Canadians angrily vent privately at our governments’ and police forces’ continuous virtual passivity in the face of Indigenous lawbreaking, such as illegal land occupations, road and rail blockades and conservation laws breaches. “One law for them and one law for us” Canadians rightfully say. There’s a pernicious and civically unhealthy reason for this passivity, which our elites never talk about, but which is worthy of airing and public debate.
Canada is beset by a destabilizing and demoralizing concordance amongst its’ higher Courts, political establishment and senior law enforcement agencies the essence of which is that the rule of law as always generally understood by Canadians and as traditionally applied by law enforcement officials will be applied more leniently to Indigenous lawbreakers than to the rest of Canadians.
This was illustrated in the Ontario Court of Appeal’s 2006 Henco Industries v. Haudenosaunee Six Nations decision, (1) (2006 CanLii 4169 (ON CA) arising out of the illegal Indigenous occupation of Henco’s Caledonia, Ontario residential subdivision development property. In that famous situation the Ontario Provincial Police (OPP) sat back passively for months on end and did essentially nothing while the private property rights of Henco were being repeatedly violated by the illegal Indigenous blockade and occupation of its land. Rather than stand up for the rule of law and have the trespassers evicted and charged the Ontario government bought the land and allowed the occupation to continue, conduct which the National Post later described as “an astonishing decimation of the rule of law that went on for years, with the OPP and the Ontario government both denying the truth of what the citizens saw daily with their own eyes.” 2.Christie Blatchford, A Victory for Fair Policing, The National Post, October 11, 2016). A gutsy lower Court judge ruled that the governments of Canada and Ontario should stop negotiating with the illegal occupiers until they stopped their illegal behaviour. The Court of Appeal overturned this decision saying that since Ontario had bought the land from Henco and was now consenting to the illegal occupation, the occupation was now “peaceful” and “reconciliation, not the force of law” was “the best way to achieve a lasting resolution of the dispute.”
The Court elaborated:
“The Supreme Court has repeatedly said that negotiation, not litigation, is the best way for our country to reconcile the claims of our Aboriginal communities with the rights of the Crown…Moreover, the Crown is under a moral, if not legal, duty to enter into negotiations in good faith. Ultimately, it is through negotiated settlements , with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve …the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown…While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests.”
Now our lower Court judges, Crown personnel and police forces are being instructed by our higher Courts that the rule and force of law as it applies to Indigenous groups and individuals is to be regarded not as absolute, as it is for non-Indigenous Canadians, but rather as “highly textured.” As the Court wrote further:
“Other dimensions of the rule of law have a significant role in this dispute. These include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of the government and respect for Crown property rights.”
For our Indigenous and non-Indigenous elites now, in the context of Indigenous lawbreaking, the rule of law, which ordinary Canadians regard as fundamental and sacrosanct, is regarded as merely one menu choice amongst many, with actual law enforcement i.e. the police actually making arrests and laying charges- given a distant secondary status. Now actual law enforcement is increasingly being trumped by the vague, undefined and incoherent goal of legal “reconciliation” of Indigenous and non-Indigenous rights and interests. This is a real and certain recipe for social resentment, confusion, frustration, conflict and divisiveness. This is especially so as, despite the Polyanna pronouncements in Henco, experience is showing that in the Indigenous lawbreaking incidents that have arisen since, there is, on the Indigenous side, no “give and take.” And no “good faith.” Rather it is consequence-free all take and no give. And why should it be otherwise? For any negotiations to work both sides have to have some “skin in the game”- something to lose- some reason to compromise. But Indigenous groups in these situations never have any downside- they never have anything to lose or any reason to compromise. Their benefits and entitlements keep flowing to them regardless. They can hold out forever. As human nature shows us, in negotiations, where one side has inordinate power and is not subject to any compelling need to compromise, then the tendency of “good faith” is to disappear. So the result of all these “negotiations” is never a “good faith give and take”, as the Henco court naively posited. Rather, it’s some kind of shakedown where the Indigenous side, one way or another, gets its way. The result of all this is that the opposite of “reconciliation”, as most people reasonably understand the word to mean, occurs.
Ironically, it’s the beginning of a trend that could, some distant day in the future, backfire against Canada’s Indigenous peoples, who constitute only a very small minority of Canada’s population.
History shows us that in unstable, fearful times and places it is the rights of ethnic, religious and racial minorities that most often come under attack by the majority. Laws and the state institutions that make and enforce them are often the only things standing between the preservation of those rights and the virulent consequences of mob mentality and mob rule. As historian Timothy Snyder wrote in Black Earth (3 )“Minorities depend most on the protection of the state and the rule of law, and it usually they who suffer most from the weakening or loss of them.”
The menu choices listed above by the Ontario Court of Appeal in Henco are dangerous, fanciful, political, vague and confusing derogations from the “blind,” even-handed enforcement of the rule of law, which menu choices are being enthusiastically applied by our jelly-centred political, bureaucratic and police elites, and which constitute a slippery-slope, unjustified and demoralizing Pandora’s Box precedent encouraging and justifying further Indigenous lawbreaking.
“Criminal means once tolerated are soon preferred.”- Edmund Burke, Reflections on the Revolution in France. 4
The Henco decision and similar higher Court jurisprudence since has most certainly encouraged an increasing disrespect for politicians, government and police authority– for the legitimacy of governmental authority generally– demoralization of the non-Indigenous population at large, and further lawless behavior on the part of Indigenous Canadians, who now know that whatever illegal behaviour they now engage in, it will be another all take and no give situation for them, and that authority’s first and in fact only response will be the endless, craven, Munich-like “negotiation with a view to reconciliation” response, rather than the simple, even-handed, racially indifferent, traditional enforcement of the general law of the land. There is great civic danger inherent in this situation.
Peter Best, November 13th, 2020
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