Immovable Constitutional Duties Owed to Aboriginal Peoples Emasculate Canada’s Ability to Defend Itself Against Donald Trump’s Threats and Attacks
A government’s most basic function is the protection of its sovereignty. -Simon Schama[i]
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. -Timothy Snyder[ii]
As most of Canada’s natural resources are on First Nations land, First Nations have to be at the table…Provinces don’t trump First Nations. -Assembly of First Nations Chief Cindy Woodhouse Nepinak[iii]
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One important consequence of Donald Trump’s tariff threats and actions against Canada is that Canadian leaders have finally woken up to the dangerous reality that Canada’s economy, and in particular Canada’s energy and mining economy, is too dependent on American trade and too defenceless against American hostile attacks against it.
Another reality that they should have awakened to, or in any event shortly will, is that our federal government, by virtue of its paramountcy and disallowance powers, has more power over the provinces to act in the national interest than either it or the provinces have over Aboriginal peoples to act in the national interest.
Where for decades our best and brightest have been ignorant of or complacently or timidly silent in the face of this reality, with Trump’s cold water now running down their faces, hopefully having been awakened somewhat, they are now all suddenly falling over themselves describing the situation as a national emergency that must be quicky addressed by such nation saving and nation rebuilding measures as the elimination of inter-provincial trade barriers, the speeding up of resource project permitting, being less perfectionist with environmental standards, and generally adopting a united, “go Canada!”, gung ho attitude and approach towards undertaking and speedily completing new energy and mining projects that would lessen Canada’s vulnerability to threats and actions against our country and our economy like those recently made by the grasping Donald Trump.
Part of this new-found enthusiastic support for this seemingly great idea, centred on the notion of “liberating natural resources from their regulatory shackles”, is the revival of East-West oriented energy projects, such as the Northern Gateway pipeline, that would have transported oil from Alberta to the West coast for export abroad, and the Energy East pipeline, that would have transported oil to the East coast, also for export abroad. Both of these worthy projects failed to materialize because of iterations of these “shackles”.
Legislative shackles such as environmental laws and Trudeau’s Crown sovereignty-emasculating UNDRIP Action Plan legislation, and British Columbia’s similar provincial version of UNDRIP, with the right will and courage, and in keeping with the existential exigencies of this war time-like (lite) “emergency”, could all be quickly legislatively removed, and to that extent, the perilous situation of Canada and its resource economy could be improved.
But not improved enough to make a difference, because two other shackles are constitutional in nature and thus can’t be legislatively removed quickly, or practically speaking, at all.
These are firstly, the consult and accommodate duty owed to Aboriginal peoples, and secondly, Aboriginal title.
The Supreme Court of Canada in the 2004 Haida Nation case invented out of legal thin air the constitutional duty on the Crowns of Canada, (usually downloaded onto the shoulders of resource projects proponents), to consult and accommodate any Aboriginal band or group that merely asserts that a proposed Canadian resource project might potentially affect their section 35-guaranteed rights to hunt, fish, trap and gather on any part of their reserve lands, or in any part of their adjacent, always undefined, seemingly limitless “traditional lands”.
The Court said that the duty does not create an Aboriginal veto: “The Crown is not under a duty to reach an agreement, rather, the commitment is to a meaningful process of consultation in good faith.”
Notwithstanding this, far from the Supreme Court’s mahogany-panelled Ottawa redoubt, where abstraction often rules, “out here”, where messy, real life unfolds, this constitutional duty has in fact, in its practical application, resulted in the creation of a de facto Aboriginal veto over whether or not any such resource or resource-related project will be permitted to go ahead.
This is a constitutional shackle, from which Canadian federal and provincial governments can only be freed by an amendment to our Constitution or by the Supreme Court reversing itself in some future court case that comes before it, both of which happenings are extremely unlikely.
There is no known legal right on the part of either the federal government or any provincial government, in a situation of national emergency like Canada is facing today, to override, ignore, infringe upon, dispense with or waive its duty to consult, (as there is for Aboriginal title, see below). According to its terms, it is absolute and unconditional, regardless of the circumstances.
Assembly of First Nations Chief Woodhouse Nepinak is right: Neither the provinces nor the federal government can “trump First Nations.” There’s no paramountcy or disallowance provision anywhere for our elected governments to use in relation to First Nations conduct that, objectively viewed, is contrary to the national interest.
The Assembly of First Nation’s not unreasonable legal position is that the Supreme Court has made “Aboriginal peoples”, in the area of our resource economy, a virtual co-equal, third branch of government, such that, as Ms. Woodhouse Nepinak demanded, First Nations should be involved with the federal government as “partners” in all tariff talks with the United States.
The Supreme Court has even granted consult and accommodate rights to borderlands American Indian tribes, thus allowing them to be used as anti-Canadian agents of Trump and other American interests hostile to Canada’s national interest, which rights they are presently and actively exercising, and which rights our elected governments, as stated, can do nothing about.
This is the emasculated place our Supreme Court and the Trudeau government has left Canada in.
According to Haida Nation, the determination and recognition of and respect for not just actual but potential Aboriginal rights- rights that Aboriginals may merely assert have some direct or indirect connection to fishing, hunting, trapping, gathering or to the preservation of their pre-contact lifestyle and culture- requires the Crown, where it is proposing to engage in some future resource undertaking, or to grant to an individual or a corporation a license, permit or other such right to engage in a proposed resource undertaking, to act:
… “honourably” and “… to participate in processes of negotiation. While this process continues, “the honour of the Crown may require it to consult and, where appropriate, accommodate Aboriginal interests….”
These key words have given Aboriginal bands all across Canada a chokehold on huge aspects of resource development in rural and wilderness Canada, and even in some parts of urban Canada, whether it be in relation to the construction of a new pipeline, the opening of a new mine, a new forestry undertaking, the transfer of Crown land to a municipality, the building of a new dam, a wind power installation, the construction of a new road or transmission line or anything else similar.
All an Aboriginal band or group has to do now, following Haida Nation, is to merely assert, regardless of whether or not it’s even remotely the case, that a proposed off-reserve government or private resource-related proposed undertaking will affect an asserted Aboriginal right or concern, actual or potential, and the “duty to consult” is then instantly activated, thereby automatically engaging the Aboriginal de facto veto, namely, the costly and delaying “consultation and accommodation, if necessary” process.
As the Supreme Court said in a later decision following Haida Nation, the mere fact that an Aboriginal claim has been accepted by the Crown for negotiation “…establishes a prima facie case that the claim has merit.” No concrete facts need to be provided. No evidence threshold needs to be met. A mere assertion, such as, “The proposed undertaking will affect our sacred land,” or, “We claim Aboriginal title to this land”, (see below) will suffice.
Obviously therefore, given human nature, given any individual’s or group’s tendency not to pass up a good thing if it’s there for the taking, whenever any of these projects are now proposed, with virtually no evidentiary threshold-merit standard to be met, any remotely nearby Aboriginal band or reservation now immediately claims that an actual or potential “Aboriginal interest” of theirs will be affected, like “sacred ground” or trapping or berry gathering, thus requiring that they be consulted and accommodated, the latter term in practice usually meaning bought off.
In practice, “consultation,” in too many cases, has turned out to be an almost endless process, because Aboriginal band or group elites have no compelling reason to ever finally settle, the actual process of consultation, involving travel off the reserve, expense account living, consultation fees, “capacity funding” and other large sums of money being paid to them- almost always paid by the project proponent- meetings with important people in new places, wallowing in unhealthy, (but feel-good, to the tribal-minded), race talk, fawning media events – the stimulation of it all-the ego boost caused by it – being in itself almost an end- an attractive, engaging, lucrative activity.
This is supported by Aboriginal writer Calvin Helin, in his book, Dances With Dependency:
“Community members complain that many Aboriginal negotiators have latched onto the sinecure as well and have made profitable careers largely through negotiating one treaty. Youth view many of these negotiators as elitists not wishing to bring an end to the “ongoing banquet” but instead are sucking the assets out of a treaty settlement before it is even made. Ordinary Aboriginal folk wonder where the incentive for their negotiators to settle their treaties is when they are profiting handsomely from the process.”
And accommodation “where appropriate,” well, as stated, who is to say? And is there anyone with the courage to say that, in any given case, it’s “not appropriate”? Who will risk taking the flak for that? So far, in almost all cases, no one.
Because in this new Crown sovereignty-derogating world that was unilaterally and irresponsibly created by our Supreme Court and then enthusiastically supported, or at least acquiesced in without protest, by both levels of our governments and by our elite classes, the law, and broader policy considerations generally, and the collateral financial damage inevitably caused, are all secondary. The essentially ungoverned, unchecked and unregulated raw and coercive delaying power of Aboriginal bands and groups, for all involved, has been the first and foremost consideration.
The consultation duty has had devastating effects on numerous proposed resource projects.
The $8 billion, nearly 1200 kilometers-long, proposed Enbridge pipeline would have delivered nearly 525,000 barrels of petroleum a day from Edmonton to a tanker terminal on the B.C. coast. As the Canadian Press wrote:[iv]
” The federal government claims Canada is losing billions of dollars a year because western Canadian oil is not reaching markets overseas. Enbridge has said Northern Gateway is expected to grow the Canadian GDP by more than $300 billion in 30 years.”
In June of 2014, after hearing hundreds of witnesses, receiving thousands of written submissions, and after many days of live hearings involving full and thorough examination and cross-examination of expert witnesses, and after a more than sincere attempt to “consult and accommodate’’ all the Aboriginal bands along and near the pipeline corridor, (they even offered them a $100 million dollar trust fund and a 10% equity stake), the National Energy Board approved the construction of the pipeline.
In any other modern country that would be enough for something so massive and beneficial as this undertaking to go ahead. But not in the new Supreme Court-created Canada, where consultation perfection is apparently their simplest requirement.
In June of 2016 the Federal Court of Appeal, in an extreme example of excessive judicial activism, quashed the permit issued by the federal government for its construction.
The Court ruled that despite the eighteen years of consultations and hearings on the part of Enbridge, despite the years of financial inducements offered by Enbridge, (“Impact benefit agreements”), the federal government, (not Enbridge), had “failed in its duty to consult First Nations prior to issuing a cabinet order approving the $7.9 billion pipeline.”[v]
Then, as referred to above, in late 2016 the Justin Trudeau Liberal government killed the project, shockingly heedless of Enbridge’s loss of the $500 million it had spent over those many years seeking government approval for the project, heedless of the $2 billion in direct and indirect benefits that would have gone to Aboriginal groups.
The cancellation of the pipeline was an easily foreseeable disaster for economic development in Canada and for East-West energy security- an easily foreseeable emasculation of Canada’s ability to defend itself against American economic threats and predatory behavior.
In 2017 Kinder Morgan Inc., having received permission from the federal government to expand their pipeline from Alberta to the British Columbia coast, found itself the subject of twelve Aboriginal lawsuits, alleging lack of adequate Haida Nation-decreed consultation and making objections based on claimed Aboriginal title (see below).
A legal brief filed by one of the Aboriginal bands correctly argued that the court challenges created “significant uncertainty around the pipeline” and suggested that there was a likelihood that the pipeline “will not get built, and certainly not on the schedule that Kinder Morgan is suggesting…”. It went on:
“Likely outcomes (for the pipeline expansion) include a permanent rejection if aboriginal title is recognized, or an interim injunction while a title case is being heard…Combined with significant political and reputational risk, it is our opinion that the project faces material risk.” [vi]
Kinder Morgan, justifiably fed up with the dealing with the lawsuits and the delays they were causing and exasperated by the state of the Haida Nation-caused law, announced that it would pull out of the project unless legal clarity and certainty was established.
It was not, and there was no way it could be. For investors the only certain thing that has come out of the Haida Nation ruling was/is guaranteed investment uncertainty, which is anathema to capital’s need for legal certainty.
In the end the federal government had to buy the pipeline from Kinder Morgan in order to save it and to ensure its completion, all at the cost of Canadian taxpayers. It is now operated by Trans Mountain Corporation, which is owned by the federal government.
A further example of this shackled resource industry dysfunction is the never-built and likely never-to-be-built Mackenzie Valley pipeline. Because of the huge delay in getting approval for this massive project, which would have contributed so much to the Canadian economy, much of the delay caused by objecting Aboriginal bands, so much time went by that the underlying market conditions and the economic window, the existence of which were necessary for the project to be successful, disappeared.
Gwyn Morgan, founding CEO of EnCana Corp. described this situation of almost willful political and legal paralysis as “the biggest trade gift from one country to another (the U.S.) because of our own self-inflicted inability to access offshore markets with Canadian oil”, and a “ruinous giveaway of billions of dollars to the Americans”.
Mr. Morgan further wrote:
” The result has transformed regulatory proceedings that would have taken weeks into multi-year events with sky-rocketing costs that either delay or kill the project… and has led Canadian oil and gas producers, including my former company EnCana, to move tens of billions of investment dollars and many jobs south of the border.”[vii]
How relevant these words still are, now that the Panglossian eyes of Canada’s best and brightest have been opened by Donald Trump.
Our harmful regulatory and Aboriginal laws are stymying Canada’s efforts at achieving energy independence and, as Mr. Morgan said, are diverting resource investment capital to the United States and elsewhere, the former our now openly-declared trade antagonist.
In October of 2017 the same merciless, money-burning delays finally scuttled Trans-Canada Corp’s plan for its proposed Energy East 4000 kilometers pipeline that would have shipped Alberta oil eastward, to refineries and export terminals in New Brunswick. But naturally:
“… native leaders want(ed) to ensure that they see some benefits from the $12 billion project, and they would present a challenging obstacle for its completion if they are excluded.”[viii]
Trans-Canada had the near-hopeless task of satisfying, not only the National Energy Board and the provinces and municipalities through which the pipeline would have crossed, but the “chilling effect” of 180 (!) different Aboriginal bands along the way, all of which were saying that they would be “affected” by the pipeline and all of which were demanding their own unique, consult and accommodate, toll-gating packages.
In mining, the consult and accommodate duty is stymying development of the critical minerals-rich “Ring of Fire” mineral deposit area in Northwestern Ontario.
An American company, Cliffs Natural Resources, was considering spending millions of dollars to develop its “Far North” Black Thor chromite ore deposit there. In addition to the new mine itself, if the overall project had gone ahead, Cliffs would have built and operated a ferrochrome smelter in Sudbury, having chosen that location over Greenstone (in the Lake Nipigon area), Timmins and Thunder Bay, because that location made the most economic sense.
Aboriginal bands tied up mine development with delaying and costly objections and consultation and accommodation demands. They even purported to dictate to Cliffs where they were to locate their smelter.
Fed up and losing money, Cliffs cancelled the Black Thor project, citing, amongst other reasons, “the uncertain timeline and risks associated with the development of necessary infrastructure to bring this project online.” In March of 2015 it agreed to sell its interest in the very fireless Ring of Fire to a former competitor for a fraction of its investment.
Garry Clarke, the Executive Director of the Ontario Prospectors Association, wrote the following about the overall effect of consult and accommodate on mining in Ontario:[ix]
“…First Nation court challenges, Aboriginal mining moratoriums, and a Ring of Fire “evictions list” from the Matawa chiefs have caused a hardening of attitudes among prospectors and exploration firms that’s having an economic impact.” “It’s causing people to leave the province,” said Clark, adding most of the Thunder Bay-based junior miners are raising money and concentrating on projects outside of Ontario. One Vancouver mining executive told Clark in July that “there are too many problems in Ontario and until you solve them, we can go work in other places.
This is exactly what is happening- not only in Ontario, but on the national level- investors either avoiding Canada or focusing their investment dollars elsewhere.”
The Ontario Ford government is presently trying to get this massive critical minerals project going again, but again, is facing so much Aboriginal obstructionism, including a lawsuit based on UNDRIP, consult and accommodate and Aboriginal title challenging the very basis of the Ontario government’s constitutional authority to regulate mining activity in the area without Aboriginal consent and co-management, that, in the absence of bold and decisive Crown sovereignty-assertive action on the part of both Ontario and the federal government, it will be years, maybe decades, before the Ring of Fire project actually gets underway.
The critical minerals in the Ring of Fire area are a large part of Canada’s wealth of critical minerals that on February 7th, 2025 Prime Minister Justin Trudeau said Donald Trump wanted to get his small hands on by the means of annexing Canada.
In the 2023 case, Gitxaala v. British Columbia (Chief Gold Commissioner), the BritishColumbia Supreme Court, based on consult and accommodate and B.C’s version of UNDRIP, and giving judicial credence and weight to the Gitxaala’s folklore claims of spirits and supernatural beings living in physical dens, declared B.C.’s 164-year-old mining tenure law to be in breach of the province’s constitutional duty to consult with Aboriginal people, and ordered it to be rehauled to provide for mandatory consultation at all stages of mine development, including claims-staking. Not satisfied with this win, the Gitxaala appealed the judgment to the B.C. Court of Appeal, asking the appeal court to rule that First Nations must be consulted before any legislation is passed affecting their Aboriginal rights.
Any remaining prospector in B.C. who in future wants to stake a mining claim will now have to consult with all nearby Aboriginal bands before they are allowed to file it. (Anyone familiar with mining and with the risky and secretive business of claims-staking knows how preposterous and unworkable this is.)
Our suddenly gung-ho politicians, as the result of the seeming economic emergency caused by Trump, now advocate the revival and fast tracking of projects like Northern Gateway and Energy East.
Relevant to this, the Gitxaala Court was very clear in saying, when responding to the B.C. Government’s argument that, given the huge, proven economic benefits of mining in the province, the consult and accommodate duty should be either waived or only very lightly applied, that: “Economic benefit cannot displace the duty to consult.”
Added to this was the defiant warning from B.C. First Nations, echoing Assembly of First Nations Chief Woodhouse Nepinak, that even in the present emergency situation, “Government and industry must not take shortcuts with proper First Nations consultations”.
How in heaven’s name is Canada able to respond to this Trump-awakened “emergency situation” with such immoveable laws as “consult and accommodate”, which so seriously delegitimizes government power and makes resource investment in Canada so risky and unpredictable?
The situation is made worse by the fact that our suddenly gung ho politicians and other leaders seem to be either afraid to publicly mention and confront the immovable nature of these resource-shackling constitutional laws, or they seem to be unaware of their true nature, as evidenced by the National Post simplistically calling for “the removal of unnecessary consultation requirements for infrastructure projects so the pipelines and export terminals can be fast-tracked.”
For the sake of national interest, the time is fitted for the duty of beginning the process of ending UNDRIP and this harmful, now-immovable consult and accommodate law; the first step of this process simply being engaging in public discussion and debate about it.
In this time of national peril our politicians and other leaders must dare to be Daniels and speak out publicly about this. “To sin by silence when they should protest makes cowards of men”. – Abraham Lincoln.
Possibly worse than the consult and accommodate law is the Supreme Court’s recognition of the legality of Aboriginal title.
This shackle is also now a practically immovable part of our body of constitutional law, and Canada can only be freed from it, again, either by the Supreme Court reversing itself in some future case brought before it, or by constitutional amendment.
The last voice of reason in this area of the law was that of the British Columbia Court of Appeal, which, in its 1970 Calder v. British Columbia decision, ruled definitively that even in the event that some form of Aboriginal title had previously existed, (generally understood at the time as being limited to a “personal and usufructuary right”, dependent on the good will of and extinguishable at the discretion of the Crown), it had been extinguished by numerous British Colonial and British Columbia legislative acts (thirteen of which were cited in evidence) and other acts consistent only with the assertion by the British and then Canadian governments of absolute sovereignty over all the lands of British Columbia- a sovereignty inconsistent with any form of residual, still-existing Aboriginal title. The Court wrote:
The various pieces of legislation referred to above are connected, and in many instances contain references inter se, especially XIII. They extend back well prior to November 19, 1866, the date by which, as a certainty, the delineated lands were all within the boundaries of the Colony of British Columbia and thus embraced in the land legislation of the Colony, where the words were appropriate. All thirteen reveal a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any conflicting interest, including one as to “aboriginal title, otherwise known as the Indian title”, to quote the statement of claim. (Italics added)
The B.C. Court of Appeal’s decision in this regard reflected about 150 years of thinking and practice on this fundamental sovereignty issue and was the legal basis upon which British Columbia had evolved over that long period from a backward, rural/wilderness colony into a modern, dynamic, unified, highly developed, social and economic polity.
The status quo before consult and accommodate, UNDRIP and now, Aboriginal title, was… good.
But Edmund Burke’s dictum that “good comes from good” was of no interest to our so-modern thinking, past-experience-be-damned Supreme Court of Canada.
The Calder decision was appealed to the Supreme Court, which failed to uphold the Court of Appeal’s decision. Rather, it split 3-3 on the issue of whether any form of Aboriginal title had survived the dominant assertion of Crown sovereignty, leaving the issue open for a future Court to definitively decide.
In 2014 the Supreme Court of Canada, expanding on Calder and other cases, removed all doubt on the matter. In Tsilhqot’in Nation v. British Columbia it confirmedthat Aboriginal title survived the assertion of Crown sovereignty and fleshed it out by laying down the following constitutional tests and principles relating to Aboriginal title:
• Aboriginal title flows from continuous occupation from the time of assertion of Crown sovereignty to the present in the sense of regular and exclusive use of land.
• Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.
• Where title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.
• Once Aboriginal title is established, s. 35 justifies infringements of it only with the consent of the Aboriginal group or, absent consent, if (1) the Crown has already discharged its duty to consult and accommodate (2) the infringements are justified by a compelling and substantial public purpose and (3) the infringements are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group.
The practical effect of Tsilhqot’in is that once Aboriginal title is recognized or ceded in relation to a particular area, “the Crown will vacate jurisdictional space and Aboriginal law will govern there”.
Gung ho project proponents in these emergency times will have to go cap in hand to Aboriginal bands and, on bended knee, seek their consent to waiving their constitutional rights. Given past experience, human nature and Chief Woodhouse Nepinak’s and B.C. First Nations’ national-interest-be-damned, recent public statements, the possibility of them choosing the national interest over their own selfish interest is unlikely.
These proponents will then have to face the many hurdles the Supreme Court has erected in order to justify infringing the Aboriginal title in question.
They will have already had to go through the lengthy consultation process and accommodation process, which can take months at a minimum.
They would then have to demonstrate, likely by this point in a court action, that there is a “compelling and substantial public purpose” for the infringement. There is as yet no legal precedent for this. The inquiry in this regard would be intensely fact-based, and thus hugely time-consuming. (The trial of Tsilhqot’in took up 339 court days spread out over a five-year period.) The Gitxaala decision has already ruled that economic hardship is irrelevant. Under the present state of the law, it would be a very uncertain thing to be able to successfully legally justify the infringement.
Even if the Crown overcame all these hurdles, it would still have to show that the infringement “was not inconsistent with the Crown’s fiduciary duty to the Aboriginal group”, which would be another lengthy fact-based inquiry, with little legal precedent to guide the process, making that aspect of the justification process, just like the “compelling and substantial public purpose” inquiry would have been, a complete legal shot in the dark.
What potential East-West pipeline builder will want to go through all that?
Tsilhqot’in is another devastating blow to Crown sovereignty in British Columbia and to all other areas of Canada where Aboriginals establish or merely assert the existence of Aboriginal title.
The foreseeable result ofitis the further delegitimization of national and provincial sovereignty throughout the country, with resulting legal unpredictability, which, as stated, is anathema for capital always looking for a safe investment harbour.
The late Gordon Gibson, the former leader of the Provincial Liberal Party of British Columbia and a noted commentator and author on aboriginal issues, wrote in The Globe and Mail:[x]
“The Tsilhcot’in decision marks a very dark day for the economy of British Columbia. A new era of chaotic jockeying will open among First Nations, governments and resource proponents, casting a pall over a basic economic driver of the province…This first award of aboriginal title will surely result in a mushrooming of claims throughout B.C…The upshot will be that major resource projects, pipelines, mines and the like will face the kind of uncertainty that investors hate. (The new certainty will be more litigation.) Many projects will simply be abandoned, and new opportunities will be spurned…Stand by for aboriginal title claims all along the proposed (pipeline) routes under the new law, which will allow significant new attempts at toll-gating. This will either frighten off proponents or eat up the province’s hope of tax revenues.”
Tsilhqot’in has thrown British Columbia and other non-treaty areas of Canada into legal, fiscal and social disarray.
At the other end of the country, the Wolastoqey First Nations in New Brunswick, relying on Tsilhqot’in, have launched a lawsuit claiming Aboriginal title to about one half of the New Brunswick land mass.
The revival of the Northern Gateway pipeline is rendered practically impossible in B.C. by the Aboriginal consult and accommodate duty and by Aboriginal title, just as the revival of Energy East is rendered practically impossible by the consult and accommodate duty and by the Wolastoqeys’ Aboriginal title claim.
East-West pipelines are effectively blocked by Aboriginal groups at both ends of the country.
Aboriginal leader and spokesman Arthur Manuel, (who died in 2017) in his book, The Reconciliation Manifesto-Recovering the Land, Rebuilding the Economy[xi]frankly and coldly described the “important leverage” Aboriginal groups now have because of the business uncertainty created by Tsilhqot’in, and by the concept of “Aboriginal title” generally:
“The basis of uncertainty is the fact that Aboriginal title is protected by the Constitution Act, 1982. These legal and constitutional facts create uncertainty, because they potentially affect resource industries’ access to our lands, where the resources are found. Provincially created property rights like mining permits and forestry licences did not and cannot extinguish Aboriginal title, because the province never had power over Indigenous peoples and territories.
This means that the province never had the capacity to give full title to anyone who holds provincial property. This is what is creating economic uncertainty…So because that uncertainty exists, it is a financial risk for resource companies to come onto our land. They can never know if they are one court judgment away from having their multi-million and even billion-dollar investments seized by legitimate title holders. (italics added)
No properly functioning government or business- no properly functioning modern society- can operate in such a Crown sovereignty-challenged, irrational, uncertain, illiberal, medieval-like business and investment regulatory environment.
Aboriginal band elites have been handed positions in the Canadian economic order partially akin to nineteenth century rentiers, except for now, their new-money, passive income, toll-gating wealth is not inherited. Rather, it is coerced from anyone nearby wanting to engage in hitherto untethered (except for the obligation to pay taxes and comply with the laws of general application), normal, entrepreneurial economic activity on their now (as decreed by the Supreme Court of Canada) “traditional lands,” and their now, in B.C. and perhaps someday in New Brunswick, thanks to Tsilhqot’in, sovereign, Aboriginal title-based lands- lands that would be practically exempt from large swaths of the protective rule of Canadian law.
Toll-gating- a form of unjust economic coercion- is an activity characteristic of pre-states and failed states. It is not characteristic of a sovereign, civilized, liberal nation-state. Such behavior – such a situation – because of these ruinous Supreme Court rulings and its successors – because of UNDRIP- is now being allowed to occur all over Canada. It shouldn’t be. It’s wrong. It’s constitutionally and economically ruinous. It’s going to create more social resentment and division. The opposite of reconciliation will occur.
Donald Trump’s irrational and hostile threats to Canada bring to full force the realization that the people of British Columbia, Alberta, Ontario, New Brunswick and of all of Canada generally, and our government treasuries, in these increasingly hard and “emergency” times, can’t afford the luxurious waste of time and money, the toll-gating, the destabilized investment environment, the huge and tragic loss of jobs , the disastrous loss of tax revenues, and all the other clear and present moral, social and financial dangers inherent in the new Haida Nation/Tsilhcot’in inspired, third-world style economic order, where confusion, uncertainty, unpredictability and bullying strong men rule, rather than transparency, stability and the rule of law.
In the thirteenth century the Mongols, by terrible and cruel force of arms, created an empire that spanned from the Black Sea to China. But even they understood that to maintain that empire, and for it to flourish, there had to exist the rule of law.
” Fundamental to European (trade) expansion, was the stability that the Mongols provided across the whole of Asia. Despite the tensions and rivalries between the different branches of the tribal leadership, the rule of law was fiercely protected when it came to commercial matters. The road system in China, for example, was the envy of visitors who marvelled at the administrative measures in place to provide security for travelling merchants. “China is the safest country and best country for the traveller,” wrote the fourteenth -century explorer Ibn Battuta; this was a place where a reporting system that apparently accounted for each outsider on a daily basis meant that” a man travels for nine months alone with great wealth and has nothing to fear”.[xii] (italics added)
The situation our elites have created has reached a terrible state when we have to learn from Genghis Khan!
And this, from Yuval Noah Harari’s now classic, Sapiens, on the crucial importance, for the economy and the public welfare generally, of strong, clearly asserted Crown sovereignty:
“But in its extreme form, belief in the free market is as naïve as belief in Santa Claus. There is simply no such thing as a market free of all political bias. The most important economic resource is trust in the future, and this resource is constantly threatened by thieves and charlatans. Markets by themselves offer no protection against fraud, theft and violence. It is the job of political systems to ensure trust by legislating sanctions against cheats and to establish and support police forces, courts and jails which will enforce the law. When kings fail to do their jobs and regulate the markets properly it leads to loss of trust, dwindling credit and economic depression. (italics added)
For the past twenty-five years in this regard our “kings”- our judges, our politicians, our business leaders, our mainstream journalists and our other elites- have failed to do their jobs.
Canada can only properly respond to Donald Trump’s threats in an environment characterized by economic, political and legal stability, transparency and predictability, all under the aegis of sole and ultimate Crown sovereignty, the opposite of the dysfunctional, national security-threatening environment created by UNDRIP and by Haida Nation and Tsilhqot’in and their jurisprudential successors, and by the weak and craven response to it all by our irresponsible, almost nationally and economically suicidal, non-Aboriginal judicial, political and other elites.
To properly come to the aid of our country these people need to publicly reverse course in relation to all of the above and work together to figure out a way to get Canada out of this emasculating mess that they’ve embroiled the country in, and do it fast.
Peter Best
Sudbury,
February 11, 2025
thereisnodifference.ca
[i] From Citizens: A Chronicle of the French Revolution, Vintage Books, New York, 1989
[ii] From Black Earth- The Holocaust as History and Warning, Tim Duggan Books, New York, 2015
[iii] Article, Boost Indigenous business to counter Trump’s tariff threats, leaders say– Alessia Passafiume, The Canadian Press, February 7, 2025
[iv] The Canadian Press, April 11, 2014
[v] Shawn McCarthy and Jeff Lewis, Federal Court quashes Gateway permit, The Globe and Mail, July 1, 2016
[vi] Shawn McCarthy and Jeff Lewis, Trans Mountain faces new risk from NDP, Greens, The Globe and Mail, May 30, 2017
[vii] Gwynn Morgan, The Pipeline Test of Democracy, The National Post, July 13, 2017
[viii] The Globe and mail, December 9, 2013
[ix] Northern Ontario Business, September 2012
[x] Article, The Claims are Just. But the Supreme Court Ruling Means Chaos. The Globe and Mail, June 30, 2014
[xi] James Lorimer and Company Ltd. Toronto, 2017
[xii] Peter Frankopan, The Silk Roads- A New History of the World, Alfred A. Knopf, New York, 2016