After she was let go as Attorney General of Canada Judy Wilson Raybould issued a statement saying “it is a pillar of democracy that our system of justice be free from even the perception of political interference.”
That’s true. Yet during her disastrous (for Canada) tenure as Attorney General that’s exactly what she and her boss Justin Trudeau did, and Trudeau continues to do, as a matter of government policy- politically interfere with our system of justice– in relation of all “Indigenous peoples” legal matters, greatly exacerbating our already pre-existing Supreme Court of Canada-caused crisis of weakened Crown sovereignty.
Historian Simon Schama writes that “a government’s most basic function is the protection of its sovereignty.” Historian Timothy Snyder warns that “when States are absent, rights- by any definition- are impossible to sustain. States are not structures to be taken for granted, exploited or discarded, but are the fruits of long and quiet effort. It is tempting but dangerous to fragment the State.”
The political philosopher Edmund Burke warns us to exercise “infinite caution” in weakening the sovereignty of the State where it “has answered in any tolerable degree the common purposes of society”, which the Canadian State has, overall, done brilliantly for the past 150 years.
Canadian writer Ivor Tossel reminds us that “the State puts a wedge between us and instincts like tribalism and personal vengeance…it exists for a reason, and reason benefits from the State.”
The State is the foundation and fount of the rule of law. It’s the grantor and protector of citizens’ rights. It’s the root and guarantor of title to all real property owned by its citizens. It’s the guarantor of the proper workings of the marketplace, and thus the economy. The State, with a fulsome, secure and unchallenged tax revenue stream, is the provider of what we call the Welfare State- all the programs and services that decency towards our fellow citizens compels us all to provide to one another, especially those of us in need.
The Canadian State, collectively our federal, territorial and provincial governments, is the ultimate backstop that we lonely, isolated, vulnerable, individual Canadians have against the effects in Canada of vast and indifferent global economic forces.
So it is especially demoralizing to witness the willful, recklessly irresponsible, incompetent, profligate and civically catastrophic fragmenting, weakening and diminishment of the sovereignty and powers of the Canadian State by the Justin Trudeau federal Liberal government in favor of “Indigenous peoples”, as generally (but, confusingly, not necessarily), represented by First Nations bands- to witness the virtual handing over of Crown sovereignty to these so-called “self-governing nations”-to witness the wholesale rejection of these aforementioned most basic and timeless precepts of good and stable government.
Most of our provincial governments are engaging in some lesser degree of the same harmful conduct, but the federal government’s malfeasance in this regards is so head and shoulders above that of most provinces, (B.C., now having adopted UNDRIP, and Ontario excepted), and so much more nationally significant, that this short essay will focus on the latter.
Most of the ideas in this essay are argued and explored at greater length in my book, There Is No Difference- an Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians. See thereisnodifference.ca.
The surrender of sovereignty to “Indigenous peoples” by the Trudeau government has been essentially a legal process, characterized by sovereignty-eroding and fragmenting legal decisions and actions taken and not taken. The basic policy document governing their shameful conduct in this regard is The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples, issued by Trudeau’s then Attorney General, Jody Wilson-Raybould, former Assembly of First Nations Regional Chief for B.C, on January 11th, 2019, (clearly with the selfish and improper intention of fettering the discretion of her successor in Indigenous matters) as one of her last “indecent haste” acts in that office before being shuffled out of it three days later on January 14th.
I will call this Directive quite seriously, the Trudeau Crown Sovereignty Surrender Directive, or TCSSD for short. And indeed, it reads as if she wrote it while she was AFN Regional Chief, and then brought it along to Ottawa after she was elected as an M.P, as an Assembly of First Nations mole- fellow-traveler’s policy manual, rather than written when she was Attorney General for Canada and under oath to protect and defend the Queen’s sovereignty, rights and privileges.
Taken as a whole it’s a near-deranged, near-treasonous sellout document in favour of the AFN, Indigenous elites and the Indian Industry generally.
Notwithstanding that this Directive was only formally issued on January 11th of 2019, it, in various draft forms, was the de facto basis for all Wilson Raybould-Justice Department decisions and policies relating to Indigenous legal claims against Canada for at least the two years before that.
The TCSSD falsely decrees that Indigenous peoples are, legally, “partners” in Confederation with the federal government- that these approximately 635 relatively tiny, totally dependent Indian bands, and other unnamed, nebulous- also completely dependent– Indigenous groups, associations and interests, are, legally, “distinct orders of government”- distinct “nations” or “governments”- and are thus virtual constitutional co-equals with the federal government, the territories and the provinces.
This constitutes a radical, irresponsible, incompetent, State-weakening and fragmenting, de facto transfer of powers from the federal government to “Indigenous peoples”, based on an unprecedented, ahistorical and legally baseless re-interpretation, solely by Ministerial decree, with no parliamentary or public input, of our Constitution.
The TCSSD heralds the federal government’s shift to “the recognition and implementation of Indigenous rights as the basis for relations with Indigenous peoples,” with the goal of advancing “reconciliation”, “respecting and advancing Indigenous self-determination and self-governance” and “fostering strong, healthy, and sustainable Indigenous nations.”
If a First Nation band or any other Indigenous group or organization advances a legal claim against Canada, the TCSSD instructs every Crown lawyer that the approach to the litigation is to “promote resolution and settlement” and to “seek opportunities to narrow or avoid” the litigation by “pursuing dialogue, co-operation, partnership and negotiation based on recognition of rights”, because, as the TCSSD states, Indigenous peoples are “full partners in Confederation, with their rights, treaties and agreements recognized and implemented.”
And, is the goal of Crown lawyers to win the claim or case for Her Majesty, and thereby defend Her sovereignty, laws, agreements, rights and privileges?
No, because the TCSSD states that “litigation cannot be the primary forum for achieving reconciliation”, and, if litigation is unavoidable, the new litigation goal is not to stand up for the Queen, her sovereignty and powers, and Her Canadian taxpayer subjects. Rather it is merely to limply “assist the Court constructively, expeditiously and effectively so that it may provide direction on the matters in issue.”
For all of Canada’s history up until now, the federal government, jealously protecting the public purse and its own sovereignty and powers, as a condition of new rights being recognized, usually insisted on a court declaration before recognizing those rights.
Not anymore.
As the TCSSD states: “Transitioning out of this practice is part of the work of forming new nation to nation, government to government, and Crown-Indigenous relations…recognition of rights speaks to the need for the Government of Canada to prioritize resolution and settlement through collaboration and co-operation.”
In other words, no court declaration to be required any more. Let the unelected civil servants and conflicted or ideologically driven MPs decide behind closed doors, and then just hand over Crown sovereignty, rights, powers and taxpayers’ monies by administrative fiat.
In essence the new official policy is to cave and surrender at the first opportunity and just give the Indigenous claimant(s) what they want.
Why? Because, according to the TCSSD, it is self-evidently truthful that “Indigenous self-determination and self-government are affirmed in the UN Declaration and are central to addressing the history of colonization…Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government…Recognition of inherent jurisdiction and legal orders of Indigenous nations is a starting point of discussions aimed at interactions between federal, provincial, territorial and Indigenous governments.”
The federal government may fight the provinces tooth and nail on issues, but peace, love and surrender- the white flag- is the order of each day for Indigenous claims.
Shockingly for a legal policy document, there are no definitions for the reams of abstract, romantic, mostly legally baseless, essentially myth-based words and phrases in the Trudeau Crown Sovereignty Surrender Directive: “Indigenous peoples”, “recognition” “rights”, “partners”, “full partners”, “reconciliation”, “nation to nation”, “government to government”, “self-government”, “inherent right of self-government”, “cooperative federalism”, “Indigenous nations”, “Indigenous self-determination”, “Indigenous governments”, “Indigenous legal traditions”, “inherent jurisdiction”, “legal orders of (Indigenous) nations”, “colonization”. That’s because these words and phrases are merely politically aspirational and most have no bearing in any actual legal reality, and thus are essentially incapable of legal definition.
No matter, these words and phrases are for true believers who know what they want- more power and money- and how to use them. No definitions, no concrete meanings required. It would be career suicide for a Crown lawyer to ask for specifics of what they meant, or to challenge them.
Also shockingly, according to the TCSSD, Canadian legal policy towards Indigenous peoples is now to be governed by the “UN Declaration”, (you’re just supposed to know what that means too- “UNDRIP”), which is now part of the law of Canada!
The basic political message of the TCSSD is that the federal government is deeming Canada’s “Indigenous peoples” to collectively comprise a sort of abstract, notional, eleventh province, almost co-equal with the other provinces, territories and the federal government, and is thusly opening its store of sovereignty, powers and public purse to them for the virtual free taking.
The basic legal message of the TCSSD is that if a First Nations band or some other group or association of Indigenous persons merely asserts a claim for something, whether by way of actual Court action or not, that claim is prima facie valid and must, with little inquiry, be “recognized” as such, meaning quickly and easily accepted and allowed, and then “implemented” i.e. government action taken or taxpayer money paid to settle it.
The basic tenor of the TCSSD is that it would be against the “honour of the Crown” to contest it, and that, in the face of Indigenous claims, the issue is not whether, but only how much, the federal government will give up and/or the Canadian taxpayer will pay.
The Trudeau Crown Sovereignty Surrender Directive is indeed a Crown sovereignty surrender directive – a recipe for fiscal ruin, increasing federal government weakness and racial division- a sellout to the AFN, Indigenous elites and the Indian Industry- a shameful appeasement document, like the “piece of paper” Neville Chamberlain came back from Munich with- a betrayal by the Trudeau government of its sacred responsibility to maintain a strong, fiscally responsible, full-powered, central government that can take strong and decisive actions for the benefit of all Canadians- the kind of government that has throughout our long past allowed Canada to achieve greatness.
Here are five examples of legal situations where our federal government, following the TCSSD, when faced with a legal claim injurious to its sovereign powers or the public purse, simply lied down, rolled over and abjectly surrendered.
In May of 2018 the Federal Court of Appeal blocked the construction of the Trans Mountain pipeline on the grounds that a few faraway B.C. First Nation bands had not been sufficiently “consulted and accommodated.” The decision threw thousands of people out of work, jeopardized Ottawa’s $4.5 billion investment in the pipeline and has cost the Canadian economy millions and millions of dollars.
The decision was a direct slap in the face of federal power. Clearly the federal government disagreed with it. There was a very strong argument to the effect that Ottawa had indeed adequately consulted and accommodated these bands. Ottawa could have and should have appealed. But it didn’t. Why not?
Because, according to the TCSSD, “The Government of Canada will not appeal every decision with which it disagrees.” (!) Because, you see, to appeal would not be nice or “honourable” towards Indigenous peoples, whose claims must always be “recognized” and “implemented”, and that is a federal government policy that now takes precedence over preserving its sovereignty, treasury, and acting in the best interests of Canada as a whole.
In 2016 the federal government and Ontario were sued by the 21 Robinson Treaties Indian bands who claimed damages for over 150 years of allegedly deficient Treaties annuities payments. The claim, if successful, would upset and re-interpret every treaty ever signed by Britain or Canada with any Indian band in Canada, seriously diminish Crown sovereignty, powers and privileges vis a vis Indian band treaty signatories, and cost the public purse, and thus the Canadian taxpayer, many millions, likely billions of dollars.
The claim was successful. In December of 2018 the Superior Court of Justice ruled in favour of the Treaties bands.
And they were successful in large measure due to the TCSSD-ordered tepid, lame, weak, overly-accommodating, “non-adversarial”, cravenly-appeasing, “honor of the Crown”-to-a-fault litigation behavior and positions adopted by the federal government.
Some examples:
-agreeing to proceed by way of summary judgment- thus making it as procedurally easy as possible for the claimants- where, for example, the claimants could put in their evidence by way of carefully-crafted, lawyer-prepared affidavits;
-agreeing to permit or not objecting to the self-serving and undeserving –of-weight testimony of “Elders” to be treated as expert evidence;
-agreeing to “take respectful consideration of Anishinaabe law…as part of the Anishinaabe perspective that forms part of the common intention analysis”;
-agreeing to permit or not objecting to all forms of loose, speculative, undeserving-of-weight testimony being allowed in as evidence;
-agreeing to permit or not objecting to parts of the trial being conducted on First Nations reserves- the “homes” of some of the purportedly separate, self-governing “nations” suing the nation of Canada;
-agreeing that the post-Treaties conduct of the Indian bands, which strongly showed that they thought the Treaties were “one-time agreements”, and thus not open for re-interpretation, was not relevant; (!)
-agreeing to take a “liberal or generous” and a “reconciliatory and purposive approach to treaty interpretation” and that “the Robinson Treaties established and reshaped aspects of the Crown-Anishinaabe relationship in a manner that contemplated its long continuation and future evolution”-these were real legal-surrender, litigation-suicidal admissions.
-agreeing that all past, present and future Crown discretionary decisions on treaty implementation are to be transparent and reviewable by a Court;
-agreeing to the radical legal proposition, contrary to hundreds of years of established common law traditions and principles, that the trial was “a proceeding of respect and an exercise in reconciliation”;
-agreeing to holding two weeks of the trial proceedings on three First Nations reserves, and then, on those reserves, permitting its lawyers to participate, with the Judge, in numerous and diverse Anishinaabe social events and sacred ceremonies, when alleged, distinct “Anishinaabe perspective and worldview” was a trial issue.
There’s a straight line between the Trudeau Crown Sovereignty Surrender Directive and Canada losing this case at trial- (No! Canada throwing this fight!)– which, as stated, opens up all Crown-Indigenous treaties across Canada for re-interpretation, and will cost Crown sovereignty, the Canadian taxpayer and the Canadian economy mightily.
If there was ever a case that should have been fought tooth and nail, on principle, this was it.
Instead, with the federal government’s decision to accept this ruling and not appeal, as Ontario did, the Canadian common weal got surrender. This case is now heading to the Supreme Court of Canada, and still, our feckless, unprincipled federal government remains uninvolved, except as a wimpy bystander.
During the Harper government years the federal government was sued in a class action by 16,000 former Northern Ontario Indian reserve residents who, due to dangerous and dysfunctional reserve home conditions, had been deemed “in need of protection” and were taken out of their homes, made Crown wards, and eventually allowed to be adopted by non-Indian couples- the defamatorily-named “Sixties Scoop” case.
The Harper government properly fought the case, again, tooth and nail.
The absurd legal claim against the federal government was that Canada had allegedly breached its fiduciary duty towards these children by failing to “preserve and protect” their “Indian culture and identity”, resulting in “psychological problems associated with a loss of culture, self-esteem and identity.”
As soon as the Trudeau government was elected the federal government’s approach to the litigation changed from principled resistance to evidence-be-damned “recognition of rights” and overall “reconciliation” i.e. surrender.
After the federal government agreed in the litigation to permit crucial issues to be determined by summary judgment, (meaning there would be no live witnesses called to the witness box to testify about their alleged “loss of Indian culture and identity” and about the social conditions that caused them to be removed from their reserve homes, and then be cross-examined), and despite the presentation of little or no evidence of the existence of a distinct Indigenous culture on 1960’s Northern Ontario reserves, (it was merely presumed as a fact), the Court ruled in favour of the plaintiffs, finding that in substance the Crown did have a common law duty to preserve and protect the “Indian culture and identity” of each of these 16,000 individual plaintiffs.
The reckless and irresponsible Trudeau government, following the spirit and letter of the TCSSD, immediately announced that it would not appeal the decision. And then, in October of 2017, in most profligate manner, the Trudeau government entered into a settlement with the plaintiffs involving the payment to them of 800 million of taxpayers’ dollars.
Surely there was a real issue as to whether, in 1960’s Northern Ontario, there was any “distinct Indian culture and identity” still in existence that was capable of being “lost”, and surely that issue deserved a live trial!
Surely, in our modern world characterized by constant multi-cultural contact and exchanges resulting in constant change and more change for us all, there is a strong and compelling argument that the “loss of cultural identity”- an abstract, fluid, malleable, totally subjective, unmeasurable concept if ever there was one, and which happens to us all- is not compensable at law!
Surely there is a strong and compelling argument that the law of negligence and duty of care should not be extended to this type of vague and nebulous situation, where the story of each of these 16,000 individuals would be unique and different.
Surely there was a significant damages issue with respect to each and every claimant. It’s trite law that even if a person suffers a compensable breach of a duty of care against him, if he didn’t suffer a loss than he has no damages and no legal case. Here, it may be that the lives of many of the so-called “legally injured” claimants, objectively viewed, were at least as good, or better, than they would have been if they had been left by social welfare authorities in those reserve homes they considered dangerous to the then-children.
Surely the federal government should have appealed this legal decision to avoid the establishment of dangerous, quasi-racist, (oh yes, but always with the best of intentions), and financially ruinous, (to the Canadian taxpayer), floodgates precedent.
We’ll never know the answer to any of these queries, because, in a slap in the face of all those good people who adopted these children, following the Trudeau Crown Sovereignty Surrender Directive, the federal government simply deemed them all to have harmed, and, in “recognition” of their “rights”, and to promote “reconciliation”, reached deep into the pockets of Canadian taxpayers and paid them off.
On June 21st, 2018 a class action nominally brought by one Garry McLean was certified as a class proceeding. The claim is for compensation for all Indigenous children across Canada who attended Indian Day Schools from 1920 (!) onward and who were excluded from the Indian Residential Schools Settlement Agreement. These were typical day schools, usually situated on reserves, funded by the federal government and operated by various religious organizations. The children went home after school, like most of us did. Again, like for all of us, it was the law that these children had to attend school.
The legal action asserted “forced” school attendance. Following the Sixties Scoop giveaway precedent, it claimed compensation for “cultural harm”. It claimed compensation for alleged physical and sexual abuse. And not just compensation for the former students. It also claimed compensation for the families- spouses, former spouses, children, grandchildren, siblings and their spouses- of the students.
Raise up the white flag and again open wide and deep the pockets of the Canadian taxpayers!
As reported in the Manitoulin Expositor on January 30th, 2019:
“The class action was certified (approved) on June 21 as a class proceeding and on December 6 Garry McLean and Crown-Indigenous Relations Minister Carolyn Bennett jointly announced that an agreement-in-principle had been reached between the parties. The agreement-in-principle includes individual compensation for harms suffered while attending an Indian Day School including cultural harm and physical and sexual abuse. In addition to individual compensation, the agreement-in-principle provides for $200 million in funding available to support healing, wellness, education, language, culture and commemoration. The court still has to approve any terms of settlement, which the (class action) law firm intends to seek in the Spring of 2019.”
There were no questions asked as to how getting an education can be “culturally harmful.” No scepticism shown as to how there could be rampant sexual abuse at day schools. Was the “physical abuse” just getting the strap? No questions period.
No evidence required. No placing things in a larger context. No considerations of larger principles or broader public policy issues.
No, as per the TCSSD, the mere making of claims by Indigenous persons now means that, because of the “honour of the Crown” and “reconciliation” they must be almost instantly “recognized”. And so here, after getting the false patina of respectability and “public interest” consideration represented by a pre-arranged, consent court order, more than $200 million of taxpayers’ money is being, in a manner that can only be described as profligate, be paid out.
Finally, in late 2021 the federal government again, shamefully, with disastrous financial, public policy and legal precedent consequences, similar to the disastrous consequences created by the Sixties Scoop cave-in, folded, to the tune of $40 billion of taxpayer dollars, in the face of a legally frivolous, trumped-up human rights complaint brought by one Cindy Blackstock, the Assembly of First Nations and other well-fed (by the Canadian taxpayer) Indian Industry players. The claim was to the effect that all Indigenous children who had been placed in child welfare care because of their dangerous and harmful home circumstances had been “discriminated against” by the federal government because the level of federal government funding for all this was allegedly below the level of funding provided by the provinces for the taking into government care of home-endangered non-Indigenous children. Again, as in the Sixties Scoop case, no evidence of any actual harm to any child was ever requested by federal government lawyers or provided. See https://www.fraserinstitute.org/studies/40-billion-settlement-for-indigenous-child-welfare.
We have a “While England Slept” situation here.
The Trudeau Crown Sovereignty Surrender Directive represents a betrayal by the federal government of the best interests of the vast majority of marginalized, vulnerable, powerless Indigenous Canadians. It will only lead to the strengthening and expansion of the terribly harmful, apartheid-like, “separate but equal” legal and social reality represented by the reserve system.
It represents a civically demoralizing, irresponsible and incompetent betrayal by the Trudeau government of the public trust it owes to the Canadian people to jealously protect the federal government’s sovereignty- the entirety of its necessary powers- and the public purse, and to only act in ways that will bind Canadians together, as equals in all respects, rather than, as this ruinous policy does, further divide us on the basis of race and thus cause the opposite of reconciliation to occur.
Peter Best
February 27, 2022
