A Harmful Supreme Court Ruling Grants Canadian Aboriginal Rights to American Indians

The surest path to intellectual perdition is the abandonment of real problems for the sake of verbal problems. [1]

A primary characteristic of a healthy, well functioning, sovereign nation-state is that its duly elected government has the sole and sovereign right and power to make laws regulating all activities within its national borders, including laws defining who its legal members are.

This fundamental nation-state characteristic was denigrated and diminished by our Supreme Court of Canada in its April 2021 decision, R. v. Desautel,[2] to the ensuing great harm to Canada.

In 2004, in the Haida Nation case[3], the Supreme Court of Canada denigrated and diminished the sole and sovereign powers of Canada’s federal and provincial governments to make laws to regulate the economy by in effect creating a third fount of constitutional sovereignty- First Nations. The Court ruled that, regardless of federal or provincial law, nearby First Nations had to be consulted and, if necessary, accommodated as a condition of any proposed resource project going ahead on Crown or private property. By mere judicial fiat the Court in effect amended by our Constitution by making First Nations a third fount of constitutional sovereignty, thus giving them what has turned out to be a de facto veto in relation to all these proposed resource projects. A great deal of harm to the Canadian economy, the rule of law, and to the Canadian social fabric has ensued as a result.

In 2016, in the Daniels case[4], the Supreme Court, by judicial fiat, again in effect amended our Constitution by ruling that “Metis” and non-status Indians- possibly numbering 600,000 persons- are “Indians” for the purposes of being entitled to apply for benefits that to which hitherto only status Indians had been entitled. Again, much harm to the Canadian economy and the Canadian social fabric has ensued.

In both instances considerations of cost, practicality, social consequences and the Court’s proper role in a parliamentary democracy were dismissed in favour of the idealistically admirable but practically blind race-based creation of new constitutional rights for an ever-expanding class and number of Canadians.

Now the Supreme Court has denigrated and diminished Canadian sovereignty again, ruling in the Desautel case that American Indians, even though not residents or citizens of Canada and not recognized by or connected to any related Canadian Aboriginal group or collectiveeven though they have no loyalty to or relationship to the State of Canada,  if they are descendants of a band of Indians that once occupied, if only partly, what is now Canadian territory at the time of their ancestors’ first contact with Europeans- even if, as stated, they otherwise presently have no connection to Canada or any present-day Canadian Aboriginal group or collective- are entitled to assert section 35 Aboriginal rights within Canada, including the right to hunt, fish and trap year-round and the above-noted profound and consequential right to be consulted, and if necessary, accommodated.

In what can only be described as a heedless, irresponsible, total abstraction-over-reality[5],sovereignty-suicidal, economy and social fabric-damaging decision, the Court has granted almost the full panoply of section 35(1) Aboriginal rights- rights clearly intended by the framers of the Constitution to belong solely to Indigenous Canadiansmembers of the Canadian legal family– to untold thousands of complete foreigners- select American Indians- American Indian foreigners who would qualify for these rights solely by an accidental combination of some remote, long-past historical situation and a benignly racist, scientifically nonsensical theory of “blood tracing”.

In October 2010 Richard Desautel, an American citizen and resident of Washington State, shot a cow-elk without a license contrary to British Columbia’s Wildlife Act and was charged accordingly. He was also charged under the same Act with hunting big game while not being a resident of B.C. He defended the charges on the basis that he had an aboriginal right to hunt protected by section 35(1) of the Constitution Act, 1982, as he was a member of the Lakes IndianTribe, situated near Colville, Washington, apparently a “successor group” of the Sinixt people. The Court found that the Sinixt people had formerly traditionally occupied territory in both what is now southwestern B.C and northern Washington State, but by the end of the 19th century had almost completely and permanently voluntarily moved to the Colville reserve in Washington State. By 1902 only 21 Sinixt still lived on their traditional territory in Canada, on the Arrow Lakes Band reserve. By 1930 only one person remained on the rolls of the Band, and after her death in 1956, the federal government declared the Arrow Lakes Band extinct and their former reserve reverted to the B.C. Crown.

Notwithstanding all this the Court decided by a 7-2 majority, their decision flying in the face of centuries of basic nation-state assumptions underlying the right to assert rights against and within the nation-state, that persons who are not Canadian citizens and who do not reside in Canada and otherwise have no loyalty to or connection to Canada or to any Canadian Aboriginal group or collective can exercise a domestic, Canadian Aboriginal right that is protected by section 35(1) of the Constitution.

The Court said that “on a purposive interpretation of section 35(1) the expression “aboriginal peoples of Canada” means the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of contact, and this may include Aboriginal groups that are now outside Canada”. Further in this regard they said that the expression “includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere or on whom international boundaries were imposed.”

 Including the descendants of these people in the definition of “the Aboriginal peoples of Canada”, the Court said, “reflects the purpose of reconciliation.”

Based on this totally counter-intuitive, unprecedented rationale it ruled that because Mr. Desautel was a member of the Colville Washington Lakes Tribe, which the Court found was a modern successor of the Sinixt, and as he purportedly satisfied the other relevant legal test for an Aboriginal right under section 35(1), the B.C. Wildlife Act didn’t apply to this American, and he was acquitted of both charges.

The dissenting Justice, Mr. Justice Cote, reflecting both basic common sense and classic nation-state theory and assumptions regarding who can and cannot assert rights within the boundaries of a particular nation-state, wrote that the phrase “aboriginal peoples of Canada” meant just that: of Canada, and that section 35(1) does not and should not extend to any Aboriginal group located outside of Canada. As he wrote, “the framers’ intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society.” In effect he was saying that it is ludicrous to rule, as the majority did, that the Lakes Tribe of Washington State, U.S.A. is an “Aboriginal people of Canada” for the purposes of section 35(1) of the Constitution.

And now, let the totally predictable, harmful consequences of this disastrous ruling begin!

The Jay Treaty of 1794 established the international border between Canada and the United States from the Maritimes to what is now Northwestern Ontario. In 1818 it was agreed that the 49th parallel would be the Canada- U.S. border from Lake of the Woods to the Rocky Mountains. The 1846 Oregon Boundary Treaty extended that borderline to the Pacific Ocean. Prior to these borders being established there were numerous Indian tribes whose traditional territories occupied land on both sides of them. These were Indian peoples who, as the Supreme Court said, were peoples “on whom international borders were imposed.”

The Supreme Court in Desautel, a decision that in my opinion improperly wades into the territory of foreign policy – a policy area traditionally within the sole purview of the legislative and executive branches of any country and traditionally off-limits to domestic courts- just handed the American descendants of these peoples the full panoply of Canadian Aboriginal section 35 (1) rights, and Canadians should expect to see them soon being exercised.

And ironically, the numerous Canadian Indigenous organizations that inexplicably intervened in the Desautel case and, in a classic example of arguing against one’s own interests, argued before the Supreme Court in this American’s favour (!) are soon going to experience the reality of the old saying: “be careful of getting what you wish for”, because these American Indians are now going to be demanding their share of the “honour of the Crown” rights and benefits that have been hitherto only been granted or paid to and shared by Canadian Indigenous groups and collectives. This will result in a smaller piece of the proverbial pie for everyone.

(The Daniels decision, referred to above, has had the same consequence, and is resulting in new tensions between “Metis” people, who want a share of the Honour of the Crown monies and benefits, and status Indians, who see Metis demands, if met, as shrinking the size of their pieces of the pie.)

But the overall destabilizing damage to Canada caused by Aboriginal claims being made by American Indian descendants of “cross-border” tribes at the time of contact with Europeans, now authorized and thoroughly legitimized by Desautel, is the greater concern.

Already Maine Indians are talking about fishing and hunting in Canadian territory.

The traditional territory of the Passamaquoddy Indians was on both sides of the St. Croix River, which now forms part of the boundary between Maine and New Brunswick. American Pasamaquoddy Indians are now considering lobster fishing in Canadian waters.

The Maine Houlton Lake Maliseet Indian band, whose traditional territory was in the St. John River Valley, now part of both Canada and the United States, are considering hunting in New Brunswick. “I can see this being something that people would be interested in”, said Clarissa Sabattis, chief of the Houlton Band of Maliseet Indians. “It will definitely open some things up for some of our citizens who hunt.” [6]

Canadians can expect to see similarly outrageous but perfectly legitimate claims being made and unilateral actions being taken by American Indians all along the Canada- U.S. borderlands.

American Iroquois Indians in New York State and Pennsylvania will be claiming their Canadian aboriginal rights to hunt and fish in Quebec and Ontario year-round and without a license.

American Ojibwe from Michigan, Wisconsin, Minnesota and North Dakota will be claiming the same rights in Ontario and Manitoba. Manitoba and Saskatchewan will be the subject of similar claims and actions by American Cree from North Dakota and Montana.

American Blackfoot Indians from Montana will be claiming Canadian aboriginal rights in Saskatchewan and Alberta. American Assiniboine from North Dakota and Montana will be claiming Canadian aboriginal rights in Manitoba, Saskatchewan and Alberta.

American Sioux Indians from Minnesota, North Dakota and Montana will soon be talking like chief Clarissa Sabattis of Maine.

(Ironically, with respect to these American Blackfoot and Sioux Indians, who, as a result of Desautel, will soon be attempting to milk the decision for their own selfish American benefit and who, in so doing, will be facetiously claiming that the 49th parallel was merely a colonialist construct that never meant anything to them, will be flying in the face of their own history.

 In fact, the 49th parallel was once crucial to their survival.

In the late 1870’s the ancestors of today’s American Blackfoot and Sioux Indians called the 49th parallel “the Medicine Line”, because below it was the genocidally rampaging U.S. Calvary and violent and debasing American whiskey traders who operated freely in what is now Canada, and above it there was “healing”: refuge from official American murderous behaviour and, with the relatively stern and benevolent intercession of the Royal Canadian Mounted Police, law, order and the expulsion of the whisky traders.[7]

In British Columbia Richard Desautel has already demonstrated the American damage to Canadian sovereignty that his Court victory has brought about for the Kootenay region of Southeastern B.C. Now watch even more consequential damage occur when American Tsimshian Indians from Alaska assert Canadian aboriginal salmon fishing and hunting rights in the waters and lands of Northwestern B.C. and when Washington State Coast Salish Indians assert similar fishing and hunting rights in Southwestern B.C.[8]

Apologists of Desautel will say: “Don’t worry, the Court did not grant cross-border Indigenous mobility rights (it simply decided that the issue could be put off to another more fact-specific case) so American Indians wanting to exercise their newly granted Canadian aboriginal rights won’t easily be able to do so, so the practical effect of the case will be minimal.”

Perhaps, but experience shows that where there’s a will there’s a way.

And in any event, the most profound and weighty Canadian aboriginal right- the Haida Nation-created right to be consulted, and if necessary, accommodated in relation to all proposed Canadian resource projects- now a right newly conferred upon many thousands of American Indians across the northern tier of the United States, does not require the presence in Canada of the American Indian asserting the right. It’s a right that can be asserted from afar- from the comfort of that American Indian’s living room in Maine, New York State, Wisconsin, Montana, Washington, Alaska or wherever else he or she may be situated.

The Supreme Court had to opportunity to limit the overall disastrous effects of its decision– to give a nod to practicality and the corny old virtues of patriotism and national self-interest– by ruling that the Haida Nation-invented duty to consult did not apply to American Indians- that their rights were limited to harvesting rights. But it didn’t. Rather, by clear implication, the Court affirmed that the duty to consult applied to these foreigners, and the obvious impracticalities of that be damned. As the Court majority said at paragraph 76 of its decision:

Consultation is part of a process of fair dealing and reconciliation which arises from the Crown’s assertion of sovereignty. Because groups outside Canada are not implicated in this process to the same degree, the scope of the Crown’s duty to consult with them, and the manner in which it is given effect, may differ. Integrating groups outside Canada into consultations by the Crown with groups inside Canada may involve discussions within Aboriginal communities and with the Crown. While the consultation process may be more challenging when it involves groups outside Canada, as this Court said in Powley, (the case that officially recognized the “Metis”- author), “the difficulty of identifying members of the (Aboriginal) community must not be exaggerated as a basis for defeating their rights under the Constitution of Canada.

It’s acknowledged that even if a group of American Indians demanded to be consulted about a proposed Canadian resource project it is highly unlikely that at the end of the process they would have to be “accommodated” in any material way.

But that is not the point- not the danger to Canada. It’s the consultation process itself, regardless of any outcome, that has proven in the past to be the jobs and investment killer.

Since it was invented by the Supreme Court in the 2004 Haida Nation case the duty to consult has been regularly used by Canadian Indigenous groups as a weapon to frustrate and/or delay resource projects they don’t want, or resource projects that they want a bigger Impact Benefit Agreement piece of. Litigation is started, claiming a failure to adequately consult and accommodate, and the proposed project is tied up in the Courts indefinitely. Often, because of this delay, circumstances around the project change, the investment window closes, and the project fails to go ahead. Variations on this theme occurred with the Energy East project and the Mackenzie Valley, Enbridge and Kinder Morgan pipelines, the last having to be bought by the federal government to save it.

During the unfolding of these Canadian business failures it was frequently said that secretive, behind-the-scenes American oil and gas interests, for their own respective self-seeking American interests, were providing financial backing to the Canadian Aboriginal rights claimants in these situations.

With Desautel now blessing the rights of select American Indians to demand a say in any Canadian resource project, in any resource sector, expect to see these American Indians openly becoming paid dupes- stalking horses- fellow travellers- of these anti-Canadian American business interests. They won’t need to find a Canadian Aboriginal group to work with anymore. They can conduct their cynical, opportunistic, consult and accommodate competition-killing, anti-Canadian campaigns from the comfort of their own American homes and offices!

Duly elected governments, in the exercise of their legislative functions on behalf of their electors, have frequently, for specific, carefully defined purposes, granted limited, narrowly prescribed rights, exercisable in Canada, to non-residents and non-citizens. Refugee rights, dual citizenship rights and the right to sue in Canadian courts are examples. These are conscious, policy-driven, legislative exceptions to the rule.

The modern nation-state is grounded on the principle of national and territorial sovereignty. In the sphere of international law it has always been true that sovereignty is nowhere more absolute than in matters of immigration, citizenship, legal residency, naturalization and nationality. [9]It has always been the case that there are no citizenship rights within a nation-state- no “right to have rights” generally- other than those granted by the people of the nation-state through the exercise of their collective right to self-government manifested by their juridical laws. The “right to have rights” has only ever been possessed by members of an “ordered political community” which in modern times has been legal members of the nation-state.[10]

This is why the dissenting Judge in Desautel referred to the Aboriginal peoples that section 35 was designed to protect as being limited to “full participants with non-aboriginal peoples in a shared Canadian sovereignty…who fully participate with other Canadians in their collective governance…and live and contribute as part of our national diversity.” He further wrote:

It is contrary to the organizing constitutional principle of democracy and inconsistent with the purpose of patriation to allow Aboriginal groups outside of Canada to participate in Canadian democracy as required by s. 35.1.

Even aboriginal peoples themselves never granted and still do not grant rights to other aboriginals outside of their band, tribe or clan.  They too insisted and continue to insist that the “right to have rights” depends upon the rights claimant being a member of the organized political community within or against which she is claiming rights- in Aboriginals’ cases, the organized political community being the particular band, tribe or clan. The eminent historian Diamond Jenness, in The Indians of Canada, (above) wrote:

In the absence of chiefs and of any legislative or executive body within the tribes or bands, law and order depended solely on the strength of public opinion. There were no written laws…merely rules and injunctions handed down by word of mouth from an immemorial antiquity…persuasion and physical force were the only methods of arbitrating disputes…social outlawry or physical violence the only means of punishing infractions of the moral code or offences against the welfare of the band or tribe…strangers however, even  people of a neighbouring tribe, might be robbed or killed with impunity; they had no rights unless they married into a band or placed themselves under the protection of some powerful family. (Italics added.)

The Supreme Court in Desautel, in a spectacular example of a “conspicuous disdain of the whole texture of reality [11]of untrammeled, legislative function-usurping, radical judicial activism-choosing the entirely abstract and formalistic over the practical and sensible– has eschewed the entirety of both these Indigenous and non-Indigenous millennium-old nation-organizing laws, customs, instincts, values and traditions. They have made a numberless, ill-defined host of select American Indians, strangers to Canada in every way, with absolutely no skin in Canada’s game, de facto dual citizens of Canada and the United States, able to unconditionally assert Canadian Aboriginal rights within and against Canada, with countless harmful economic, social and political consequences to come, some with international foreign policy implications, which only the grim unfolding of time will fully reveal.

The Supreme Court must reverse this decision at the earliest opportunity.

Peter Best

Lawyer, Sudbury

May 14th, 2021

[1] John Lukacs, quoting Karl Popper in At the End of an Age, Yale University Press, 2002, at page 133.

[2] 2021 SCC 17

[3] 2004 3 SCR 511

[4] 2016 SCC 12

[5] Bringing to mind this apt quote from Tony Judt’s brilliant Thinking the Twentieth Century, Penguin Books, 2012 at page 288: “The intellectuals whom Julian Benda attacks in the 1920’s in his Trahison Des Clercs for abstraction and excessive theoretical reasoning saw nothing of a betrayal in their stance- for them abstraction was truth.”

[6] See Jacques Poitras, Supreme Court Ruling Could Help Indigenous People on Maine Border- cbcnews.ca, April 29, 2021

[7] See Beth Ladow, The Medicine Line- Life and Death on the North American Borderline, Routledge, 2002

[8] The sources for the above “cross border tribe” references are, firstly, Diamond Jenness, The Indians of Canada, National Museum of Canada, 6th edition, and secondly, Robert MacDonald, The Owners of Eden, Evergreen Press Limited, Vancouver, 1974

[9] Sentence borrowed almost completely from Hannah Arendt, The Origins of Totalitarianism – Houghton, Mifflin Harcourt Publishing Company, New York, 1976, at page 278. Her actual sentence, reflecting her focus on twentieth century expulsions by nations of their racially and ethnically “undesirable” citizens, thus rendering them stateless persons without what she brilliantly called “the right to have rights”, was: “Theoretically, in the sphere of international law, it has always been true that sovereignty is no more absolute than in matters of emigration, naturalization, nationality and expulsion.”

[10] See again, Hannah Arendt, The Origins of Totalitarianism, at pages 296 and 297.

[11] Another apt phrase from Hannah Arendt applicable to numerous aspects of “wokedom”, from her 1950 Preface to the first edition of The Origins of Totalitarianism, above, Ms. Arendt referring to “the curious contradiction between the totalitarian movements’ avowed cynical “realism” and their conspicuous disdain of the whole texture of reality.”

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