ITS GOVERNMENT, JUDICIARY AND BAR ARE PROMOTING DE FACTO INDIGENOUS SECESSIONISM.
States built on realistic and pragmatic principles survive longer than states built on idealistic and moral ones. Thus, we must think tragically in order to avoid tragedy. This, in turn, means that order comes before freedom and interests come before values, because without order there is no freedom for anybody, and without interests our values cannot follow and operate. Robert Kaplan [i]
When states are absent, rights- by any definition- are impossible to sustain. States are not structures to be taken for granted, exploited and discarded, but are fruits of long and quiet effort. It is tempting but dangerous to fragment the state. – Timothy Snyder [ii]
A government, to be successful, requires sole and unquestioned legal legitimacy and sovereign power, which leads to something even more crucial for its success: moral legitimacy.
Within its jurisdictional sphere, it must have, and, if need be, must enforce, the last word on what is legal or not. To the extent that it can’t or won’t do this, it fails to fulfill its basic core purpose, which, for the greater good of both it and its citizens, is the steadfast maintenance of that legitimacy and power.
An inevitable result of this failure is a loss of legal certainty, with resulting harm to individual rights and security (which the rule of law safeguards), economic harm, and overall, not just the government’s legal legitimacy being weakened, but its’ moral legitimacy as well.
Such is the situation with Canada and British Columbia.
Having wilfully renounced in favor of First Nations their right to have the last word on what is legal or not within their jurisdictional spheres, they have legally and morally delegitimized themselves.
The first steps taken on this delegitimization path were the enactment of section 35 of the Constitution Act, “recognizing and affirming” the treaty and other rights of the “aboriginal peoples” (sic) of Canada, and the disastrous way it has been subsequently interpreted by the Supreme Court of Canada, the joint effect of both being to make “aboriginal peoples” a de facto third fount of constitutional sovereignty which must be “consulted and accommodated” at every turn, and making Canada a de facto, tri-level constitutional federation.
Further steps on this path were taken by both governments adopting the United Nations Declaration of the Rights of Indigenous Peoples, (UNDRIP), into their domestic laws as interpretive principles, thus further weakening their legitimacy and sovereignty.
In 2014 the Supreme Court of Canada confirmed the existence of Aboriginal title in B.C, which has expressly shorn governments there of the sole right to make laws relating to land use and development, and called into question the validity of the titles to all privately owned real property in the province. B.C. has inexplicably embraced this attack against its sovereignty.
In 2021 the B.C. Supreme Court ruled in effect that normal human progress constituted a violation of Treaty 9, a case that demonstrates the weakness and timidity always shown by Crown lawyers defending Indigenous lawsuits, and the dangerously dreamy and romantic mindset of the B.C. judiciary in this area of law.
B.C. ultimately settled with the plaintiff Blueberry First Nation, giving it $65 million and a permanent say in relation to all resource projects, present and future, in their “traditional lands”, thus ensuring for it, and all other B.C. First Nations who will make their own claims based on this precedent, an infinite number of opportunities to further shake down B.C. and those resource companies that still want to do business in the province.
In 2023 the Justin Trudeau Liberal government passed its deliberate Crown sovereignty-surrendering UNDRIP Action Plan, designed to “Indigenize” all areas of federal jurisdiction in Canada, which, as it necessarily spills over into the willing arms of ultra-woke B.C., will only hasten the demise of that province as a safe place in which to invest.
This demise is now assured as the result of the September, 2023 decision of the B.C. Supreme Court, Gitxaala v. British Columbia (Chief Gold Commissioner), (“Gitxaala”), ruling that B.C.’s Mineral Tenure Act is partially unconstitutional because it permits mineral claims to be registered without prior “consultation and accommodation” with all “potentially-affected” First Nations.
The court in Gitxaala gave the B.C. government 18 months to come up with a new registration system incorporating the duty to consult and accommodate these First Nations prior to registering a mineral claim.
The right of “free miners” to unilaterally register mineral claims without notifying any third parties- a right in existence in B.C. since 1859 and a core foundational element of the success of the mining industry in all of North America and many other parts of the world- will be, in B.C. no more, because, according to the B.C. court:
“…the duty to consult is triggered by the current system of issuance of mineral claims because it causes adverse impacts upon:
- areas of significant cultural and spiritual importance to the petitioners; and
- the rights of the petitioners to own, and achieve the financial benefit from, the minerals within their asserted territories.”
“We knew all along B.C. owes a duty to consult Indigenous nations prior to granting mineral claims in our territories…The provincial government must now act quickly to eliminate its unjust practice of selling off our rights without our consultation or consent.”
The Gitxaala decision is harmful to Canada, B.C. and all taxpayers. It’s harmful to the mining industry, to the rule of law and to the Canadian and B.C economies which depend upon the stability and predictability the rule of law brings. It divides Canadians on the artificial, illiberal basis of race. Most importantly it’s harmful to Indigenous peoples. The further power it grants to their elites is power without responsibility and thus parasitical and without civic virtue or public good. Despite the decision Indigenous peoples will remain entrenched in the socially harmful and civically infantile state in which they are mired.
Two “First Nations” brought this suit: the Ehattesaht First Nation, comprised of 542 members, and the Gitxaala Nation, comprised of about 2100 “citizens” in total, of whom only about 450 live in their alleged “national” territory.
In a reality-based world, claims of “national” sovereignty over large, undeveloped, thinly populated land areas- sovereignty equal to or greater than that of the duly elected governments of the country of which these areas are a part- state-threatening claims made by numerically tiny groups of race-based individuals, are never recognized. It is only in Panglossian Canada that such absurdity is given credence and nation-paralysing, legal weight.
The evidence before the court was that in 2021 mineral projects accounted for $660 million in expenditures, over 11,000 jobs and $250 million in tax revenue. The court also heard that 5000-6000 mineral claims are registered annually, the latter causing B.C. to argue that “pre-registration consultation” is not practical. Despite this, B.C irresponsibly acknowledged, and the court agreed, that “its obligation to consult could not be avoided or delayed on the basis that mining is good for the economy or that consultation will be difficult.” (5000-6000 mineral claims annually? No, not “difficult” to consult on; impossible.)
Again, so much for real world considerations intruding on either B.C.’s or the court’s thinking.
There was evidence before the court to the effect that a registered mineral claim in B.C. entitles the prospector to remove, with hand tools only, small bulk samples of rock from small pits or trenches, which “must not exceed 1.2 metres in depth and three cubic metres in volume”. B.C. adduced further evidence that this caused “nil or negligible disturbance of the land”.
“Mechanical disturbance of the ground”, the court heard, is only permitted after a subsequent permit is obtained, at which latter permit stage there is an Indigenous consultation requirement.
Despite this evidence the court found that the automatic registration of mineral claims causes “adverse impacts” on the First Nations’ “asserted rights and title”.
The court found that there were non-physical adverse impacts on “cultural and spiritual aspects, specifically in relation to places of significance”, and adverse physical impacts, such as “loss of minerals, physical disturbance and loss of financial benefit of the minerals”.
One non-physical, adverse impact the court found, having regard to the “First Nation’s perspective”, was the impact on the ability of the Gitxaala hereditary chiefs, who are, in effect, as the court heard, hereditary Indigenous royalty who are “granted ownership, governance and control over their territories”, to maintain “the homes, or dens, of the supernatural beings that are core to their beliefs”. In this regard the court accepted as valid and determinative the following Gitxaala superstition:
“The mineral tenure system allows miners to stake claims over areas that constitute these supernatural dens. Overlapping mineral exploration constitutes disruption of these sacred areas and is forbidden under Gitxaala law…the registration of mineral claims on Gitxaala Territory bring shame to all the houses by virtue of disrespectful or incorrect behaviour. This is known as “dirtying the blanket”. (Italics added.)
The court accepted without comment or objection the fact that the actual location of these dens housing these imaginary supernatural beings was a “guarded secret”.
Again, so much for the secularized, rational Western Enlightenment, the separation of church and state and the objective, skeptical, critical nature of the rule of law and the judicial process.
The courtesy that reason pays to superstition has gone too far. Indigenous romantic fabulism and superstitions have now penetrated so deep into the fabric of Canadian judicial and political thinking that it seems that nothing except some kind of major collapse will rid us of them.
The only two examples of adverse physical impacts in evidence, which were accepted as valid by the court, were the theoretical removal of crystals from one Ehattesaht location and the theoretical removal of ochre from one Gitxaala location, which, in both cases, any mineral claimant worth his salt would leave undisturbed.
The court made a fundamental error with respect to the supposed “loss of minerals”. All rock is a composite of minerals. Only when, after large financial expenditures, there is finally determined to be a sufficient percentage of commercially valuable minerals in a sufficient body of rock is that rock termed “ore” that can possibly be mined for a profit. Minerals per se, not in a commercially viable ore body, have no value.
At the claim stage, involving only hand tools and bulk samples, there is only rock and a gleam in a prospector’s eye, which at this stage no one can know if the rock has any potential mineral ore body value or not.
This decision will prevent anyone from ever finding that potential value out, because few prospectors, at the claim stage, where all they have is a geological hunch, will bother to devote precious resources over a viable ore body pig in a poke, or to engage in what is always an unstructured, undisciplined and unpredictable Indigenous consultation process, where, regardless of the facts on and in the ground, the Indigenous side spiels out cultural and spiritual malarkey, as in this case, and demands money up front as a condition of continuing the consultation.
The reader has only to consider the Ontario Ginoogaming First Nation v. Malouf situation, where a small prospector was tied up in court by the First Nation for almost three years over a simple application for a permit to explore his claims. After Gitxaala, this legal Kafkaism will happen regularly in B.C.
The Gitxaala decision, requiring advance public notice of a prospector’s intention to register a mineral claim, will encourage the bad faith use of the consultation process by First Nations and others to engage in claim jumping, claim stealing and making untenable “accommodation” financial demands. In the Malouf situation the First Nation used the consultation process as a bad faith means to attempt to get the Malouf lands for itself.
In a recent email to the writer, Michael Malouf, of Geraldton, Ontario, who has spent his entire working life in the mining industry, wrote:
“A prospector would be foolish to provide anyone with advance notice of where he intends to register his claim. The purpose of registering his claim is to prevent people from stealing his idea. This reality is akin to why an inventor would protect his idea by applying for a patent from the patent office before going public with his idea”.
The Gitxaala decision is helpful in one way: it spells out what “Aboriginal title” means in such blunt terms that no investor whose B.C. investment fails because of it will be able to say that he wasn’t properly forewarned.
The court declared that until an Aboriginal title claim is settled, either as a result of litigation or negotiation, B.C. retains the obligation to manage the claimed land and resources, subject to the duty to consult.
However, once a First Nation establishes Aboriginal title to a territory, (and virtually all B.C. non-treaty First Nations are claiming it), then the First Nation’s “system of law may govern” in that territory. At that point, according to the court, the First Nation would have to consent to any further resource extraction, or any other activity, taking place on their territory.
In other words, the First Nation will have a legal veto- supreme lawmaking authority in their territory- supreme over Canadian and B.C laws.
This represents a virtual usurpation of Crown legitimacy and power, and a form of partial, legal secession from Canada.
As the court said:
“Thus, following declaration of Indigenous title, each (First Nation) well be able to govern their territories according to their system of laws. The province has not ceded any right to any other entity. Decisions regarding land use can by pursued by a First Nation”.
Governing their various Aboriginal title territories according to their patchwork, varying, Indigenous “systems of laws” means excluding Canadian and provincial laws, and the protective, uniform and common legal and civic space they represent.
B.C. First Nations were before the Supreme Court in 2023 arguing that they have the right to exclude the operation of the Canadian Charter of Rights and Freedoms within their territories. (Canada awaits the Supreme Court’s decision in this regard.)
Knowing this, it would seem that B.C. elites are prepared to see almost the entirety of their province become a Charter of Rights-free zone.
What investor is going to want to invest in this legally anarchic, jurisdictionally chaotic, possibly Charter-free, dog’s breakfast of a broken province?
Adding to this grave delegitimizing and secessionist phenomenon, of which Gitxaala is the latest iteration, is the fact that the Canadian judiciary is increasingly being seen as partial to the Indigenous side in Indigenous rights cases. This partiality is especially evident in B.C, where, instead of resisting this de-stabilizing, secessionist phenomenon, the judiciary is accelerating it.
In November of 2021 B.C. Chief Justice Robert Bauman told a legal conference in Vancouver that “the Canadian justice system must recognize the existence of the many Indigenous legal orders in Canada, reconciling them with the common law and current legal protocols.” He said: “the process of reconciliation, including legal reconciliation, must be prioritized.”
He talked about non-Indigenous Canadians and their governments’ “jealous need for control” being “destructive.” He referred to the ancestors of non-Indigenous Canadians as “uninvited guests” in Canada. He said that the courts “must act responsibly within the matrix of Indigenous customs, traditions and protocols”.
He described the court system for which he was partly responsible as “a barrier to justice” for Indigenous people.
Everything Chief Justice Bauman said was untrue.
But that’s not the problem.
The problem is that, amongst B.C. elites, the Indigenous delegitimizing, secessionist zeitgeist is so strong that Justice Bauman felt that saying these things was normal and responsible. They’re not. With respect, it’s neither his business, nor that of his court, or of any court, to opine, especially in public speeches, on such non-legal, contentious, social and political matters.
The B.C. bar is no better.
The September 2023 edition of The Advocate, the official publication of the Vancouver Bar Association, contains an article about a non-existent problem entitled Addressing Indigenous Cultural Safety in the Legal Profession. The author, lawyer Christopher McPherson, wrote:
“The legal profession still has a long way to go when it comes to repairing the harm caused by colonialism, including the discriminatory laws and policies that have been imposed on Indigenous peoples.”
In another article in the same publication entitled The Crown’s Duty to Determine, Recognize and Respect Aboriginal Title, (which more bluntly could have been entitled The Crown’s Duty to Give Back Its Sovereignty to Indigenous Peoples and Make Itself and Its Colonial Courts and Lawyers Disappear), lawyer Tim Dickson wrote:
“Since 1846, the perverse unfairness to Indigenous peoples of the Crown’s failure to determine and recognize their rights has only sharpened in focus. Increasing settlement has deprived Indigenous peoples of the use of more and more of their land, leading (along with other contributing factors, such as residential schools), to intergenerational poverty, trauma and cultural loss….(The) gap between what our law and politics call for in theory and what has been recognized in practice poses a real challenge to the legitimacy of the Crown’s continued assumption of jurisdiction and control of the land base…The question we must ask ourselves is whether the continuation of this scenario is honourable- whether it is legitimate-given our contemporary legal, political and moral values and understanding.”
Reflecting the gist and spirit of Gitxaala, Mr. Dickson answers in the negative. He says in effect that the B.C. government’s jurisdiction and control of its land base is ultimately dishonourable and illegitimate.
It would seem to follow from this apologetic, shame-embracing line of reasoning that the very legitimacy of the B.C. government itself, and all of its creations, such as the court system and the lawyers like Messrs. McPherson and Dickson who practice in it, being “colonial”, are thus inherently dishonourable and illegitimate institutions and actors.
The B.C. government, courts and lawyers are partnering with Canada in the deliberate and dangerous legal and moral delegitimizing of themselves.
They bend all their immense powers of human reason to the unreasonable and radical end of dismantling their province, and all of its laws, institutions and traditions, in favour of a patchwork quilt of new, unknown and untried Aboriginal title utopias that somehow, they just assume, will mesh smoothly and without rancour with the remaining “settler” husk of the province.
Perhaps Vancouver and Victoria will become rump city-states- they are showing the mindset for it- providing technical and management services to the backward, parasitical Indigenous dukedoms and principalities that will emerge from all this.
The political philosopher Edmund Burke wrote in Reflections on the Revolution in France that a government “cannot renounce its share of authority”. To do so is to “destroy the fabric of the state” which becomes “disconnected into the dust and powder of individuality”.
Gitxaala is another attack on the fabric of the Canadian state. Itreflects the purely naïve, idealistic and moralistic thinking gripping Canadian and B.C. elites-thinking completely devoid of the Burkean realistic and tragic sense that is necessary to avoid social, legal and economic calamity.
Gitxaala posits and promotes an Indigenous-non-Indigenous, “reconciled” utopian future for B.C. where Indigenous groups are happily given the last word on all laws relating to land use, and arguably the last legal word in many other areas of human activity, in their various “self-governing” territories.
History shows that the pursuit of utopian goals never ends well.
October 10, 2023
[i] From Adriatic- A Concert of Civilizations at the End of the Modern Age, Random House, New York, 2022, at page 74
[ii] From Black Earth-The Holocaust as History and Warning, Tim Duggan Books, New York, 2013, at page 340
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