonialism has abused their generosity, violated

their trust, undermined their institutions and left them in a longsuffering relationship with the

Crown marred by deception and injustice. Their letter was a petition to a rule of law that

condemns, not condones, the colonial ideology that had created so much chaos in their societies.

Their vow was made in no uncertain terms; they “will continue to struggle” until what they

considered justice is realized. That determination was echoed almost 40 years ago by Grand

Chief George Manuel – an influential Secwepemc leader and community organizer whose

actions not only shaped Canada’s constitution,4 but laid the groundwork for an international

1 Author’s Note: As a law student, I have acknowledged from the outset that my legal education was planted and nurtured in the stories and territory of the Secwepemc peoples. This meant that I was beset with a cynical view of the rule of law and its indoctrination. Cynicism, in my case, was a product of ignorance and the tensions it has created throughout my learning experience have guided me towards many of the philosophical questions underlying this paper: Can the law be purely abstracted from human experience? If so, then how? If not, then what connections cannot be broken? The history of the Secwepemc peoples under colonialism gives these questions context and makes them workable. It is my starting point; a factual nexus between a human problem and a legal problem. From there, this paper is a small step. It is my hope that it is a small step out of ignorance’s shadow. 2 In the Secwepemc language, “qéqit” means both “to struggle” and “to give signs of life”. See: First Voices, Secwepemc Words, online ed, sub verbo “qéqit” online: <http://www.firstvoices.com/en/Secwepemc/word/933365bb83c13224/to+give+signs+of+life>; and <http://www.firstvoices.com/en/Secwepemc/word/ded8d0228052f1d2/to+struggle>. 3 From the Memorial to Sir Wilfrid Laurier, Prime Minister of Canada, (1910), online: <http://shuswapnation.org/wordpress/wp-content/uploads/2012/09/137543_ShuswapNation_Bro.pdf>. (Emphasis added). 4 As president of the Union of BC Indian Chiefs in 1980, Manuel organized the “Constitution Express” – a train and movement that travelled from Vancouver to Ottawa and eventually on to London the next year in reaction to government efforts to repatriate the constitution. It was these efforts that would lead to the inclusion of Section 35 in the Constitution Act, 1982. See: Union of BC Indian Chiefs, Constitution Express, online: <http://www.ubcic.bc.ca/Resources/conxprss.htm>.

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community that would see the implementation of the United Nations Declaration on the Rights

of Indigenous Peoples.5 In his book, The Fourth World: An Indian Reality, Manuel described the

impacts of colonialism on the Secwepemc peoples:

Within my own lifetime I have seen my people, the Shuswap nation, fall from a proud state of independence…to a condition of degeneration, servitude, and dependence as shameful as any people have ever known. … Our legal and political structures had been undermined before the turn of the century, but those structures were still functioning. There was no vacuum the [colonial] agent could occupy without the use of force. So long as our traditional economy remained strong, the social fabric could withstand the pressure that was being put upon it.6

As someone who experienced and witnessed the impacts of colonialism first hand, Manuel

captures the determination of his people to struggle until the social fabric of the Secwepemc

peoples finally gives way. Manuel describes what that would eventually look like:

For colonialism to be fully effective it is necessary that the leaders who propagate the myths about those whom they have conquered must not only convince themselves of what they say – it need hardly be said that they must convince their followers down to the humblest peasant and foot soldier – they must also convince the conquered. The conquered will only submit to the theft of everything they hold when they can be convinced that it has been done for their own good. Conquest only becomes colonialism when the conquerors try to convince the conquered that the rape of his mother was committed for the sake of some higher good.7

For Manuel, as long as there are Secwepemc who question the legitimacy of the Crown’s

attempts to convince them, then remnants of the social fabric remain, no matter how supressed

and these are enough to show colonialism has not been fully effective. Recent evidence of this is

described by Janice Billy – a prominent Secwepemc educator, activist and spokesperson during

5 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (Annex), UNGAOR, 61st Sess, Supp No 49, UN Doc A/61/49 (2008) 15. [UNDRIP]. 6 George Manuel and Michael Posluns, The Fourth World: An Indian Reality, (New York: The Free Press, 1974) at 2, and 34. 7 Ibid at 59.

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the Aboriginal blockades at the Skwelkwek’welt Protection Centre (Sun Peaks Resort) 8 –

whose dissertation investigates the persistent impacts of colonialism on Secwepemc peoples.

Reproduced from Billy’s dissertation is the following list:

It is safe to say that every family within our communities is living with: Loss of…

• language • culture • traditional knowledge • traditional Secwepemc spirituality • traditional values and beliefs • traditional governance • economic systems • alienation of traditional territories • identity • self-esteem, confidence and pride

These pathologies contribute to:

• Assimilation • Oppression • Adoption of EuroCanadian hegemony • Breakdown of family and community structures • High levels of alcohol and drug abuse • Poor living conditions • High levels of poverty • High levels of unemployment

The losses were great and cumulated into the biggest loss of all – sovereignty and control over our lives.9

While Billy notes “every family” was, and still is impacted, she is careful to acknowledge the

divisions among Secwepemc stating, “[c]olonial institutions maintained by non-Secwepemc and

by our own people continue to colonize and assimilate us into Euro-Canadian society. Our 8 Skwelkwek’welt is the Secwepemc word that means a high alpine, treeless area. See: Skwelkwek'welt Protection Center, Our Mountain Worlds and Traditional Knowledge (Chase: SPC, 2004) online: <http://www.firstnations.de/media/06-3-2-mountain.pdf>. The blockades at the Skwelkwek’welt began in 2000 and have continued intermittently in the face of increasing development and the eventual municipal incorporation of the Sun Peaks Resort. For background on the resistance to Sun Peaks and other resort developments in BC, see: Maya Rolbin-Ghanie, “‘It's All About The Land’ Native resistance to the Olympics” The Dominion (1 March 2008) online: <http://www.dominionpaper.ca/articles/1738>. 9 Janice Billy, Back from the Brink: Decolonization through the Restoration of Secwepemc Language, Culture and Identity, (PhD Thesis, Simon Fraser University, 2009) at 84-85.

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people now employ education, governance, economic, health, and family structures based on

EuroCanadian models.” 10 Being aware of the internal divisions and oppressions within

indigenous communities is critical to understanding the impacts of colonization. In her chapter

outlining “the Struggle for Reclamation of Identity” Billy states, “[w]e are in a constant struggle

to decolonize ourselves from imposed education, governance, legal, economic, and social

structures. We must work to deconstruct EuroCanadian hegemony and stop being complicit in

our own oppression.” 11 One hundred years after the Laurier Memorial, Billy’s work is an

affirmation that there are Secwepemc “who continue to struggle to better” themselves, but that

struggle is no longer clearly divided along Crown-Aboriginal lines, if indeed it ever was.

Colonialism, Democracy and the Rule of Law

These stories may be seen to represent an integral and ongoing part of all indigenous politics today – they are part of its unacknowledged underbelly. Blockades and other direct political actions include the myriad human experiences, good and bad, positive and negative, that form the stories we hold. The stories are my honour songs for all those who had, and still have, the courage to resist and fight and struggle, despite everything, in the only way they could.12

From an indigenous perspective, colonialism – expressed through: the Canadian constitution

which ignored their laws and subjugated them under the state, the Crown agents who

undermined their social institutions while destroying their culture and language, and the

persistent social, political and economic disparity – has left their society in a perpetual state of

chaos and disorder. It is a state that they continue to struggle to overcome.

10 Ibid at 120. (Emphasis added). 11 Ibid at 121. 12 Val Napoleon, “Behind the Blockades” (2010) 9 Indigenous LJ 1 at 11. (In this thought provoking essay, Napoleon tells five personal stories that capture the social, political and institutional fabric underlying blockades in the Gitksan perspective. Using an interdisciplinary approach, Napoleon connects engagement in blockades, “acts of cultural continuity”, with decreased suicide rates. Napoleon is critical about the legal approach to norms and an imposition that indigenous peoples must be “exemplary… in order to return to some mythical, pre-contact state of social and political harmony. Conflating norms with behaviours in this way indicates a deeper failure to unpack and examine the implicit law, which is part of the tacit background of shared understandings that guide the behaviour of humans in groups.” Ibid at 13.

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As the Supreme Court of Canada says in Re Manitoba Language Rights, “the courts will not

allow the Constitution to be used to create chaos and disorder.”13 The Court was describing it’s

application of the doctrine of necessity, which it described earlier “is not used in these cases to

support some law which is above the Constitution; it is, instead used to ensure the unwritten but

inherent principle of rule of law which must provide the foundation of any constitution.”14 The

Court goes on to describe the Province of Manitoba as being, “in a state of emergency” because a

strict application of the rule of law would mean that over 100 years of Manitoba’s laws, “are and

always have been invalid and of no force or effect.”15 The only way to reconcile this problem is

to create a legal fiction that allows for the constitution to be temporarily suspended until the laws

are brought into conformity, “[i]t is only in this way that legal chaos can be avoided and the rule

of law preserved.”16

Trying to apply the rule of law in a way that explains the continuing struggle of the

Secwepemc peoples is extremely problematic. From 1867 to 1982, the constitution, expressed at

the time through the division of law making powers between federal and provincial

jurisdictions,17 was used to create chaos and disorder in Secwepemc society. In 1982, Canada

repatriated their constitution and completed their symbolic “journey from colony to independent

nation.” 18 This independence came with the enshrinement that “Canada is founded upon

principles that recognize the supremacy of God and the rule of law”, whose laws, including those

that infringe on any of the guaranteed rights and freedoms, must be “demonstrably justified in a

free and democratic society” and that “[t]he existing aboriginal and treaty rights of the aboriginal

13 Re Manitoba Language Rights, [1985] 1 SCR 721 at para 106. 14 Ibid at para 105. 15 Ibid at para 107. 16 Ibid. 17 The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3 ss 91 and 92. [BNA Act]. 18 Canada, Library and Archives, “The Proclamation of the Constitution Act, 1982: About the Proclamation” (Ottawa: Canada, 2010) <online: http://www.collectionscanada.gc.ca/constitution/023007-1000-e.html>.

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peoples of Canada are hereby recognized and affirmed.”19Throughout the 1980s, constitutional

conferences failed to properly define “aboriginal and treaty rights”20 in legal terms and for the

last two decades the courts have been shaping Aboriginal jurisprudence, including potential

successes, in a way that some argue aims to define Aboriginal rights without displacing the

dominant colonial order.21 At present, the status quo for the courts is to resort to the “honour of

the Crown”; an historic English common law doctrine whose appropriation into the Aboriginal

law context is proving just as elusive to define with any certainty as to whether it holds any

postcolonial intentions. 22 We know it “requires that [Aboriginal] rights be determined,

recognized and respected [and for] the Crown, acting honourably, to participate in processes of

negotiation.” 23 And as of recently, we can confirm that the honour of the Crown is not “a

paternalistic concept” and that it “recognizes the impact of the ‘superimposition of European

laws and customs’ on pre-existing Aboriginal societies. Aboriginal peoples were here first, and

they were never conquered; yet, they became subject to a legal system that they did not share.”24

However, the honour of the Crown does not recognize or affirm any Aboriginal or treaty rights,

it merely requires a conversation about their eventual definition, and that the dialogue must, in

part, be premised on recognition of the history of colonialism and its impacts.

19 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ss 1 & 35. (Notably, Aboriginal and treaty rights are not subject to s. 1, but the jurisprudence has developed infringement and justification tests all the same as if they were subject to the same limitations of a democratic society.) 20 Native Women’s Association of Canada, Aboriginal Constitutional Discussions & Treaty Rights: First Minister’s Conference on Aboriginal Matters (Ottawa: NWAC, 1987) online: <http://nwac.ca/files/reports/AboriginalConstitutionalDiscussionsTreaty.pdf>. 21 Gordon Christie, “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation” (2005) 23 Windsor YB Access Just 17; James (Sákéj) Youngblood Henderson, First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society, (Saskatoon: Native Law Centre, 2006) at 178. 22 Mariana Valverde, “The Crown in a Multicultural Age: The Changing Epistemology of (Post)Colonial Sovereignty” (2012) 21 Social & Legal Studies 3 at 18; Mariana Valverde, “The Honour of the Crown is at Stake”: Aboriginal Land Claims Litigation and the Epistemology of Sovereignty” (2011) 1 UC Irvine L Rev 955 [Valverde, 2011]. See also for context: Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 20 SCLR 433. 23 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at 25, [Haida Nation]. 24 Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 at paras 66-67 (citations omitted), [Metis Federation].

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Given the evolution and present course of Aboriginal jurisprudence, what has been the

purpose and effect of s. 35(1)? It has not led to a broad recognition of territorial jurisdiction or

authority,25 nor has it recognized Aboriginal title without requiring a lengthy and costly litigation

or entering into negotiations under prescribed limitations. 26 Aboriginal blockades – like the

Skwelkwek’welt Protection Centre in Secwepemc territory, the Unist’ot’en Camp in

Wet’suwet’en Territory,27 the resistance of the Elsipogtog in Mi’kmaq territory,28 and the Grassy

Narrows campaign in Treaty 3 territory29 – are expressly asserting these claims through the

occupation of land and other physical acts on the ground. 30 They reject an application of

25 The terms “jurisdiction” and “authority” are intentionally used to distinguish this concept from “self-government” which has been recognized by the courts. Self-government is distinguished here in the sense “that the constitutional protection for treaty rights, just as for aboriginal rights, admits of interference by Parliament subject only to the necessity for justification consistent with the honour of the Crown.” Campbell v BC et al, 2000 BCSC 1123 at para 127. [Campbell]. In the precedent setting case of the Nisga’a Final Agreement, the court defined self-government as “a limited right to self-government or legislative power within the constitution via s. 35.” Campbell, at para. 143, (emphasis added). That limit is defined by whatever is consistent with the honour of the Crown, which as discussed, has an elusive motivation. Defining self-government in the litigation context is even more problematic based on evidentiary burdens alone. See: R v Pamajewon, [1996] 2 SCR 821. Self-government defined by either avenue seems to result in a definition of Aboriginal rights that are presumptively subsumed under the dominant colonial order. 26 By this I refer specifically to the lack of any de jure recognition of Aboriginal title by authorities of the Crown – police, conservation officers, provincial regulatory bodies of mines, timber or lands, etc. For example: In the context of blockading a public road, an honest belief in Aboriginal title, which has not been recognized through litigation or negotiation, cannot be relied upon as a defense to a criminal charge. See: R v Manuel, 2008 BCCA 143 [Manuel]. 27 The Unist’ot’en Camp in Wet’suwet’en Territory (Northern BC) is in its 4th year and is strategically positioned against the building of major energy pipelines in the area (See: Unist’ot’en Camp, Official Website, online:<http://unistotencamp.com/>.) 28 The Elsipogtog Mi’kmaq resistance has resorted to blockading worksites and reclaiming territory in their struggle to oppose natural gas exploration in New Brunswick (See: âpihtawikosisân (Chelsea Vowel), “Resources on Elsipogtog” (23 October 2013) online: <http://apihtawikosisan.com/2013/10/23/resources-on-elsipogtog/>.) 29 The Grassy Narrows campaign against logging in their territory is well into its 10th year (See: Donovan Vincent, “Grassy Narrows First Nation’s anti-logging battle with province heats up” Toronto Star (30 October 2013) online: <http://www.thestar.com/news/queenspark/2013/10/30/grassy_narrows_first_nations_antilogging_battle_with_province_heats_up.html>; and Rick Garrick, “Grassy Narrows rejects MNR clearcut plans” Wawatay News (21 November 2013) online:< http://www.wawataynews.ca/archive/all/2013/11/21/grassy-narrows-rejects-mnr-clearcut-plans_25212>. 30 Aboriginal blockades, narrowly defined for this discussion, is an act of physical occupation of land for the purpose of exclusion, and the authority for that act is sourced in the relevant existing indigenous laws and customs. Thus, they assert authority and ownership. In a detailed history of blockades, John Borrows situates blockades as a mechanism for dealing with non-Aboriginal occupation that was not consented to. According to Borrows, the fundamental requirement of consent was fixed through treaties and customs early on in the relationship and, “[i]f non-Aboriginal peoples did not abide by these rules, Aboriginal peoples would reoccupy their lands.” See: John Borrows, “Crown and Aboriginal Occupations of Land: A History & Comparison” (Research Paper Commissioned by the Ipperwash Inquiry, 15 October 2005) at 1, online:

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Aboriginal rights that is premised on definition by litigation or negotiation. They reject a

definition of Aboriginal rights that is subsumed under the dominant colonial order. They reject

an idea of the rule of law that presumes indigenous peoples can be separated from their land and

their laws through the imposition of a foreign legal order without their consent. The prevailing

response from the courts, the authorities, and the majority of the Canadian public, however,

rejects these assertions and routinely repudiates blockades as unlawful and violating the rule of

law.

Are Aboriginal blockades unlawful? More importantly, do they violate the rule of law?

These are similar but distinct questions, and the answers fundamentally depend on the definition

of “lawful” and “the rule of law.” The unstated presumption that seems to run through the

jurisprudence on Aboriginal blockades and indeed popular opinion is that Aboriginal peoples are

properly constituted as individual citizens and definable political communities under Canadian

law and society. This fundamental presumption is necessary for the claim that Aboriginal

peoples, specifically those who resort to blockades and other tactics, are subject to Canadian law

and the rule of law in Canada like anyone else. From this presumption, Aboriginal peoples can

rightfully enjoy certain exceptions (i.e. Aboriginal rights) to the general rule that other Canadians

cannot, but they are ultimately still subject to the collective balancing of rights, interests and

obligations that is the foundation of any Western tradition of law and democracy. But, if this is

the presumption in the context of Aboriginal blockades, can it be properly supported?

There are several problems with trying to answer this question. How can one support this

claim when indigenous peoples are still being treated, dealt with by governments and thought of

by many Canadians in the pejorative sense, as “Indians” subjected under the powers of the <http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/research/pdf/History_of_Occupations_Borrows.pdf>. [Borrows, History of Occupation].

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federal government?31 How can one claim to be justified in infringing Aboriginal rights when

report after report continues to describe, in gob-smacked fashion, that there is a systemic

disparity and inequality between Aboriginal peoples and Canadians in nearly every measurable

area of society: the criminal justice system continues to fail,32 the child welfare system continues

to fail,33 and even Canada’s Human Rights Commission has determined the Canadian system has

statistically failed.34 Whatever is meant by “law” in abstract or in the context of Aboriginal

peoples, these are the empirical realties on the ground. What promise does the rule of law hold

for the Secwepemc, and for all colonized peoples across Canada, who continue to struggle

against the imposition of colonialism on their own terms? Why should Aboriginal blockaders

feel obligated to obey the rule of law if its promises are elusive and its precedents are limited?

Roadmap

I will explore this question by examining the increasing relevance of Aboriginal blockades to the

social, political and legal realms in Canada. The starting point for the discussion is situating

Aboriginal blockades, and the reaction they elicit from Canada and the majority of Canadians, as

a unique problem for both democracy and the rule of law. The ensuing theoretical analysis

wrestles with what I have identified is a central issue for understanding Aboriginal blockades as

a problem: Whether Aboriginal peoples are properly constituted as part of Canadian society

given that their constitutional rights (or rather, powers, jurisdiction and territory) have yet to be

defined, or at least defined in a way that would achieve the decolonization of indigenous peoples

31 BNA Act s. 91(24). 32 Office of the Correctional Investigator, Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act, Final Report (Ottawa, Office of the Correctional Investigator, 2012) at para 25, online: <http://www.oci-bec.gc.ca/rpt/oth-aut/oth-aut20121022-eng.aspx>. 33 Mary Ellen Turpel-Lafond, When Talk Trumped Service: A Decade of Lost Opportunity for Aboriginal Children and Youth in B.C, Special Report (Victoria: Representative for Children and Youth, 2013) online: <http://www.rcybc.ca/Images/PDFs/Reports/RCY_AboriginalServices2013.pdf>. 34 Canadian Human Rights Commission, Report on Equality Rights of Aboriginal People (Ottawa: CHRC, 2013) online: <http://www.chrc-ccdp.gc.ca/sites/default/files/equality_aboriginal_report.pdf>.

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in accordance with the standards of international law. 35 If they are not, then Aboriginal

blockades – meaning individual or collective acts of physical occupation aimed at asserting

indigenous authority and exclusive possession that is premised on a rejection of any application

or definition of Aboriginal rights that can only be expressed through litigation or negotiation –

are legitimate and expected reactions to the limitations of democracy and the rule of law in

Canada. On the other hand, if Aboriginal peoples are properly constituted, then Aboriginal

blockades are still legitimate forms of civil disobedience, and they are expected reactions to the

current limitations, however, they risk losing legitimacy if they bring the lives of other people

into immediate danger.36 In either case, Aboriginal blockades are essential to the rule of law and

must be recognized for their valuable contribution to the ongoing process of reaching a definition

of Aboriginal rights that is consistent with international standards.

This theoretical approach to Aboriginal blockades, however, reveals much more than just

their legitimacy. It reveals many disturbing questions about the true nature of Canadian society,

and the recent direction that Aboriginal jurisprudence has taken with its repeated declaration that

we are now in a period of “reconciliation”.37 For the rule of law, these questions raise a great

deal of skepticism about the utility of the legal fictions that the Court has been resorting to in

35 See generally: The UN’s, Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960; International Convention on the elimination of all forms of racial discrimination, New York, 07 March 1966: International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, art. 1, Can TS 1976 No 47, (entered into force 23 March 1976, accession by Canada 19 May 1976); International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art. 1, Can TS 1976 No 47, (entered into force 23 March 1976, accession by Canada 19 May 1976); and UNDRIP, supra note 5. 36 Immediate danger would be instigating and escalating violence with the intention of destabilizing peace established under a properly constituted legal and social order. This could be anything from reckless hooliganism, to a small riot to an attempt to incite a civil war. Borrows historical treatment of blockades suggests that these acts would likely be unlawful under indigenous legal orders as well. Even the most violent examples of blockades in Canadian history (Oka and Gustafsen Lake), the violence was instigated by Canadian authorities enforcing the law. See: Borrows, History of Occupation, supra note 30 at 36-43. This goes some way to suggesting why police violence or lawful enforcement should not be involved in dismantling any form of non-violent direct-action. 37 Rt Hon Beverley McLachlin, “Defining Moments: The Canadian Constitution” (Speech delivered at the Canadian Club of Ottawa, 5 February 2013) online: <http://www.scc-csc.gc.ca/court-cour/judges-juges/spe-dis/bm-2013-02-05-eng.aspx>.

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order to further the reconciliation of Aboriginal peoples with (or is it within?) Canadian society

as it is presently constituted. For democracy, Aboriginal blockades, especially those expressed

through the growing indigenous rights movement in Canada,38 pose a significant challenge to the

popularized notion that Aboriginal peoples and Canadians are truly in a period of reconciliation.

This is another issue for democracy and the rule of law that depends also on the determination of

our central issue: are Aboriginal peoples properly constituted? If they are, then reconciliation

may be the right term for the rule of law, but one that is harder to justify for democracy.

As Mariana Valverde notes, “few are asking the more fundamental question of whether

acknowledging Canada's colonial rule over aboriginal peoples necessitates putting in question

our (white Canadian) knowledge of ourselves, our institutions, and our rules.” 39 This is a

challenge that this paper eagerly takes on. Viewed from a postcolonial perspective, Valverde

even challenges prominent scholars on Aboriginal issues, John Borrows and James Tully, on

their assumption that “reconciliation” is the appropriate term to describe the current paradigm.40

“Struggle” is the word that Valverde argues is more appropriate, and the motivation of this paper

has largely been about coming to my own conclusions about that distinction.

38 Both the Idle No More movement and the Indigenous Nationhood Movement employ or support blockade tactics and are based on principles that call for the decolonization of indigenous peoples in Canada. See: Idle No More, online: <http://www.idlenomore.ca/manifesto>.; Indigenous Nationhood Movement, online: <http://nationsrising.org/about/>. 39 Valverde, 2011, supra note 22 at 956. 40 Ibid. (This comment is made in footnote 3).

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PART I | Aboriginal Blockades: Exposing the true nature of Canadian society

(Post)colonial Identities and Democracy

In a speech given to the Royal College of Surgeons in 1923, Rudyard Kipling stated, “I am, by

calling, a dealer in words; and words are, of course, the most powerful drug used by mankind.”41

Later on in a famous essay, George Orwell called Kipling “the prophet of British Imperialism in

its expansionist phase” and described Kipling’s vision of British Imperialism saying:

Imperialism as he sees it is a sort of forcible evangelizing. You turn a Gatling gun on a mob of unarmed ‘natives’, and then you establish ‘the Law’, which includes roads, railways and a court-house. He could not foresee, therefore, that the same motives which brought the Empire into existence would end by destroying it.42

The “motives” to which Orwell is referring to, is not just the Law of the Gatling gun, but also the

hypocrisy that settled in well after one had established “the Law”. Orwell writes, “We all live by

robbing Asiatic coolies, and those of us who are ‘enlightened’43 all maintain that those coolies

ought to be set free; but our standard of living, and hence our ‘enlightenment’, demands that the

robbery shall continue.”44 Orwell compares this hypocrisy of the left with the ignorance of the

right that “does not see that the map is painted red chiefly in order that the coolie may be

exploited.”45 Thus, complicity in colonialism may for some be acknowledged as a necessary evil,

or even tacitly ignored.

At least 10 years before the postcolonial scholar Albert Memmi would theorize as to how, “[t]he

colonial situation manufactures colonialists, just as it manufactures the colonized,”46 Orwell was

41 Rudyard Kipling, “Surgeons and the Soul” in A Book of Words (London: Macmillan, 1936) online: The Kipling Society, <http://www.kipling.org.uk/rg_words_intro.htm>. (This quote may have many literal meanings, but used here, I believe it illustrates the self-acclaimed superiority inherent in the imperialist mindset.) 42 George Orwell, “Rudyard Kipling” Horizon (February 1942) online: The Orwell Prize, <http://theorwellprize.co.uk/george-orwell/by-orwell/essays-and-other-works/rudyard-kipling/>. 43 Referring to leftist intellectuals, of which Orwell was a part of as a staunch democratic socialist. 44 Ibid. 45 Ibid. 46 Albert Memmi, The Colonizer and the Colonized (Boston: Beacon Press, 1965) at 56.

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using less tasteful language to describe the identity crisis of the British colonialist that is created

when “enlightened” people are faced with a compelling truth that their society is maintained

through the exploitation of people from some Other society. Anthropologist Chris Kortright

expands on the hypocrisy and ignorance that Orwell articulates saying, “[a] person cannot live

with such contradictions, thus the colonist [that accepts colonialism] creates an identity to defend

his actions. It is at this point that he creates the image of the colonist as a humanitarian, who just

happens to gain economic benefit.”47 The dilemma is more difficult for the colonist that rejects

colonialism, because, “No matter how genuine he is, there remains a fundamental difference

between himself and the colonized.”48 Thus, colonialism creates clear divisions that are inherent

in the colonial identities. As colonialism gathers momentum, the Other society is further

exploited and oppressed until it almost unrecognizable. At this point these divisions make

acceptance in either society, or ultimately in a post-colonial society, something that is nearly

impossible to envision. Therefore, rejecting colonialism, for either colonist or colonized, is very

difficult for it is a conscious choice to struggle towards a wholly uncertain outcome.

In their time, Kipling and Orwell, both journalists born in colonies who covered the military

excursions of the British Empire, saw the project of Imperialism progress through different

lenses, but Orwell’s early descriptions resonate with the theories of postcolonial thinkers because

they too have a prophetic quality. His observations caution us against the short-sighted use of

force to establish, and maintain, a legal order. They challenge us to break-free of our tacit

addiction to a hedonistic and unsustainable cycle of exploitation of some other society. By

applying theory to observation, we can look for the hallmarks of colonialism: exploitation,

oppression, force, ignorance, hypocrisy, divisions and struggle. Where they are present and 47 Chris Kortright, “Colonization and Identity” The Anarchist Library, online: <http://theanarchistlibrary.org/library/chris-kortright-colonization-and-identity>. 48 Ibid.

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subsisting, so too is colonialism, and its impacts. And as long as colonialism, as an ideology,

prevails in society’s conscience, and, as long as it remains unchallenged by the rule of law, then

the divisions of identity will continue, identity politics will be inadequate to overcome them,49

and the reconciliation of the oppressed with the oppressor a fool’s errand. In the Canadian

context, the hallmarks of colonialism, particularly the persistent disparity, are evident and

measurable in both law and society generally. In the particular case of Aboriginal blockades, the

prevailing reactions articulate a raw look at the true nature of Canadian society.

Aboriginal Blockades: The un-Canadian way

Aboriginal blockades are becoming increasingly hard for Canadians to ignore. They are not only

occurring more often, but many blockades today are now well thought out for the long term,

carefully prepared for, highly strategic and sophisticated forms of committed non-violent direct

action.50 The advent of social media provides these movements with a communications network

that can simultaneously call for solidarity and widely distribute several eyewitness accounts of

the event. When blockades hit a flashpoint, and violence erupts, the use of public resources in

abundance to enforce a court-ordered injunction in, what is legally, a private civil matter

becomes harder to justify in the public interests as dozens of photos rapidly circulate showing

49 The term “identity politics” can refer to a number of things in political theory. Specifically, I use the term here to reference “identity political formations [that] typically aim to secure the political freedom of a specific constituency marginalized within its larger context.” Cressida Heyes, "Identity Politics", The Stanford Encyclopedia of Philosophy (Spring 2012 Edition), Edward N Zalta ed, online: <http://plato.stanford.edu/archives/spr2012/entries/identity-politics/>. The indigenous rights movement is often associated with this category, but they are incorrectly associated because identity politics first and foremost depend on there being a constitutional government, representative of a sufficient democracy, with a judiciary that upholds the rule of law. As this article argues, the existence of these factors in Canada is questionable as far as Aboriginal peoples are concerned. 50 At the time of writing this paper, at least three prominent blockade campaigns like this were underway, and each was carefully orchestrated and part of larger movement. See: The Unist’ot’en Camp, supra note 25; The Elsipogtog Mi’kmaq resistance, supra note 26; and the Grassy Narrows campaign, supra note 27.

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Elders, women and youth being beaten or arrested by an increasingly militarized police force.51

Aboriginal blockades, and the Crown’s response to them, bring the integrity of the rule of law

into question, both in the courts and in the political and public conversation. But they do so in a

way that reveals something about the true nature of Canadian society.

Here are just a few examples taken from the courts, the government, the politician, the pundit

and the people.52 In the courtroom the sentencing judge might say something like:

When one ignores orders of our courts, or takes the law into one's own hands, respect for our court system evaporates, and our entire society suffers. If the remedies a court directs to be put in place through its orders can be ignored with impunity, the road to civil anarchy is close at hand. The thin veil of civilization that cloaks our community through the rule of law is fragile and in need of constant protection. Mr. Lovelace says that while he respects the rule of law, he cannot comply because his Algonquin law is supreme. He says he finds himself in a dilemma. Sadly, it is a dilemma of his own making. His apparent frustration with the Ontario government is no excuse for breaking the law. There can only be one law, and that is the law of Canada, expressed through this court. 53

On appeal, the higher court might take the opportunity to clarify that such a narrow view of the

rule of law cannot be relied on by saying, “compliance with court orders is an important, but not

51 The violent arrests at the Elsipogtog blockade on October 17, 2013 are a clear example of this. For a breakdown of the tactics involved in this arrest and those commonly used against other blockades, see: Zig Zag, “Overview of RCMP deployment against Mi’kmaq blockade” Warrior Publications (22 October 2013) online: <http://warriorpublications.wordpress.com/2013/10/22/overview-of-police-tactics-used-in-assaulting-blockades/>. 52 Examples like these ones are everywhere. I have chosen a limited selection to save space while still making a point. However, I encourage, actually I challenge the reader to keep their eyes open for other samples they might come across. The point here is that democracy is a conversation and people are free to express their ideas in shaping that conversation, but when ideologies like colonialism prevail, then the conversation is rigged and is actually undermining the principles of liberty, equality and freedom that Western democracy is founded on. 53 This excerpt is taken from a copy of the court transcript of the sentencing decision in the case Frontenac Ventures Corp v Ardoch Algonquin First Nation, [2008] OJ 792, 165 ACWS (3d) 155 [no pinpoint] (emphasis added). It was quoted by the Ontario Court of Appeal in Frontenac Ventures Corp v Ardoch Algonquin First Nation, 2008 ONCA 534 at para 40. [Frontenac, ONCA]. However, the portion in italics was omitted under an (…). The choice of the language – “the thin veil of civilization” – used in the omitted portion casts the excerpt and the rule of law in a very different light. The full transcript was posted online by local environmental groups that supported and participated in the long-standing Ardoch Algoquin blockade that gave rise to the action. (See: Stop Uranium Mining Peterborough, “Judge Cunningham’s Sentencing of Robert Lovelace and Paula Sherman” (3 March 2008) online: <http://stopuraniumminingptbo.blogspot.ca/2008/03/judge-cunninghams-sentencing-of-robert.html>.)

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exclusive, component of the rule of law. The motion judge in his sentencing decision did not

address the other dimensions of the rule of law.”54

In the political forum, the government leader might say, “In no way can we as a country of laws

condone the breaking of laws and violence,”55 while the opposition leader seizes an opportunity

to say:

At a time when our province desperately needs investments and jobs companies will be watching to see if the risk of doing business in New Brunswick is too great. We need the Premier to take a stand, to defend the rule of law in our province, make sure our children can go to school and our goods get to market without any interference.56

This is an archetypal example of the “business-as-usual” political line on the rule of law. Notice

how the political priorities of: investments, jobs, risk, business, children, school, goods, market

and interference, are all neatly packaged in direct association with the rule of law. Notice how

there is no mention of: poverty, disparity, clean water, stewardship and absence of consent or

adequate consultation for months; just a few of the reasons explaining why the blockade

emerged. Nor could one properly interpret into that statement the principles of: minority

protection, consultation, treaty, mutual respect, equality, reconciliation and honour; things that

are properly associated with the rule of law as it is applied by the courts.

In the media, the pontificating pundit audaciously rambles in the National Post that “the

academically-generated ‘narratives’ of colonialism and racism and genocide are an abuse of

reality” and then calls the blockade a denial of “the deep wells of respect and decency of the

54 Frontenac, ONCA, ibid at para 42. 55 These were the words of New Brunswick Premier David Alward in response to the Elsipogtog Blockade against fracking exploration in the province. Quoted in, Martin Lukacs, “New Brunswick fracking protests are the frontline of a democratic fight” The Guardian (21 October 2013) online: <http://www.theguardian.com/environment/2013/oct/21/new-brunswick-fracking-protests>. [Lukacs]. 56 These were the words of Dominic Cardy, leader of the New Brunswick New Democrats. See: NB NDP, Press Release, “NDP Calls for end to all road blockades and talks to start with First Nations” (17 October 2013) online: <http://www.nbndp.ca/node/862>.

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majority of Canadians.”57 Elsewhere, an environmental columnist for the Guardian poses the

profound question, “Do we obey provincial dictates that grant a company license to pollute the

water? Or the laws of Indigenous peoples, of the Supreme Court, and of our conscience, calling

us to protect it? The answer will tell us everything about the kind of country we will have.”58

In the advent of the online platform, where one can comment and engage in a discussion on

pretty much any news article, the dialogue is so disparaging it makes the popular political and

judicial notion of “reconciliation” sound entirely divorced from reality. For example: In response

to Rex Murphy’s column mentioned above, there were, as of November 7, 2013, 3,202

comments. Here is a sample of them:

Robmax says, “Shut the money off to these thugs thieves and terrorists, that is the problem.” … Astute Observer says, “Current native militancy is being fuelled by the realization that with an increasingly multicultural Canadian voter demographic, they had better squeeze the last drops out of dwindling white guilt while they still can.”59

Comments of this tenor were well represented and overwhelmingly popular in the

approval/disapproval ranking system.60 Not all comments had this flavour, like this one that

reads in part:

Lavender says, “I'm sick and tired of privileged white people counting themselves among the educated when they're so underinformed about Canadian history and the ways in which current laws - recently passed ones - disenfranchise, patronize

57 Rex Murphy, “A rude dismissal of Canada’s generosity” National Post (19 October 2013) online: <http://fullcomment.nationalpost.com/2013/10/19/rex-murphy-a-rude-dismissal-of-canadas-generosity>. [Murphy]. 58 Lukacs, supra note 54. (Notably, Lukacs’ column also reflects a tacit confidence in some of the Supreme Court’s more progressive decisions on Aboriginal rights. This confidence is not misguided, but still rests on the assumption that Aboriginal peoples are duly constituted.) 59 Murphy, supra note 56. 60 It should be pointed out that commenting online in forums like this is often done through a pseudonym. The commenter can choose to use their real name, but many post anonymously. Arguably, the protection of anonymity allows people to express what they truly feel about a subject matter without fear of repercussions. It is the equivalent to the privacy of casting a secret ballot. In full disclosure, this is a very fascinating component of this paper that is insufficiently supported by relevant research into the areas of political science, social psychology and in the law context, online hate-speech and cyber-bullying.

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and disempower First Nations people in this country. Less rhetoric, more facts, Mr. Murphy.”61

Consistent with the popularity of the other two comments, this last comment was getting an

overwhelming disapproval ranking.

There are two things that we can see in these different types of forums for democratic discussion:

First that the hallmarks of colonialism are present in all of them; and second, that it is difficult,

especially in the political and social forums, to reconcile the prevailing views about the “rule of

law” and “democracy” relied upon to denounce Aboriginal blockades with the way these terms

are thought of theoretically. Many, like Rex Murphy, describe blockades as having committed

sacrilege against the rule of law and democracy. Politicians in turn play to these obvious

prevailing ideologies about the rule of law and democracy in society and lavish the chance to

speak out against violence and uncertainty and the economy and the opportunities and benefits

Aboriginal peoples are foregoing because they refuse to negotiate in good faith. This cascade of

remarks generates a self-feeding whirlpool of democratic discourse. The examples accurately

reflect just how embedded the ideology of colonialism is in Canadian society, and in the

Canadian perception of the rule of law. Overwhelmingly, the majority of expressions out there

reflect the mindset of the 19th century British Imperialist who is completely convinced of their

own humanity, superiority and idea of lawfulness. Confident in this view, they easily judge

Aboriginal blockaders as ungrateful and unlawful. In the minds of most Canadians, this is the

rule of law. They conflate a rule of law they want, with how it is abstractly and theoretically

defined; as a promise of stability, certainty, and protection from unlawful force. But what is

being kept stable? What is being kept certain? What is being protected from the unlawful force

61 Murphy, supra note 56.

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brought by whom? The answers are: their colonial legal order, their colonial privilege and their

colonial-created rights and interests, from indigenous peoples.

When put in its proper context, this prevailing understanding of the rule of law in the minds of

most Canadians is nothing like the rule of law that is typically thought of by theorists and applied

routinely by law-makers (judges and legislatures); it is just a crude framework that normalizes

oppression, domination, assimilation and violent enforcement against a class of peoples they

constantly stereotype and discriminate against. This appears to be the true nature of Canadian

society. This appears to be the social order that the rule of law is upholding. Most Canadians are

either completely convinced of the internal humanism of their values, or they are contented to

remain in ignorance; expressly by rejecting treaties as “the past” or implicitly by never turning

their mind to the case of Aboriginal peoples. It is no wonder that for so many, Aboriginal

blockades are such an insult to such deeply held beliefs.

Is there an important distinction to be made between what the majority of Canadians think the

“rule of law” is supposed to mean, and the rule of law as a problem for legal philosophy? Yes.

The former is used as a hollow rhetorical mechanism and applied to bolster an argument. The

latter is painstakingly, skeptically and endlessly being constructed and reconstructed, but

fundamentally underlying, and protecting, democracy. The dispute between the motions judge

and the court of appeal on the meaning and use of the rule of law demonstrates this distinction.

However, while precedent and doctrine can referee the judicial conversation about the definition

and use of the “rule of law”, and peer-review can – to a limited extent – referee the academic

conversation, there are no obvious mechanisms in place to referee the social conversation that

shapes and defines the “rule of law”, except maybe law itself. Should there be such mechanisms?

Is there a contradiction in using the law to restrain what should be a free debate about the rule of

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law? At first glance, this seems like an incorrigible problem. In the next part, we will try to

untangle just a small part of that problem by examining different legal theories in search of

clarity and an explanation for Aboriginal blockades and the rule of law. As we will see,

Aboriginal blockades present difficult challenges for the two dominant theories about the rule of

law. They reveal the limitations of those theories. These limitations guide us towards theories

about the relationship between democracy and the rule of law, which is where we find the first

bit of insight into our problem.

PART II | “Reconciling” Canada’s Constitutional Antinomy

There is a troubling antinomy created when colonialism is used to transplant the rule of law.62

The former is equated with force, domination, subjugation and control, 63 while the latter is

generally equated with stability, certainty, the peaceful resolution of disputes and equal

protection from arbitrary power.64 Canada would not exist as it does today if it were not for

colonialism, and in the same sense it could not exist as it does without the rule of law.

62 The term “antinomy” may not be the right word here for it refers to, “a contradiction between two beliefs or conclusions that are in themselves reasonable.” (The Oxford English Dictionary, online ed, sub verbo “antinomy” online: <http://www.oxforddictionaries.com/definition/english/antinomy>.). One could argue that colonialism is not reasonable, while another could argue that the rule of law includes rule by law, in which case it would not necessarily be in contradiction with colonialism. The use of the term here, however, is used to illustrate that there are always different views about these things, and also to infer that colonialism, if one thinks it is reasonable, also means that the extinguishment or at least subjugation of indigenous legal orders as a result is reasonable. Whether that notion is contradictory to the rule of law also depends on the view one takes. 63 Colonialism, narrowly defined, is “a practice of domination, which involves the subjugation of one people to another.” It is commonly used interchangeably with the term “Imperialism” meant to describe a form of colonialism that has a forceful and expansionist element. (See: Margaret Kohn, "Colonialism", The Stanford Encyclopedia of Philosophy (Summer 2012 Edition), Edward N. Zalta ed., online: <http://plato.stanford.edu/archives/sum2012/entries/colonialism/>.) See also: Kortright, supra note 47. (From an anthropologist’s perspective, Kortright acutely describes the “identities” that are created in the “colonizer” and the “colonized” throughout the process of colonization.). 64 David Dyzenhaus, “Recrafting the Rule of Law” in Recrafting the Rule of Law: The Limits of Legal Order, David Dyzenhaus ed. (Oxford: Hart Publishing, 1999). [Dyzenhaus, 1999]. (In this introductory chapter, Dyzenhaus summarizes the leading thoughts on the rule of law, not just from legal philosophers, but also political theorists like Judith N. Shklar who Dyzenhaus cites as saying, “If one then begins with the fear of violence, the insecurity of arbitrary government and the discriminations of injustice one may work one's way up to finding a significant place for the Rule of Law.”)

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The evolution of Aboriginal rights in Canada is like a sad 300 year-old game of Ping-Pong

between democracy and the rule of law: Despite a rich history of treaty-making and nation-to-

nation relationships,65 in 1867, the BNA Act expressly colonized indigenous peoples. Much of

the history of colonialism over the next century would be written (or told) through s. 91(24) of

the BNA Act: the reservation system displaced and controlled indigenous peoples physically, the

residential schools dislocated indigenous peoples socially and culturally, the prohibition on the

potlatch pushed them underground spiritually, the prohibition on obtaining legal counsel silenced

whatever legal rights they might try to advocate for, and the electoral chief system subverted

their traditional political structures.66 The impacts of this sad history continue to resonate to this

day, and the Supreme Court of Canada has even gone so far as to order judicial notice of this

fact.67

In 1982, s. 35(1) of the Constitution Act, 1982 was realized through the outstanding efforts of

indigenous peoples who travelled all the way to London to protest and lobby as the British

Parliament debated the repatriation of the Canadian constitution; this was democracy’s influence

65 In particular, John Borrows, Leonard I. Rotman, Mark D. Walters and Brian Slattery have all published extensively on the historical interactions and instruments that pre-date 1867 and form the foundations of the Crown-Aboriginal relationship. See generally: John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference, Michael Asch ed. (Vancouver: UBC Press 1997); Leondard I. Rotman, Fiduciary Law, (Toronto: Thomson/Carswell, 2005); Mark D. Walters, “Brightening the Covenant Chain: Aboriginal Treaty Meanings in Law and History After Marshall” (2001) 24 Dalhousie LJ 75; Brian Slattery, “The Organic Constitution: Aboriginal Peoples and the Evolution of Canada” (1996) 34 Osgoode Hall LJ 101-112. 66 Report of the Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back, vol 1, part 1 The Relationship in Historical Perspective (Ottawa: Supply and Services, 1996) at 132. [RRCAP] 67 R v Ipeelee, 2012 SCC 13 at para 60. (The Court states, “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.” Although Ipeelee is about sentencing Aboriginal offenders according to Gladue principles, there is to some extent a small revelation in a rule that orders any judge to accept subject matter like this as “clearly uncontroversial or beyond reasonable dispute.” For an understanding of the judicial notice doctrine, see: R v Find, 2001 SCC 32 at para 48; and R v Spence, 2005 SCC 71 at paras 49-69. Also compare with R v Zundel, [1992] 2 SCR 731 where the Court struggled with the question as to whether judges could take judicial notice of the Holocaust.)

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on the rule of law in action.68 After the conferences failed, the fact that the jurisprudence over 30

years has led all parties back to the negotiation tables under the project of “reconciliation,”

demonstrates that the rule of law has limitations. But, are those limitations inherent to the rule of

law as an ideal, or the rule of law faced with prevailing colonial ideologies? This is an important

distinction that must be made from the outset in order to begin understanding how democracy is

related to the rule of law and how both relate to defining Aboriginal rights.

The Rule of Law: Explaining the antinomy

There are two prominent ways that one can characterize the rule of law as it is being applied to

the injustice of indigenous peoples in Canada: Either, the rule of law is being applied to uphold

the legal order, or, if it were being applied then it would find the legal order invalid.69 These two

views are essentially opposite each other, but both share a significant limitation. This limitation

is explained by looking more closely at the relationship between democracy and the rule of law

in a colonial legal system. Surprisingly, when one takes this view, an explanation for Aboriginal

blockades emerges and their importance to both democracy and the rule of law is better

understood.

Democratic Positivists: The rule of law is upholding the colonial legal framework

This argument is a type of legal positivist view that argues that the democratically elected

legislature is the only legitimate source of law and judges play a limited role.70 On this view,

only the legislature can enact and implement the kind of changes that are needed to achieve a 68 Union of BC Indian Chiefs, Constitutional Express, supra note 4. 69 John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples, and Colonialism” in Recovering Canada: The Resurgence of Indigenous Law (Toronto: UTP, 2002) at 113. [Borrows, 2002] (Borrows argues that, “[a] faithful application of the rule of law to the Crown’s assertion of title throughout Canada would suggest that Aboriginal peoples possess the very right claimed by the Crown.”). 70 Dyzenhaus, 1999, supra note 64 at 2. (Dyzenhaus calls this the “democratic positivist” camp, but shows the lineage reaching back to the ideas of Jeremy Bentham. Joseph Raz is also cited for his contributions to this theory. In particular, Raz’s more political theory sheds some light here. See: Joseph Raz, The Morality of Freedom, (Oxford: OUP, 1986) [Raz]).

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reconciliation of Aboriginal peoples and Canadians. While this may seem to provide a theory for

justice that is democratically accountable, built first on strong relations and on a groundswell of

support from the majority of Canadians, this theory is incomplete.

First, it does not explain the overwhelming evidence and case-law that accepts that “there is

widespread bias against aboriginal people within Canada.”71 In the legal context this may be

some acknowledgement of the divisions of identity that was created by colonialism.72 But in

light of the vitriol we sampled in the last section, if the rule of law is defined by a democratically

elected institution, and the majority of the electorate is biased against a minority group, how will

a positivist view of the rule of law achieve justice in any reasonable timeframe? A great deal of

educating and reversing the bias created by colonialism is necessary, and this task is almost

insurmountable when the legal order is perpetuating the cause of the bias in the first place.

Second, the theory abrogates at least three established principles in Canadian law: the honour of

the Crown, the principle of protection of minority rights,73 and the recognition that “aboriginal

peoples [are separate] from all other minority groups in Canadian society and [this] mandates

their special legal, and now constitutional, status.” 74 This last principle is based on the

presumption that is central to the issue in this discussion; that Aboriginal peoples are properly

constituted in Canadian society, and can now be said, as Lamer CJ does here in the precedent

setting case for defining Aboriginal rights under the common law, to have a “special legal, and

now constitutional, status.”75

71 R v Williams, [1998] 1 SCR 1128 at para 58; Affirmed in R v Gladue, [1999] 1 SCR 688 at para 61, and reaffirmed in Ipeelee. (Although these cases are about bias in the jury and the criminal justice system, they are based in authoritative social science research like RRCAP, supra note 66). 72 As was briefly discussed above, see: Memmi, supra note 46; and Kortright, supra note 47. 73 Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 79-81. 74 R v Van der Peet, [1996] 2 SCR 507 [Van der Peet] at para 30. 75 Ibid (emphasis added).

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Adopting the democratic positivist view of the rule of law would mean Aboriginal peoples are

essentially left to organize and lobby for a definition of their own interests in a political system

that has historically marginalized them and is currently biased against them. Because they start

from a marginalized position, the principle of equality demands their “special” status. If indeed,

the democratic positivist theory is complete, and the presumption that Aboriginal peoples are

properly constituted is correct, then the conclusion must be that the courts have failed to apply

the rule of law and uphold those constitutional rights which were won through a hard fought

democratic effort. 76 The effects of that democratic effort have been underwhelming, but to

understand why, consider how this theory is applied to historical injustice by Jeremy Waldron.

Jeremy Waldron: Redressing historic injustice

Jeremy Waldron relies heavily on Kant’s Proximity Principle to wrestle with the difficult issue of

practically redressing the historical injustice that colonialism has brought to indigenous peoples

in Canada.77 Waldron opens with his own description of the principle stating, “everyone has a

natural duty to come to terms, in civil union, with those with whom he finds himself unavoidably

side by side, whether or not he likes them or trusts them or shares anything else with them.”78

However, further on in the article, the excerpt Waldron uses from Kant’s theory states, “an

absolute and primary duty in all external relationships whatsoever among human beings (who

cannot avoid mutually influencing one another), is only found in a society in so far as it

76 With reference to the Constitution Express mentioned above. However, there are numerous other problems that could explain the democratic insufficiency with regards to how s. 35(1) came about and whether it truly had democratic support in the majoritarian sense. See generally: Ardith Walkem & Halie Bruce, Box of Treasures or Empty Box?: Twenty Years of Section 35 (Canada: Theytus Books, 2003), see in particular: Arthur Manuel, ibid at 336-39. The point here is that it is constitutional now, a part of the positive law, and a failure to apply positive law, notwithstanding the chaos it might cause in a democratic society, is a significant and unexplained limitation. 77 Jeremy Waldron, “Redressing historic injustice” (2002) 52:1 UTLJ 135. [Waldron]. 78 Ibid at 1, (In the explanatory footnote).

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constitutes a civil state.”79 I don’t dare offer my own interpretation of Kant here, but I do wish to

draw attention to the discrepancy between Kant’s statement and Waldron’s restatement of the

principle. Waldron interprets Kant’s principle to mean that individuals, or societies, who find

themselves unavoidably side-by-side, are required out of natural duty to come to terms with each

other. However, Kant’s statement appears to state that the “absolute and primary duty” requires

the presumption that society already “constitutes a civil state”. This means that all those who

hold the obligation are properly constituted. If this presumption is true of Aboriginal peoples,

then one needs to question whether the duty that Canadians owe Aboriginal peoples is being

fulfilled given the wide and persistent social and economic disparity between them. If the

presumption is false, then Aboriginal peoples owe no duty to Canadians and Aboriginal

blockades are not illegal, nor do they abrogate the “absolute duty” because there is no duty to

begin with.

The effect of Waldron’s restatement, however, is to say that Aboriginal peoples and Canadians

are forced by nature to create that presumption notwithstanding the history of abuse and mistrust.

This is seemingly different from Kant’s principle, but is more obvious when Waldron contrasts

Kant and John Locke in the context of the social contract. Waldron cites Locke who states:

The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature.80

Without endorsing Locke’s general theory about property and law, but just comparing the actual

words not the restatement, Locke and Kant are not as far apart as Waldron proposes. For Kant,

79 Immanuel Kant, “Theory and Practice” in Political Writings cited in Waldron, ibid at 139. (Emphasis added). 80 John Locke, Two Treatises, II, cited in Waldron, ibid at 138.

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the duty is premised on a constituted society. Locke views the obligation as one that is

underwritten in the overarching terms of the social contract, which anyone can freely assent to if

they find the benefits worth the cost of their absolute freedom. When Waldron interprets Kant to

rebut Locke, he describes the obligation as a “matter of natural duty. Indeed, [as] something that

a person might legitimately be forced to do.”81 Force is only legitimately and justifiably used

against civilians in a properly constituted society. Waldron either assumes the presumption of

constitution can be forced on indigenous peoples, or that the presumption is already made out.

However, Waldron does not explain how that presumption is either justified or made out.

Relying on these interpretations, Waldron advances the view that Canadians and Aboriginal

peoples are in an unavoidable situation created by an unfortunate past, but that the natural duty

requires them to simply accept it and move on. If we do not, Waldron describes what he think is

the alternative; an endless and costly speculative exercise that tries to isolate the point of

injustice in history, identify with precision the interests harmed, and determine what the

appropriate costs and damages should be factoring in the substantial delay in justice.82

If Waldron’s argument were acceptable, how would we define “reconciliation” and inherently

Aboriginal rights? Waldron states, “that claims about historic injustice predicated on the status

quo ante may be superseded by our determination to distribute the resources of the world in a

way that is fair to all of its existing inhabitants in their existing circumstances.”83 In other words;

in the past there were not very many Canadians, but in the present Canadians greatly outnumber

indigenous people – and of course this reality is a direct impact of the underlying injustice, but

that doesn’t seem to be factored into Waldron’s argument either – so it is futile to ascribe a 200

81 Ibid. 82 Ibid at 156-57. 83 Ibid.

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year-old injustice a value, because it would cost Canadians the standards and comforts they’ve

come to enjoy, therefore we need to distribute the resources through a democratic process based

on the existing demands and values of today. To be clear, Waldron presumes that assimilation

has already occurred, or that it can be legitimized through democracy and the rule of law. This

view states that Aboriginal people are, or will be once all is settled, essentially no different than

Canadians or any other minority when it comes time to dividing up the pie. They deserve a little

something for their troubles – perhaps as much as “white guilt” will allow – but not what a strict

application of the rule of law would require.

At this point, it is worth pointing out that if this theory sounds familiar, it is because it most

closely represents the prevailing view of the rule of law as it is being applied by the courts in

Canada. Largely, indigenous peoples have been left to organize and fend for their own interests.

They get some support in the way of subsidization from the federal government,84 there are

protocols put in place to negotiate their eventual assimilation85 and they have some support from

the courts by way of the implementation of procedural rights like the duty to consult.86 But all of

these substantive and procedural supports are carefully restricted in order to avoid a significant

disruption to the colonial reality they – government, courts and indigenous peoples – have been

forced by natural duty to contend with. Thus, there is no surprise in acknowledging that the

democratic positivist view also resonates with the prevailing view among many Canadians, but it

can hardly qualify as justice.

Common-Law Judge: The rule of law should declare Canada’s laws invalid

84 Mostly this takes the form of financial distributions through the Indian Act, or by way of a loan against the value of their rights when they are finally determined through negotiations. 85 See generally: Aboriginal Affairs and Northern Development Canada, “Land Claims” (2010) online: <http://www.aadnc-aandc.gc.ca/eng/1100100030285/1100100030289>. 86 Haida Nation, supra note 23. As will be discussed later on, the duty to consult has been called a tool of assimilation.

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This argument has strong traction amongst those who are most critical of the failure of the law to

adequately redress the injustice of Aboriginal peoples. I use, as an example, the following

statements from the compelling argument brought by John Borrows:

Regardless of the challenges a judge may encounter in questioning assertions of Crown sovereignty, his or her decision cannot be based on a numeric tally of public opinion… Any judge who reviewed the assertion of sovereignty over Aboriginal peoples would be expected to do so in an impartial manner, without bias or a predisposition as to the result. The fair and equitable application of the rule of law demands strict adherence to this standard. … The courts must combine the principles of federalism, democracy, the rule of law, and the protection of minorities to assess the legality and legitimacy of Canada’s assertions with respect to Aboriginal peoples. If the courts agree with the conclusions suggested in this chapter, then Canada’s laws should be declared invalid, though enforceable, by the application of the rule of law until the parties resolve this situation through negotiation, participation and consent.87

This argument demonstrates a morally infused idea of law that empowers judges to make

decisions of principle;88 to reach beyond what the law has articulated before, and make law from

a position that is insulated from the complexities of policy and popular influence and is focused

on what justice means for the rights of the parties.89 But, there are limitations to this view and

they are reflected in the overriding obligation for judges, which ascribe to any theory of the rule

of law, to maintain order, not just legal order, but order in the sense of not dis-order.90

Put simply, whatever a strict application of the rule of law requires – whether it be upholding the

unilateral assertion of sovereignty and title by the Crown, or a declaration by the court that that

87 Borrows, 2002, supra note 69 at 121-22 & 135. 88 This combines, in my view, some of the modern conception of natural law expressed by Fuller, with regards to a procedural-focus and the “internal morality” of law, and the interpretation approach that Dworkin takes. See: Lon Fuller, “Positivism and fidelity to law–A reply to Professor Hart” (1957) 71 Harv L Rev 630; --- & Kenneth I Winston, “The forms and limits of adjudication” (1978) 92:2 Harv L Rev 353; Ronald M Dworkin, “The Elusive Morality of Law” (1965) 10 Vill L Rev 631. 89 Ronald Dworkin, “Hard cases” (1975) Harv L Rev 1057 at 1061. ---, “The Model of Rules” (1967) 35 U Chi L Rev 14. (This refers specifically to Dworkin’s distinction between principle and policy as it relates to the judge’s role in deciding so called “hard cases” where the law, be it positive or moral law, appears to provide no clear answer and thus requires the judge to look elsewhere in order to make a decision.) 90 Re Manitoba Language Rights, supra note 13.

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assertion is illegal followed by an order for the reinstatement of sovereignty and title for

indigenous peoples, or at the very least a court-ordered process towards that end (i.e. the honour

of the Crown and duty to consult) – that requirement is limited by what would realistically

transpire on the ground. As we saw in our opening discussion of Re Manitoba Language Rights,

the common law judge has the power to hold a government or a society accountable when they

are not conforming to the rule of law, and they can ascribe time-limits for compliance, but they

cannot force them to change.91 This limitation of the judge also demonstrates how important the

relationship between democracy and the rule of law is; people, ultimately have the ability to

consent or dissent to the demands of the law as they go about their lives.92

The limitations of this theory are best illustrated through application. What follows is a brief

analysis of two precedent setting cases where society and legality violently collide.

R v Marshall #1 & #2: Implementing reconciliation is easier declared than achieved

A good example of the limitation of the rule of law in the Aboriginal rights context can be seen

in the events surrounding the Supreme Court of Canada’s decision in R v Marshall.93 In that

case, the Court found that the Mi’kmaq people in Nova Scotia had, and could rely on a treaty

right “to continue to provide for their own sustenance by taking the products of their hunting,

fishing and other gathering activities, and trading for what in 1760 was termed ‘necessaries’.”94

The judgement sparked chaos as some Mi’kmaq fishers took to the waters and began fishing out

of season, which lead to unrest among non-Aboriginal fishers and conservation officers and

91 To be clear, Borrows does address the doctrine of necessity in his argument, but his conclusion asserts justice through reconciliation, which as we have discussed briefly and will discuss more in-depth below, depends on the presumption that Aboriginal peoples are properly constituted. 92 This point alludes to a theory about consent and dissent to the law that is articulated by TRS Allan. I will explain this in greater detail in PART III. See: TRS Allan, “Citizenship and Obligation: Civil Disobedience and Civil Dissent” (1996) 55 Cambridge LJ 89 [Allan]. 93 R v Marshall, [1999] 3 SCR 456 [Marshall #1] 94 Ibid at 4.

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quickly escalated into violence.95 For administrators (the Department of Fisheries and Oceans),

the decision caught them off-guard, and over 10 years later, they are still finding a way to

implement the decision, to implement a court-ordered reconciliation of Mi’kmaq and non-

Aboriginal fishers over a single resource.96 There are strong disconnects between the court and

the modern administrative state, but those complications aside, the fundamental problem was not

a delay or unpreparedness to administrate a court order, it was the rejection of that order by the

majority of the affected population. The majority rejected the court’s definition of justice in this

case and took matters into their own hands. This “democratic” backlash forced the court to

clarify its reasons in Marshall #2.97 The issue was that justification for limiting the treaty right

had not been dealt with. The Court states, “[u]ntil adoption of the Constitution Act, 1982, the

appellant would clearly have been subject to regulations under the federal Fisheries Act and

predecessor enactments in the same way and to the same extent as members of the applicant

Coalition unless given a regulatory exemption as a matter of government policy.”98 The Court

makes it clear why the constitution changes that stating:

[T]he framers of the Constitution caused existing aboriginal and treaty rights to be entrenched in s. 35 of the Constitution Act, 1982. This gave constitutional status to rights that were previously vulnerable to unilateral extinguishment. The constitutional language necessarily included the 1760-61 treaties, and did not, on its face, refer expressly to a power to regulate.99

From there, the Court applies precedent and expressly reads the power to regulate into the treaty

right it had recognized only months earlier. Thus, the effect of the common law approach in

Marshall #1, resulted in a democratic backlash on the ground that gave rise to Marshall #2 and

95 Brian McLaughlin, “Implementing Reconciliation: The Marshall Case” (Paper delivered at the CLEBC Aboriginal Law Conference, Vancouver, June 2010), (Vancouver: CLEBC, 2010) at 5.1. 96 Ibid. 97 R v Marshall, [1999] 3 SCR 533 [Marshall #2]. 98 Ibid at para 5. 99 Ibid at para 6.

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effectively a situation where the Mi’kmaq are again effectively “subject to regulations under the

federal Fisheries Act and predecessor enactments in the same way and to the same extent as

members of [all Canadians] unless given a regulatory exemption as a matter of government

policy.” Of course, the forces that shape government policy, and apparently the Court’s rulings,

reside in the majority of the electorate who, as discussed, are bias against Aboriginal peoples.

One could only imagine what things would look like if this approach was used to decide

sovereignty or ownership rights that applied across the country. However, this approach was

used to craft the duty to consult in Haida Nation, which presumes that such an eventual decision

about sovereignty and ownership will have to take place. Now, through this common law

mechanism the implementation of reconciliation is already taking place across the country and a

clear problem is quickly emerging: precisely who are Canadian governments reconciling with?

Behn v Moulton: Ignoring the chaos, assuming the ideal

The problem of who was the central issue in Behn where a group from the Fort Nelson First

Nation blockaded a logging company from harvesting timber in their territories. 100 In their

defence to the tort action that followed, the Behns argued that the timber licences had been

issued without adequate consultation. The Court ruled that there was insufficient evidence to

support a finding that the Fort Nelson First Nation had granted the Behns the authority to

represent them. 101 In other words, the Court rejected whatever concept of democracy and

executive power the Fort Nelson First Nation ascribe to, because they could not find evidence of

any mechanism for representative capacity that met the normative standards of Canadian law.

This creates a fundamental problem for a court ordered process of reconciliation because it does

not consider, or simply ignores, the reality that indigenous societies and institutions, like those of 100 Behn v Moulton Contracting Ltd, 2013 SCC 26 [Behn]. 101 Ibid at para 31.

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the Secwepemc people who we discussed in the foreword, are still in a state of chaos and

disorder, and continue to be in that state so long as the Constitution for them remains temporarily

suspended. The Court’s ruling on this issue, the doctrine of the duty to consult and the project of

reconciliation which is the interpreted purpose of constitutionalizing Aboriginal and treaty rights

assumes that the democratic institutions, both Canadian and Aboriginal, are in order, when the

reality is far from.

Because the vehicle for analysis in this discussion is blockades, it must be addressed that the

impact of Behn on the doctrine of the duty to consult and the purpose of reconciliation is very

problematic for blockades because the Court rules that the Behns’ defense constituted an abuse

of process. The Court’s reasons on this issue describe how the Court’s underlying assumption

continues to fundamentally confuse the practical application of the duty to consult and their

doctrinal tests for treaty rights:

[R]aising a breach of the duty to consult and of treaty rights as a defence was an abuse of process. If the Behns were of the view that they had standing, themselves or through the FNFN, they should have raised the issue at the appropriate time. Neither the Behns nor the FNFN had made any attempt to legally challenge the Authorizations when the British Columbia government granted them.102

Implicit in this reasoning is the assumption that Aboriginal peoples are properly constituted,

which also entails the presumption that their democratic institutions are capable of facilitating

endless consultation in the pursuit of reconciliation. Thus, in the Court’s view, the tactic of

blockading that the Behns’ resorted to was not only an illegal act, but it was an undemocratic one

as well. As the Court sees it, the blockade subverted both democracy and the rule of law.

Reconciliation and Assumptions: The common limitation with these two theories

102 Ibid at para 37.

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As we have pointed out, both of the prevailing theories are incomplete in the sense that, justice,

for each, is going to take the same path, reconciliation, and both theories take it for granted –

incorrectly, in my view and as I have attempted to demonstrate – that Canadians and Aboriginal

peoples are ready to start on that path. There is no explanation, in either theory, for this

assumption, nor is there an explanation as to how the rule of law should deal with prevailing

colonial attitudes that are resistant to a reconciliation that does more than just assimilate

indigenous peoples into the dominant order. Nowhere is it made apparent in either of these

theories that reconciliation requires first, or finally results in, the decolonization of indigenous

peoples in accordance with the standards of international law. 103 Both theories rely on the

assumption that evoking the notions of “democracy” or the “rule of law” gives rise to the

necessary conditions to begin a process of reconciliation on the ground.

As we saw in our review of judicial and public reaction to Aboriginal blockades, Waldron’s

argument for redress, Borrows’ argument for judicial accountability, and the Marshall and Behn

cases, neither theory when actually applied results in the conditions that make reconciliation

possible on the ground. In fact, one might argue – as this paper will – that it does more harm than

good; that it incites those who continue to be oppressed to resort to mechanisms outside of

Canadian law and democracy. I will make this argument in PART IV and examine why the term

“reconciliation” is itself problematic when one challenges the particular assumptions – some we

have already identified – that are underlying its definition. In order to fully discuss this problem

and its relevance to Aboriginal blockades, the full theoretical framework must be developed. Still

outstanding in this discussion is the issue of whether law, as a mechanism, has a role in

refereeing the free and democratic discussion about what the “rule of law” should mean and how

103 See: The UN Conventions and UNDRIP, supra note 35.

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it should be used. Initially this problem seemed incorrigible, and our resort to the prevailing

theories failed to proffer an acceptable explanation. Justice for Aboriginal peoples, it seems,

cannot be won through democracy, and cannot be won through the courts. Either justice for

Aboriginal peoples simply cannot be achieved, or there is another theory, a third way, that

explains how to get there. That way, I believe, is explained through the relationship between

democracy and the rule of law.

Democracy and the Rule of Law: Revealing society’s true nature

The limitations of democracy and the rule of law that emerged above are explained by looking at

the relationship between the two. David Dyzenhaus has thoroughly examined this complicated

relationship through his case studies on South African apartheid.104 His findings help to explain

the specific limitations that seem to frustrate the path to justice. They offer insight into the role

that the rule of law has in revealing the true nature of a democratic society and the natural

limitations that both the rule of law and democracy have in controlling the other. Recall, that the

democratic positivist view is limited for our purposes because it fails to account for a widespread

bias in Canadian society and the continuation of other prevailing colonial laws and institutional

shortcomings that hinder the typical democratic paths to enacting law and pursuing justice. The

limitation here is addressed by realizing that Canada’s legislative institutions are insufficiently

democratic and therefore do not enjoy the complete right to Parliamentary supremacy in

accordance with the rule of law. To recall and summarize Dyzenhaus’ main conclusion on this

point:

[A] Parliament like that of apartheid South Africa can have all of the formal trappings of a Parliament in a Westminster-style democracy and issue laws that

104 David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2nd ed (Oxford: OUP, 2010) [Dyzenhaus, 2010]; David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Hart Publishing, 1998).

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have the blessing of the electorate and which undermine legality. And the problem here cannot be confined to the context of a country in which only a small part of the adult population is enfranchised, for it has occurred and is occurring in the most stable liberal democracies of the West. … [T]hose who joined a political struggle to achieve full rights of political participation for all South Africans were subject to constraints and measures regarded as unjustifiable and abhorrent in Western democracies. … Thus, while the general political situation of liberal democracy hardly existed in South Africa in the arena of parliamentary politics, the law held a bare promise of such a situation for those engaged in extraparliamentary politics. … The drama of apartheid South Africa was then in part explained by the strange mixture of Western traditions associated with liberal democracy and the exclusion from those traditions of most of the population.105

In South Africa, race-based suffrage excluded blacks from the democratic process. This was an

obvious insufficiency for democracy that undermined Parliament’s right to legislative

supremacy, which is something the judiciary was often deferential to when adjudicating

apartheid laws. But as Dyzenhaus finds, the problem for the rule of law was broader than race-

based suffrage and included holding out the “bare promise” that law held for those struggling

against apartheid by other means.

Comparably, Indigenous peoples in Canada have experienced similar struggles to black South

Africans under apartheid, most notably: race-based suffrage until 1960; reserves – similar to

bantustans, which were kept economically poor to serve as sources of cheap labour (a situation

not unfamiliar to many indigenous communities in the North, or other urban communities); the

Indian Act which largely maintains a slightly less noticeable system of segregation; and also the

prohibitions on spiritual, cultural and other traditional practices discussed earlier. It is true that

some of these discriminatory laws no longer exist, but their impacts continue to resonate in

105 Dyzenhaus, 2010, ibid at 292-93. (Emphasis added.)

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nearly every measurable social aspect.106 In my view, the cumulative-effect of these impacts

combined with unchallenged colonial-based laws and the widespread bias are enough to show

that democracy in Canada is insufficient for indigenous peoples.

So, if democracy is insufficient and Parliament cannot be relied upon to enact positive laws that

will properly address injustice, then one might gravitate towards the role of the independent

judiciary and their ability to “question the actions of the other branches of government as

required when an action is brought before them.” 107 However, as discussed, this theory

disconnects the limitations of such a declaration with its practical implementation. Here,

Dyzenhaus reconciles the limitations of the judiciary in the face of an insufficient democracy

with what it is that common law judges can do in wicked legal systems:

Judges are not revolutionaries. They are committed to upholding legal order to upholding in some sense the status quo. And the case-study shows that the status quo of South Africa was such that ideals which liberal lawyers associated with legal order either were heavily compromised or found next to no political purchase. But, as the case-study also showed, it mattered a great deal both that there was a legal order and that judges were committed to upholding the rule of law. Even the commitment of plain fact judges mattered in this regard, as their willingness to uphold rule by law helped to maintain the possibility for the rule of law to be realized by judges who adopted the common law approach. A judiciary composed of common law judges could have made an even better attempt to force the National Party government to live up to its claims that apartheid South Africa was a democracy, observed the rule of law, and so on. The resources it would have used are those provided by the bare data which we associate with the Western legal tradition. Such a judiciary might have succeeded to some extent and for some time in providing space for legal, extraparliamentary opposition. The probable result would have been that the different governments which have participated in the systematic oppression of the majority of South Africans during the last century would have decided to make do without the rule

106 See for example: Daniel Wilson and David Macdonald, The Income Gap between Aboriginal Peoples and the Rest of Canada (Ottawa: CCPA, 2010). (This study examines several sources, and dispels many myths, that cause the persistent poverty that Aboriginal peoples experience in relation to Canadians.) 107 Borrows, 2002, supra note 69 at 120.

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of law. But this would have made it clearer to the world and to South Africans what the nature of South African society was.108

The last point clearly explains the relationship between democracy and the rule of law, their

inherent limitations, and what the latter’s role is in regards to the former. Where democracy is

insufficient because discriminatory or oppressive ideologies continue to prevail, the rule of law

does two things: 1) It maintains order in society, preventing civil war, and therefore holds out the

“bare promise” to those struggling against oppression that the society will be intact when that

oppression is finally vanquished; 2) The content of this “bare promise” is to confront the

oppressive ideologies and make it clearer to society and the world what the true nature of the

oppressive society is.

Instead of the “bare promise” Aboriginal peoples have been given “reconciliation” which as we

will discuss in PART IV, is not the same thing and may be its exact opposite. This is where

Aboriginal blockades, as acts carried out by indigenous people on behalf of indigenous

democratic institutions, in accordance with indigenous legal orders, find their legality, their right

of necessity, their right to struggle to maintain the rule of law as it is defined in their own

societies. This is where the executive power of indigenous institutions is being exercised to make

sure the Canadian constitution does not create any more chaos or disorder in their societies.

Aboriginal blockades in Canada expose the limitations, and the willingness, not only of the rule

of law, but of democracy to confront the ongoing, and unrelenting impacts of colonialism in

Aboriginal societies. Aboriginal blockades are an expression of the rule of law that is being

resisted and supressed by prevailing colonialism.

108 Dyzenhaus, 2010, supra note 104 at 293. (Emphasis added.)

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PART III | Civil Disobedience or Sovereign Expression: Dissent and assertion in a wicked legal system

The unique thing about Aboriginal blockades in Canadian society is that they can be seen as

actions sourced in indigenous law and governance, but they are also expressions in the

democratic discourse. In the last section, we discussed how the legal aspect of Aboriginal

blockades could be explained. That there are various theories that seek to explain the rule of law

demonstrates that law is conversation. Part of this conversation takes place in the judiciary where

plain-fact judges contrast with activist judges. In this section we seek to explain the expression

aspect of Aboriginal blockades within the explanation of the rule of law discussed above.

Connecting these two explanations provides us with the theoretical framework needed to fully

discuss the problem with reconciliation and how Aboriginal blockades relate to the continuing

struggle that must be acknowledged.

TRS Allan makes a brilliant argument that “[t]he freedom to advocate rebellion, and to justify

our disobedience, is implicit in a proper understanding of the ideal of the rule of law.”109 His

argument is rooted in the natural law theories of Dworkin and Fuller, yet incorporates the

political theories of the positivist Joseph Raz. Although brilliant, Allan’s theory is limited in its

explanation of Aboriginal blockades because it requires, like the other theories, that the

government is constitutional, democracy is not compromised and therefore the rule of law is

capable of guaranteeing a forum where disagreement and negotiation and indeed even

reconciliation are possible. 110 These are the traditions of the Western theories, and as

Dyzenhaus’ theory explains, where a group is excluded from some of those traditions, the role of

the rule of law should be to expose the insufficiencies of democracy and governance. 109 Allan, supra note 92. 110 This assumption is plain in the title of Allan’s article. The use of the word “Citizenship” presumes enfranchisement, which is something that both Black South Africans and Aboriginal peoples, do not enjoy to the same extent as their White counterparts. Ibid.

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Applying this theory, the argument made above was that not only do Aboriginal blockades

expose the insufficiencies and limitations of Canadian democracy and governance, but that they

are a physical expression of existing indigenous legal orders, indigenous governance and

indigenous democracy. If we can see Aboriginal blockaders as capable of representing

indigenous institutions, then we should be able to compare them to representatives of non-

indigenous institutions. Combining Allan and Dyzenhaus’ theories allows us to situate

Aboriginal institutions within the proper role of the rule of law in a wicked legal system by

comparing the common law (activist) judge and the Aboriginal blockader. In Dyzenhaus’ theory

the activist judge not only had a responsibility to maintain order (because failing to do so

extinguished hope for the oppressed), but also to expose the resistance of the government to

conform to the rule of law. Here, the Aboriginal institutions have a similar duty to maintain or

establish order in indigenous society, to keep the “bare promise” intact, and to expose the

government’s resistance to conform to the rule of law. Like the judge, who is independent from

government and insulated from the politics of majoritarian democracy, so too must indigenous

institutions be seen if they are to be free to fulfill their role. But if Aboriginal institutions have

this legal role to play, then how can their expression be explained and properly situated within a

theory of democracy and the rule of law? Once the initial limitation is addressed, Allan’s

argument for the importance of civil disobedience to the rule of law is of great utility for making

the necessary connection between the Aboriginal institution that, for now, exists independently

of the constituted system, and the Aboriginal blockader who is an expression of that institution

within the wicked legal system.

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Civil disobedience and the rule of law

Allan’s argument rests on the underlying principle that, “government, if constitutional and

legitimate, should be government by consent.”111 ––– To be clear again on this point, this is the

starting assumption that upholds all the theories, and prevailing views, about the rule of law we

have discussed so far. This assumption does not properly exist in a wicked legal system. In a

wicked legal system, the oppressed part of society has been excluded from at least some of the

Western traditions of a liberal democracy. Where this is the case, Dyzenhaus’ explanation for the

distinction between rule by law and rule of law112 forms the new basis for conceptualizing the

relationship between Aboriginal institutions and Aboriginal blockades. Both, under Allan’s

theory, are entitled to exercise consent and dissent. In other words, to make Allan’s theory

relevant we must begin by understanding that the expressions of Aboriginal institutions can be

justified within the “liberal” paradigm without displacing, modifying or fitting the institutions

under the liberal democratic framework itself. ––– For Allan, the idea of government by consent

can be understood as “government by consent of a majority” or for the individual through “an

interpretation of the ideal of the rule of law, according to which each member of society is

encouraged to treat legal requirements as a source of genuine moral obligations – obligations

which he freely accepts, defined or imposed by laws to which he assents.”113 Therefore, “legal

obligation and authority invoke an ideal of individual moral responsibility which illuminates the

nature of citizenship in a constitutional regime. In assenting to the laws, when he judges it

111 Ibid at 89. 112 Dyzenhaus’ full theoretical explanation cannot be paraphrased here with any brevity. Nonetheless, its application to South African apartheid reaches the outcomes summarized above. See generally: Dyzenhaus, 2010, supra note 104 at ch 9. (This chapter called, “Rule by Law/Rule of Law” examines the theoretical support for the distinction in a wicked legal system, considering the positivists critique of both Dworkin’s interpretive view that moral principles underpin positive law and Fuller’s view that the law must comply with principles of the internal morality of law. Recall, Dyzenhaus’ case study showed that “the apartheid legislature made it ever more clear that it intended either to deprive the common law approach of its basis in legal tradition or to exclude it altogether.” Ibid at 224. 113 Allan, supra note 92 at 89. Like Dyzenhaus, Allan also makes reference to Joseph Raz’s political theory. See: Raz, supra note 70.

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appropriate, the conscientious citizen acknowledges the reasonable requirements of the common

good.” 114 Thus far, what Allan has described are the individual guarantees, and justifiable

limitations of the Western liberal tradition very much like those which are enshrined in the

Charter.115 Civil disobedience in this context, Allan says, should then be understood “in the

sense of refusal to comply with unjust requirements, as the withholding or denial of assent. It is

the necessary counterpart of the ideal of voluntary acceptance which the rule of law

enshrines.”116 Drawing from the natural law perspective, Allan challenges the positivist view of

legal obligations and argues that morality is properly the source for justifying civil disobedience:

[I]f [law] is to be capable of generating obligations as opposed to mere demands for compliance, [it] must share the autonomy of moral deliberation. … Legal obligation is therefore to be understood as a species of moral obligation, entitled to moral weight, even though there may sometimes be countervailing moral reasons for disobedience. … The conscientious citizen treats the rules enacted or enforced as imposing genuine obligations on account of the moral reasons he acknowledges for accepting authority. He accepts the rules as sources of legal obligation (rather than merely as commands coupled with the threat of penalties for disobedience) because he attributes moral legitimacy to the exercise of (properly constituted) authority. It is not part of the ideal of the rule of law, however, that the citizen's deference to authority should be unqualified; such unqualified deference would clearly violate the principle of moral responsibility at the heart of that ideal. While governments

114 Ibid at 90. 115 While the Charter is a liberal-based framework, it arguably contains the mechanism for conceptualizing indigenous institutions within it. Section 25 of the Charter states:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

I have argued in a previous paper that s. 25 – which most commentators and the small amount of jurisprudence that has interpreted the section seem to agree is properly interpreted as a “shield” – should further be interpreted as protecting indigenous sovereignty, governance, laws and institutions, for all of those things were necessary and intact at the time of the Royal Proclamation of 1763, indeed they were the motivation for the European powers to make treaties, and their “protection” was secured by that document and is now enshrined under the Charter. The fact that between 1763 and 1982, colonialism laid to ruin those institutions, does not dissolve the constitutional promise they were offered. 116 Ibid (emphasis in the original).

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may often claim unlimited authority, it does not follow that their subjects should accept it.117

Notably, Allan is careful to point out that his argument rests on authority being “properly

constituted” as opposed to “commands coupled with the threat of penal sanctions”. This is where

we see similarities to Dyzenhaus’ distinction between rule by law and rule of law. This similarity

allows us to situate the Aboriginal blockader, as an expression of dissent from the Aboriginal

institution, within the proper role of the rule of law in a wicked legal system. For Dyzenhaus, the

plain-fact judge maintains legal order through deference; the common law judge maintains legal

order, but has the capacity, or even the duty, to challenge the wickedness of Parliament to

conform to the rule of law or reject it.

We can apply this same dichotomy of prevailing views to how individuals in a liberal paradigm

apply the rule of law. There are positivists who obey the letter of the law without question out of

deference to the democratic process, and there are moralists who will question the law when it

conflicts with their morality at which point they will consider if they are justified in disobeying

it. Allan argues the latter view is important to a functioning democracy because “[a]ssertion of

the dissentient's view reveals the basis and sincerity of his resistance and encourages a similar

exercise of judgment and discrimination on the part of other citizens.”118 Thus, like the common

law judge in Dyzenhaus’ theory, the dissenting expression of the Aboriginal institution relies on

the rule of law to reveal actions that they consider to be in contradiction to the rule of law.

Situating Aboriginal blockades within the liberal democratic paradigm, what then are the

parameters for civil disobedience? What actions expose the wicked legal system, and what

actions go so far as to create disorder and undermine the “bare promise”? Allan states:

117 Ibid at 93-97. (Emphasis added.) 118 Ibid at 115-16.

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It is true that advocacy of revolution, as a desirable political goal, deserves protection; and even speech urging law-breaking as a means of protest should sometimes be permitted, or go unpunished, where the speaker is sincere and the risk of consequent harm to others is small. But the suppression of speech which amounts, in substance, to a denial of legal obligation expressing reasons of conscience for resistance to illegitimate demands-- endangers the rule of law.119

In Allan’s view, the violent suppression of Aboriginal blockades, as a form of expression from

Aboriginal institutions, that assert in most cases a denial of Parliamentary supremacy (on the

grounds that it is democratically insufficient) and the legitimacy of the Provincial authority to

grant property interests in land or resources that rightfully belong to those Aboriginal peoples

under the Canadian legal order, to be endangering the rule of law.

Even in a normal legal system, Aboriginal blockades would be protected as a sui generis form of

civil disobedience because they would combine the same liberal rights as any other of Allan’s

“citizens”, with the sui generis constitutional rights under ss. 25 and 35 of the Constitution Act,

1982. However, as Dyzenhaus’ theory demonstrates, Aboriginal blockades are not properly

considered a form of civil disobedience, because those who engage in them are not properly

constituted. They are expressions from Aboriginal institutions that are defiantly challenging a

Parliament and a Legislature that is resisting conformity with the rule of law when negotiating,

or not negotiating. They are reactions to a jurisprudence that tells them they are not recognizable

as institutions because there was insufficient evidence to prove the existence of a recognizable

indigenous institution. They are reactions to legal doctrines that have turned them away from a

legal recognition and enforcement of their constitutional rights, and back to the negotiating table

to deal with a government and a society that refuses to decolonize in any meaningful way. They

are symptomatic of a democracy that is badly compromised by prevailing ideologies, widespread

racism and statistical inequality.

119 Ibid at 121. (Emphasis added).

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Historically the colonial law locked them in a fictional legal prison, and every door and window

that might allow them to advance their notion of justice was closed. Now, society has discovered

that there is wealth under the prison, so the roof and walls of the prison are being taken down.

However, there are still indigenous peoples who are determined to stand their ground. They have

been excluded from the “Western traditions associated with liberal democracy” 120 and are

speaking from the only institutions left that are capable of holding the “bare promise” of law,

their own. Drawing from what is left of their traditions, repurposing the colonial tools of their

prison and bolstering their confidence and demands with international standards, today’s

Aboriginal blockades are expressions from a resurgence of indigenous institutions. They are

fulfilling their role in exposing the resistance of Canada while trying to maintain a rule of law in

this country that Canada has been struggling for centuries to destroy. Struggle, not reconciliation

is the constitutional period we are in, and Aboriginal blockades are clear evidence of that.

PART IV | Acknowledging the paradigm of struggle

This discussion began by realizing that there is a true conflict created between colonialism

expressed through ss. 91 and 92 of the Constitution Act, 1867; and the rights of Aboriginal

peoples expressed through s. 35(1) of the Constitution Act, 1982. If faithfully applied, as John

Borrows argues, the rule of law would indeed create chaos and disorder for the Canadian society

and legal system in accordance with the principle articulated in Re Manitoba Language Rights.

When put into context, it seems obvious that the courts, faced with the unenviable challenge of

avoiding chaos and preserving the rule of law in Canada, have been shaping Aboriginal rights

for over 30 years in accordance with this principle.121 They have relied on this legal fiction to the

120 Recalling Dyzenhaus’ point at supra note 104. 121 This tension was readily on display during the recent SCC hearing on the Tsilhqot’in title case. For example, in their submissions, and in their factum, the intervener the Business Council of British Columbia, used the chaos

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extent that the jurisprudence has led naturally back towards negotiation; but has the fictional

“state of emergency” passed? Or is it still in effect? What justifies the seemingly indefinite

extension on the temporary suspension of the rule of law as it relates to Aboriginal rights, as it

relates to the Secwepemc struggle as described in the opening foreword?

According to Chief Justice Beverly McLachlin, we have been in a period of “reconciliation”

since 1996 when the Supreme Court of Canada decided Van der Peet.122 Reconciliation is now

the mantra guiding the jurisprudence, legislation and policy that is shaping Aboriginal rights all

over the country. As to the justification for its practical application in society, McLachlin states:

We have grown up together and shaped each other in myriad incalculable ways. It is too late to separate. We have no choice but to live together and reconcile our differences. Reconciliation is founded on an ideal of equality and mutual respect. It eschews discrimination in all its forms. In this sense, it takes us back to the early relations between Europeans and First Nations, and our initial historic phase of cooperation based on mutual need and respect.123

Here, Waldron’s argument for redress is obvious in the language “we have no choice”. But,

while the Crown and all its agents may be trying to apply these ideals through their analysis and

reasoning, in the real world, where the recognition of a Mi’kmaq right to fish incites violence

with non-Aboriginals and a decade of bureaucratic confusion, none of these ideals are being

genuinely implemented. In the real world, where presumably decent and reasonable subjects of

the Crown react to an Aboriginal blockade with vitriolic rhetoric that espouses racism and

denigrates the ideals of equality and mutual respect; is “reconciliation” the appropriate

description for the period that Aboriginal peoples and Canadians find themselves in?

principle to argue that, “to declare that provincial laws are inapplicable would lead to confusion and litigation and would create a barrier to reconciliation.” See: William v British Columbia (7 November 2013), Canada 34986 (SCC) (Factum of the Intervener at para 20). 122 McLachlin, supra note 37. 123 Ibid. (Emphasis added).

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Whatever term is used to describe this period, for the Secwepemc in B.C., the Unist’ot’en in

Northern BC, the Mi’kmaq in the Maritimes, the Algonquin in Ontario, the Dene in the North,

and the Cree in the Plains, as long as the constitution continues to be temporarily suspended with

regards to their Aboriginal rights, they are not duly constituted and their societies persist in a

state of chaos and disorder. Canada, meanwhile, can rely on the doctrine of necessity and claim

to be in a “state of emergency” until its laws are brought into conformity with the constitution,

but the indigenous societies are somehow excluded from relying on the same. Recalling

Dyzenhaus’ theory, Canada is a wicked legal system akin to South African apartheid; the only

difference is that indigenous peoples have not been banished to Robben Island, 124 they are

imprisoned in the colonial identity that has been imposed on them. We know what the rule of law

should be doing; the question is: what is the rule of law actually doing about it?

Legal Fictions and the Big Lie

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. Nearly 150 years ago, they looked beyond narrow self-interest. They faced down incredible challenges—geographic, military, and economic. 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 have otherwise existed.125

Would it be a misstatement to say that Canada’s exclusive ownership and sovereignty are

founded and perpetuated on a Big Lie?126 Of course, in the pejorative sense as I am referring to

124 For over 300 years, Robben Island was used by colonial powers to imprison indigenous leaders and political prisoners such as “anti-apartheid activists, including South Africa's first democratic President, Nelson Rolihlahla Mandela.” See: Robben Island Museum, History of Robben Island, online: <http://www.robben-island.org.za/>. 125 Canada, Governor General, Seizing Canada’s Moment Prosperity and Opportunity in an Uncertain World: Speech From the Throne (16 October 2013) (Ottawa: Her Majesty the Queen in Right of Canada, 2013) online: <http://speech.gc.ca/>. 126 The “big lie” is something of a maxim of propaganda. It was famously employed by George Orwell in his classic novel 1984, but the “big lie” had a notorious use in the Nazi regime, most prominently by Adolf Hitler and Joseph Goebbels. For example, see: Joseph Goebbels, “Churchill’s Lie Factory” (12 January 1941) Die Zeit ohne Beispiel (Munich: Zentralverlag der NSDAP, 1941), 364-369, online: German Propaganda Archive: Nazi Propaganda:

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here, it would certainly sound polemic, but would it be incorrect? I am not at all convinced that it

would be, because if the connection between democracy and the rule of law is as important as we

have discussed, then I have great difficulties in separating propaganda – i.e. myths or false

statements told and relied on repeatedly, usually by a government to their people, to advance and

justify some nationalist ideology or agenda – from the multiplicity of legal fictions that have

been interwoven into the legal order, especially where it concerns Aboriginal rights.

The prominent legal positivist, Jeremy Bentham was visceral in his attacks on legal fictions in

English law and dedicated several chapters to this cause.127 Bentham said, “What you have been

doing by the fiction,— could you, or could you not, have done it without the fiction? If not, your

fiction is a wicked lie: if yes, a foolish one… Fiction of use to justice? Exactly as swindling is to

trade.”128 When employed by the dominant regime, Bentham found that a legal fiction, “affords

presumptive and conclusive evidence of:

… the mischievousness of the act of power in support of which it is employed. … moral turpitude in those by whom it was invented and first employed. … moral turpitude on the part of all those functionaries, and their supporters, by whom it continues to be employed. … intellectual weakness, stupidity, and servility, in every nation by which the use of it is quietly endured.129

Bentham’s points resonate greatly with the colonial relationship; however, they are fuelled by a

strong commitment to a clear separation between morality and law. Seeking a broader view, both

moralists and positivists alike have come to the defence of legal fictions in more modern times.

1933-1945 <http://www.calvin.edu/academic/cas/gpa/goeb29.htm>. (In this classic piece of propaganda, Goebbels writes, “The English follow the principle that when one lies, one should lie big, and stick to it. They keep up their lies, even at the risk of looking ridiculous.”). 127 Jeremy Bentham, The Works, vol 1-11 (Edinburgh: William Tait, 1838-1843). Online: <http://oll.libertyfund.org/title/1999/131328>. 128 Ibid, vol 7, ch XVIII 129 Ibid, vol 9, ch XII. (In the actual text, Bentham repeats the first line for each listed phrase. It has been excerpted here for length.)

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A.V. Dicey argued they were a tool for judges and lawyers, justified on grounds of necessity

(ironically enough), saying:

The fictions of the Courts have in the hands of lawyers such as Coke served the cause both of justice and of freedom, and served it when it could have been defended by no other weapons. For there are social conditions under which legal fictions or subtleties afford the sole means of establishing that rule of equal and settled law which is the true basis of English civilisation.130

Putting this statement in the context of history, and reflecting on our brief review of Kipling,

Orwell, and postcolonial theory, one might want to avoid presuming that the prevailing notion of

“establishing that rule of equal and settled law” should be taken at face value. Certainly the

language in this statement was freshly echoed in the biting words that Justice Cunningham

directed at the Algonquin blockader Robert Lovelace which we cited earlier. But, setting aside

the dangers of prevailing attitudes for a moment, which are about incorrect beliefs, not

necessarily about incorrect theory; is there any justification in what Dicey is saying?

For Lon Fuller, these “conceits of the legal imagination” can be woven into the law in “obvious

and guileless” ways, or subtly, “under the cover of such grammatical disguises as ‘the law

presumes,’ ‘it must be implied,’ ‘the plaintiff must be deemed,’ etc.” 131 Fuller found legal

fictions to be justified under two definitions: “(1) a statement propounded with a complete or

partial consciousness of its falsity, or (2) a false statement recognized as having utility.”132

However, there were some basic rules about the use of legal fictions saying a, “fiction becomes

130 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th ed (London: Macmillan, 1915) at 79 reprinted in the Liberty Classics edition, ed Roger E. Michener (Indianapolis: Liberty Fund, 1982) [Dicey] online: <http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1714&Itemid=27>. 131 Lon Fuller, Legal Fictions (Stanford: Stanford University Press, 1967) at 1. 132 Ibid at 9.

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wholly safe only when it is used with a complete consciousness of its falsity,” but “[a] fiction

taken seriously, i.e., ‘believed’ becomes dangerous.”133

In a recent treatment of legal fictions, Nancy Knauer 134 draws on Fuller’s analysis and

distinguishes more common sense legal fictions; like those used in tort or taxation where

financial terms like “foregone interest” must be adopted to make sense of a complex fabric of

legal relationships, from “abstract concepts, such as liberty, autonomy and sovereignty that are

not provable in any conventional sense of the term.”135 Notably, this latter category of legal

fictions forms the very bedrock of democracy and the rule of law. The first two are at the

foundation of every social cause and fundamental right in contemporary times and their necessity

may be justified. The third, however, is it necessary? In her analysis, Knauer closely examines

the cases that introduced the doctrine of discovery and the legal regime of slavery, two highly

contestable rules that are often described as legal fictions.136 As a professor of constitutional and

property law in the United States, Knauer remarks on how her first-year law students often react

to these judgements, denouncing them, as “‘racist ramblings’ that reflect a shameful period in

United States history.”137 To this Knauer cautions that:

[I]t is dangerous to dismiss these hateful sentiments as a mere fiction. These “ramblings” carried the force of law. They set forth the rationale for the enslavement and subordination of an entire class of people. Even if we believe that [the Justice’s] decision is filled with detestable racist lies, his lies are not

133 Ibid. 134 American scholar and Professor of Law at Temple University, who teaches Political and Civil Rights, Property, and Constitutional law, among others. 135 Nancy J Knauer, “Legal Fictions and Juristic Truth” (2010) St Thomas L Rev, at 8 online: <http://works.bepress.com/nancy_knauer/5/>. [Knauer]. 136 Ibid. 137 Ibid at 44.

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necessarily legal fictions because when one employs a legal fiction, there is no intent to deceive.138

The intention of deception is critical to distinguishing between a legal fiction and a Big Lie. For

Knauer this principle supports another distinction between a legal fiction and an “empirical legal

error [which is defined as occuring] when a legal rule is based on an inaccurate factual

supposition, the rule should be changed or modified provided the rule is valued for its veracity.

An empirical error does not qualify as a legal fiction.”139 Thus, the “racist ramblings” that fill the

pages of Johnson v. M'Intosh 140 and the endless reams of pages that have been filled by

academics who have taken direct aim at the obvert racism of Chief Justice Marshall, do not

qualify as a legal fiction. However, there was no empirical error either, for Knauer concludes that

Chief Justice Marshall’s declaration that, “Conquest gives a title which the Courts of the

conqueror cannot deny,” is the decisive rule, meaning the decision actually rests, “in the

constitutive power of the law... The doctrine of discovery exists because of the actions of the

sovereign.”141 In the end, the legal fiction that all land in Canada vests in the Sovereign is

justified by the legal fiction of sovereignty, but what justifies those legal fictions is the

assumption that all who are effected by them are properly constituted. The doctrine of discovery

is actually a triple-legal fiction!

The Paradigm of Reconciliation

In Canadian law, Crown sovereignty (the source of all legal authority) and Crown title (the

source of all land interests over which all legal authority governs) are well known legal fictions;

138 Ibid. (Emphasis added. This principle that Knauer uses, is explained earlier in her paper and is essentially a restatement of the principles set down by Fuller, that a legal fiction is only used when there is complete consciousness of its falsity.) 139 Ibid at 48. 140 Johnson v. M'Intosh (1823), 21 US (8 Wheat) 543. (This is the case that introduced the “doctrine of discovery” and has been adopted numerous times into Canadian Aboriginal jurisprudence to justify the Crown’s underlying sovereignty and title. 141 Knauer, supra note 135 at 49.

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to jurists and first-year law students. But, if the question was put to the majority of Canadians;

how many would be aware that: their houses, their farms, their businesses, their stock-interests in

corporations whose business might be in natural resource development, or merely the claiming of

possible resource interests for the sole purpose of trade based on speculation, etc… How many

Canadians are aware that all of those legal interests are justified by a multi-layered legal fiction?

If we applied Fuller’s basic rules to society’s view of the legal fictions that are the cornerstone of

democracy and the rule of law in Canada, would it pass the test? And even if they were told

about the legal fiction, of its necessity and its utility and warned them of the dangers to the rule

of law; would they care? What does our brief glimpse at the “rule of law” as a rhetorical

mechanism in reaction to Aboriginal blockades suggest? “That was such a long time ago, it’s

time to move forward” is probably the most often heard response to any questions and issues

about treaties and Aboriginal rights, never mind the more dynamic and visible expressions of

Aboriginal blockades. It is here that we see the important connection between democracy and the

rule of law, and the importance of the latter as a mechanism for refereeing debate in the former.

In Canada, the legal fictions have been told big enough and long enough that the majority of the

democratic society now believes them and when confronted with their falsity either rejects them

or gladly accepts their justification on the basis of some notion of utility and necessity. They say

in response to what the rule of law demands: “We have no choice but to live together and

reconcile our differences”; it’s time to reconcile the past with the present; “Let us face it, we are

all here to stay.”142

But what does “reconciliation” mean? To Canadians? To Aboriginals? To the rule of law? To

those Chief Justices of the highest court in the land who champion the goal? Reconciliation is not

142 Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 186.

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an unfamiliar term in Canadian law. The former Justice of the Supreme Court of Canada, Frank

Iacobucci explains how “[j]udges on a daily basis use a host of interpretive tools to harmonize

provisions of a statute or a contract which appear contradictory or incompatible.”143

Reconciliation in this sense is a specific legal fiction used by the courts to address conflict in all

areas of the law; including Aboriginal law. Recently the Court in Métis Federation reaffirmed

that, “the ultimate purpose of the honour of the Crown is the reconciliation of pre-existing

Aboriginal societies with the assertion of Crown sovereignty.”144 This use of reconciliation in the

Aboriginal rights context attracts much skepticism from Gordon Christie who captures quite

succinctly the dynamic forces involved in the reconciliation of Aboriginal rights with Crown

sovereignty:

The two forces pushing and pulling in different directions are: (1) the assimilative forces latent within the doctrine of Aboriginal rights and title (and especially powerful within the jurisprudence around the duties to consult and accommodate); and (2) the political forces that drive the Crown to resist working with those Aboriginal nations willing, at this point, to be pushed and pulled into the Canadian state in line with the forces operating through the law.145

Of the first force, Christie describes how entangled the Aboriginal jurisprudence is in the

ultimate goal of being reconciled with Crown sovereignty, noting the “the true underlying nature

and extent of ‘accommodation’” is really just exploitation. 146 Of the second force, Christie

remarks on how “the Crown drags its collective feet, and generally continues to make life

143 Frank Iacobucci, “‘Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2003), 20 SCLR (2d) at 138. 144 Métis Federation, supra note 24 at para 66. 145 Gordon Christie, “Developing Case Law: The Future of Consultation and Accommodation” (2006) 39 UBC L Rev 139 at 180. 146 Ibid at 181.

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difficult for Aboriginal peoples.”147 Although Christie does remark on the clever way in which

the Court has crafted the duties to consult and accommodate, he notes profoundly that:

[W]e have seen that powerful assimilative forces are at work, forces that are merely contemporary links in a long historical chain of efforts at 'removing the Indian problem' through assimilation. The Crown has struggled mightily for many generations to assimilate Aboriginal nations into the general Canadian society.148

It is this description of the Aboriginal–Crown relationship, made in the context of a discussion

on reconciliation, that I pick up on something which seems begging to be stated at this point:

Reconciliation is not just a legal fiction, it is a Big Lie. In the substance, but not in the form of

Orwell’s doublespeak, the term “reconciliation” has contradictory meanings. Out of necessity, it

is called a legal fiction sourced in the honour of the Crown (itself a legal fiction used to justify

the legal fiction of Sovereignty, which is justified on the legal fiction that all who are the subjects

of the Sovereign are properly constituted). Its utility, if one can justify it as such, is to try and

bridge the strong democratic opposition to reconciliation with what the rule of law ultimately

requires. The problem with seeing reconciliation as a justifiable legal fiction under Fuller’s

definition, is that judges say “we’re all here to stay”, society hears “time to move forward;” the

government hears “things more or less stay the same, but for now we have to consult on the big

ticket items;” and the courts understand reconciliation as a legal tool that they are very familiar

with. But consider the practical legal application for a moment in a world where the government

is constitutional and legitimate and the presumption that all rights are equal is accepted. Consider

the utility of reconciliation in the Charter context. As Patricia Hughes states:

The idea of reconciliation is consistent with the view that no particular Charter rights are supposed to be treated as if they are more important than other Charter rights. The process is meant to define the rights so that it is not an all-or-nothing proposition. On the other hand, it is not realistic that in all cases the rights can be

147 Ibid at 183. 148 Ibid at 184. (Emphasis added.)

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shaped in a way that everyone’s interests are protected to some degree. And depending on the way a right is defined, the practical effect of reconciliation may be that one right is subordinated to another.149

Thus, even in a Charter context, reconciliation only maintains the appearance of equality

between rights and interests, but in practice one is likely to be subordinated to another depending

on how it is defined and the democratic pressures of the demand.

It is in here that the legal fabric of assimilation is being woven into the jurisprudence of

Aboriginal rights, hiding the hallmarks of a wicked legal system. Once it is tightly knit,

reconciliation becomes a blanket that disguises and rebrands the underlying “struggle” to

assimilate indigenous peoples into Canadian society. It is a convincing technique for the

relationship between democracy and the rule of law, and it is even seducing some Secwepemc

communities into joining the project.150 How cruelly ironic for the grassroots indigenous rights

movement, which enshrined s. 35(1), to see its victory of social justice perversely transformed

into the new prison within which to continue controlling and oppressing indigenous peoples.

The Paradigm of Struggle

Mariana Valverde challenges some of the most iconic scholars in Aboriginal issues to question

whether the term “reconciliation” is appropriate. She argues that “struggle” is a better term and I

agree. Struggle has been a continuous theme from the opening of this discussion. The

Secwepemc peoples have been acknowledging their struggle for over 100 years. Postcolonial

scholars have been writing about the identity struggle that is imposed on colonists. Both

149 Patricia Hughes, “Resiling from Reconciling? Musing on R. v. Kapp” (2009) 47 SCLR (2d) at 259. (Emphasis added.) 150 Both the T’kemlups and the Skeetchestn Indian Bands have officially signed onto what are called “Reconciliation Framework Agreements” see: British Columbia, Ministry of Aboriginal Relations & Reconciliation, Reconciliation - Moving Forward, website (Victoria: Ministry of Aboriginal Relations, 2013) online: <http://www.newrelationship.gov.bc.ca/agreements_and_leg/reconciliation.html>. However, other Secwepemc communities have expressed clear opposition to these instruments. See: Arthur Manuel, “Secwepemc Reconciliation Framework Agreement” posted on Scribd, (8 April 2013) online: <http://www.scribd.com/doc/134883723/Secwepemc-BC-Reconciliation-Agreement-Apr-8-2013>.

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government leaders and the courts have struggled to negotiate and adjudicate fairly with

Aboriginal peoples while avoiding a violent backlash from Canadians who are comfortable with

the privilege and “enlightenment” (as Orwell put it) they receive from exploiting Aboriginal

peoples lands. This leads politicians to tell great myths about Canadian history, and leads judges

to create great fictions to justify those great myths. Like the Canadian legal order, the legal

fictions that justify upholding it are dislocated from a consciousness about the reality on the

ground.

Indigenous legal orders on the other hand, are inherently connected to the reality on the

ground.151 Indigenous peoples are rightfully skeptical of the Crown’s legal fictions because they

don’t see their righteous impact anywhere on the ground. They don’t experience any of the

benefits of the Western traditions. Consider Valverde’s assessment of the honour of the Crown –

the legal fiction, upon which the legal fiction of sovereignty is based, upon which the legal

fiction of Crown title is based, upon which the legal fiction of reconciliation between Aboriginal

peoples and the Crown is based, upon which the duties to consult and accommodate are based.

Valverde is skeptical of the honour of the Crown, and asks the simple question:

The underlying normative question, of course, is whether any instantiation of the crown…had any right whatsoever to simply declare itself the sovereign of territories that have been acknowledged even by the most racist courts to have been occupied for many centuries by a variety of aboriginal peoples. … [O]ne thing we can say is that one of [the crown’s] most effective incarnations is that which can be discerned somewhere in the robing rooms of the Supreme Court of Canada where the crown is being quietly refurbished so that it goes better with the new multicultural decor of the nation-state but in such a way as legitimates the (English) monarchy.152

151 See generally: John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010). 152 Ibid at 972-74.

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The “normative question” Valverde is really asking is: Are indigenous peoples properly

constituted such that the legal fiction of Sovereignty itself can be justified? Here, we can

determine whether the utility of rehashing the honour of the Crown to ground reconciliation and

the duties to consult and accommodate is properly justified and consistent with the rule of law.

What Valverde is suggesting is that the Supreme Court of Canada, the institution charged with

upholding the rule of law, is cleverly refashioning an historic legal fiction used to justify and

spread colonialism all over the British Empire, as a quasi-postcolonial legal tool that will serve to

usher Aboriginal peoples and Canadians into the utopia of reconciliation. But, reconciliation, as

we discussed, is actually just a blanket being woven tighter and tighter to cover up what is the

true nature of the relationship between Aboriginal peoples and Canadians in society: a struggle to

assimilate, and a struggle to resist.

Applying Dyzenhaus’ theory once more, the courts in Canada are not using a plain-fact

approach, they are using a common law approach by creating legal fictions, but, shockingly, they

are using it to oppress the executive power of indigenous institutions in order to cover up the true

intention of the Canadian governments and the true nature of Canadian society. They are not

trying to make the truth clearer for the world and the rest of Canadian democracy to see; they are

caught up in their own fictions.

Conclusion: We will all continue to struggle so long as justice is witheld

Whatever the case for either reconciliation or Aboriginal blockades may be in any legal or

political theory, the simple factual reality for indigenous peoples in Canada is that they are

impoverished, dependent on colonial institutions like welfare and the Indian Act, overly

criminalized and extensively marginalized.

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If Aboriginal peoples are already assimilated, then the Canadian system as constituted has

proven itself to be an abysmal failure for them. If Aboriginal peoples are not fully assimilated,

then there are still indigenous institutions in place and they are experiencing resurgence on the

ground. These institutions deserve protection from the rule of law, they are entitled to exercise

their free prior and informed consent over any lands they have rights to, they deserve

remediation from the governments of Canada who have intentionally deceived both them and

Canadians in an effort to decimate indigenous societies and exploit their lands for profit.

Indigenous people deserve mutual respect from Canadians with whom, because we live

“unavoidably side by side”, they have been generously sharing their lands and resources for

centuries. Indigenous peoples are receiving none of the guarantees that are promised in any

applicable theory we have discussed. They aren’t even getting the “bare promise”. Instead, they

are despised by most Canadians as ungrateful.

The Ipperwash Inquiry was completed in 2006 and looked at the issue of Aboriginal blockades

and indigenous militancy. In his report, Commissioner Sidney B. Linden described both the

specific and underlying cause of Aboriginal blockades:

The immediate catalyst for most major occupations and protests is a dispute over a land claim, a burial site, resource development, or harvesting, hunting, and fishing rights. The fundamental conflict, however, is usually about land. Contemporary Aboriginal occupations and protests should therefore be seen as part of the centuries-old tension between Aboriginal peoples and non-Aboriginal peoples over the control, use, and ownership of land. The frequency of occupations and protests in Ontario and Canada is a symptom, if not the result, of our collective and continuing inability to resolve these tensions consistently.153

Commissioner Linden notes that this problem is largely unnoticed by the majority of the non-

Aboriginal society saying:

153 Honourable Sidney B. Linden, Commissioner, Report of the Ipperwash Inquiry, vol 4 (Toronto: Attorney General of Ontario, 2007) at 79 [Ipperwash, vol 4] online: <http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/index.html>.

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Aboriginal occupations and protests are much more common than most non-Aboriginal Ontarians likely realize… It is fair to conclude, however, that only Aboriginal peoples are likely to truly appreciate how prevalent Aboriginal occupations and protests are in this province and in Canada.154

Linden then points out how the current approach to blockades is not even justified from a

practical policy perspective, that the costs and risks outweigh whatever benefits are presumed to

be underlying the current approach:

The immediate cost of conducting relations with Aboriginal peoples through confrontations and over the barricades is very high. All Ontarians risk even more if we leave long-simmering disputes with Aboriginal peoples unsettled until they boil over. Without effective and respectful means of resolving these disputes, an atmosphere of insecurity and uncertainty with respect to the lands at issue will persist.155

Finally, Linden makes clear what is at stake if a different approach is not adopted:

All Ontarians will continue to suffer lost opportunities to work cooperatively with Aboriginal peoples in the care and development of natural resources. And, perhaps most seriously, we will fail to build and maintain a trusting relationship with Aboriginal peoples in which all can take pride and from which all Ontarians can benefit.156

Canadians will continue to struggle. This data, and countless other reports that come to the same

conclusion,157 is undeniable proof that Aboriginal peoples are not properly constituted members

of Canadian society. They are still colonized. They have a right to struggle, on whatever terms

their laws and their democracies agree to be properly constituted upon. Indigenous institutions

hold the “bare promise” of the rule of law that understands applies to: the waters, the lands, the

rocks, the air, the trees, the animals, and the people – all people.

154 Ibid. 155 Ibid. 156 Ibid at 80. 157 See generally: Report of the Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back, vol 1-6 (Ottawa: Supply and Services, 1996)