Aboriginal Title Erases Nation-wide Crown Sovereignty and Emasculates Canada’s Ability to Defend Itself Against Threats and Attacks from the United States and Other Foreign Nations
A government’s most basic function is the protection of its sovereignty. -Simon Schama[i]
In an Aboriginal title area of Canada, “the Crown will vacate jurisdictional space and Aboriginal law will govern there” -B.C. Haida Nation legal counsel Louise Mandell
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 American 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 the new American government’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 new government of the United States.
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 start to be immediately 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, dealt with in Part 1 of this series of articles, “The Constitutional Duty on Elected Legislatures to Consult and Accommodate Aboriginal Peoples in Relation to Proposed National Security and Resource Projects Shackles Canada’s Ability to Defend Itself Against Threats and Attacks Against its Economy and its National Security from the United States and other Foreign Nations, and thus Gravely Harms the National Interest” and secondly, Aboriginal title, the subject of this Part 2.
Possibly worse than the consult and accommodate duty is the Supreme Court’s recognition of the legality of Aboriginal title.
Aboriginal title has already been granted by the Supreme Court of Canada, after an over 20-year litigation process, to the Tsilhqot’in Aboriginal band over a 1900 square kilometres portion of B. C. (effectively former) Crown land situated in the middle of the province. B.C. and Ottawa have voluntarily formally recognized Aboriginal title over Haida Gwaii. Other B.C. Aboriginal bands, through court actions and otherwise, are claiming Aboriginal title over the respective areas of the province that they each claim that they have exclusively and continuously occupied since before B.C became a British colony.
Amongst the many gravely harmful consequences of legally recognizing Aboriginal title is that once it is recognized or ceded in relation to a particular area, “the Crown will vacate jurisdictional space and Aboriginal law will govern there”. The Aboriginal title holder will have the exclusive right to use and control the land and enjoy its benefits. Many important federal and provincial laws will no longer apply there.
This means that in relation to the Canadian resource sector the Aboriginal title-holding band, pursuant to its own separate laws and procedures- not provincial or federal laws and procedures– would have the sole right to issue permits for, or to veto, resource and national security projects such as transmission lines, military installations, mines and forestry activities on their land and…a pipeline crossing their land. The property, democratic and other rights of non-Aboriginals who reside there are called into question.
There will be great confusion and legal chaos.
Many provincial laws of general application, such as health laws, industrial safety laws, employment standards laws, food inspection laws, civil rights laws, (see below), highway traffic laws, other provincial offences laws, consumer protection laws, and all the other laws that over the past one hundred years provincial elected leaders have passed in order to advance and protect the welfare of their citizens, probably not apply, or at least will certainly be called into question, or at least if they apply, will only apply if the Aboriginal title band agrees that they may apply.
Inevitably, many de-stabilizing, unpredictable, contentious conflict of laws situations will arise.
The same legal confusion and chaos- the enemy of investment capital– will apply with respect to many federal laws that previously, unquestionably, applied to the former fully Canadian land-now Aboriginal title land- such as Canada’s smuggling laws and financial disclosure laws, to name only two.
Aboriginal title holding bands will claim, as they are already claiming now, that they have to be treated as partners with consultation and accommodation rights and now aboriginal title rights with respect to the proposed construction by the federal government of new military installations that Canada deems necessary to its national security.
The band leaders of Aboriginal title lands in Canada equate their new-found Aboriginal title status to that of a sovereign, self-governing “nation”.
But Aboriginal title “nations” lack and will always lack all the basic attributes of nationhood, which makes their continued, permanent dependency on the goodwill of the Canadian taxpayer and on continued, permanent, institutional, technical and financial support from Canada and the provinces a certainty.
Legitimate nations have hierarchical, coherent governing structures and rules-based orders developed organically over centuries. They are capable of providing and maintaining law and order. They are supported by independent institutions with, as historian Robert Kaplan writes, “organized bureaucratic systems interacting with each other on an impersonal, secular basis.” They have an already- functioning economy and a large, educated population to maintain it.
None of these basic state characteristics are present in any sufficient degree, or could be created in the future, on or in any Aboriginal title part of Canada, present or proposed.
Notwithstanding that Aboriginal title confers “independent”, semi-sovereign substate status on the Aboriginal title-holding band, and exempts their property from such normal Crown and public interest burdens as taxation and possible expropriation in the public interest, the Aboriginal title-holding band and its “citizens” are still entitled to receive, and for their basic subsistence, must continue to receive, all the benefits the Canadian state normally confers on Aboriginal bands and their members generally.
This already illustrated by the fact that, with respect to the recognition of Aboriginal title over Haida Gwaii, the federal government paid $59 million to the band as an “advance capital transfer to boost the nation’s governance capacity”, an admission that Haida Gwaii presently has no modern, real nation-like “governance capacity.”
This is only the first in what will be an endless series of federal and provincial “capital transfers” in this regard – payments made to in essence create, at Canadian taxpayers’ expense, a weak and inefficient parallel system of government -parallel to a much better federal and provincial system of government that the people of Haida Gwaii lived under and fully benefited from for 150 years.
What a ridiculous and divisive waste of money!
Aboriginal title is a one-way street which will benefit only the usually illiberal, “strongmen” leaders of the Aboriginal title band, while further impoverishing and marginalizing most band members, just like First Nations reserves do, and, more importantly, diminishing and weakening Canada.
The more that Aboriginal title is ceded by Panglossian governments or granted by the courts to Aboriginal bands then the more Canada becomes less of a country stretching from sea to sea under the aegis of uniform and unifying federal and provincial laws equally applicable to all.
Rather, in this dispiriting situation, Canada becomes a fragmented, weak and vulnerable country – vulnerable to the kind of claims the United States is now asserting against us- vulnerable to Chinese and Russian infiltration into Aboriginal title lands- barely worthy of the appellation “country” at all- better characterized as a mere soulless, confusing, checkerboarded land mass of contiguous Crown sovereignty- non-Crown sovereignty areas of land, with no common, unifying spirit or unifying rule of law.
Aboriginal title parts of Canada will become inshore, offshore-Caymen Islands-like tax havens- and havens for the accomplishment of other anti-Canada nefarious purposes- American, Russian, Chinese, you name it.
If this legal trend continues B.C. and other potential Aboriginal title areas of Canada could end up being like Germany was before it was unified by Napoleon and then Bismarck; weak, fragile, hostile to economic growth and more vulnerable to foreign subversion and conquest.
Aboriginal title is a constitutional shackle that is now a practically immovable part of our body of constitutional law, and Canada can only be freed from it 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- a polity governed by one uniform set of laws.
The status quo before consult and accommodate, 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.
Relying on Tsilhqot’in, at the other end of the country, the Wolastoqey First Nations in New Brunswick have launched a lawsuit claiming Aboriginal title to about one half of the New Brunswick land mass.
Resource and national security project proponents in these emergency times will have to go cap in hand to Aboriginal bands and, on bended knee, seek their consent to proceeding with their nation-benefitting and protecting projects. Given past experience, human nature, Chief Woodhouse Nepinak’s and other Aboriginal groups’ national-interest-be-damned, recent public statements, the possibility of them choosing the national interest over their own parochial interest seems to be unlikely.
These resource and national security proponents, failing to secure this consent, or presented with financial and other demands they are unable to meet, 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 or years.
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 no legal precedent for this. The inquiry in this regard would be intensely fact-based, and thus hugely time-consuming.
The process that ended up with the Supreme Court declaring that the Tsilhqot’in band had Aboriginal title over their land spanned a period of 31 years. The trial of Tsilhqot’in took up 339 court days spread out over a five-year period.
The adjudication of the “compelling and substantial purpose” issue would be fraught with the same kind of years-long time delays.
The Gitxaala decision has already ruled that economic hardship is irrelevant.
Under the present state of the law, and given these practical realities, 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 would want to consider building a new pipeline in these legally uncertain, unstable and unpredictable circumstances?
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, which 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:[iv]
“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.
The revival of the Northern Gateway pipeline is rendered practically impossible in B.C. by Aboriginal title, (and by the consult and accommodate duty- see Part 1), just as the revival of Energy East is rendered practically impossible by the consult and accommodate duty and by the New Brunswick Wolastoqeys’ Aboriginal title claim.
East-West pipelines were effectively blocked in the past by Aboriginal groups at both ends of the country and, with Aboriginal title added to their quiver, can be even more easily blocked by Aboriginal groups today.
Aboriginal leader and spokesman Arthur Manuel, in his book The Reconciliation Manifesto-Recovering the Land, Rebuilding the Economy[v], 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, (even the Canadian Charter of Rights and Freedoms will not apply on Aboriginal title land), medieval-like business and investment regulatory environment.
Aboriginal band elites have been handed by the Supreme Court positions in the Canadian economic order partially akin to nineteenth century rentiers, with nothing demanded from them in exchange.
Except for now, their toll-gating power and wealth is not inherited. Rather, it will be 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, public interest and/or 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 are and will be practically exempt from large swaths of the protective role of Crown sovereignty and 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 voluntary government surrender to Aboriginal groups, 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.
The United States’ irrational and hostile threats to Canada bring to full force the realization that Canadians 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 deprivation of civil liberties, the disastrous loss of tax revenues, and all the other clear and present moral, social and financial dangers inherent in the new Tsilhcot’in-inspired(and Haida Nation-inspired), state-weakened, third-world style economic order, where vitiated Crown sovereignty, legal confusion, uncertainty and unpredictability rule- conditions ripe for the rise of the “strong man”.
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 marveled at the administrative measures in place to provide security for travelling merchants. “China is the safest country and best country for the traveler,” 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”.[vi] (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.
They’ve permitted the undermining of the legal and political foundations of the country.
Canada can only properly respond to American and other foreign threats in an environment characterized by economic, political and legal stability, transparency and predictability, all under the aegis of sole Crown sovereignty, the opposite of the dysfunctional, national security-threatening environment created by Tsilhqot’in (and byUNDRIPand Haida Nation) 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 weakened-foundations-emasculating mess that they’ve embroiled the country in and do it fast.
Peter Best
Sudbury,
February 18, 2025
[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] Article, The Claims are Just. But the Supreme Court Ruling Means Chaos. The Globe and Mail, June 30, 2014
[v] James Lorimer and Company Ltd. Toronto, 2017
[vi] Peter Frankopan, The Silk Roads- A New History of the World, Alfred A. Knopf, New York, 2016
