Law says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is us but let me explain it once more,
Law is The Law. – verse from Law is Love – Wystan Hugh Auden
A nation or society has a general spirit pervading all its aspects, and ideally its laws must conform with this. – Montesquieu
The law is a ass. – Charles Dickens (Mr. Bumble in Oliver Twist)
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Introduction
The common law is whatever judges say it is, even when what they say is so devoid of all worldly and common sense that it constitutes the law as essentially having “gone away.”
The Law is The Law.
And sometimes, as Mr. Bumble in Dickens’ Oliver Twist said; “The law is a ass.”
Such words apply to the decision of The Honourable Madam Justice Barbara Young of the Supreme Court of British Columbia in the case of Cowichan Tribes v. Canada and others, (“Cowichan”), in which decision – a decision not conforming in any way with the Western Enlightenment, universalist spirit of Canada – Madam Justice Young, after erecting a rude superstructure of fable and legal errors on the narrowest, biased foundation of very equivocal facts, utterances and incidents, declared that the Cowichan tribes of Vancouver Island, now numbering about 8000 souls in total, own Aboriginal title to a part of modern Richmond B.C., including federal submerged lands and municipal infrastructure like sewers and public roads, by virtue of their distant ancestors having used the area as an annual, seasonal (June-August) fishing village/camp prior to and at the time of the United States’ acknowledgment in 1846 of Britain’s sovereignty over what is now British Columbia.
Her ruling was firstly based on a short statement made in 1853 (hereinafter referred to as “the 1853 assurance”) to a small group of Cowichan Indians on Vancouver Island by James Douglas, the then-Governor of the Vancouver Island colony, in the context of a local criminal matter.
It was secondly based on some seemingly innocent and normal-for-its-times Crown conduct in the 1859-1874 period arising out of the surveying of the lower Fraser River valley for settlement and Indian reserve creation purposes.
This conduct, she ruled, taking into account the 1853 assurance, breached the “honour of the Crown” principle, (hereinafter referred to as “the Crown honour principle”), the “duty to consult” obligation and the “fiduciary duty” principle, which, she ruled, were all legally applicable in that ancient period, and, according to Justice Young, have remained legally applicable from then up to the present, and are legally applicable to all future dealings between the Crown and the newly-declared owners relating to these now Aboriginal title lands: the Cowichan tribes.
The current legal result of these ancient, alleged breaches is that the Cowichans own the unextinguished, “senior”, Aboriginal title to what she called the “Cowichan Title Lands” (hereinafter sometimes called “the Lands”), and that the titles of the present, presumably “junior” fee simple titleholders of the public and private properties on the Lands are “defective and invalid”.
To be clear, Richmond is situated on the B.C. mainland, 85 kilometres away from the traditional, permanent Vancouver Island reserves of the Cowichan tribes, and the Cowichan tribes have had no physical connection to or presence on these Richmond Lands for well over a hundred years.
The effect of Justice Young’s ruling is to override the present fee simple titles of all the public and private property owners on the Lands, including all those private property owners on the Lands who were not named as defendants in the lawsuit. Some of these unrepresented defendants are a golf course owner, a blueberry farm owner, and owners of expensive private homes.
The effect of the ruling is also to massively and unjustly enrich the present, Vancouver Island Cowichans, who, until this lawsuit started, most of the present expropriated-without-compensation Richmond property owners were either unaware of or, if aware, had likely never given a second thought to.
The 1853 assurance
In 1853 Governor James Douglas of the British colony of Vancouver Island travelled to the mouth of the Cowichan River to arrest a Cowichan Indian wanted for murder.
The Cowichan Chief and several other Indians met him, having brought the accused with them. They argued for his innocence and non-detention.
The result of the meeting was that the accused was surrendered to the Crown to be tried in accordance with British law. That night Governor Douglas recorded in his journal what he had said at the meeting. He wrote:
“… I afterwards addressed the Indians who were there assembled, on the subject of their relations with the Colony, and the Crown. I informed them that the whole country was a possession of the British crown, and that Her Majesty the Queen had given me a special charge, to treat them with justice and humanity and to protect them against the violence of all foreign nations which might attempt to molest them, so long as they remained at peace with the settlements. I told them to apply to me for redress, if they met with any injury or injustice at the hands of the Colonists and not to retaliate, and above all things, I undertook to impress upon the minds of the chiefs, that they must respect Her Majesty’s warrant, and surrender any criminal belonging to the respective tribes, on demand of the Court Magistrate and that resistance to the Civil power, would expose them to be considered as enemies. I also told them that being satisfied with their conduct in the present conference, peace was restored, and they might resume trade with Fort Victoria. The distribution of a little tobacco and some speechifying on the part of the Indians, expressions of their regret and friendship for the whites closed the proceedings and the conference broke up.”
[Underlining added by the judge. Italics added by the writer.)
This essentially private journal entry was never made the subject of any public or official proclamation or policy.
In 1853 mainland British Columbia was not yet a formal British colony. It was still under the jurisdiction of the Hudson Bay Company (HBC).
In 1858, facing pressures caused by the influx of 30,000 gold-seekers into the Fraser River valley, mainland B.C. was made a colony of Great Britain, with the same James Douglas being appointed its first Governor.
The 1853 assurance Douglas had given to the Cowichan tribes, regardless of what he intended by it or what it meant, could only have applied to the Vancouver Island colony. The words “whole country” in his journal could only have reasonably applied to Vancouver Island. In 1853 Douglas had no authority to speak for either the HBC or Great Britain in relation to any matters relating to mainland B.C, nor could he have intended to so speak.
Lower Fraser River Valley survey activities
One of Douglas’ first tasks as Governor of the colony of British Columbia, initially a separate colony from Vancouver Island, (they merged in 1866), was to carry out Britain’s general policy of, by agreement, consent and similarly otherwise, obtaining cession to the Crown of lands possessed by Indians, and establishing reserves for them.
In February of 1859 Douglas issued a proclamation declaring that all lands in B.C. belonged to the Crown.
The next month he declared that colonial policy would be, as soon as possible, to identify and set aside as eventual reserves all the sites of already existing Indian villages and cultivated fields. These identified sites were never to be sold to settlers. When B.C. joined Confederation in 1871 these lands to be reserved for Indians became a federal government constitutional responsibility.
In the summer of 1859 part of the lower Fraser River valley was provisionally surveyed by Joseph Trutch, (later appointed the first Lieutenant Governor of B.C. after it joined Confederation), for later formal survey and settlement purposes, and also for Indian reserve creation purposes. In one of his survey Field Books he noted by polygon symbols the location of the Lands, and wrote “Indian Village”, “Fishing Camp” and “Indian Trail” near those symbols.
The trial judge called this “the biogeoclimatic landscape of the village, fishing station, and trails”.
She did not call it a map or a survey.
There was no indication in the Field Book of whose “Indian Village-Fishing Camp” it was and no evidence before the court that Douglas or any other senior colonial official knew of this Field Book entry.
No subsequent survey that was done showed this “Indian Village-Fishing Camp.”
In October of 1859 Douglas, in a circular sent to his surveyors wrote, amongst other things:
“You will also cause to be reserved the sites of all Indian Villages and the Land which they have been accustomed to cultivate, to the extent of several hundred acres around each village…” (italics added)
In the ensuing 1860-1864 period Douglas established administrative procedures for creating Indian reserves, involving consultation with identified Fraser River Indian villagers, and marking with posts and stakes the location and extent of the identified villages.
As to the extent of the reserves, Douglas wrote in March of 1861 that they were to be defined “as they may be severally pointed out by the Natives themselves” and “according to the inhabitants of each settlement and village may point out…”, and “as they (the Indians) claim”. (italics added)
Clearly the identity, final locations and size of reserves was to be the result of a face-to-face, collaborative process between the Crown and the directly affected Indians.
On April 13, 1861, a British surveyor, Captain William Parsons, was instructed by Colonel Richard Moody, the first Lieutenant Governor of the colony to:
“…mark out successively and as early as practicable by Posts and in any other clear and permanent ways, Boundaries of Lands claimed by Indians in this neighbourhood – extending from Harrison River, inclusive to the Sea…”
This “inclusive to the Sea” area would include the Lands, which were about 13 kilometres downstream from Fort Langley, which the trial judge determined was the location of the Cowichan tribes’ seasonal fishing village/camp.
Several weeks later, on April 30, Captain Parsons issued instructions to surveyor Charles Sinett to mark lands claimed by Indians from the mouth of the Harrison River, but only to Fort Langley, instead of “inclusive to the Sea”.
This modification“inexplicably”, (Justice Young’s word; meaning no one knew or testified why),excluded any Indian villages and settlements that might have existed below Fort Langley, such as the Cowichans’ seasonal, fishing village/camp.
About a decade later, in 1874, Israel W. Powell, Canada’s Indian Superintendent, asked Douglas, who had retired back to Britain in 1864, whether there had been a particular basis for the acreage used in setting apart Indian reserves. In a typical display of British and early Canadian decency and fairness towards Indian peoples, Douglas responded:
“To this enquiry, I may briefly rejoin, that in laying out Indian reserves no specific number of acres was insisted on. The principle followed in all cases, was to leave the extent and selection of the land entirely optional with the Indians who were immediately interested in the Reserve; the surveying officers having instructions to meet their wishes in every particular and to include in each Reserve the permanent village sites, the fishing stations and burial grounds, cultivated land and all the favourite resorts of the Tribes, and in short to include every piece of ground to which they had acquired an equitable title through continuous occupation, tillage or other investment of their labour. This was done with the object of securing to each community their natural or acquired rights, of removing all cause for complaint on the ground of unjust deprivation of the land indispensable for their convenience or support and to provide against the occurrence of agrarian disputes with the white settlers.”
[Underlining added by the trial judge.]
Aside from the equivocal Field Note entry, (above), after 1859 the Cowichan seasonal fishing village/camp was never noted on any government survey as a permanent Indian village with adjacent cultivated land to be set aside for future Indian reserve creation purposes.
Concept of permanency central to British officials
It’s reasonable to conclude that the concept of permanency of Indian occupation of their villages was paramount in the various instructions given to Crown surveyors.
Even if British officials were aware of the Cowichan seasonal fishing village/camp, they likely did not consider it to be a permanent settlement with such indicia of permanency as “cultivated fields” and “burial sites”, as suggested by Douglas in his 1859 circular, so as to come within the ambit of the instructions in this regard given by him to surveyors and other high ranking British officials, such as Parsons, Joseph Trutch and Richard Moody.
If they knew about it, they likely did not consider it to be a permanent settlement to justify it being earmarked as an Indian reserve.
There was no evidence before the court that during this 1859-1864 survey period (“the colonial survey period”) any Chief or other representative of the Cowichan tribes approached British officials and advised them of the existence of their seasonal fishing village/camp and that it should be identified as an Indian village for future reserve purposes.
They were, after all, permanently living across the Georgia Strait on Vancouver Island.
There was no evidence before the court that the Cowichans’ seasonal fishing village/camp was a place “claimed by” or “pointed out” to British officials by the Cowichans.
The survey work was deliberated amongst British officials between March and early May of 1861.
The custom of the Cowichan tribes was to mainly attend at their seasonal fishing village/camp only when the salmon were running and the berries were ripe for picking, which was from June to August of each year.
The simple fact is that the two sides- the two worlds- likely innocently missed each other- likely failed to “collide” on lower mainland B.C. – during this important colonial survey period.
Cowichan tribes’ becoming increasingly assimilated
In addition, as the trial judge noted, colonization and trade had caused a change in pre-contact Cowichan traditional behaviour.
In 1857 a British official noted that they were “getting out of the habit” of regularly going to their seasonal fishing village/camp. They were beginning to frequent it less, preferring to stay on Vancouver Island and go to Forts Victoria and Nanaimo to trade for European goods.
Irreversible cultural change was happening to the Cowichans, which inevitably happens when a technologically inferior culture comes into permanent contact with a technologically superior culture.
By the late 1860’s, when they did come for the annual summer salmon run, they brought European-manufactured tents and lived in them, instead of living in their previous, traditional plank houses.
And when the fish cannery business started up on the banks of the Fraser River in 1873, many Cowichans chose to become wage earners in it, rather than continue to rely solely on fishing for their subsistence.
The last recorded big gathering of the Cowichan tribes at their seasonal village/camp was in 1877, when about 1000 Cowichan gathered there for the salmon run, and it was only in that year that the Cowichans first complained to a colonial official about settlers occupying the land where their fishing village/camp had been.
Britain acted innocently, honourably and in good faith.
The result of all the above was that the present-day area of Richmond that comprises the Lands, instead of being kept aside for Cowichan Indian reserve purposes, was surveyed into lots, and, as the facts well set out in the trial decision make clear, innocently and in good faith sold off to settlers as fee simple properties in order to promote the economic development of the fledgling colony.
Cowichan tribes allege breaches of the Crown honour policy – Richard Moody
The present-day Cowichan tribes allege in their lawsuit against Canada, British Columbia, the City of Richmond and others that the Crown acted dishonourably and unlawfully- even, in the case of Richard Moody, fraudulently- from 1853 onwards in not surveying and setting aside the seasonal fishing village/camp for Cowichan Indian reserve purposes.
With respect to Richard Moody, who Port Moody is named after, in 2013 he was honoured by the B.C. government as one of the founders and “trailblazers” of British Columbia.
Based on an entirely erroneous, biased and mean-spirited interpretation of the facts, and based on a stretched and unreasonable application of the Crown honour/fiduciary principles, Justice Young, using the words “covert” and “surreptitious” as being applicable to Richard Moody’s land purchases, declared that Moody’s conduct was “dishonourable” to the point of being nearly fraudulent.
Without there being any foundation in the evidence, she speculated and then wrongly concluded that he had in effect knowingly snatched for his own use part of the Cowichans’ Lands from under the Cowichans’ noses.
She also wrongly ruled that Moody had breached the Crown’s supposed “duty to consult” the Cowichans by agreeing with the Crown to buy these lands in 1864 without first consulting them and getting their approval.
The trial judge accepts the Cowichans claims and orders “reconciliation” negotiations
Based on all this allegedly dishonourable Crown conduct, including that of Moody, the Cowichan tribes alleged that the Lands, which they argue always belonged to them, still belong to them now by virtue of their unextinguished Aboriginal title.
Retroactively applying to B.C.’s early colonial period legal concepts and principles such as the Crown honour principle, the fiduciary obligation and the consult and accommodate obligation – concepts and principles only made the civil law by the Supreme Court of Canada after the passage of section 35 of the Constitution Act in 1982, and unheard of in 1853 and during the colonial survey period, and in my view misinterpreting the facts before her – Madame Justice Young agreed with the Cowichans.
She ruled that when the Crown issued the first patents to the surveyed lots that were part of the Lands, the lots were not the Crown’s property to convey away. They were the property of the Cowichans by virtue of their established and unextinguished Aboriginal title. The patents were defective and invalid, and the titles of all the purchasers, subsequent owners and improvers of those lots down the approximately 150-year chains of title to the present, were and are defective and invalid.
Richmond assets valued at $100 billion
A Richmond witness testified that the current value of all private and public infrastructure on the Lands is about $100 billion. As stated, there are presently about 8000 Cowichans spread out over about 5 reserves on Vancouver Island. About half of them live off their reserves, in towns and cities. It would be undisputed that they contributed nothing to the creation of this value.
Judicially declared spirit to govern any Crown-Cowichan negotiations
Justice Young declared that negotiations should take place to “reconcile” the Cowichans Aboriginal title interests with the interests, such as they now may be, of the Crowns and the fee simple property owners who derived their fee simple titles from the original Crown patents, which negotiations, she declared, must be in “good faith and in a manner consistent with the honour of the Crown”.
In these negotiations the Cowichans can plausibly take the position at the outset that they will give up their Aboriginal title, (or not – they may choose to remain perpetual landlords), on payment of $100 billion, which works out to $12 million tax-free per Cowichan band member.
This offends all sense of reason, justice and fairness.
But The Law is The Law.
If so, as Mr. Bumble said, the law is a ass.
The Crown did not breach the Crown honour principle
As stated, the Crown honour principle was only developed and made law by the Supreme Court of Canada in the decades after the passage in 1982 of section 35 of the Constitution Act. The 2004 Haida Nation decision contained the first specific, focused enunciation of it.
In this recent, modern period the Supreme Court has ruled that once the Crown honour principle has been engaged, then the Crown owes, amongst other obligations, a fiduciary duty to the affected Aboriginals and a duty to consult with and accommodate them regarding any contemplated Crown conduct that might reasonably affect them.
Justice Young ruled that the Crown honour principle was solemnly engaged when James Douglas made the 1853 assurance, which principle, she said, citing this post-1982 Supreme Court law, “must be understood generously”.
She “generously” understood the 1853 assurance to conclude in relation to the Lands that its intention was to hold the Crown, from 1853 forever onwards, to a high standard of fiduciary care and loyalty towards the Cowichans, regardless of ever-changing historical circumstances.
Her rationale was partly that the “promise was made to induce the Cowichan, who were a strong military force at the time, to remain peaceful”.
Besides a vague assertion of unspecified “tensions” between the Crown and the Cowichans, there was no evidence before the court that the Cowichans as a nation were threatening war or civil disturbance against the British colony of Vancouver Island. The clear overall implication of Douglas’ journal entry in this regard was that it was the threat of the British withdrawing the Cowichans’ trading privileges at Fort Victoria that, more than anything else, caused them to peacefully surrender the Cowichan accused.
The only evidence before the court of warlike conduct and intentions was expert evidence describing the Cowichans’ warlike, cruel and deadly ferocity against the Musqueam, Tsawwassen and other Coast Salish tribes, involving mass murder, beheadings, kidnappings and enslavements of these tribes by the Cowichans.
Contradicting herself in the same sentence, referring to the 1853 assurance, she ruled that “while the promise falls short of a constitutional commitment, it bears the hallmarks of one, and as such, in my view it is sufficient to engage the honour of the Crown.”
(This statement will certainly be a prime issue/target on appeal.)
She described the 1853 assurance as a “solemn promise that engaged the honour of the Crown, which is a constitutional principle that requires the Crown to act honourably in its dealings with Indigenous peoples.”
Regardless of how she confusedly described it, in substance she ruled that the 1853 assurance was a constitutional promise, (made before Canada was even a nation with any kind of a constitution!),which accordingly, in her view, made the post-1982 Supreme Court Aboriginal rights jurisprudence directly applicable to the pre-Confederation situation before her.
The judge misapplied the Crown honour principle
In my view Justice Young “understood” the Crown honour principle too “generously”.
Douglas was only addressing a local law enforcement matter on Vancouver Island. Mainland B.C. was HBC territory over which Douglas had no authority or right to speak on behalf of.
With the honour of the Crown purportedly at stake, Justice Young, applying Supreme Court-declared pro-Aboriginal interpretation guidelines, ruled that the 1853 assurance -this purported constitutional promise – “should be afforded a broad and purposive interpretation.” (italics added)
Justice Young then interpreted this constitutional promise so broadly and so purposively in the Cowichans’ favour that she ruled that it related to the Cowichans’ interests generally, including all land they might possess or control anywhere – not just in the “whole country” of Vancouver Island – but also including the Fraser River area on the HBC-administered lower mainland of B.C, where, likely unbeknownst to Douglas, (there was no evidence that he knew of it), the Cowichans’ seasonal fishing village/camp was located.
And, in relation to the Cowichans’ perspective on the 1853 assurance, while acknowledging that “there is an absence of evidence about what the Cowichan understood the promise to relate to”- in other words there was no evidence of the “Indigenous perspective” on it, (but plenty of evidence of the “colonial perspective, which she gave no effect to) – she helpfully and in most legally improper and biased fashion filled in the blanks for them. She ruled:
“That the mainland colony was not yet established is not an impediment to this interpretation. Per Douglas, he informed them that the “whole country” was a possession of the British Crown. Consideration of the Indigenous perspective suggests that there would be no shared understanding about geographical limitations, and the Cowichan’s interests included their interest in their village on the Fraser River. An honourable interpretation of an obligation cannot be a legalistic one that divorces the words from their purpose.” (italics added)
The post-1982 Supreme Court has ruled that for a Crown assertion, like the 1853 assertion, to achieve the legitimate status of a constitutional obligation, the assertion must have been given in circumstances characterized by a “measure of solemnity”, and the assertion must have shown a specific intention to create a specific obligation.
The 1853 assertion totally failed to meet these tests.
The unfair and legally erroneous retroactive application of post-1982 Aboriginal constitutional law principles to the 1853 assurance and the colonial survey period
It was wrong and unjust for the trial judge to base her decision on the 1853 assertion and the innocent and good faith events that happened during the 1859-1864 survey period, when Canada wasn’t even a country yet and when laws and customs were different. The Moody lands purchase broke no laws at the time, was publicly known, and was accepted as normal and even beneficial.
Montesquieu’s” general spirit” that pervades Canadian society, and that should pervade Canadian civil law, is one of fairness, common sense and adherence to basic principles of fundamental justice.
Reflecting this general spirit there exists throughout Canadian law- throughout the laws of most Western countries- interpretive presumptions against retroactive and retrospective operation of statutes and against interference with vested rights.
Section 11(h) of the Canadian Charter of Rights and Freedoms reflects this, stating that a person charged with an offence has the right not to be found guilty of any act that, at the time the act was committed, was not a legal offence.
This general spirit and these presumptions arising from it reflect the ancient (Latin) principles of “no crime without law, no punishment without law”.
Justice Young herself referred to “the general presumption that laws are non-retroactive”.
Justice Young violated this spirit and these legal/fairness presumptions by finding civil liability against Canada and B.C. for acts and omissions that, while they may offend recent judge-made Aboriginal laws of today, broke no laws and violated no customs or morals of the pre-Confederation times when the relevant events happened.
While her decision in this civil law case violated no legislative enactment, and while there seems to be no precedent on the issue of retroactively applying constitutional common law principles to an era when they did not exist, in doing just that Justice Young, however one might legally look at it, played “dirty pool” against our ancestors, B.C.’s honourable and decent forefathers and builders, and all present-day Canadians.
Justice Young’s decision is so against the present multi-cultural, liberal, universalist, equality-of-all, fairness spirit of the country- so Procrustean-bed harshly and technically “legal”, being a triumph of cold abstraction over flesh and blood reality – so benignly and unintentionally racist- so socially divisive- so economically harmful – that it brings the administration of justice into disrepute.
Justice Young applies a double standard to dishonourable conduct
Justice Young’s decision is also evidence of the hypocritical and biased application by her of a double standard: a double standard which pervades Aboriginal law.
Only the Crown must legally act “honourably”. The Cowichans can act however they want.
While holding B.C.’s colonial founders to the highest moral and legal standards of 2025, Justice Young excused and explained away genuinely atrocious Cowichan 1846-era behaviour, saying in effect that 2025 standards should not apply to their ancestors’ 1846-era conduct.
She found on the evidence that the Cowichans were so fiercely warlike that, through acts of mass murder, sometimes involving beheadings and displaying severed heads on poles, and through kidnappings and enslavements, (slavery was an integral part of the cultures of all Coast Salish tribes), they were able to deter all other lower Fraser River Indians from challenging their exclusive control of the Lands.
The trial judge went to great pains to criticize B.C.’s colonial founders for allegedly dishonourable conduct, which, using modern parlance, was the equivalent of “white collar” misconduct.
(Notably, she gave them no credit for, through the imposition of the British rule of law, outlawing slavery, kidnapping and murder, and otherwise bringing relative peace and order to all the Coast Salish tribes.)
By awarding judgement in the case to the Cowichans, she in effect rewarded them for their dishonourable (to say the least) conduct of using mass murder, beheadings, kidnapping and enslavement as tools to further their aims- conduct far worse than the merely administrative nature of the alleged colonial malfeasance she wrongly found had occurred, where no Indian was ever murdered or enslaved, and no Indian’s hacked-off head was ever mounted on a pole on the orders of the likes of James Douglas, Richard Moody or Joseph Trutch.
Her blithe rationale for this was:
“It would not be in the spirit of reconciliation to hold an Indigenous Nation’s conduct centuries ago to retroactive standards of international or Canadian law.” (!)
But not so the opposite!
It appears that “reconciliation” then calls for a legal double standard, where Aboriginals are treated by the courts as perpetual innocents, and the Crown is treated as a perpetual villain.
Clearly, “reconciliation”, like the Crown honour policy, is a one-way street in favour of Aboriginals.
The clear existence of judicial bias favouring Aboriginal litigants
As evidenced by the immediately above, and by Cowichan generally, our courts, especially the Supreme Court of Canada, have shown an overwhelming bias in favour of Aboriginal litigants.
Our courts have carelessly and injudiciously come to regard themselves as authoritative historians and social issues partisans, always in this regard condemning our early generations of British-Canadian nation-builders and present non-Aboriginal Canadians for one alleged “colonialist” injustice or another against Aboriginals.
The bias is systemic and case by case.
Examples of systemic bias are legion, and together they create the very situation that a properly run, Western court system should always be trying to avoid: the perception of an uneven judicial playing field.
This is the perception many Canadians now reasonably hold regarding the courts and Aboriginal litigants, and this perception only increases as the result of a close reading of Cowichan.
Oral history testimony
As Justice Young said:
“Altered rules of evidence are permitted to address the inherent evidentiary difficulties in litigating Aboriginal rights cases.”
Only in Aboriginal rights cases do the courts admit “oral history” – an “altered rule of evidence” developed by the Supreme Court of Canada, only for Aboriginals, to make proving their country-harming cases easier.
Oral history is a form of hearsay evidence, which is normally inadmissible because it is inherently unreliable. On this fable-ridden, travesty of British Canadian justice, I can do no better than to quote distinguished Vancouver trial lawyer, Barry Kirkham:
“In the entire history of the common law hearsay evidence has been inadmissible (with a few well-defined exceptions) because it is unreliable. That prohibition applies to firsthand hearsay evidence. It is still the case. Except in one situation.
The case which established aboriginal title in BC (where there are few treaties) was the 1995 decision of the SCC in Delgamuukw. In that case the trial judge was Chief Justice Alan McEachern, one of the great jurists in Canada. After a two-year trial he found aboriginal title did not exist in law. He also found the seventh-generation hearsay evidence as to where the band was in occupation in 1846 was inadmissible, which of course was a routine application of centuries of precedent.
The Supreme Court of Canada reversed him. It found aboriginal title did exist. A terrible decision.
As to how it could be proven that a small band occupied a given area of land in 1846…there often are no records because the Indians did not have a written language and there was no physical evidence remaining of any such occupation—the SCC also overruled McEachern. Chief Justice Antonio Lamar, from Quebec, overturned centuries of precedent on hearsay evidence. His reasoning was pretty simple. He said, “How can the Indians otherwise prove their case?”
On that flimsy rationale, which has no basis in law or reason, BC today consists of aboriginal title everywhere an Indian band can establish that they exclusively occupied a certain area in 1846. Even in cases, such as in Richmond— where the land was soon occupied by others and turned into fee simple title which has turned over many times over the course of the next 180 years.
So, the law of hearsay evidence is that even firsthand hearsay is inadmissible, because it is unreliable, in every case except where an Indian band claims aboriginal title. In such cases seventh generation hearsay evidence is admissible and accepted to take away fee simple titles that have existed for 180 years. Because seventh generation Indian hearsay is so reliable!!! The grovelling language of the judge…describing how this seventh-generation evidence is so reliable because the Indians picked berries together and talked about their history, would appear to come from the other side of the Looking Glass.”
In Cowichan, Justice Young, citing Supreme Court of Canada precedents, in describing oral history, said that it “includes subjective experience” and “may have elements that are not entirely factual”. She further said that it “is neither linear nor focused on establishing the objective truth as in the non-Indigenous tradition; the “truth” lying at the heart of oral history and tradition evidence can be elusive”.
Despite her acknowledgment of these shocking evidentiary shortcomings of Aboriginal oral history testimony, she decided much of her profoundly society-disrupting Cowichan decision based on it, and in so doing fully illustrated historians Will and Ariel Durant’s saying: “History is mostly guessing; the rest is prejudice.”
The concept of honour in Crown-Aboriginal relations only burdens the Crown.
As stated, the Crown honour principle only applies to the Crown. No such principle mandating honourable dealings applies to Aboriginals. This creates an inherent bias against the Crown in Crown-Aboriginal court cases. This a structural unfairness. Aboriginals claim they are independent, self-governing nations. As such they should be held to the same legal and moral standards as the nation of Canada.
If there was ever a rationale for the Crown honour principle, it no longer exists. Aboriginal groups are no longer “vulnerable”. They could afford 25 lawyers to work on this case! They operate multi-million-dollar businesses and are engaged in multi-million-dollar real estate developments. They have their own lending institutions. One is a provincial Premier, and another is Governor-General of Canada.
Our courts have given them enormous constitutional power over our elected legislatures, and as evidenced by Cowichan itself, over non-Aboriginal Canadians generally- even to the extent of threatening titles to their homes.
There’s no need for the Crown honour principle anymore.
Systemically biased rules of interpretation
The Supreme Court has ruled, as Justice Young did in Cowichan, that the Crown honour principle “must be understood generously” towards the asserted Aboriginal claim or interest, and that Crown constitutional promises made or Crown obligations owed to Aboriginals must be given a “broad and purposive” interpretation.
Justice Young reflected this seemingly “equity prevails” approach, which is the rule for relatively piddly legal matters in Small Claims courts, by saying: “An honourable interpretation of an obligation cannot be a legalistic one that divorces words from their purpose.”
And by saying that they cannot be too legalistic in Aboriginal cases they are fully justifying Canadians’ loss of faith in them.
Courts exist to presume that words mean what they say and then to enforce those words – to be legalistic.
And given that the Crown honour principle, like “reconciliation”, is a one-way street in favour of Aboriginals, this means that the objective, predictable law will always give way to a particular emotionally affected judge’s subjective idea of what, to his or her, is “honourable”, as opposed to what is legal.
Interpretation Acts amended
The courts are not alone in this. The federal and B.C. governments are legislating systemic bias.
The pro-Aboriginal systemic biases built into Aboriginal rights cases are reflected in the former Trudeau government’s nation-weakening UNDRIP-based “Action Plan”. To further this mad “Plan” the federal government has amended the federal Interpretation Act to direct judges interpreting the law in Aboriginal rights cases to, when in doubt, err on the side of the Aboriginal interest and against the interests of non-Aboriginal Canadians.
The B.C. government has done the same.
By these and other means, to no small degree, the federal and B.C. governments are the authors of their own Cowichan misfortunes.
As argued below, UNDRIP and DRIPA and all legislation and policies ancillary to them, for the sake of the country, must be repealed.
Systemic bias shown by the judiciary’s preference for “culturally sensitive” words in place of legal words
Justice Young said about the word “Indian”:
“I use the term “Indian” only as necessary when quoting from the historical record, legislation and policy, as the word “Indian” has negative connotations and its use can be harmful”.
Section 35 of the Constitution defines “the aboriginal peoples of Canada” as “Indians, Metis and Inuit”. (italics added)
A court has no business altering legal terminology to avoid “negative connotations” and hurt feelings, the latter of which are inevitable in life, and inevitable where competing rights come into judicial conflict.
Terminology used in the Constitution and in legislation should not, for perceived social or political reasons, be altered by our courts. The courts have no business altering legislatively prescribed terminology. Changing it should be the sole business of our legislatures.
It is totally improper for a court to deem that “negative connotations” result from the use of a word that is chosen by legislatures for use in statutes and in our Constitution, and that the court therefore is entitled to in effect overrule legislatures by substituting what the court thinks is a more “culturally sensitive “or “respectful” word. This is a breach of the separation of powers doctrine.
When courts substitute the legal word “Indian”, and other such historically and legally accurate words and phrases, with soft, vague, emotive, political and non-legal terms like “Indigenous”, “First Nations”, “Nations” and Elders”, and call non-Aboriginal Canadians “settlers”, (as Justice Young did), they depart from the law, cloud clear thought and improperly adopt biased, partisan and political language.
Such euphemistic language is usually the language of a “cause”, and when the courts adopt it, they invariably make themselves appear to be supporters of that cause. And thereby their necessary appearance of apolitical impartiality is compromised, and people justifiably lose faith in the justice system.
(For example, Justice Young called the Cowichans an “Indigenous Nation”. This, in spite of the fact that in their pleadings the Cowichans themselves self-describe as “tribes.”)
Systemic bias shown by interpreting legal issues in a manner that is “culturally sensitive” to the Aboriginal side
The issue of “sufficient occupation” is relevant to the judicial determination of Aboriginal title. In this regard Justice Young, following Supreme Court direction, said:
“The court is required to consider in a culturally sensitive manner whether the occupation resembles common law notions of possession”.
Relying on unreliable oral history hearsay evidence, (see above), Aboriginal litigants “prove” their ancient culture to suit their litigation purposes. When courts buy into this, as Justice Young did, they buy into biased testimony and reflect that bias in their decisions.
The losing, non-Aboriginal litigants leave the courtroom feeling that they were treated unfairly.
It is a prime duty of courts to ensure that losing litigants feel that they lost fairly.
When courts bend over backwards to be “culturally sensitive” to one side but not to the other then the judicial duty to be seen to be impartial is betrayed.
Specific Instances of pro-Aboriginal bias in Cowichan
Pro-Aboriginal bias and accompanying excessive judicial activism in their favour is so pervasive throughout Cowichan that, due to (obvious) length concerns, only a few instances can be mentioned.
-Justice Young refused to let B.C. argue the position of the non-sued private property owners, for the specious reason that the Cowichans had strategically chosen not to sue them, (it would have caused a political firestorm), and thus they had no “standing” in her court. The judge was unmoved by B.C.’s argument that these people could all stand to lose their properties by her ruling, so B.C. should be allowed to make arguments on their behalves.
Given the judicial “generosity” and wide latitude showed by her to the Cowichans, Justice Young’s unjust, narrow and petty exercise of her discretion to refuse to allow B.C. to argue for them created the appearance of bias in favour of the Cowichan tribes.
–When discussing whether a declaration was an appropriate form of relief, Justice Young wrote how the court should strive to “promote a nation-to nation relationship”.
It’s not the business of the courts to promote such vague, highly controversial and contested essentially political goals. That’s the purview of legislatures.
–Echoing Supreme Court dicta, Justice Young declared that section 35 of the Constitution gives rise to an obligation on the courts to “give effect to that national commitment”.
Section 35 merely states a neutral law. It creates no “commitment” for courts to fulfil. If it creates a “commitment” at all, which is doubtful, it is a legislative commitment. It should not be a commitment for overly activist courts, such as the Cowichan court, to improperly usurp.
–Justice Young wrote, in relation to her ruling that the B.C. Land Titles Act does “not extinguish nor bar an action for recovery of land for Aboriginal title holders, that “there is a lot of unfinished business in this province”, clearly suggesting that the B.C. legislature had to do more to address “the Crown’s failure to address the Cowichan’s claim, historically, and in modern times.”
Here, the court is stepping outside of the Cowichan evidence and issues before it and trying to tell the duly elected B.C. legislature how to do its job. This is a total breach of the separation of powers doctrine in favour of her obvious clear favorites: the Aboriginal Cowichan tribes.
–The City of Richmond reasonably argued that a declaration of Aboriginal title “will destroy the land titles system and…wreak economic havoc and harm every resident in British Columbia”.
Justice Young said that this “is not a reasoned analysis on the evidence”, and that such an argument “inflames and incites rather than grapples with the evidence and scope of the claim in this case.”
It was inappropriate and unseemly for Justice Young to insult Richmond and its arguments in that way.
For Justice Young, Richmond reasonably arguing that her decision will throw a bomb into the private property-based economy “inflames and incites”, but its apparently okay for her and the Cowichans to actually throw this bomb into B. C’s economy and way of life with this lawsuit.
In fact, it is Justice Young’s decision that is an unreasonable analysis of the evidence and which inflames and incites.
–Her treatment of Richard Moody was ahistorical, contrived and disrespectful.
–Anthropologist Diamond Jenness was one of Canada’s most learned and compassionate scholars in his field. His book, The Indians of Canada, was first published by the National Museum of Canada in 1932. This scholarly work went through five subsequent editions and was last reprinted in 1972. For all that time it was regarded and used in universities, government and elsewhere as the authoritative word on the subject.
Based on oral history told to him by Saanich Indians who were born in the 1850’s and 1860’s, he wrote in an unfinished academic manuscript that the Cowichan had no fishing rights on the lower Fraser River mainland, which flatly contradicted the Cowichans case.
It emerges from a close reading of Justice Young’s decision that the oldest of the Cowichan oral history witnesses was born in 1938, so one would naturally think that the recollections of persons born closer in time to the happening of the events in issue – being the1850’s and 1860’s-born persons whose recollections Diamond Jenness recorded- would be regarded by a court as more reliable.
Not so for Justice Young.
Finding picky and technical faults with the recollections recorded by Jenness, but “understanding generously” the more recent (and thus inherently more unreliable) “recollections” of the Cowichan witnesses, most of whom were living persons, she incoherently rejected Jenness’ opinion about the Cowichans having no right to fish on the Fraser River because, in my opinion, it went against her predetermined biases in favour of the Cowichans.
-As part of her rationale for why such defences as laches, estoppel and statutes of limitation should not bar the Cowichans’ legal action, following the non-legalistic lead of the Supreme Court in this regard, she took judicial notice of and fully agreed with the contents of the Royal Commission on Aboriginal Peoples, and of the highly controversial Truth and Reconciliation Commission Final Report, including its ahistorical and intellectually infantile conclusion of “cultural genocide”.
It is inappropriate for a court to take judicial notice of anything controversial, or merely political, or that is not a matter of settled agreement amongst members of society at large. When a court does so, it demonstrates, amongst other things, judicial bias, as it does in Cowichan.
-Many of Cowichans’ oral history witnesses, who, judging by their biographies as described by the trial judge, have done well for themselves in their lives.
One is a university teacher and former civil servant who was involved with the Truth and Reconciliation Commission. Four were present or former Cowichan Councillors. Two were former Cowichan Chiefs.
Only one of them actually attended a residential school, for about two years. He said he was “hauled off” to it and “had to learn English”.
(Ridiculous, but as ever, his English-spoken evidence was unchallenged, because Crown lawyers never want to appear “culturally insensitive”. No one except truants or orphans was ever sent to a residential school unless their parents or guardians applied in writing for them to attend, and their application accepted.)
Paragraphs 3327-3337 of Justice Young’s decision recount a litany of lurid, pure hearsay exaggerations, out-of-context statements and plain fabrications about residential schools, focussing on sexual abuse, beatings and other variations of racist, cruel treatment, all of which were accepted as true by the trial judge, and wrongfully used by her as a basis for her ultimate decision in the case.
The Aboriginal oral history exception to the hearsay rule is being abused by Aboriginal litigants and their lawyers.
And the judges are letting this abuse happen.
The intention of the rule is to make it easier for Aboriginal groups to prove their claims for Aboriginal rights and title.
The core of this abuse is that it is being used to emotionally manipulate and thus gain the sentimental favour of historically ignorant or activist, politically motivated judges on matters merely tangential to and essentially not directly and properly relevant to the claimed Aboriginal right or title in issue, which of course would work over into the main issue, and sway the judge in their favour on that main issue.
It’s part of the infantilization of Aboriginal peoples by our courts, politicians and other elites- part of not holding them to mature adult standards- not gifting them with the burdens and responsibilities of participating in the Canadian experience as equal citizens.
It’s fundamentally condescending towards Aboriginals.
The rule, as evidenced by Cowichan, should be eliminated.
As stated, Justice Young accepted all of this pure hearsay evidence, which she called, their “difficult” evidence, and thanked them “for their bravery in sharing these painful stories. Huychq’u.” (sic)
In my view this was credulous, cringeworthy, partial and improper judicial conduct that demonstrated clear bias.
These relatively sophisticated witnesses were testifying in support of the Cowichans’ grand scheme of legally wresting ownership of at least $100 billion of public and private assets from their present owners despite having contributed nothing to the creation of that value.
Calling these clearly assimilated, smart and experienced hearsay witnesses “brave” and thanking them for testifying is unseemly, especially to those who may lose their properties. It diverts sight from the cold mercenary, power-grab reality of the case. This is not what a trial judge should do.
Justice Young did not call any witnesses who testified for the opposite side “brave” and did not thank any of them by using an Aboriginal word the meaning of which may have been known only to her and the Aboriginals who were thanked.
She didn’t even bother translating the word for the benefit of the defendants or the public. She treated it like an “inside thing” between her and the few Cowichans who might know what it means. Very biased and unseemly.
In my experience from the court trials that, as a lawyer, I participated in, to some extent all participants in them, including the judge and lawyers, are to some degree “brave” for participating in the emotionally-fraught-by-nature, high pressure, public spectacle that is a trial.
-When the Cowichans failed to testify as to their “Indigenous perspective” on the 1853 assurance, Justice Young helpfully cured their omission in this regard by making up an advantageous “perspective” for them. It’s improper and a demonstration of bias for a trial judge to assist a litigant by filling in holes in their evidence with pure speculation.
-She used the word “disgraceful” to describe virtually all the 19th and early 20th century Canadian Crown conduct towards Aboriginal people. Such a sweeping historical generalization, base on no expert evidence tendered in the case before her, was completely inappropriate for her to make.
She is no historian.
This negative, moral high-horse, judicial attitude towards Canada’s forefathers and early “trailblazers”, the blameworthy judicial source of which is the Supreme Court of Canada, permeates and contaminates her decision in Cowichan.
Aboriginal title
Aboriginal title is an interest in land, unique to Aboriginals, grounded in the regular and exclusive use of it. If proved, the claimant group, in this case the Cowichans, have the right to use and control the Lands, and to reap any benefits flowing from it. Incursion by the Crown, or anyone claiming under the Crown, like the fee simple title owners in Richmond, can only occur with the Aboriginal group’s consent.
The position of Aboriginal elites is that in an Aboriginal title area of Canada “the Crown will vacate jurisdictional space and Aboriginal law will govern there”.
The Crown can infringe on Aboriginal title if the Crown’s activities, present or proposed, as the Supreme Court of Canada has ruled, “are justified by a compelling and substantial public purpose and are not inconsistent with its fiduciary duty to the group.”
The Supreme Court has ruled that the general requirements to establish Aboriginal title are: (1) Sufficient occupation of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation where present occupation is relied on: and (3) exclusive historic occupation.
Seasonal occupation sufficient
The Cowichans do not rely in their case on present occupation of the Lands going back to 1846.
Intuitively one would think that present occupation would be an automatic pre-requisite to establish Aboriginal title.
But Aboriginal law in Canada is the opposite of intuitive. It’s a lot of sheer abstraction divorced from modern Canadian life as lived day-to-day by us all, including Aboriginals. It’s just…The Law.
The Supreme Court set a precedent in this regard, In the Desautel case, in which it ruled that an Indian resident of Washinton State could legally claim Aboriginal hunting rights in B.C. by proving he is a descendant of Indians who lived in what is now B.C. in 1846, even though the present claimant , an American citizen, never lived in Canada. He did not need to prove continuous occupation, or any Canadian landoccupation.
Following this counter-intuitive Supreme Court precedent that foolishly gives Canadian Aboriginal rights to American Indians, Justice Young ruled that even though the Cowichan tribes only occupied the seasonal fishing village/camp for two to three months a year, they always had “the intention and capacity”, by way of their “fierce and warlike” conduct, (referred to above), to retain permanent exclusive control over it. That was enough for her.
Cowichans totally absent from the claimed lands for at least the last century
It was acknowledged by all that after the 1870’s, for the next few decades, the Cowichan tribes only came to the Lands very sporadically, and in always declining numbers, until, as the trial judge wrote, “early in the 20th century”, when they stopped coming.
Rejecting the arguments to the contrary of all the defendants, including the Tsawwassen and Musqueam bands, Justice Young ruled that not being in any kind of occupation from early in the 20th century until the present was not a bar to the Cowichans succeeding in their case.
Citing Supreme Court of Canada statements, she ruled that the operating principle which governed the Cowichans claim, which principle she ruled they had satisfied, was the near-incomprehensible principle which she set out as follows:
“The focus on continuity is that the claimed modern right is connected with the pre-sovereignty practice of the claimant’s ancestors. A title claimant must show they are the descendants of those who sufficiently and exclusively occupied the claimed land, and as such this bridge between the past and present exercise of what the common law recognizes as Aboriginal title already exists. A clear line is thereby drawn between the title interest claimed in the modern day and the title interest enjoyed by ancestors who occupied the territory to the requisite common law standard in the past, and the claimants, as modern descendants of those ancestors claiming that same interest.”
Assuming “early into the 20th century” means 1915, (for example), then the court in Cowichan is saying that the Cowichan tribes can be completely away from the Lands for 110 years, (1915-1925), as, at a minimum, they were, for whatever voluntary or involuntary reason, and then, the distant, fifteenth-generation descendants, (approximately), of the Cowichans who used the seasonal fishing village/camp in 1846 can suddenly show up “out of nowhere”, as they have done, and legitimately claim their 1846 Aboriginal title rights against the generations of public and private property holders, all of whom, in the long interim, have reasonably relied upon their Crown-based titles to occupy, use, develop and improve their respective properties.
Cowichan is saying that Aboriginal title, once it is established, can never be lost or extinguished, for any reason or in any circumstances, except presumably if is surrendered by treaty, as with most of Canada east of the Rockies.
Really, it creates a practically unchangeable situation where the Crowns and the citizens of B.C. are in a permanent state of bondage to the Cowichans.
Most of British Columbia is not subject to any land surrender treaty with Aboriginals.
Most of non-treaty surrendered B.C. is subject to claims of Aboriginal title similar to the claim successfully made by the Cowichan tribes.
Cowichan means that Crown sovereignty in most of B.C. is under direct threat.
Cowichan means that most of the titles to private and public lands in B.C. are under direct threat.
The prosperity that capitalism has brought to B.C., and to all of Canada, is founded on Crown sovereignty, and the secure, private property tenure that it grants and guarantees. Banks mainly lend on the security of indefeasible private property-secured mortgages. Such security is now technically “defective and invalid” for private properties that are part of the Lands. Banks cannot prudently lend on the security of defective and invalid freehold titles. Bank credit will freeze up.
Cowichan is a direct threat to our capitalist economy and thus to Canadian prosperity. (Capitalism- the least bad of all economic systems.)
Cowichan means massive unjust enrichment for B.C. Aboriginals with corresponding massive deprivation for non-Aboriginal B.C. residents.
In my view there is no sane juridical reason why this should be so.
The practical impossibility of infringing Aboriginal title
In 2014 the Supreme Court of Canada, in Tsilhqot’in Nation v. British Columbia, ruled definitively that Aboriginal title survived the assertion of Crown sovereignty. The Court laid 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, (and now on Cowichan), at the other end of the country, the Wolastoqey First Nations in New Brunswick have launched a lawsuit claiming Aboriginal title over about one-half the land mass of New Brunswick.
Canada is experiencing “emergency” times.
To effectively respond to the various emergencies besetting our country, our governments and our resource and national security project proponents, because of decisions like Tsilhqot’in and Cowichan, before they will be able to proceed with their nation-benefitting and protecting projects, they will have to go cap in hand to Aboriginal bands and groups and, on bended knee, seek their“Pretty please?” consent to infringe their Aboriginal title rights and their “consult and accommodate” rights.
Given past experience, human nature, Assembly of First Nations Chief Woodhouse Nepinak’s and other Aboriginal groups’ national-interest-be-damned, recent public statements, the possibility of Aboriginal elites choosing the national interest over their own selfish, parochial interests seems remote.
Based on their past behaviour, they will likely be demanding some form of payoff from Canadian taxpayers in exchange for graciously giving their consent.
Our duly elected governments and/or these resource and national security proponents, if and when failing to secure this consent to infringement, or if presented with financial or other payoff demands they are unable to meet, will then have to face the many hurdles the Supreme Court has erected to justify infringing the actual or claimed Aboriginal title or right in question.
They will have to go through the lengthy consultation 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 yet no legal precedent for what is “compelling and substantial”.
The litigation in this regard would be intensely fact-based – “case by case”- and thus hugely unpredictable in outcome, time-consuming and ruinously expensive.
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 Cowichan case took about 10 years to get to court. The actual trial process ending with the trial decision was spread out over 6 years. (2019-2025). Ninety-five lawyers were on record as counsel, as stated, 25 for the Cowichans.
Appeals of the Cowichan trial decision will take about another 5 years.
Any future litigation of the “compelling and substantial” issue would be fraught with the same kind of years-long time delays and horrendous expenses, with uncertainty casting a pall over everything.
Forget getting bank financing for critical national projects in this kind of “failed state” scenario.
Existing Aboriginal law legal precedents weigh in favour of any Aboriginal group resisting Crown infringement.
National economic hardship and necessity would seem to be an obvious “compelling and substantial” reason to infringe Aboriginal title.
But the B.C. Gitxaala decision, not appealed by the DRIPA/UNDRIP-besotted B.C. NDP government, which held that B.C.’s free-entry mining system was unconstitutional because unilateral, “no notice” staking of mining claims violated the Aboriginal right to be consulted and accommodated, also ruled that economic hardship does not qualify as a valid “compelling and substantial” reason to infringe Aboriginal rights.
Public safety would seem to be an obvious “compelling and substantial” reason to infringe the duty to consult and accommodate.
Not so, said the Federal Court of Canada in early 2025 in its Kabaowek decision.
In Kabaowek First Nation v. Canadian Nuclear Laboratories Ltd. the Federal Court ordered the Atomic Energy of Canada’s licensed contractor, Canadian Nuclear Laboratories Ltd., to pause all work on its previously approved project – the construction of a new, state of the art, radioactive nuclear waste disposal facility at AEC’s Chalk River Ontario site.
The Court declared that Canadian Nuclear and the Canadian Nuclear Safety Commission hadn’t consulted with the Algonquin Kebaowek First Nation enough and directed them to further consult with them,
“…with a view to implementing the UNDRIP free, prior and informed standard in a robust manner, by adapting its processes to address Indigenous laws, knowledge and processes and to develop a process aimed at reaching an agreement.” (italics added)
The Court directed that the further consultation process be completed by September 30, 2026. (No hurry there!)
As a result of this decision all Canadians, including all Aboriginal Canadians, are told by the Federal Court of Canada that lessening a significant danger to public safety – the threat of a radioactive leak- ranks subordinate to Aboriginal rights.
In addition, the consultation process must be one that is “aimed at reaching an agreement”. This suggests that the Federal Court is almost saying that UNDRIP grants Aboriginal groups a de jure veto.
Certainly, such words grant them the strongest bargaining and delaying power, and thus they certainly create a practical, de facto veto.
Kabaowek means that the existence of UNDRIP heightens and make more “robust” the already high consultation obligations of the Crown and/or any project proponent and thus makes proving infringement a much steeper legal hill to climb than ever.
A disputed Crown attempt to infringe an Aboriginal right necessarily violates the fiduciary duty owed by the Crown to the affected Aboriginal group.
In any infringement litigation, the requirement that the proposed infringement be shown that it is “not inconsistent with the Crown’s fiduciary duty to the Aboriginal group”, contains a built-in, internal contradiction.
A conflict of interest in not permitted in a fiduciary relationship.
A Crown infringement lawsuit against an Aboriginal group, where the Crown would be attempting to infringe on an Aboriginal right against the wishes of the Aboriginal group, would be a classic instance of a conflict of interest playing out in a fiduciary relationship, where the Crown, the dominant party, would be, in breach of fiduciary principles, actively preferring its own interest over the conflicting, adverse interest of the so-called dependent and “vulnerable” party – the Aboriginal group.
In effect, because of this fiduciary requirement, the Crown is forced to act contrary to its own interests -negotiate against itself. It can’t fully and solely bargain for its own interests, like in a normal negotiation. Being a fiduciary, it has to bargain for the Aboriginal interests as well.
There are years of litigation to be suffered by Canadians in relation to this quandary, and millions of dollars to be made by big city law firms acting for Aboriginal groups, which, win or lose, can count on the Crown, acting “honourably”, to foot its huge legal bills.
The “soft tyranny of legal incoherence”
Given all this uncertainty, and given that Aboriginal groups always receive their government transfers and subsidies regardless, and thus will never have any real “skin in the game” compelling them to settle any “reconciliation” or infringement negotiation realistically or fairly, the reality is that Aboriginal groups, under the current state of the law, will always be able to exercise what Queen’s University Professor Bruce Pardy, a reason-based critic of the Aboriginal status quo, describes as the “soft tyranny of legal incoherence” over our governments and resource project proponents- over the Canadian people and the Canadia national interest generally.
Aboriginal leader and spokesman the late Arthur Manuel, in his book The Reconciliation Manifesto-Recovering the Land, Rebuilding the Economy, frankly, coldly and presciently described this “important leverage” Aboriginal groups now have because of the business uncertainty created by Aboriginal title:
“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-emasculating irrational, unstable, unpredictable, illiberal, (even the Canadian Charter of Rights and Freedoms will not apply on Aboriginal title land), business and investment regulatory environment.
Aboriginal title hands to Aboriginal band elites’ positions in the Canadian constitutional and economic order partially akin to feudal barons or nineteenth century rentiers, with nothing demanded from them in exchange.
People who exercise power without responsibility become pariahs in their society.
This is all wrong. It’s constitutionally and economically ruinous. It’s going to create more social and racial resentment and division. The opposite of “reconciliation” will occur – is already occurring.
The United States’ irrational and hostile threats to Canada bring to full force the realization that Canadians and our governments, in these increasingly hard and “emergency” times, can’t afford the luxurious waste of time and money, these payoffs/shakedowns, the destabilized investment environment, the loss of jobs , the disastrous loss of tax revenues, and all the other clear and present moral, social, political and financial dangers inherent in state-fragmenting and weakening Aboriginal title.
Section 35 of the Constitution Act, 1982 must be repealed or drastically amended
There’s no way out of the mess our Supreme Court of Canada has created by its illiberal, Crown sovereignty-emasculating interpretations of section 35 other than repealing it or drastically amending it.
The Supreme Court has gone way too far in too many bad directions for it to reverse all its decisions, as it did in the Marshall case over one discrete fishing issue (i.e. whether conservation needs trump Aboriginal rights -They do. But they might not in an Aboriginal title situation.)
Constitutional amendment is the only way to eliminate the race-based, multi-faceted hammerlock on our economy that the Supreme Court has given “Aboriginal peoples”- the only way to defend against the undermining attacks on our liberal, universalist, national “spirit” and way of life that it has relentlessly launched over the past 25 years.
The Supreme Court, inexplicably aided and abetted by our Panglossian elected legislatures, bereft of the tragic mindset that is necessary for responsible rule, has turned Canada into a backward-heading race state.
UNDRIP and DRIPA must be repealed first
UNDRIP and BC’s suicidal counterpart, DRIPA, are not constitutional in nature. They do not create section 35 Aboriginal rights. They are legislative enactments and as such, just as they were created by legislatures, they can be repealed by legislatures, with no legislative duty to consult and accommodate Aboriginals.
The Kabaowek case, above, demonstrates what a clear and present danger UNDRIP and DRIPA are to Crown sovereignty, racial harmony and a strong Canadian economy.
As a necessary preliminary to our Crowns and legislatures embarking on the legal processes required to be followed to amend our Constitution, they must show their determination and resolve in this regard – they must make a show of sovereign strength for a change – by repealing UNDRIP and DRIPA.
It’s an important bluff-calling marker to put down.
The dangers inherent in the status quo must be ended
The Cowichan decision is a provincially-minded reflection of our elites-driven, tragic Canadian reality of our country being turned backward into a race state– a reality especially tragic for Aboriginal peoples, who are being permanently racially sidelined, ghettoized and profoundly harmed by it.
Cowichan should be the Dred Scott decision of Canada. It should be the final call for our somnolent elite classes to wake up and smell the social, moral, economic and political dangers they have created, and then talk publicly about them, encourage all Canadians to do so, (not discourage us, as now), and then do something constructive about these dangers.
The “something” they must do is to start Canada down the path of repealing or amending section 35 to end the Aboriginal laws that produce such absurd travesties of history, reason and common sense as Cowichan.
Only the repeal or drastic amendment of section 35 will stop the damage being caused to our country by our Supreme Court.
The New Testament of the Bible says that there is no difference between the Jew and the Greek.
And there is no difference between Aboriginal and non-Aboriginal Canadians.
Our laws must put Canada back on the path of reflecting this profound, human reality and restoring to the forefront our country’s profound, but temporarily lost, universalist spirit.
Cowichan illustrates how illiberal our Aboriginal laws are.
Martin Luther King and Nelson Mandela are rolling over in their graves.
So is William Wuttunee, the great Aboriginal lawyer and former AFN leader from Western Canada, who advocated for the end of the Indian Act and the reserve system. He wrote in his 1971 book, Ruffled Feathers:
“Indians can work with the white man in partnership to develop a country which will provide for each of our children a legacy of great value. It is not necessary to separate from the white man, either physically or spiritually. The long period of separation of the two races has now ended.
Let us then unite in spirit, so that each of us can look forward to a peaceful old age in which we can see our children effectively participating in the creation of a new society. Many Indians have already taken the road ahead, to live in the land of the white man. They have paved the way for their brothers and sisters on which they must learn to walk without fear.”
Instead of the harsh and provincial censoriousness that pervades Cowichan in particular, and all Aboriginal law in general, William Wutunee’s universalist spirit of grace, unity, equality, humility, generosity andforgiveness must replace these negative and divisive approaches in order for Canadians to achieve any real “reconciliation” between Aboriginals and the rest of Canadians.
As Nelson Mandela said in the closing of his 1994 Inauguration Speech:
“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.”
Peter Best
Sudbury,
September 2, 2025.
thereisnodifference.ca
