A Description of the Extremely Harmful Restoule Trial Decision

If apartheid were measured by results rather than intent, we would have it on reserves today. – Indigenous writer Calvin Helin

On December 21st, 2018 the Ontario Superior Court of Justice, in its Restoule vs. Ontario and Canada decision, ruled that Canada and Ontario were liable- 50-50- to pay to 21 Ontario Indian bands a share of all the revenue that Ontario has received – possibly going back to 1875– from all sales, leases and licenses of Crown lands, less Ontario’s expenses incurred in selling, regulating and collecting that revenue.

This will involve legions of number crunchers going back over an approximately 150 year period, and will cost millions to do. The final payment to these Indian bands will likely be in the many millions- perhaps billions – of dollars. This payment money will have to come out of taxpayers’ pockets, because, as we know, Canada and Ontario are already virtually insolvent and are living largely on massive amounts of borrowed money.

The fabled goal of “reconciliation” will become more and more impossible and illusory because of this socially divisive legal decision.

Ontario has appealed the decision, but Canada, betraying Crown sovereignty, Canadian social unity and the Canadian taxpayer, has not. For the likely reason why Canada has not appealed this decision see my article, The Trudeau Crown Sovereignty Surrender Directive, at thereisnodifference.ca.

The Court ruled in substance that Canada and Ontario, and thus the non-indigenous people of Canada and Ontario, acted dishonourably towards these Indian bands in carrying out certain treaty obligations owed to them during this period, by essentially short-changing them of their proper entitlements under these treaties.

When and if these payments are received by these bands, they will constitute payments received in addition to the payments and benefits that Canadian taxpayers are already paying or conferring on Indian bands and individual indigenous Canadians, and for which no credit is being offered to Canadian taxpayers by the victorious Indian bands.

While this may result in the appropriate legal “reconciliation” of “prior Indigenous sovereign occupancy” of the subject territories with the new sovereignty of the Crown, (the kind of legalistic “reconciliation” that was relevant to the Judge), it will not lead to the personal, social, community and political “reconciliation” of Indigenous and non-Indigenous Canadians- it will not lead to social harmony on the basis of equality- which is the only kind of “reconciliation” that ordinary Canadians think of and want to achieve.

How did this come about?

In 1850, by the Robinson Huron and Robinson Superior Treaties, (“the Treaties”), the 1240 aboriginals inhabiting the shores and islands of Lake Superior and the 1422 aboriginals inhabiting the shores and islands of Lake Huron did “freely, fully and voluntarily surrender, cede, grant and convey unto Her Majesty the Queen, Her Heirs and Successors forever, all their right, title and interest” in and to the vast lands described in the Treaties.

Such small numbers of aboriginals! Only 2662 persons in all of the Treaties area, stretching from Penetanguishene at the south of Georgian Bay all the way to the western end of Lake Superior!

The Indian bands which signed the Treaties, given their very small numbers and their Paleolithic, migratory ways, despite roaming over and inhabiting these lands for centuries, had never exercised any effective occupation, possession or control over them. As indigenous lawyer and Assembly of First Nations co-founder William Wuttunee wrote in his book, Ruffled Feathers:

The idea that “Indians were the first owners of this country” and “the land was taken from them”, are misconceptions. At the time of the arrival of the white man, the Indian did not occupy all the country; therefor it cannot be said that it was taken away from him. Those areas which were unoccupied were never taken away from anyone. Indians never owned Canada.

The Treaties created the reserves we know of today, provided for a fixed amount of cash to be paid to each Treaty person each year (“an annuity”) and granted to the Treaty signers permanent hunting and fishing rights on the lands ceded.

There was an “augmentation clause” in each Treaty, a provision whereby the annual annuity might be increased at the sole discretion of the Crown. By this provision the Crown promised and agreed:

…that should the territory hereby ceded…at any future period produce such an amount as will enable the Government…without incurring loss, to increase the annuity secured by them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further amount as Her Majesty may be graciously pleased to order…(italics added)

In 1875 the Crown fixed the annual annuity at $4.00 per year per aboriginal, and for the last 140 years or so a Crown agent, every summer, without protest or complaint, (until the last 15 years or so) has attended at each Treaty reserve and made these $4.00 per “head” payments.

During this period the Crown has always declined to be “graciously pleased” to exercise its, as evidenced by all parties’ post-Treaty conduct, sole discretion to increase the annuity.

Canadians, acting through their federal and provincial governments, the titular heads of which are the respective, entirely fictive “Crowns”, are racially decent and caring people. Over this period they have, through their parliaments, sensibly and honourably preferred to deal with the obvious inflation factor-problem inherent in the Treaties – ($4.00 will barely buy you a cup of coffee at Starbucks)- by, pursuant to their proper “honour of the Crown” duty to Indigenous Canadians, (really, it should be called the “honour of the Canadian people” doctrine, but we will, for the nonce, speak of it in terms of the “honour of the Crown” doctrine), granting to them numerous necessary and life-enhancing benefits, most of which are not called for or required by the Treaties, or any other treaty.

Canadian taxpayers provide to Indigenous Canadians free medical care, free dental care, massive grants for reserve operations and  infrastructure, funding for schools, grants for post-secondary education, special business start-up loans and loan guarantees, housing assistance grants and loan guarantees, programs for indigenous youth and women, employment initiatives, funds for indigenous land claims lawsuits, funds for the bulk of their “consult and accommodate expenses”, funds for the various associations and federations (like the Assembly of First Nations) that make up such a large and vocal part of the lobbying sector of the “Indian Industry”, funding urban Friendship Centres, funding money-losing movies, radio and television programs  focussing on indigenous Canadians- even a 33% discount on VIA rail fares in western Canada.

None of these things are called for by the Treaties, or any other treaty.

In addition, with their new “consult and accommodate” de facto veto power granted to Indian bands by the Supreme Court of Canada, the Treaties Indian bands, and all Indian bands in Canada, are now able to demand and extract  “impact benefit agreements” from any nearby resource project proponent as the price of securing their non-interference, consent and cooperation. These agreements are worth millions of dollars to these Indian bands. The cost of these projects has to rise accordingly, which costs are eventually passed on to and paid by all Canadians.

The Indian band victors in this lawsuit seemingly plan to keep all of the above payments and benefits and then add to them the substantial winnings from this lawsuit.

There was no written promise in the Treaties to “share the land” or to “share the resources” or to “share the proceeds” derived by the Crown from the subsequent commercial or industrial development of the land. There was no recorded talk of this in the written accounts of the Treaties-making deliberations.

There was no written promise in the Treaties that the Crown had to increase the annuity at all. The Treaties wording made that matter entirely discretionary on the part of the Crown. There was no recorded talk in these written Treaties accounts of the Crown possibly being obligated to increase the annuity.

The Treaties wording seemed to place a “cap” on the annuity the Crown would have to pay. There was no recorded talk in these written accounts of that possibly not being so.

The Treaties were concluded on September 9th, 1850. On September 24th William Robinson, the Crown Treaties representative, wrote to his superiors and said:

I trust his Excellency will approve of my having concluded the treaty on the basis of a small annuity and the immediate and final settlement of the matter, rather than paying the Indians the full amount of all moneys on hand, and a promise of accounting to them for future sales.

Believing that his Excellency and the Government were desirous of leaving the Indians no just cause of complaint on their surrendering the extensive territory embraced in the treaty; and knowing that there were individuals who most assiduously endeavoured to create satisfaction among them, (a few aboriginal negotiators had wanted $10 per year annuity- author) I inserted a clause securing to them certain prospective advantages should the lands in question prove sufficiently productive at any future period to enable the Government without loss to increase the annuity.(emboldening and italics added)

In 1880 Alexander Morris, another distinguished Crown representative who acted as  Crown negotiator for certain treaties made in the 1870’s in western  Canada, wrote in relation to the Treaties that they were intended “to extinguish the Indian title”, and further:

The main features of the Robinson Treaties- viz, annuities, reserves for the Indians, and liberty to fish and hunt on the unconceded domain of the Crown- having been followed in these treaties. A special feature of the Robinson Treaties was the adjustment of a claim to be paid, the amount received, by the Government, for the sale of mining locations. This was arranged, by Mr. Robinson, agreeing to pay them, the sum of 4000 pounds and an annuity of about 1000 pounds, thus avoiding any dispute that might arise as to the amounts actually received by the Government.  The number of Indians included in these treaties were stated by Mr. Robinson to be on Lake Superior, 1240, including 84 half-breeds; and on Lake Huron 1422, including 200 half-breeds. (italics added)

Clearly, the intention and belief of the Crown at the time, as evidenced by these writings, and as reasonably inferred from the wording of the Treaties,  was that the Aboriginal Treaty signers had ceded and surrendered, once and for all, all of their right, title and interest in and to the Treaties lands, with no residual obligation on the Crown to do anything other than comply with their side of the bargain, which side did not include financially accounting to the aboriginal signers, then or in future, or to their descendants, for subsequent Crown dealings with the surrendered lands.

And this appeared to be the intention and belief of the Indigenous signers as well, and of their descendants, at least up until the early 21st century, as evidenced by their post-Treaties conduct, which confirmed that all they ever expected in terms of the annuity, however paltry the amount might be- however dissatisfied with the amount they might be- was that it was fixed, capped and, more importantly to the present purpose, that the Treaties, taken overall, did not entitle them to additional amounts in the form of a “collective” share in the “proceeds” received by the Crown from the sale, lease or licensing of the surrendered lands, or any accounting of same.

The historical record shows that in the period 1850-1884 there were a few isolated complaints from Chiefs about the quantum of the fixed annuity- $4.00- but no suggestion that the Treaties entitled them to a collective share of Crown land development proceeds– no claim for “a cut of the action”- and no suggestion or claim that they could legally demand that the Crown review the $4.00 and then be forced to increase it if the Government would not suffer a “loss” in doing so.

And after 1884 the conduct of the Indian bands which signed the Treaties was consistent with the Crown’s intention and belief as to the various relevant meanings of the Treaties as stated immediately above.

So for about 150 years after the Treaties were signed, based on the conduct of both parties, always a key factor when interpreting a vague or ambiguous agreement, there seemed to be agreement on what the Treaties meant and how the Treaty obligations were to be performed. Their mutual, consensual, “without protest” conduct “proved” the true terms of the agreement, “proved” that the way it had always been since 1850 was the true, proper way, and that it did in fact reflect the common intention of the Treaties signers.

And Northern Ontario was economically developed and regulated, and Canada’s and Ontario’s fiscal planning, through this long usage and practice, became based on these reasonable assumptions.

Now all this is turned upside down.

So what was the Court’s reasoning in Restoule?

The Restoule decision is 135 pages long. As such it is impossible to summarize it in an article like this. The reader is urged to take the lengthy time necessary to patiently go through it. It is a thorough (within its own belief parameters), fascinating, well organized, very well written decision by an excellent and caring Judge, who is a credit to our judicial system.

I disagree with the Judge’s ruling.

Some of my reasons for doing so have been implicitly stated above. Some will be stated, explicitly or implicitly, in the words to follow. Many more of my reasons are stated in my book, There Is No Difference, at thereisnodifference.ca, and in articles by distinguished others on my book website.

My description of the decision will be incomplete. I don’t intend to parse the decision, or give a definitive take on it. I hope that will be done by the Ontario Court of Appeal, because this decision is so very unintentionally, but nonetheless, racially divisive and harmful in its social and economic consequences, however right in law it may be, that it must be appealed.

So I will limit myself to mainly just describing parts of the Decision, so that the reader may hopefully understand where the Court is “coming from.”

The conduct of the trial had unusual and unprecedented aspects to it.

It lasted for many days. The Court moved around to different judicial seats- Thunder Bay, Sault Ste. Marie and Sudbury- seeming to reflect the pan-Northern Ontario nature of it. That was appropriate.

But, and this was unsettling and unusual, the Court also sat at the Fort William Reserve near Thunder Bay, the Garden River Reserve near the Sault, and at Wikwemikong, on Manitoulin Island, the latter an unceded (by Indians) part of Canada. These are not legislated judicial seats for Her Majesty to hold Court. Technically Wikwemikong is like British Columbia, more in the Tsilhqot’in situation than not.

(It is unclear why the Wikwemikong Chief, Duke Peltier, presumably on behalf of his band, was a plaintiff and why his evidence was relevant, and why the Court would hold Court there in any event.  Wikwemikong was not a signatory to the Robinson Treaties. It has never existed as a reserve.  It expressly exempted itself from the 1862 Manitoulin Treaty. How could it claim benefits under a Treaty to which it was not a signatory?)

The plaintiff Indian bands were taking the position that the treaty was and is a “nation to nation” agreement, (which position was basically confirmed by the Court), thus raising reasonable questions about the appropriateness of the Court of the nation of Canada sitting at locations owned by alleged other “nations” that were suing it. The impression was given that by holding Court in those purported ”nations”, amongst other unprecedented and unsettling aspects of doing this,  the Court was conceding aspects of its own sovereignty and buying into the plaintiffs’ extremely flawed and fantasy-based “nation to nation concept”, which concept was highly relevant to the outcome of the case.

I attended a Sudbury Court session one day. I was surprised, and again unsettled, to see an indigenous pole or long spear erected in the front of the Courtroom, called an “Eagle Staff”, in the well of the Court, just in front of the Court Clerk, from which hung some beautiful eagle feathers. Obviously this was of professed spiritual significance to the plaintiffs. The parties and the Judge had agreed to permit the plaintiffs to erect these symbols of Anishinaabe culture, and perhaps separate sovereignty, in the Courtroom. I fault Canada’s and Ontario’s lawyers for agreeing to this.

It was unsettling to me to see any symbols of government in the Queen’s Courtroom, other than symbols of the Government of Her Majesty the Queen, to whom everyone in that Courtroom had sworn sole loyalty to.

In this general regard the Court wrote:

The First Nations were warm and generous hosts when the court convened in their communities. As a court party, we participated in Sweat Lodge ceremonies, Pipe ceremonies, Sacred Fire teachings, Smudge ceremonies, Eagle Staff and Eagle Feather presentations, and Feasts. During the ceremonies there were often teachings, sometimes centered on bimaadiziwin– how to lead a good life. Often teachings were more specific (e.g. on the role of the sacred fire, the role of the sacred medicines, or the meaning and significance of the ceremonies.) The entire court expressed their gratitude for the generosity of the many knowledge keepers who provided the teachings. I believe I speak for the counsel teams when I say that the teachings and the hospitality gave us an appreciation of the modern exercises of ancient practices.

Miigwetch. Miigwetch. Miigwetch.

It is unprecedented for a Judge to socialize with the litigants in a trial over which he or she is presiding. To the extent that the Judge in Restoule was, by participating in these “teachings, ceremonies, presentations and Feasts” for the purpose of better understanding the plaintiffs’ alleged “ancient practices” with a view to better informing herself about the “Anishinaabe perspective and worldview”- a trial issue- it is unprecedented that this evidence- unsworn- would be adduced outside the Courtroom.

The presiding Judge’s intentions in allowing and participating in all of the above were noble and were done in the spirit of “reconciliation”, however understood. She characterized the trial as “a proceeding of respect and an exercise in reconciliation.” But to me all this gave off the appearance of bias in favour of the plaintiffs. The Court, in participating in all of the above activities, most of which took place outside the Courtroom, and particularly those which took place at the personal and “national” “homes” of some of the plaintiffs, also created the whiff of bias and of “descending into the arena” of conflict, which Courts are not supposed to do.

No explanation of this unprecedented judicial conduct was given in the decision, other than it perhaps it being part of the “proceeding of respect and an exercise in reconciliation.” Perhaps the explanation lies in earlier, procedural rulings. I fault Canada’s and Ontario’s lawyers for agreeing to all of this outside-the-Courtroom socializing and ceremonializing.

(Shouldn’t the Court have just adjudicated the case, entirely within the Courtroom, in the usual impassive and impartial fashion? Is it really the function of the Court to engage in “reconciliation”? Or is it solely the duty of our Crowns, represented solely by our parliaments? Is “reconciliation”- in the sense of it being a social harmony, political/social goal- an appropriate objective for a Court facing competing claims between Indigenous plaintiffs and the Crown? Was this unprecedented conduct considered necessary to better adjudicate the legalistic form of “reconciliation” the Court was seeking to determine? The decision is unclear on these and many other similar important questions arising out of the Court participating in all these unprecedented out-of-the-Courtroomactivities.)

The issue of “Anishinaabe perspective” and “worldview” was very relevant in this case, and all these unprecedented events and occurrences, both in the Court and out of Court, gave the appearance that the Court was favouring the plaintiffs’ professed “Indigenous” perspective and worldview over… what, the “non-Indigenous perspective and worldview”? (Which is what? Which is different? No, which in fact, in my opinion, is no different in any fundamental way!)

The Court never described how the non-Indigenous perspective and worldview purportedly contrasted at the time with that of the Anishinaabe’s. It seems to have been just assumed, without argument or explication, to be materially different. No out-of-Court visits were made to the defendants’ “homes”.

In her decision the Judge used ahistorical terms.

The actual Treaties were with “Ojibwe” “bands and tribes.” Instead, the Judge called the Ojibwe “Anishinaabe”, which they wish to be called now, and generally are called now. It now has political use and connotations. She indicated that she was doing this to “adhere to contemporary scholarly practices.” But little in the historical record before the Court seemed to refer to the “Anishinaabe.” Why not use the terminology found in the historical documents? Maybe “contemporary scholarly practices” are flawed and biased. Why would “contemporary scholarly practices” be relevant anyway?

The Judge sometimes called Sault Ste. Marie “Bawaating”. But again, there was little or nothing in the evidence reviewed in the decision where the Sault was called Bawaating.

Instead of using the term used in the Treaty reports, “half-breeds”, as William Robinson did, the Judge used the term “Metis”, which term I believe originated in the Winnipeg area around 1870- 20 years after the Robinson Treaties were signed.

The Judge called the Treaty signatory Indian bands, which were called “bands” in the Treaties, “First Nations”- a very modern, romantic, essentially non-legal, politicized term, and possibly a different thing from “bands.”

It’s a well-known trial strategy for a lawyer to define the terminology. The more a lawyer can control the terminology used the more he can control the desired outcome. The plaintiffs’ lawyers must have been so inwardly satisfied to hear all of these terms used.

The use of these ahistorical terms, in my opinion, gave the appearance that the Court was keeping a weather eye out for fashionable, politically correct, modern, politicized terminology, rather than letting the cold historical record, with all of its dated and perhaps uncomfortable terms, speak for itself. In a Courtroom legally accurate terms, derived from the Court record, are usually used instead of politicized, non-legal terms. Again, to me, this all gave the appearance of bias in favour of the plaintiffs.

In her decision the Judge said that she had heard the evidence of four “Elders” and three Chiefs. She said that they were not experts, but then she seemed to accept everything they said as if they were experts! Their evidence was particularly relevant and crucial in the Judge’s findings on the professed “Anishinaabe perspective and worldview” and how that supposedly informed their thinking about what the Treaties might have subjectively meant to the Chiefs and Principal Men who signed them over 165 years ago.

The Court found that, according to the Anishinaabe perspective and worldview, the Indian bands regarded “the Queen”, with whom they were treating, as “fictive kin”, with whom they were entering into a nation to nation-type, “alliance” and into a reciprocal relationship of trust, mutual and equal benefit, responsibility and renewal. According to the Court they thought that the treaty relationship was “a reciprocal relationship between independent entities” in which the mother Queen owed certain duties to the Indian band “children”. The “alliance” aspect involved “shared spaces and resources.” A cultural-survival value was annual presents and gift-giving generally. Their spirituality was pantheistic. All this, according to the Court, informed the “perspective on the Euro-Canadian incursion on their land.”

The Court found as a fact, disagreeing with much evidence to the contrary, that the Indian bands’ cession of the Treaty lands was a “gift” to the Crown, given with the “cultural expectation of equal reciprocity” i.e. that the future proceeds of the Crown development of the lands would be shared.

The Court found, on very little cogent evidence, that the Crown was “broke” in 1850, and offered as an inducement for the Indians to accept a low annuity amount, compared to what Indians had been paid in Southern Ontario, the prospect of future revenue sharing if and when the Treaty lands were ever developed. On this Court reasoning, the Crown would defer fair payment to the Indians of their fair share to “later”.

The Court found, focussing entirely on the technically legal, and with no discussion of or regard for the actual facts on the ground at the time, that the Crown needed the full consent of the “Anishinaabe” to further access the wealth benefits of the territories, and accordingly offered the “inducement” of the augmentation clause to get that full consent, and that without this inducement there would have been no Treaties. This is highly speculative.

The Court found, mainly, in my opinion, on the basis of speculation and drawing inferences from minor, isolated facts, that the Crown intended to share these future revenues with the Indian bands, if the “vast and sterile” Treaties lands were ever developed profitably, and in fact had “promised” to do so. (The Court did not say that there had been an actual promise. There was no evidence of that. The Court deemed there to have been a promise, based on the Honour of the Crown and fiduciary doctrines. See below.)

The Judge did not accept, because of the worldview differences she found to have existed, that the Indians understood the Treaties in the same way William Robinson did. The Judge disagreed with the assertion of William Robinson, and of the interpreters, that the Indians understood the Treaties in the same way as he did.

The Judge could not conclude, because of the in-essence “cultural barriers” she ruled existed, that the augmentation clause was properly explained to the Indian representatives, as the “honour of the Crown”, according to her, dictated that it must, or that the Indian signers properly understood the Crown’s clearly-expressed view of its entirely discretionary nature.

The Court found that the Treaties were not one-time agreements, as the Crown had clearly thought. They were “future oriented agreements situated within an ongoing relationship”, and that this relationship must be “reviewed” and “renewed” as circumstances change over the years. (The Court recommended that the parties enter into discussions to review and renew the Robinson Treaties.)

The Court found that the presence of the augmentation clause in the Treaties, because of the obligation of the Crown to always act honourably towards Indian bands, meant that the Treaties contained an implied obligation to engage in a process to implement the augmentation clause- that this was a legal, constitutional right of Indians arising from the honour of the Crown and fiduciary duties that the Crown owes to Canada’s Indians. This means that the Crown must exercise the discretionary power in the augmentation clause to engage in the process of evaluating whether an increase in the annuity is warranted, that there was no “cap” on same, and that the Crown must value the Indian bands collective “sharing the proceeds” entitlement, which she ruled existed, which collective entitlement also had no “cap”, and which entitlement would properly reflect the “value” from time to time of the Treaties territories.

The Court found that the honour of the Crown meant that the Crown must exercise its discretion to start the process with a view to increasing the Treaties benefits, and the Crown must not be “legalistic” when dealing with Indian bands.

The Court found that the Crown, over the past 140 years or so, had “neglected” and “ignored” these (deemed) “promised” obligations, and that the Indians had been “waiting without a word from the Crown for over a century” for the Crown to engage in the review process, and that they had “reached the end of their patience.” (There was no evidence set out in the decision to support any of these latter assertions.)

The Court found that the fact that for over 140 years the Indian bands never complained about the situation did not mean that they did not expect to receive a share of the proceeds from the Crown’s development of the Treaties lands. Basically, according to the Court, the “honour of the Crown” and fiduciary principles prevented this argument from being accepted.

So, those are the salient points of this momentous Court decision as I see them.

The “honour of the Crown “ principle, and the fiduciary principle, the two principles so heavily relied upon by the Court to decide virtually every evidentiary and legal issue in favour of the Indians, were only seriously developed after the passage of the “blank slate” section 35 of the Constitution Act in 1982. After that the Supreme Court filled in this blank slate with new interpretations of the law, many of which, like the consult and accommodate obligation, were, with all due respect, basically invented out of legal thin air. The Judge in the Restoule case applied several of these principles. (See my chapters on the Haida Nation, Mikisew Cree and Rio Tinto decisions in There Is No Difference, where these principles are discussed at length.)

Based on these modern doctrines, (or old doctrines re-defined and re-applied in a thoroughly modern and radical way), which didn’t exist until the 1980’s or so, the Court found, in my view unfairly, that the Crown breached these 1980’s-and-after-defined honour of the Crown and fiduciary duties owed to the Treaties signers in the 1800’s and early 1900’s, which, as stated,  at the time didn’t exist, and which the Crown couldn’t have precisely known about or have predicted would come into existence in the future.

Likewise, to me, the Crown couldn’t have “ignored” what it didn’t know about. The Court took these recently-developed doctrines and imposed them retroactively. To me, this was not reasonable or fair. So it makes no sense to me for the Court to say that the Crown was “neglecting” a duty that it didn’t know about at the time, or breaking a “promise” that it didn’t know it had made.

The honour of the Crown and fiduciary doctrines seem to be being applied so strictly against Crowns in Indigenous-Crown cases that the Crowns are unable to fully and properly defend themselves any more. Any vigourous defence of Crown sovereignty, which “vigour” is required by lawyers’ rules of ethics, seems to be deemed unseemly and “not honourable” towards aboriginals. Crown lawyers seem to be hampered and somewhat intimidated by this, as if they felt they had to represent their client’s interests, (in this case the client in substance being the non-Indigenous people of Ontario and Canada), with one hand tied behind their backs. Is this why the Crown lawyers here agreed to the Eagle Staff being allowed to be placed in the well of the Court? Is this why, in my view inappropriately, they agreed to participate in the “teachings, ceremonies, presentations and Feasts”?

Again, the likely answer to this is set out in my article, The Trudeau Crown Sovereignty Surrender Directive, at thereisnodifference.ca.

The Court said that the plaintiffs’ had the onus of proof, but then seemed to apply, based on the “honour of the Crown” and fiduciary doctrines, a reverse onus on the Crown throughout.

I submit that the evidence of the Elders which the Judge clearly relied upon to find that there was a separate and distinct “Anishinaabe perspective and worldview” that materially informed the Indian bands’ understanding of the Treaties, and which so caused them to purportedly misapprehend the fundamental tenor of the Treaties, when they had been clearly orally explained, in their own language, and had been clearly written down and read over again in their own language, ought not to have been so completely accepted and relied upon.

By 1850 the Treaty peoples had been exposed to Europeans, European technologies and European thought for almost 200 years. They had been co-opted- voluntarily- into the fur trade, and were an integral part of it- a capitalist undertaking par excellence. As the Court wrote, “Garden River band members sold great quantities of maple syrup and fuel wood for the steamers. Many worked seasonally for trading companies as canoe-men and freight haulers for the HBC.”

Many of them had married, or at least mated, with Europeans. Witness the significant number of “half-breed” Treaty beneficiaries mentioned by William Robinson.  One can’t mate with a Euro-Canadian, or trade or otherwise interact with them, and not have a pretty good idea of their “worldview”. Many Anishinaabe had been Christianized by this time. Some of them had fought in the War of 1812.

They were by then fully dependent on European goods and weaponry. A couple of their prominent leaders had travelled to Toronto and Montreal in the late 1840’s to discuss the possibility of a treaty. Full surrender and cession of title had already been discussed beforehand.

It defies common sense and common experience to think that, in the midst of all this cultural mixing and borrowing- all this “cultural appropriation” of Euro-Canadian ways and means by the Anishinaabe– that the “Anishinaabe perspective and worldview” described in Court by the “Elders” and the  plaintiffs’ expert witnesses, (the latter of whom were extremely partisan in favour of the plaintiffs, which experts are not supposed to be), whose evidence was based on the notoriously unreliable “oral tradition”, could have survived in the virginal and intact state described in Court and accepted by the Judge.

 I submit that this evidence was romantic, self-interested, sincere but wishful thinking, and ought not to have been deemed so reliable and accurate by the Court so as to be one of the principal foundations of the Court’s Decision.  I submit that the decision is flawed and incorrect because of the Court’s acceptance of this false, overly-romantic, overly-idealistic, Rousseau “noble savage” view of the social state of Anishinaabe affairs in 1850. This is just one of the reasons I believe that this decision should be appealed.

The Court here has ignored and overturned over 150 years of established practice and conduct by the parties.

The economic development of Northern Ontario has occurred based on this established practise and conduct. Rights and interests, public and private, have been created. Government policies, legislation, budgets and programs have been set.

The rationale behind the legal principles of laches, detrimental reliance and estoppel definitely exists here, based on these established practice and conduct factors. But because of the strict, almost “anti-Crown” nature of the honour of the Crown and fiduciary doctrines, they are generally legally unavailable to the Crown.

(I argue in There Is No Difference, because of the tremendous new economic and legal powers granted to Indian bands by the Supreme Court, that the “Great Mother and her children” dependency/vulnerability factor, which underlies the honour of the Crown and fiduciary doctrines, is no longer relevant, and that the doctrine should be in effect “reviewed and renewed.” and applied much differently than the Judge did in Restoule. With great new, adult powers for Indian bands should come great new, adult responsibilities.)

The status quo should not have been so easily jettisoned by the Court.

Finally, this decision continues the trend on the part of our elites, Indigenous and non-Indigenous, to continue to further divide Canadians on the basis of race. It will cause racial tension.

It is actually shocking that the Court would think it reasonable to double-down on the perpetuation and expansion of an antiquated, race-based, separate but equal, apartheid-like social and political model, that is, on a daily basis, causing so much harm to the vast majority of vulnerable, marginalized, dispossessed indigenous Canadians, who will derive no net benefit from this decision. The benign and unintentional “systemic racism” inherent in the Indian Act, the reserve system, section 35 of the Constitution Act and in the cases decided under it, will continue and strengthen.

This decision, if carried out, will only increase the learned helplessness characteristic of reserves. Only the Indigenous elites and the legion of non-Indigenous technocrats that will be needed figure it out and carry it out will gain short-term benefits. There will be no long term benefits for anyone.

The decision is great for the lawyers and the accountants but not for Indigenous Canadians, or for Canadians in general.

It will create a precedent for every other treaty in Canada to be challenged on similar “Indigenous perspective and worldview” grounds. Other treaty challengers will similarly say, if they think it to their advantage: “We didn’t and don’t understand our Treaty in the same Euro-Canadian way you did. We want our treaty reviewed and renewed. We want to keep the non-treaty honour payments and benefits we get, plus, we now want our collective share of the value of the lands we agreed to share with you, retroactive to when our forefathers signed the Treaty.” (With interest?)

This decision prevents these anachronistic treaties from ever becoming civically vestigial- from ever “dying out” in terms of relevancy. They condemn Indigenous and non-Indigenous Canadians to continue to oppose one another in a never-stable, always-changing, infinite, never-able-to-be-ended or finally-resolved legal relationship. It is demoralizing to those Canadians, like me, who dream of a race-free, civic coming-together of Indigenous and non-Indigenous Canadians.

The decision will seriously de-stabilize and harm the already fragile Crown revenue. It further dangerously erodes Crown sovereignty, the fount and foundation of the rule of law and a strong economy.

You do not emerge from the isolation of one form of racism to enter and confine your country to another and further isolating form of it.

With the greatest respect to the Court, this decision does just that.

Our elites must start thinking of ways, based on Nelson Mandela’s goal and vision of “one set of laws for all”, to bind us together, instead of, as this decision does, binding us apart.

The time for the healing of the wounds has come.

The moment to bridge the chasms that divide us has come.

The time to build is upon us. – Nelson Mandela

Peter Best, Sudbury, January 2nd, 2019

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