The Supreme Court of Canada’s Haida Nation decision, discussed at length in my book There Is No Difference and in various articles on my book website, thereisnodifference.ca, which decision made First Nations in effect a third fount of constitutional sovereignty, gave birth to the crippling of the Canadian resource industry by imposing the obligation on every resource project proponent to consult and accommodate any and all nearby First Nation bands who claim that a particular proposed resource project has the potential to adversely impact either their “Treaty rights” and/or their “Aboriginal rights”, (depending on the situation), such as their rights to hunt, fish and trap. The effect of Haida Nation, subsequent legal decisions that have expanded on it, (Indigenous claims of “spiritual rights” are now sufficient to engage it), and of legislation unnecessarily and ruinously passed by our federal and provincial governments that has not only codified it, but has expanded on it, is that a highly organized and refined, national shakedown industry has been created, whereby every Indian band within an hour’s bush plane ride of any proposed resource project, be it a mine, a pipeline, a new road, a forestry project, or anything similar, claims that that proposed project will adversely impact their aboriginal and treaty rights and that they need to be consulted and accommodated.
“Accommodation” is the politely- described end goal for each Indian band claimant. This generally means a not-so-polite combination of compelled cash payments, jobs and numerous other financial payments and benefits.
Canadians have read about and know the general outlines of the stories of the resource projects that have failed to proceed in large measure because of the failure of the project proponents to be able to meet the accommodation demands of allegedly adversely affected Indian bands. Large, proposed projects like Energy East, the Mackenzie Valley and Enbridge pipelines, and the Ring of Fire project in Ontario, discussed in my book, are examples.
There are countless instances of smaller, under-the-radar projects, like the Michael Malouf-Quarternary proposed mining exploration project discussed at length in my Ginoogaming Parts 1 and 2 articles on this website, (a Haida Nation-based “spiritual rights” claim), that because of outlandish and/or unmeetable Indigenous claims and demands, and public interest-harming Crown acquiescence in them, get stopped or fatally delayed, representing countless present and future lost jobs and lost investment dollars.
But no journalist, politician, project proponent or Indigenous representative has, to my knowledge, ever shared with the public the details of the nature and extent of Indigenous demands in this regard. These details- appalling, state-weakening, economically demoralizing, racially divisive and morally depressing generally- show an alarming picture of Indigenous shakedown activity taken to the highest and most sophisticated, systematized, harmful and ambitious degree possible. A reading of typical Indigenous documentation in this regard leads the reader to the inevitable conclusion: “This has to be harmful to the public interest! Canada can’t go on like this! This will kill our resource industry! This is so divisive!”
I ask the reader to bear with me through my brief commentary on only some of the more false, harmful and opportunistic aspects of what I believe is typical Indigenous consult and accommodate demand documentation, a letter dated July 21st, 2021 sent to the Impact Assessment Agency of Canada by Ginoogaming First Nation, (“GFN”), located near Geraldton Ontario, in relation to the proposed, fairly distant Marathon, Ontario, palladium mine, (“the demand letter”), at https://iaac-aeic.gc.ca/050/evaluations/proj/54755/contributions/id/55802 , at the end of which is Ginoogaming’s extremely over-reaching, self-entitled, fallacy-ridden, grasping, 36 pages (!) “Consultation and Accommodation Protocol”, (“the Protocol”).
The GFN demand letter and Protocol reveal the purely extractive, aggressive, shakedown state of play in the Canadian resource sector today, and all Canadians should be extremely worried about the substance of these typical Indigenous demand documents and the alarming implications they have for the sovereignty of our federal and provincial governments, for the well being of our natural resource sector and for goal of a social and political life in our country free of the racial negative feeling and even racial divisiveness that these Indigenous demand documents inevitably cause.
The Marathon palladium project is an open-pit mining project jointly owned by two mining companies, the majority owner being Generation Mining. If and when this proposed mine goes into operation, according to Generation Mining’s website, it is expected to produce 194,000 ounces of palladium a year over an estimated mine life of 14 years. The main proposed mine is situated 10 kilometres north of Marathon, Ontario.
The Ginoogaming First Nation (“GFN”) is, as stated, situated near Geraldton, Ontario, and, as the crow flies, is 120 kilometres away. By car the distance is 347 kilometres and would take five hours to drive.
This gives rise to my first point about both the GFN demand letter and Protocol.
Based on historical falsehoods they purport to exercise jurisdiction over a physical area vastly greater than the area they ever inhabited during the alleged “thousands of years” of their alleged “occupation” of what they say is their “homelands”, (most quoted terms throughout are from the demand letter and the Protocol), prior to the arrival of Europeans.
In fact, before the Europeans came, Indigenous bands, which were very tiny in number- (when the Ginoogoming band signed the Robinson Superior treaty in 1850 they only had about 225 members, “including half-breeds”- see There Is No Difference, c. 16, The Robinson Treaties)- never travelled more than a day or two’s walk from their encampment-village and they would never have walked 120 kilometres through the bush from their present-day reserve to where Marathon now is, to, for instance, fish, hunt or “harvest” wild berries, as falsely suggested in their demand letter and Protocol.
It was the arrival of the Europeans, with their weapons and implements of iron, copper and glass etc., and the subsequent commencement of the fur trade, which revolutionized and transformed Indigenous culture- which stimulated inter-tribal trade and warfare and caused the concomitant movement of Indigenous men “farther afield than ever before”- which led to a “decline in husbandry”, (both from Bailey, below), amongst those Indigenous men- which instantly began the irreversible process of their pre-contact culture- the culture they falsely assert still exists today- being, in all its fundamentals, absorbed into, transformed by and assimilated into European culture, all to the extent that, by the middle of the nineteenth century, when the Robinson treaty was signed, that pre-contact culture had been almost completely lost.
Historian Alfred Goldsworthy Bailey, in The Conflict of European and Eastern Algonkian Cultures 1504-1700, (University of Toronto Press, 1969), with words applicable to the effects of European- Indigenous first contact across the country, wrote:
The displacement of stone, bone, wood, bark and antler by ironware caused a profound revolution in the economic life of the Atlantic littoral. The standard of living was raised tremendously. The division of labour between the sexes attained an unstable equilibrium, the regular round of economic pursuits which had been perfected by centuries of constant adaptation to the northern environment, became a monomania with iron as its fixation….
…The revolution in domestic pursuits which resulted from the displacement of native materials had a counterpart in the social and political sphere. Cartier’s Indians were not great travellers beyond their own territories, nor did any of the natives spend their time in fruitless wanderings in pre-Columbian times to dangerous and mysterious regions beyond their view. In Cartier’s words: “…One could make one’s way so far up the river that they had never heard of anyone reaching the end of it.” But the possession of iron accelerated work and gave more time for getting furs, and as the supply decreased, they were continually led further afield. Therefore, the Indians acquired a knowledge of the country beyond their own territories which weakened their distinctive traits, hastened diffusion, and created a general instability of life. The search for furs led to an economical and political pressure on the tribes of the interior and was an important cause of the rise of inter-tribal warfare. Wars between tribes, which with bows and arrows had not been strenuous, conducted with guns were disastrous. (Italics added)
This crucial and always ignored point was recently re-stated by Professor John Terborgh of Duke University:
The seductive appeal of European goods was nearly irresistible, for each of these items can make a quantum improvement in a sylvan lifestyle. Acquisition of them is a transformative experience that makes contact irreversible. Once a person knows such things exist, then that person and his community are irreversibly changed. (From c.6 of There Is No Difference, Pre-Contact Indian Culture and the Shock of the New.)
So GFN’s claims in their Protocol, and in their sanctimonious and pretentious “Water Protection Declaration” at the end of it, that they have, since “time immemorial”, habitually ranged over the thousands of square kilometres depicted as their “homelands” on the colourful map attached to the Protocol, are false.
The “homelands” map does not accurately depict their pre-contact “traditional lands” at all, which in fact were much, much smaller in size. This map depicts, at best, the lands they very occasionally may have visited only in their ancestors’ post-contact years, when they were living in an ever-increasingly, technologically, and culturally “appropriated” (from Europeans) and assimilative (with Europeans), capitalistic, fur trade-based, European purposes, ways and means culture.
The Government of Canada Indigenous Affairs website recently indicated that the total GFN band membership presently numbers only 816 persons, of which only 173 (!) live on the reserve. Realistically, what possible “direct impacts” could these 173 souls experience on their in reality–non-existent, present hunting, fishing, and gathering activities in the area of the distant Marathon palladium project?
For GFN to be demanding the right to be consulted and accommodated in relation to a mining project so far away from their tiny reserve is a classic case of knowing and crass, opportunistic over-reaching based on false premises.
If the reader can get past the specious declarations of great concern for the welfare of wildflowers, “edible plants (blueberries, raspberries etc.”) and“plants for use in technology (bark, cedar root etc.)”,and all other type and manner of flora and fauna, all, as stated, commonplace across Ontario and all already well provided for, to the extent that they need protection, by the Ontario Ministry of the Environment and numerous other Ontario and federal government ministries, he or she will see that the demand letter and the Protocol are really all about GFN being paid free money and free money equivalents as the price for them not tying this distant project up in Court for years.
I make another initial point, which ties into and buttresses a significant argument I made in my articles on Ginoogaming’s legal claim against Quaternary Mining et. al., again, under the heading on this website, Ginoogaming First Nation v. Quaternary and Ontario.
In that legal claim Ginoogaming claims that there is a sacred area, called Wiisinin Zaahgi’igan in their traditional lands, which is too sacred for them to ever allow something so profane as mining to take place on. I argue in the articles, and Quaternary argued in the Court case, that this name and concept were only recently “conjured up” – in or around 2020- for the cynical purpose of ultimately getting these lands for themselves, so that they could mine them.
My argument and that of Quaternary’s in this regard is supported by the fact that nowhere on Ginoogaming’s Protocol map of their “traditional lands”- which they also creepily call their “homelands”, (see below), is there any mention or designation of Wiisinin Zaahgi’igan!
GFN declares that the (in reality-non-existent) “direct impacts” … “will require accommodation and mitigation as the project proceeds.” Not just at the start of it, but throughout the life of it, so long as it “proceeds”.
GFN demands meetings to discuss “potential project agreements surrounding mutual benefits from the project” and “funding support for community discussions and engagement”.
They purport to be “stewards of the land”, with which they declare that they have a “special relationship” based on their race- (the Germans and French said that in the 1930’s)- yet they insist on being paid to discuss its welfare! Some “stewards”. Stewardship, something akin to a fiduciary obligation, implies putting the best interests of the object of the stewardship ahead of the personal, selfish interests of the steward.
The GFN demand letter and Protocol, boiled down, show that, in their version of their so-called “stewardship” of the land, they place their personal, financial interests ahead of anything else, and that their so-called “special relationship” with the land itself is primarily a capitalistic, monetary one.
GFN asserts that they have “documented community Traditional Knowledge values within the project footprint area” and insists that “further Traditional Knowledge data collection needs to occur…”, which GFN must financially participate in.
If GFN has “documented” it, isn’t that good enough? Why not, in the best stewardship interests of “the land”, share it? If it’s “traditional” knowledge, isn’t it already traditionally known? Hasn’t this knowledge been already kept by their “Knowledge Keepers”? What “data” regarding wildflowers, blueberries and raspberries could there be that they haven’t already “documented” or otherwise don’t already know or have? What “data” regarding this and the rest of nature around this very distant mine site that is not already in the hands of Ontario and Ottawa’s natural resources scientists, and in the hands of their own “Knowledge Keepers”, might there be?
GFN is creating imaginary issues and problems here for their own power and money-gaining purposes.
GFN says that “GFN members are currently actively trapping near the area of the proposed project” and they need to be “compensated”. How many trappers? A total of only five trappers signed their “Water Protection Declaration” at the end of the Protocol. Of these five trappers, whose trap line is closest to the Marathon project. Where is it? How far from the “project footprint” is it? Exactly how might this trapline be affected? It is likely very, very distant from it, and totally unaffected by it. And compensated for what?
These are more shakedown demands in relation to an imaginary injury, and, by the Crown and by our cowed and frightened mining industry, rarely challenged and usually totally acquiesced in. (See c.22, The Emasculation of Crown Sovereignty, in There Is No Difference.)
The free money and free money equivalents that the GFN demand letter and Protocol are all about is frankly stated in the demand letter:
“Economic opportunities: GFN is interested in learning more about potential economic development opportunities to support project contracts, as well as future employment and training opportunities for community members”.
The Protocol goes into painful, appalling, headshaking and most importantly, state-weakening detail in spelling out GFN’s infinite and limitless shakedown demands in this regard, all precisely and legalistically set out over 36 pages by their high-powered Toronto lawyers, all of which defy economical description, and which I invite the reader to read and experience for himself or herself.
And reader, keep in mind this shocking reality: These demands are based on the benignly racist and totally illiberal and indefensible assumption that, regardless of our past history- regardless of how we got here- special legal rights and privileges in 21st century Canada going forward should be afforded to a particular group of Canadians based solely on their so-called race. This is the essence of racial segregation and apartheid. These demands personify the curse of tribalism- pre-Enlightenment- even pre-literate- tribalism, where seemingly no other positive, united, enlightened, universalist worldview can even be imagined, much less strived for.
Morally depressing, and Nelson Mandela is turning over in his grave.
This all constitutes and represents new and unprecedented crooked legal timber now being used by our elites to purportedly upgrade the Canadian house going forward. But our Canadian house cannot stand strong or for long being essentially re-engineered and re-built in this crooked, illiberal way.
The benignly racist nature of the GFN demand letter and Protocol is highlighted by the recurrent use by GFN of the inward-looking, exclusionary, nativist, “blood and soil” (“blut und boden” in Nazi Germany) term, homelands– a morally depressing term with extremely negative and illiberal connotations- a propagandist term usually used by authoritarian power seekers and power keepers to create and exploit false divisions amongst people for political and economic purposes based on imaginary (but nonetheless real in effect) “us versus them” dichotomies, and in any event, in the present case, a term without any basis in fact. In this case the us versus them dichotomy created by GFN is, shamefully, one based on race.
If they knew any history GFN would be embarrassed by their use of this term.
There are false presumptions underlying the many boastful statements made by GFN in the Preamble to the Protocol.
They say that they never surrendered their “title or rights” to their “Aboriginal and Treaty Lands”, and that they have “Aboriginal Title and Rights”.
Yes, they did so surrender. In the Robinson treaty their ancestors promised that, save and except lands retained for their reserves and for the right to hunt and fish on the surrendered lands, they “fully, freely and voluntarily surrender, cede, grant and convey” their lands to the Crown. These now-Crown lands and the Crown patents therefrom constitute the root of title of all private real property in Canada. If GFN and all the other Indian bands across Canada who make similar assertions are right, then nobody can be confident that they have good title to there home or to any other real estate they own. This was confirmed by the Indigenous leaders, the late Arthur Manuel and Grand Chief Ronald Derrickson, who correctly wrote in their book, The Reconciliation Manifesto, that “aboriginal title means that the province never had the capacity to give full title to anyone who holds provincial property.”
In any event, they have no “Aboriginal Title and Rights.” That phrase is an inapplicable reference to areas of Canada, like most of British Columbia, where no treaties with Indian bands were ever entered into. Weighty legal precedent for any GFN “Aboriginal Rights” other than rights spelled out in the Robinson treaty are slim to non-existent.
GFN asserts that their “pre-existing sovereignty” is a fact, while the sovereignty of the Crown is merely “assumed”. This is false and this is where particular danger lies in the demand letter and Protocol.
The Robinson treaty, like all the treaties signed across Canada in the 19th century, is clearly a surrender of sovereignty agreement. The Indigenous signers agreed that even their reserves would be held in trust for them by the Crown and any sale of any part of reserve land would only be sold “by order of the Superintendent-General of the Indian Department for the time being.”
How can GFN claim to be “sovereign” to the Crown when they promised to seek the Crown’s permission to do something so fundamental-in terms of the concept and practice of sovereignty- as deal with their own reserve land?
The original GFN signers of the Robinson treaty also promised that they would not “…at any time hinder or prevent persons from exploring or searching for minerals or other valuable productions in any part of the territory hereby ceded to Her Majesty.”
Such a promise as this can only be reasonably regarded as an acknowledgment of inferior legal status to the Crown, and a promise that mining rights granted by the Crown would always take legal precedence over- would always be sovereign to– rights and interests in relation thereto asserted by the Indigenous treaty signers.
More germanely to the overall purport of the GFN demand letter and Protocol, it is also a promise made by GFN that Crown-granted mining rights to individuals or corporations cannot and will not be interfered with, which promise the demand letter and Protocol represent a massive breach of.
(Ginoogaming also broke this same treaty promise to the Crown by, through legal action, effectively shutting down Michael Malouf’s Quarternary mining exploration claims. As stated, see the articles in this regard on this website.)
The Canadian public discourse is filled with usually baseless accusations by Indigenous groups of allegedly “broken treaties”, (with no specifics ever asked for by our somnolent media, or given), with the Crown always named as the somehow guilty party. But treaties, like all other forms of agreements, are two-way streets. Each treaty party has both treaty rights and corresponding treaty obligations.
Treaties are a part of the Canadian Constitution. They are binding legal instruments. They are not discretionary. They set out obligations for each party, which bind both parties. The Supreme Court of Canada said in the Badger case (1996 1 SCR 771) that a treaty “represents an exchange of solemn promises between the Crown and various Indian nations. It is an agreement whose nature is sacred”. (Italics added)
But the way events have played out in recent decades treaties with Indian bands have been regarded, by the Courts, Indian band treaty signers and weak, timid and recklessly irresponsible provincial and federal Crowns, as only one-way streets in favour of Indian bands, carrying only rights but no obligations on their part. The effect of this has been in practice to absolve them of upholding their side of these now so-called “nation to nation” agreements, with many predictably disastrous results, including the brash, nation-harming, industry-crippling, ramped-up and amped-up Indigenous demands and expectations evidenced so clearly in the GFN demand letter and Protocol.
The most serious and damning aspect of the demand letter and Protocol, as already adverted to, is the GFN treaty-breaking renunciation of the overall sovereignty of the Crown- of the Government of Ontario-over these now so-called Ginoogaming “homelands”- over these lands that, with the exception of the GFN reserve itself, have, since the signing of the treaty in 1850, until only very recently with the rise of the legal and public policy insanity set off by Haida Nation, been indisputably regarded by everyone, including generations of GFN members, as lands belonging to all the people of Ontario, through the Provincial Crown, the symbol and construct of their duly elected government.
In addition to GFN only recently but now constantly asserting that Crown sovereignty is now something that the Crown merely assumes it has, (the implication being that this may be a mistaken assumption), this 173 Ginoogaming reserve-living collection of Canadian taxpayer-dependent Indigenous individuals claim, again, in total breach of their treaty promises, that they have “the right to the exclusive use and occupation of the land”, and a “right to the resources of the land.” The Protocol declares, once again, oblivious to their treaty promises, that GFN “does not acknowledge the scope or content of any jurisdiction of the Crown.” (!) (emboldening added)
GFN asserts in the Protocol that they must be consulted before the Provincial Government enacts policies or passes any new laws even only tangentially affecting them.
They assert that they have a legal veto over whether or not a resource project should proceed, which they can exercise at their sole discretion, and that generally, all issues and disputes arising out of anything dealt with by their Protocol shall be dealt with on “a government to government” basis. Yes, one “government” representing 173 reserve residents, and the other, the “assumed” government of Ontario, representing over 14 million people!
The only thing more absurd than all of the immediately above is that our courts, politicians, senior bureaucrats, academics and journalists, and all other similar elites and influencers, either support GFN’s state-weakening, country-destroying assertions, or remain cowed, passive and silent in the face of them, thereby giving them credence where they deserve none, and emboldening all these tiny, taxpayer-dependent Indian bands across the country to up their ante by making even more and wilder assertions against their fellow Canadians of their own separate “sovereignty” and “nationhood” rights and entitlements, which of course their fellow Canadians must pay for.
There are about 635 Indian bands in Canada. Canadians face the prospect of each of these Indian bands sending out their own versions of GFN’s separatist-like demand letter and Protocol- each claiming their own sovereignty and some form of subsidized separate nationhood- each claiming in effect to be a “mini-state” within but somehow separate from Canada- each being one little self-entitled square on a checkerboard of fragmented Canadian sovereignty- all sitting comfortably within the always-paying, legally confused, chaotic and near-fatally weakened, larger Canadian polity.
It’s totally impractical, unworkable, and unaffordable.
It’s national suicide.
If Canada is to survive this can’t be.
Canada now, with state power-eroding laws like UNDRIP, and legal decisions like Haida Nation and Tsilhcot’in, (discussed in full in There Is No Difference), of which the GFN demand letter and Protocol is but one of the hundreds of similar, state weakening, economy-harming, racial resentment-creating, logical end results, is facing a very dangerous and destabilizing crisis of diminished Crown sovereignty.
The historian Simon Schama wrote in his book Citizens: A Chronical of the French Revolution, that “a government’s most basic function is the protection of its sovereignty”.
Our Courts, politicians, senior bureaucrats, and the rest of our Canadian elite class- the stewards of the Canadian state– (yes, stewards- real stewards!), are failing to carry out this most fundamental, state-protection stewardship duty.
At times they seem to be willfully abjuring it.
It is only a strong, healthy and sovereign state, represented in Canada by our Crowns, that can protect the rights and integrity of the individual- that can best ensure the protection of our environment- that can, through stable and predictable laws, set and enforce the rules of the marketplace- that is the fount and guarantor of the rule of law- that can best protect the sources of the necessary tax revenue that is required to carry out its state obligations, the performance of which the citizenry, especially our Indigenous citizenry who pay no taxes, takes for granted-that can act as a counter-balance to multi-national corporations-that can best deal with the mass social and economic trauma of a pandemic-that can best protect the national welfare generally.
It is only a healthy state that can create “rights” and the machinery and procedures to enforce them.
(Ironically, the “title and rights” which Ginoogaming claims in its demand letter and Protocol, to the extent that they may legally exist, are solely products of Canadian legislatures and the Canadian judicial system, key components of the very “colonial” state whose legitimacy Ginoogaming is attacking. If they were to be completely successful in their attacks it would spell the end of their title and rights, which, as stated, depend on the continuing existence of the state for their existence and enforcement.)
An attack on the state, which the GFN demand letter and Protocol represents, is an attack on the foundations of our civilization.
The political philosopher Edmund Burke, who witnessed firsthand the legal, social and economic chaos that ensued when the French ancient regime state was destroyed and not replaced with anything stable or coherent, wrote in Reflections on the Revolution in France:
“A state cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities. Otherwise, competence and power would soon be confounded, and no law left but the will of a prevailing force…. Any society which destroys the fabric of its state, must soon be disconnected into the dust and powder of individuality.”
The silence on the part of the Province of Ontario in the face of continuous, Indigenous attacks on its sovereignty and state power, exemplified by the absurd, harmful, and treaty-renouncing claims in the GFN demand letter and Protocol, and the partial acceptance by Ontario of such claims, is weak and state-weakening behaviour that is being repeated by other provincial governments all across the country, and most wilfully by the federal government. (With respect to the latter, see my article The Trudeau Crown Sovereignty Surrender Directive.)
Our Crowns are renouncing their authority in favour of tiny, self-seeking Indian bands. Those who derive “serious interests” under their “engagements” with our Crowns, such as Generation Mining in relation to the Marathon palladium project, and Michael Malouf in relation to his Quarternary mining exploration claims, (again, see my Ginoogaming articles, Part 1 and 2, on this website) should be entitled to expect that Ontario will hold its “public faith” with them.
Ontario did not keep its public faith with Mr. Malouf, and given their dismal track record in this regard, will likely not do so with Generation Mining.
All former adult stewards of our formerly strong and healthy Canadian state, federal and provincial, have left the building. Our elites have all became state-weakening, sovereignty surrenderers.
State “competence and power”- that which made Canada over its first 150 years into the great country it is, as the result of an irresponsible and naïve idealism on the part of our elites, has been, as predicted by Edmund Burke, “confounded”, to the permanent harm of the Canadian state and all who rely on it for lives of peace, prosperity, order and good government.
October 3rd, 2021
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