THE INDIGENOUS VETO LAWS –TURNING NEIGHBOURS INTO STRANGERS
It’s a terrible thing for an individual of modest means to get wrongfully or frivolously sued in civil court. One’s whole life can get turned upside down. The uncertainty, the fantastic cost, the sense of being out of control, the fear of the unknown, the unpredictable and variable human factors around lawyers and judges, being caught up in a confusing and unpredictable straitjacket of a situation governed by a myriad of complicated rules, forms and procedures often seemingly heartlessly enforced, the months and even years of delays: to an average person these all add up to a situation of tremendous stress, financial devastation and personal harm.
There’s a civic/moral duty on citizens to only enter such a seemingly Dickensian/Kafkaesque world- to only “go to law” against a person- for serious, good faith reasons usually involving having been directly wronged by that person. There’s a civic/moral duty to only resort to the courts against a person as a last resort.
Lawyers bring the administration of justice into disrepute when they launch frivolous, bad faith lawsuits, or when they launch a lawsuit against a person who is essentially a “bystander” for tactical purposes not directly related to anything wrong that person allegedly did or did not do.
There’s an obligation on the courts, at the earliest opportunity, to identify and discourage through its rulings such frivolous, bad faith lawsuits.
All these civic/moral principles were disregarded by Ginoogaming First Nation, which, after carelessly suing Michael Malouf and his companies, Quaternary and Hardrock, (collectively, “Malouf” or “Mr. Malouf”), in 2020 for $80 million dollars in damages, with the avowed collateral purpose of getting for themselves the Malouf lands from the Ontario government, and after embroiling him in that lawsuit for almost three years– thus suspending and upsetting his life for that long period– abruptly dropped their case against him and simply walked away from him, without explanation, apology or meaningful compensation for all that their mean and careless conduct toward him had forced him to endure.
Imagine reader, being sued for $80 million and that claim held over your head for three years! You might think the amount is ludicrous, but there it is, in the court-sealed legal papers served on you: a stark and forbidding number in black and white, approved and aggressively prosecuted for by high powered lawyers. It’s gut-wrenching.
Ginoogaming was unconcerned about this kind of personal harm being inflicted by them on their good neighbour, Mr. Malouf. They were unconcerned by the fact that the Malouf mining lands had, in 1906, by Treaty 9, been surrendered by their ancestors to the Crown. They ignored the one-hundred-year history of logging and mining activities on the Malouf lands, activities willingly participated in by their ancestors. They ignored the sacred covenants their ancestors had made in Treaty 9 to honour their treaty promises, especially their treaty promise to permit mining on all Crown lands, including the Malouf lands.
In wilful disregard of these sacred promises, they conjured up the legally groundless claim that Treaty 9 in essence meant nothing, that the past meant nothing, that the Malouf lands were virgin “sacred areas” not surrendered in any way by Treaty 9, and that in any event they had a veto on whether the Crown could allow any mining activity to take place on them, which veto they were exercising to say “no”.
The only things worse than Ginoogaming’s dishonourable conduct against Mr. Malouf was the Ontario government’s shameful, legal abandonment of Mr. Malouf- their innocent permit holder- and their disgraceful failure to forcefully defend the validity of the mining exploration permit they had issued to him, and their legally suicidal failure to forcefully defend their own sovereign right to set the rules for mining exploration and development in Ontario. Their generally weak, appeasing behaviour throughout this lawsuit, and their failure to support the vulnerable and unfairly ensnared Mr. Malouf in the many instances where he obviously needed and deserved it, sends the message to future, potential mining investors to stay out of Ontario, which message the mining industry is heeding.
In the original injunction motion hearing Ontario had, incredulously, instead of fighting it tooth and nail because of the obvious harmful precedent it would set, taken “no position” on the investment-killing, legally unprecedented, Ginoogaming “sacred areas-sacred rights” claim.
In the original injunction motion Ontario, carelessly weakening its own sovereignty, accepted, “for the purposes of the motion”, despite the aforesaid 100-year history to the contrary, that the entirely, recently made-up Wiisinin Zaahgi’igan “is a place that contains locations of cultural and spiritual importance to members of Ginoogaming”.
Even though Ginoogaming had contemptuously rejected all efforts of Mr. Malouf to consult and offer “accommodation”, as detailed in Part 1 of this series of articles, The Tragic Wounding of Ontario’s Mining Industry, and even though, as detailed in Part 2 of this series of articles, they admitted in their court papers that in effect they weren’t interested in consultation at all– that what they wanted, one way or another, was the Malouf lands handed over to them.
The Indigenous friendly Judge Vella, reflecting a disturbing trend in Canada’s civil justice system, after granting the original, interim injunction, playing right into Ginoogaming’s basic, legal gameplan of delay, delay, delay, ordered further consultation between Ginoogaming and Ontario.
(Justice Vella was former counsel to the National Missing and Murdered Indigenous Women and Girls Inquiry, which had concluded that Canada, with its “settler colonialist structures”, was guilty of “acts of genocide of Indigenous peoples”. Ontario should have asked her to recuse herself, and, in any event, Justice Vella should have voluntarily recused herself because of the reasonable apprehension of bias created by her recent involvement with this Inquiry and it’s radical, unfounded conclusions.)
Ontario, despite its official policy to always download their consultation obligations to mining activity proponents, was content to see Mr. Malouf, the only one in the situation whose livelihood and life’s work was at stake, excluded from these further consultations.
The further consultation ordered by Justice Vella, to no one’s surprise, went nowhere.
A lot of time was initially taken up dealing with Ginoogaming’s lawyers’ demands that they be paid by Ontario for attending consultation meetings, the imperious, “let them eat cake” nature of these demands epitomized by one of Ginoogaming’s team of lawyers, Corey Shefman, writing that “it is disrespectful for Ontario to expect Ginoogaming to attend consultation meetings to fulfill the Crown’s duty, at Ginoogaming’s cost”.
Demands were made that Ginoogaming be re-imbursed the $74,099 they paid or owed for the biased “expert reports” they had filed in support of their sacred areas-sacred rights claims. (It appears that Ontario cravenly and foolishly paid some of this.)
But mainly, during these consultations, Ginoogaming never budged from its haughty, grasping position that they didn’t want consultation- rather, they wanted the Malouf lands for themselves. As their lawyer, Kate Kempton, had stated in a letter to Premier Doug Ford just before they started the lawsuit:
(Ginoogaming wants) Ontario’s intervention to acquire or purchase (Malouf’s) interests in Wiisinin Zaahgi’igan and to issue a withdrawal notice pursuant to section 35(1) of the Mining Act.
To Ginoogaming, reducing Mr. Malouf and his life’s work and dreams to a dehumanized irrelevancy, this was more important than “the small possibility of a financial benefit of a single permittee.”
Ginoogaming’s self-entitled intransigence was evidenced in a letter from Ontario’s Brian McMahon to Ginoogaming Chief Sheri Taylor, in which he confirmed that:
The community’s position in the November 17th meeting, stated clearly and repeatedly, was that the only accommodation it was prepared to accept was Ontario buying out the mining claims and other interests of Mr. Malouf, and that you were not prepared to accept any mineral exploration or activity of Mr. Malouf.
Throughout this fruitless and time-wasting period, the clock on Mr. Malouf’s 2019 exploration permit was ticking, and on June 20th, 2022, it ran out and the permit expired.
Mr. Malouf was now not legally able to perform any mineral exploration activity on his mining lands.
Ginoogaming had gotten at least that part of what they wanted, and all that existing law could ever give them in any event.
They should have had the decency then to drop the case against Mr. Malouf, knowing that they could, consequence-free, if he applied to renew his permit, harass and block him all over again the same way as before. Indeed, after they did finally drop the case, their lawyer, Kate Kempton, told a member of the press:
“The court case was always mainly against Ontario as the Crown government that has made decisions and issued permits that have infringed GFN’s rights…Since his expiration permit has expired…we do not need (him) in the case.”
The 2019 permit no longer existing, and not renewed, all issues around it were moot.
But instead of dropping the case against him because they no longer needed him to be in it, they doubled down on their mean carelessness towards him.
They kept suing him.
At a case conference held on July 15, 2022, the purpose of which was to determine the status of the original interim injunction, Ginoogaming’s lawyers announced that they would be bringing a motion to convert the interim injunction into a permanent injunction prohibiting Mr. Malouf from ever, at any time in the future, applying for a renewal of his mining exploration permit.
In September Ginoogaming brought their motion, claiming amongst other things, showing their callous indifference to Mr. Malouf’s life’s work and dreams, and their hypocritical contempt for capitalism and the taxes from capitalism that fund Ginoogaming’s very existence, that:
…in a weighing of the constitutionally protected rights of Indigenous peoples against the purely financial interests of private citizens and corporations, this court ought to ensure the protection of Ginoogaming’s rights.
In their court papers they falsely accused Ontario and Mr. Malouf of “intransigence”, because the former insisted that the law be at least minimally followed, and because the latter insisted on his legal rights and his life’s work being respected.
Making assertions that they no doubt needed a stiff drink before committing to paper, Ginoogaming’s lawyers wrote:
12. Ontario fundamentally failed or refused to accept Ginoogaming’s explanation that all of Wiisinin Zaahgi’igan is sacred and requires protection and refused to consider or engage with Ginoogaming’s proposed solutions to explore the creation of an Indigenous Protected and Conserved Area, or to withdraw all of Wiisinin Zaahgi’igan from mineral exploration.
13. Instead, Ontario continued to insist that only its non-Indigenous worldview and systems could be applied. This view negates the value of the sacred place entirely, and instead reduces Ginoogaming’s values to dots on a map. This is akin to perceiving a human being as nothing but disparate organs; keeping each organ “alive” in containers does not protect the integrity of a human being. Ontario remained “too focussed on requiring the First Nation to pinpoint each location of spiritual and cultural significance”. (Quoting Justice Vella in her original injunction ruling.) It reiterated the positions it had taken prior to the injunction, that it would only consider protecting specific pinpointed sites.
14. The Malouf Defendants have similarly refused to accept the evidence, insisting that Ginoogaming show pinpoints within the Ferau claims. Ginoogaming did show this (which was false) but the Malouf defendants ignored the evidence.
15…. Given this, the court should draw an inference that if no injunction is granted, the Malouf Defendants will apply for and make use of, and Ontario will grant, an early exploration permit for the Ferau Project. The threat of irreparable harm remains.
Reality check re the immediately above:
-for “proposed solutions” read “take the Malouf lands and give them to us”.
-for “non-Indigenous worldview and systems” read “the rule of law and respecting property rights”.
-for “the Malouf defendants ignored the evidence” read “The Malouf defendants failed to accept our baseless “sacred areas-sacred practices” fabrications”.
To its minimal credit, Ontario filed a written brief arguing that the permanent injunction claimed was neither necessary nor appropriate.
Mr. Malouf spent countless worried hours researching the law and preparing and then filing his written response to Ginoogaming’s new, permanent injunction-claim.
The motion was to be argued on January 27th, 2023.
On January 23rd, only four days before the motion was to be argued, Ginoogaming’s lead lawyer, Kate Kempton, announcing Ginoogaming’s intent to play the delay game again, abruptly and breezily advised Mr. Malouf and Ontario that she was going to write the court:
…to tell them that we are seeking to convert the motion hearing on Friday to a case conference whereby we ask the judge to reinstate her older order for the parties to engage in consultation to see if a resolution can be obtained.
The reason for this is the very recent new development of Ontario withdrawing areas in and near the Wiisnii Zaagigan (Sic) area (near the Ferau claims) from mineral exploration on behalf of Long Lake 58 First Nation. We want to explore whether some arrangements can be made like that for Ginoogaming. This would involve discussions between Ontario and Ginoogaming but likely also with Mr. Malouf to see what if anything it would take to have Mr. Malouf dispose of his Ferau claims in WZ.
This is a very recent development and one that need (Sic) to be explored without a motion hearing breathing down our necks.
This was clearly a careless attempt on the part of Ginoogaming to both continue to delay and thus deny justice to Mr. Malouf, and to avoid the January 27th day of legal reckoning, as Ginoogaming’s lawyers had to be fairly certain that claiming a permanent injunction to prevent Mr. Malouf from ever applying to renew his exploration permit was going to be, even for such an Indigenous-friendly judge as Justice Vella, a legal bridge too far.
This carelessness was heightened by the fact that Ginoogaming knew that the essence of the “arrangements” they wanted to “explore” constituted the Malouf lands ending up in Ginoogaming’s hands, which Ontario and Mr. Malouf had already continuously and decisively rejected.
Mr. Malouf strongly objected to this 11th hour announcement and correctly branded Ginoogaming’s behaviour as a bad faith, delaying tactic. He objected to the adjournment, and he objected to Ginoogaming’s lawyers writing to the judge to tell her that were going to ask for one, saying it was highly improper.
It is highly improper. Lawyers are prohibited by the Rules of Civil Procedure from writing to a judge without the prior consent of all the other parties to the action.
Ginoogaming’s lawyers first response was to wrongly suggest to Mr. Malouf that he was acting unethically by refusing to consent to the adjournment. Corey Shefman wrote, after saying that abandoning a motion is a normal procedure:
Second, asking for an adjournment is a normal and standard request. It is not us who is acting improperly or in “bad faith.” Rather, if you were a lawyer, your refusal to consent to an adjournment would potentially be a breach of your ethical obligations under the code of professional conduct which specifically requires that consent be given for adjournments unless specific prejudice would result (prejudice does not just mean inconvenience, it means actual harm.) Of course, because you are not a lawyer, you are not bound by that rule. Nevertheless, your accusations of us acting in bad faith are uncalled for and unnecessary.
The Rules of Professional Conduct governing Ontario lawyers prohibit lawyers from engaging in “conduct unbecoming”, generally defined as “conduct that tends to bring discredit to the legal profession”. Mr. Shefman arguably engaged in such unbecoming conduct by this clear suggestion to Mr. Malouf that he was doing something wrong by not consenting to the last-minute adjournment motion. The appearance was created that Mr. Shefman was trying to take improper psychological and legal advantage of the inexperience and lack of knowledge of legal matters on the part of the unrepresented Mr. Malouf.
The Rules of Professional Conduct also instruct lawyers to, when dealing with an unrepresented person, “take care” to see that the person understands that the lawyer is acting exclusively in the interests of his or her client and that accordingly their comments may be partisan.
Mr. Shefman chose to give Mr. Malouf no such “partisan reminder” in this important email.
This was Ginoogaming’s motion, scheduled five months before. Mr. Malouf had devoted hours of work and suffered hours of worry in preparation. All papers were filed. All parties were primed and ready to go. “Further consultation”, the reason given for the adjournment request, was known by all parties by this time to be futile, because of Ginoogaming’s consistent, unchanging and always unacceptable demand for an illegal veto on all mining activity on the Malouf lands. An adjournment would put Mr. Malouf’s life work and dreams in abeyance for a further indefinite period. He would clearly suffer real harm.
Mr. Shefman well knew that, in these circumstances, and having regard to the norms of civil litigation practice, it would be perfectly reasonable and entirely “ethical” for Mr. Malouf to not consent to this last-minute adjournment request.
The Rules of Professional Conduct governing lawyers prohibit a lawyer from deliberately misstating the provisions of a statute or like authority. Mr. Shefman could reasonably be said to be doing this by clearly suggesting to Mr. Malouf, an unrepresented litigant, that he was acting unethically by, in all these unique circumstances, not consenting to what was clearly a merely tactical and delaying, last-minute adjournment request on the part of Ginoogaming.
As stated, lawyers are prohibited by the Rules of Civil Procedure from writing to a judge without the prior consent of all the other parties to the action.
In the evening of January 24th Ms. Kempton, Ginoogaming’s lead lawyer, did exactly that.
Corey Shefman had given a clear, written undertaking to Mr. Malouf on January 24th not to write to the judge. He wrote, misstating Mr. Malouf’s position as “entirely unreasonable”, and omitting any partisan reminder:
“…now that you (Mr. Malouf) have clarified that you do not consent (which, to be clear, is entirely unreasonable in the circumstances and will lead to increased costs for all involved), I will of course comply with the Rules and not send the letter”, (Italics added).
Contrary to the Rules of Civil Procedure and contrary to Mr. Shefman’s clear undertaking, Ms. Kempton brazenly wrote the judge’s secretary, knowing that her message would be passed on to the judge, and advised her that Ginoogaming would be seeking an adjournment of the permanent injunction motion for the purpose of having further consultation with Ontario and perhaps Mr. Malouf.
The judge duly received the message, as expected by Ms. Kempton, and as a result, acting on it, which she should not have done, ordered that all parties file written briefs on the proposed adjournment request, which was extra legal work that Mr. Malouf would never have had had to do but for this improper communication with the court.
To Mr. Malouf’s complaint to Ms. Kempton that she had improperly written the court, Ms. Kempton condescendingly replied to him that her writing the court had been “perfectly legitimate”, asserting that, while it was indeed improper to write a judge without all parties’ consent, it was not improper to write an unconsented-to letter or email to a judge’s secretary.
This was a gaslighting distinction without a difference.
And, adding insult to injury, she wrote:
Since you are not a lawyer you might consider refraining from your angry messaging when you don’t know what you are doing on this subject. I’m not suggesting that you should know; just that you should recognize you don’t know.
Arguably, Ms. Kempton misstated the law to Mr. Malouf.
Ontario Superior Court Justice E.M. Emery, in Sahara Lawyer Professional Corporation v. Lata Menon, (2016 ONSC 5185, at paragraph 22), wrote as follows:
Correspondence to a judicial assistant of a judge hearing a motion, application or trial without the consent of other counsel or at the invitation of the judge offends Rule 1.09 (of the Rules of Civil Procedure) as if those letters were written directly to the judge. (Italics added)
And again, just as with Mr. Shefman, there was no partisanship reminder from Ms. Kempton to Mr. Malouf in this condescending and arguably misleading email, as required by the Rules of Professional Conduct.
All of this is typical of the kind of rough, hardball treatment the innocent, unfairly ensnared Mr. Malouf had to endure at the hands of Ginoogaming and their lawyers throughout this litigation.
On January 27th, as experienced litigation lawyers like Mr. Shefman and Ms. Kempton would have expected, Justice Vella orally dismissed Ginoogaming’s groundless, obviously merely tactical, last minute motion for an adjournment of their injunction motion, pointing to the total lack of progress in the previous consultation talks she had ordered, and finding that Mr. Malouf would suffer prejudice that could not be compensated for by costs.
Immediately upon hearing the judge’s adverse ruling on her adjournment motion Ms. Kempton totally surprised the judge and the other parties, by announcing to the court that Ginoogaming was now abandoning- immediately– right then and there– their motion for the permanent injunction.
Justice Vella, making no unfavourable reference to Ms. Kempton having improperly communicated with her, then dissolved her original interim injunction order, leaving the stunned Mr. Malouf injunction-free for the first time in well over two years.
If Ms. Kempton had formed the intention prior to January 27th to abandon her injunction motion if her long-shot adjournment request was refused, then it was lawyer conduct unbecoming for her not to have given advance notice of that to Mr. Malouf, to the lawyer for Ontario and to the court.
It is strongly arguable that the most convenient legal forum for this legal action is Thunder Bay. Mr. Malouf had pointed that out to Ms. Kempton in October of 2020, and asked her then to agree to move it from Toronto to Thunder Bay, near where main parties lived and where all the witnesses could most conveniently and inexpensively go to testify. To this, Ms. Kempton had condescendingly and inaccurately replied that there was “little merit” in his request, and again, with no partisanship reminder.
Then, most improvidently, she added:
We do not in fact want any judges quite familiar with the parties deciding this case, due to reasonable apprehension of bias. TBay has had horrible problems with racism directed to Indigenous peoples and this is well documented. If anything, it is a more loaded and charged environment than Toronto for this kind of case. (Italics added)
This was a clear suggestion by Ms. Kempton that Thunder Bay judges would be biased against an Indigenous litigant. This is an unethical statement for any lawyer to make.
The Rules of Professional Conduct obligate lawyers to “take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations.”
Suggesting that Thunder Bay judges would be affected by racism in their deliberations involving an Indigenous litigant is highly improper and irresponsible, not to mention patently false.
But back then, in 2020, Ginoogaming had proceeded to embroil Mr. Malouf for the next two years in Toronto injunction proceedings, during which he had to put on hold his plan to try to have the venue of the $80 million action against him moved to Thunder Bay.
When the original interim injunction was finally dissolved by Justice Vella in January of 2023, he was free to bring his motion for a change of venue.
In early June Mr. Malouf served and filed his motion to change the venue of the action to Thunder Bay, together with his written argument.
Ms. Kempton’s first reaction to this, rather than dealing with the substance of the motion, was to write arguably misleading emails to him, again with no partisanship reminder, about whether he had legal counsel assisting him and if so, who that person was.
On June 14th she wrote:
You have failed to stipulate who you are using as legal counsel. It is abundantly clear that you are. Please indicate same.
On June 22nd she again wrote about this:
Please advise who your legal counsel is Mr. Malouf. I have asked you this question many times and you have refused to answer. You have to date received benefit from the court for being self represented, but we know that your son, a non practicing lawyer, had been assisting you. Is he still, or do you have practicing legal counsel assisting you. Note that I will not let this rest as you are obliged to disclose this information. (Italics added.)
If the self-representing Mr. Malouf was receiving advice from a practicing lawyer on how to deal with the complexities of being sued by a First Nation and their high-powered lawyers for $80 million, he had absolutely no obligation to disclose this information to anyone. It was arguably improper for Ms. Kempton to suggest that he “was obliged to disclose this information”, and to make this suggestion in the form of an implied threat, thereby suggesting that Mr. Malouf was doing something wrong, when he wasn’t, and thus again, as did Mr. Shefman, arguably giving the appearance that she was trying to take improper psychological and legal advantage of Mr. Malouf’s inexperience and lack of knowledge in legal matters.
On the motion return date Ginoogaming’s lawyers opposed having this relatively simple procedural matter dealt with solely by written arguments. They asked that the more expensive and delaying procedure of having oral argument be allowed. Ginoogaming Chief Sheri Taylor swore an affidavit in which she said that she preferred the case to be tried in faraway Toronto, rather than in Thunder Bay where she, members of her “nation’ and Ginoogaming witnesses could more inexpensively and conveniently attend, watch and give evidence. The judge- for the first time not Justice Vella- ordered that the motion proceed on August 17th, with oral arguments being allowed.
Ms. Kempton would always have known that, rather than there being “little merit”, in fact there was strong merit to the argument that Thunder Bay was a more convenient forum for this action than Toronto. She would have known that Mr. Malouf had a strong chance of winning the motion.
She would also have known that her improvident, preposterous, arguably unethical, written statement to Mr. Malouf almost three years before to the effect that in her opinion Thunder Bay judges were racially biased against Indigenous litigants, was going to come up in court, (It was set out in Mr. Malouf’s written materials which would be read by the presiding motion judge), and she would be forced to embarrassedly explain herself for something for which no exculpatory explanation was possible.
Only a sincere, grovelling, mea culpa apology would do.
What to do? the clever and talented Ms. Kempton would naturally have asked herself.
On July 27th, knowing that suing Mr. Malouf and his companies was never really necessary to do in the first place, (an injunction against Ontario alone would have been enough to get the total freeze they wanted on all mineral exploration activity),and having already concluded that when his exploration permit had expired over a year before, Ginoogaming, from that time forward, didn’t need Mr. Malouf in the action any more, (In fact, they never did.), Ginoogaming abruptly and stunningly discontinued- dropped- ended- after almost three years of pushing it– their entire, careless $80 million, “sacred areas” court case against him, leaving Ontario, always the only real target of the case, as the sole remaining defendant.
There now being no action against him, Mr. Malouf’s change of venue motion became immediately moot and unnecessary, and again, as when Ginoogaming abruptly and without notice walked away from their permanent injunction motion on the very day it was to be argued, all his work and worry expended over it became for nothing.
Not understanding what had just happened, Mr. Malouf naively protested to Ms. Kempton and to the court. Ms. Kempton wrote him on August 2nd and explained that what Ginoogaming had just done was legal. Then she added:
Good luck with the rest of your life. I sincerely hope you can find peace somewhere and somehow.
Given all that had happened to him, from the beginning of his spurned attempts to consult with and accommodate Ginoogaming to the end of their careless, life-disrupting lawsuit against him- all of which spanned about an seven-year period- Mr. Malouf took this as an offensive, sarcastic putdown, clearly implying to him that he was a disturbed individual who needed to “somehow” find “peace” “somewhere”- as if he was being told: “My client is done with you. Now go get a life!”
The Rules of Professional Conduct state that “a lawyer has a special responsibility to protect the dignity of individuals”. This includes self-represented individuals against whom the lawyer is litigating. The Rules also state that “a lawyer shall be courteous and civil with all persons with whom the person has dealings.” This includes self-represented persons. The Rules elaborate on this, stating:
Personal remarks interfere with the orderly administration of justice and have no place in our legal systems.
Telling Mr. Malouf, after her client sued him for $80 million and put him through an almost three-year litigation case- turning his life and dreams for his life’s work upside down- and then just dropping the case against him without notice, that, in his stunned state, he should now just “go and find peace somewhere, somehow”, was arguably the height of careless and insensitive personal discourtesy and incivility on the part of a lawyer towards an opponent, and was arguably a conspicuous example of a lawyer neglecting to discharge her responsibility to protect the dignity of an elderly, vulnerable, self-represented person, namely Mr. Malouf.
Parts 1 and 2 of this series of articles has, to the best of this writer’s ability, through the lens of this one court case, shown the disastrous legal and economic consequences of the Supreme Court of Canada’s invention of the “consult and accommodate” obligation in favour of all First Nation bands in the proximity of any proposed natural resource project. They have also endeavoured to show the same disastrous consequences of the foolish embrace and extension of this anti-Crown sovereignty obligation by Canada’s increasingly illiberal political, judicial and bureaucratic elites, now extended even further by Prime Minister Trudeau’s sovereignty-suicidal UNDRIP Action Plan.
In Ontario the embrace and extension of “consult and accommodate” has gone so far that a small prospector like Mr. Malouf can’t even get a permit to merely look for minerals without being tied up in court for three years, during which his government, so neglectful of its core purposes, doesn’t lift a finger to help him.
This Part 3 has endeavoured to show what a Dickensian ordeal a civil lawsuit can too-often turn out to be, with its rules, forms and personalities making it beyond the capacity of a normal person to comprehend and cope with, especially a self-represented person. As the cost of civil litigation increasingly escalates beyond the ability of middle-class people to pay, there will be more and more people like Mr. Malouf with no choice but to attempt to represent themselves, with the same disadvantages to be experienced by them as experienced by him. Some institutional, Duty Counsel support should be available to them, similar to the Duty Counsel system in the criminal courts.
More importantly, this Part 3 article has tried to illustrate the negative human factors inevitably brought into play by “consult and accommodate” and UNDRIP, which have given First Nations a de facto veto, now approaching a de jure veto, on all proposed natural resource projects, (collectively hereinafter referred to as “the Indigenous veto laws”), and the great and morally harmful human costs inevitably resulting from these backward-looking, purely race-based-and thus inevitably divisive– laws.
Before the time of these Indigenous veto laws, a time period making up most of Canadian history since before Confederation, relations between Indigenous and non-Indigenous Canadians were relatively benign, uneventful and untroubled. The country grew and prospered. Indigenous Canadians increasingly moved away from their reserves and made lives for themselves in mainstream Canada. Indigenous and non-Indigenous Canadians were slowly coming together.
The idea of a First Nation band suing their neighbour for $80 million was impossible to conceive.
This positive, hopeful situation ended with rise of identity politics, historical illiteracy, the passage of section of 35 of the Constitution Act, 1982, and the Indigenous veto laws that eventually emerged from these phenomena.
Tiny, dependent Indian reserves, which had originally intended to be only temporary way stations on the road to positive assimilation into the Canadian mainstream, transformed into permanent, “independent, self-governing nations”, dealing on an ostensibly equal “nation to nation” basis with Canada and the provinces.
Instead of the positive assimilation and equality under the law which Canada had been moving towards, with Indigenous peoples healthily evolving out of the state of civic infantilism that reserves kept them in, Canada now has permanent, racial, “separate but equal” segregation, with anomie, learned helplessness and social dysfunction the main characteristics of modern, reserve life.
Tragically for Indigenous peoples, their elites have willfully exempted them from participation in the management of their country’s public affairs that involves all citizens equally, thus losing their natural connections with their fellow citizens.
They have fallen back into an even more-permanent state of civic infantilism.
Indigenous Canadians became falsely categorized, first mainly by “progressive” non-Indigenous elites, and then, seeing the main chances available, by their own leaders, as permanent victims of genocide, systemic racism and land theft. Their elites embraced and now falsely promote, as part of their perennial victimhood narrative, that residential schools were the cause of all their present problems. “Intergenerational trauma”, never heard of before, became their leaders’ mantra, and out of it all, money and power their goal. Handy catch phrases like “reconciliation” and “the honour of the Crown” became useful tools to attain these goals.
It has all gone to the heads of Indigenous elites. Their careless and self-seeking exercise of their new national powers, devoid of any attendant responsibilities or of any useful or virtuous purposes[i], (and thus being seen as essentially parasitical[ii]), has not only legally severed them and their peoples from the Canadian mainstream but, as importantly, has severed them psychologically and emotionally from it as well.
Such a total, permanent severance means that the sense of community with and neighbourliness towards one’s fellow citizens- social glue necessary for a healthy and harmonious society- never forms, or if it once was there, (as it was once healthily germinating in Canada), it atrophies.
The profound moral consequence of all this severance is that those who would otherwise be common-community neighbours to whom moral obligations are naturally and traditionally owed, become some variation of the abstract, dehumanized “other”, who, as history shows us over and over, are often treated very badly.
Racist thinking- the racist mindset- presumes and is dependent upon the existence of the concept of the lesser, human “other”.
For Indigenous elites, such as the elites that govern the Ginoogaming “nation”, and for non-Indigenous elites who enable them, ordinary, decent non-Indigenous Canadians like Mr. Malouf, whose rights and lands are standing in the way of the Ginoogaming “nation’s” lebensraum expansion plans- is, to them, one such insignificant “other” to whom no traditional neighbourly obligations are felt to be owed. They casually assume that he should or must be prepared to step aside so that those visionary “national” plans can be achieved. They instinctively think that whatever measures they and their big-city lawyers come up with to force him to do so are justified, including carelessly suing him for $80 million, stopping him from exploring for minerals on his lands, and trying every means to get his lands from him.
After all, they reason; “He’s not our neighbour or part of our community. He’s not Michael Malouf, the gentleman who came around to our Band office for years trying to talk to us. He’s just “a single permittee”- an “other”. We’re victims of genocide, systemic racism, residential schools and land theft. We’re a separate nation. He’s a foreigner. Anything we do to this “single permittee” is morally justified, being in pursuit of just reparations. We can do no wrong.”
Thus, the Indigenous veto laws and the laws that spawned them have destroyed our common civic world, where all citizens would normally aspire to earn one another’s admiration, loyalty and respect. They have destroyed the ability of Indigenous and non-Indigenous Canadians to see and feel themselves as neighbours, and act as neighbours.
They have allowed victimhood-obsessed, Indigenous elites, now operating outside of all traditions of common-community civility[iii] and puffed up with political power and a false sense of righteousness, to feel free to give their selfishness and their vast carelessness free rein.
The “tragedy of the commons” occurs when individuals take more than their fair share of public resources.
The Indigenous veto laws and their legal progenitors have created a variation on this, exemplified by Ginoogaming First Nation’s selfish, careless, legally rough treatment of Mr. Malouf: the tragedy and danger for the country and for all of its citizens of there being no longer any commons at all.
Peter Best
French River
September 10th, 2023
[i] A recent, typical example of this was the selfish, provocative and divisive temporary takeover by a B.C. Indian band of a provincial park, thus senselessly depriving their neighbours and fellow citizens of the use of it.
[ii] The management of public affairs involving “all citizens equally” and “parasitical” are from Hannah Arendt, The Origins of Totalitarianism, Houghton, Mifflin, Harcourt Publishing Company, New York, 1976. The full, apt quote re “parasitical” is basically: “Wealth without power, or aloofness without policy, is felt to be parasitical, because such a condition cuts the threads which tie men together.”
[iii] “From the start, some worried about this privatizing of morality. “If what is good, what is right, what is true is only what the individual “chooses to invent”, Walter Lippman wrote in his 1955 collection, Essays in the Public Philosophy, “then we are outside the traditions of civility.” This latter phrase, and other similar ideas in this last part of Part 3, from the great David Brooks’: How America Got Mean-In a culture devoid of moral education, generations are growing up in a morally inarticulate, self-referential world. – The Atlantic Magazine, September 2023.
