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Letter: Legacy of Haida Nation decision decried

|Written By Peter Best

Law Times columnist Ian Harvey, in his article on the Ring of Fire on July 8, writes that the fate of the project “rests in the hands of Ontario’s First Nations.”

This is substantially true but it is not right. It is not in anyone’s interest that Indian bands have that kind of raw, unchecked veto power.

The Supreme Court’s jurisprudence on consultation and accommodation, emanating from its decision in Haida Nation v. British Columbia (Minister of Forests) that gave them that veto power and so radically altered Canadian constitutional law by in effect making native bands a de facto third fount of constitutional sovereignty, stems from a skewed view of history, is disastrous on policy grounds for everyone — especially the vast majority of marginalized, vulnerable aboriginal individuals — and is morally wrong as it entrenches a version of the odious separate-but-equal constitutional doctrine that the U.S. Supreme Court found fit to abolish in that country in 1954.

Lawyers, academics, jurists, and the elites are all dancing on the head of the pin of this new and revolutionary jurisprudence that busily ascribes new rights to Indian bands without seriously considering whether they will ultimately benefit the vast majority of non-elite, powerless, vulnerable, aboriginal individuals.

I don’t think they will. I think they will leave too many of Canada’s aboriginals even further behind and left out than they already are in the increasingly urbanized and racially indifferent Canada of the 21st century.

Only their elites will derive any kind of benefits that are mainly personal and material in nature and worthless to those they serve.

None of these elites are willing to ask publicly or permit or encourage others to seek answers to the numerous basic questions about this new jurisprudence that silenced, intimidated, ordinary Canadians think about every day.

I have a few examples: Is this shockingly new state of the law sensible, right, and good? Does it promote the overall welfare of our nation?

Consider in this regard that major national undertakings like the Canadian Pacific Railway and the Trans-Canada Highway could never become reality if the Haida Nation jurisprudence had existed then just as the Ring of Fire and other significant projects today have stalled because of it.

Is it ultimately good for First Nations? While this jurisprudence has been extant for many years, most social indicators for aboriginals continue to get worse.

Our cherished and fundamental liberal values strive to give race no place in our laws. Does this jurisprudence not clash with these values? Does it not tend to further build racial walls between Canadians instead of helping to eliminate them?

Will this jurisprudence help or hurt the Canadian economy? Can we afford it? Is affordability even a relevant factor or is this a case of proceeding full speed ahead for abstract rights regardless of the cost? Should the mistakes of our past govern Canada’s indefinite future to this extent?

Is it creating a two-tier justice system? Does it encourage and tolerate lawbreakers? Does Crown sovereignty matter?

None of these elites are willing to ask or debate any of these questions or the even more fundamental issue of whether, in order to ameliorate the demoralization and dependency experienced by aboriginals, there are any better, more realistic options.

Despite the baseless assertions of First Nations elites to the contrary, assimilation does not mean the end of aboriginal culture. Witness multicultural Canada.

In fact, assimilation is a natural, positive, beneficial process that has been occurring continuously since the origin of humans and has been fundamental to the development, progress, and primacy of our species. We’re all the product of this universal and timeless process.

Our governments and politicians, our timid bureaucratic and police elites, our uncritical and ahistorical media, and our First Nations elites all poorly serve Canada’s Indian peoples and hurt Canada more generally by so aggressively clinging to and trying to expand the illiberal, unworkable, and increasingly dysfunctional Haida Nation-based status quo in this crucial area of Canadian life.

For native peoples, unity and integration with the rest of Canadians is the best option.

Only as a result of that will they experience and learn that, just like all other Canadians from all other backgrounds, they don’t need the crutches of the Indian Act, reservations, and special race-based laws to succeed in modern day Canada.

Peter Best,
D. Peter Best
Professional Corp.,
Sudbury, Ont.

For more, see "First Nations have iron grip on Ontario's economy."
  • Brock Roe
    Hi Peter, I suggest you re-read the Haida decision, and the Taku decision and Mikisew decision (while you are at it), and maybe follow that reading up with the Rio Tinto decision - and countless other appellate court decisions on the duty to consult and you will find in the jurisprudence (because i assume you are also a lawyer and can read cases for what they provide us with re principles of law) that First Nations in Canada have no such veto, and the courts have repeated this time and time again. Further, every other point you make in your letter seeks to reinforce outdated and uninformed ways of thinking about First Nations in Canada. Pick up a book that considers the constitutional foundation of Canada and you will find that treaty and Aboriginal rights in Canada have just as much place in our daily lives as does s. 91 and s. 92 of the Constitution Act, 1867.

    Brock Roe
  • Charter Rights
    What an uniformed myopic & outdated viewpoint. Next thing he will be saying is that all the experimentation in Indigenous children actually helped them. He obviously took the blue pill in one gulp.
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