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For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 36 THE RULE OF LAW: IN THE EYE OF THE BEHOLDER The “rule of law” is a metaphor that finds its modern origins in the political poetics of 16 th century European philosophers. In Canada, it is now a constitutional axiom as Justices Weiler and Sharpe described in the following oft-quoted passage from Lalonde v. Ontario: Constitutionalism and the rule of law are cornerstones of the Constitution and reflect our country’s commitment to an orderly and civil society in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law and authority. 4 But if Canada is a progressive democracy, then why do Aboriginal inmates average 35 percent of the federal penitentiary populations? If this were the only relevant question for which the “rule of law” was to be applied then the pride we take in our democracy would be justified. However, the ghost of metaphor and the antecedent injustice that gave rise to the poet’s imagination have never been laid to rest, not by God nor the constitution. Canadian jurists and law-makers have to admit that “principles that recognize the supremacy of God and the rule of law” 5 are not the real foundation on which the nation state of Canada has been built. While most citizens of the state are ignorant of Canadian history, judges, lawyers, and academics should not be, and if they are ignorant of the colonial underpinnings of this country they should be defrocked and disbarred. Who was the idiot who said, “Canada has no history of colonialism”? 6 Shrinking local economies, impoverishment of labour, rising incarceration rates, and further efforts to diminish indigenous title are all symptoms/evidence that we are losing the colonial struggle. When the prime minister of Canada announced in Pittsburg that Canada had no history of colonialism it was not because he didn’t know any better. He believed mistakenly that the rest of the world was as ignorant as his own constituents. But if Canada is a progressive democracy, then why do Aboriginal inmates average 35 percent of the federal penitentiary populations? Why in 1970, was over 50 percent of Canadian labour organized and today only 15 percent of labour is unionized? Why in 2012, were 80 percent of Canadian lakes protected and today, only 2 percent of our lakes can be saved from development? The reality is that one day soon a young man so despondent with the colour of his skin and the barrier it presents, the impoverishment of his community, his failure to squeeze some meaning from education, the unbearable suffering of his closest friends and family might go out to the shed to find a rope. But this time there is no rope. Instead he will go to the Internet, learn how to build a bomb, and take it to the mall. Another young man so angry with the loss of his sister at the mall and his jobless future might join the Haters Club and take it out on everyone who makes him afraid and insecure. In a society that is governed by laws that have embedded prejudice toward class, race and gender, these two young men haven’t got a chance. Chances are that somewhere along the line, before and after, the rule of law will have been used against both of them. Not only that, they believe that the law is against them from the start and they would both be right about that. As an indigenous activist, I have had the experience of watching courts struggle through complex litigation contaminated by Canada’s history of colonialism. In my particular case, the Ardoch Algonquin First Nation had chosen to defend their homeland lakes and forests from potential uranium mining by blocking the only road entrance into the area. The corporation, Frontenac Ventures, chose to litigate and sued the First Nation for $77 million. By bringing a SLAPP suit 7 they availed themselves of the power to obtain an injunction, which would allow them to enter the territory and commence work. In Frontenac Ventures v. Ardoch Algonquin First Nation, the result was contempt charges and prison terms. Ardoch’s legal complaint was that Ontario had not consulted them before issuing mining permits and registering claims on Algonquin ancestral territory, a territory that has never been ceded to the Crown. Relying on Supreme Court decisions that say “consultation” is required before development can commence on Aboriginal lands, 8 Ardoch believed that the court would at least begin with ordering a period of meaningful discussion between the province and the First Nation. The consultation issue was raised at the first hearing, as was the Royal Proclamation of 1763 (which secured the unceded land for the Ardoch Algonquins). Justice Thompson seemed bored with talk of s. 35 Charter rights and when counsel mentioned the Royal Proclamation of 1763, he seemingly failed to appreciate its relevance. Eventually, Frontenac Ventures obtained an injunction that ordered the First Nation to remove their security barrier and people from 30,000 acres of their ancestral lands without even the placation of consultation. 9 Ardoch was left with two choices: resist or comply. Already the “rule of law” had placed them in a legal position in which they faced a $77 million lawsuit and now an injunction to get out of the way. The Crown, their partner in Confederation, was clearly behind the corporation and the industry, which it had come to represent. Provincial politicians and the mainstream media branded Ardoch as regressive and potentially dangerous. The Ontario Provincial Police surrounded the security barrier and were ever present throughout the community. 36 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 37 THE RULE OF LAW: IN THE EYE OF THE BEHOLDER Ardoch chose to defy the injunction. As a result of Ardoch’s non-compliance with the injunction Justice Cunningham chose not to recognize their lawyer until his order was obeyed. I am certain that the judge took no solace in enforcing the “rule of law” as he understood it. But it was simple. The court had decided something, made an order, and some people disobeyed. A crack in the mantle of civility had occurred and universal chaos threatened, at least that is how the judge had admonished the public gallery. It wasn’t that he didn’t understand that Canada has a colonial past but he found no relevance for it in the present. Law school had failed, as had the mainstream media, and other sources by which he could gain this education. But even more significantly he was left ignorant because higher courts from which “the rule of law” is the rule of political expediency he could take guidance have been ambiguous concerning Aboriginal rights within the existing colonial context. Had the Supreme Court really wanted lower courts to take the colonial relationship seriously they would never have used the term “consultation” and obviously would not have denied First Nations the right to veto infringements of their constitutional rights. 10 Everybody knows that “consultation” as a measurement of citizen’s participation is rated at the level of “tokenism.” Can you imagine a Supreme Court decision that reads, “the honour of the Crown must be assured through acts of tokenism to dependent others but it is never intended to consider them as legitimate equals”? The Supreme Court has consistently established a pecking order in the “rule of law” and then excused themselves by self-serving platitudes. Lower court judges get the point and so do Indians on the ground. When a judge decides whether or not to grant an injunction, he or she must decide on a balance of probabilities, which party will suffer irreparable harm. Often, allegations of economic harm prevail, as does the political agenda of economic development, or in other words, colonialism. In this respect, “the rule of law” is the rule of political expediency and there is nothing substantially, constitutionally, or jurisprudentially, that challenges this fact. The fallacies inherent in a legal system entrenched within a colonial bias Hater Reed Series by Scott Benesiinaabandan. FOR THE DEFENCE • VOL. 34 • NO. 3 37
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