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When courts undermine the rule of law

|Written By Christopher Moore

In February, Ontario Superior Court Justice David Marshall issued an injunction against Six Nations protesters occupying certain disputed lands near Caledonia, Ont. Since then, the parties have preferred to seek a negotiated settlement.

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However, earlier this month, Marshall declared the negotiations must cease. He ruled that the talks undermined his injunction and were a threat to the rule of law.

By press time, there were plans to get back to the negotiating table.

It's hard to fault the rule of law. It's a pillar of our civilization. Disputes among contending parties in Canada should never be settled by force. That is what the courts are there for.

But the principle of the rule of law makes its own demands on those who invoke it. If we insist on the rule of law, even at the point of a bayonet, it is essential that we commit to the rule of all the laws and to the rule of law for all.

It should be impossible for any fair-minded person to contemplate the history of the Six Nations of the Grand River without recognizing that the Six Nations have been shockingly plundered of both lands and entitlements.

 Canada has always ignored most of the treaty obligations we accepted. Six Nations lands in vast quantities have been appropriated on the flimsiest pretexts. Six Nations monies have been squandered by those who appointed themselves its trustees.

The Crown once acknowledged Six Nations' control of some 385,000 hectares, "which them and their posterity are to enjoy forever." Today the Six Nations' lands cover barely 19,000 hectares and it takes a strong stomach to examine the history of what happened to the other 366,000.

In the 1840s, the Crown actually invested funds it held for the Six Nations in bonds the Law Society of Upper Canada was floating to pay for the building of Osgoode Hall. When the law society repaid the money, it went into general Crown revenues.

Should any of this history justify extra-legal action? Not in itself. The rule of law remains vital. We have the courts precisely to settle this kind of dispute.

Except for more than a century the Six Nations have been among the most litigious peoples in the country. They have taken their case repeatedly to the local courts, the federal courts, the Privy Council in England, the League of Nations, the United Nations, to any conceivable court and tribunal.

And there has never been a Canadian court or a Canadian judge willing to invoke the rule of law when the rule of law would have served the cause of the Six Nations. Canadian courts have consistently ignored, justified, and given sanction to the abuses of law under which the Six Nations have lived for generations.

In the case of Sero v Gault, back in 1921, the Six Nations presented the treaties in which the Crown guaranteed them unlimited rights to hunt and fish. Justice Riddell responded by declaring that game laws applied to Indians as to anyone else. "There are no troublesome uncertainties in Canadian law," he wrote.

In Logan v Attorney General, in 1959, the Six Nations traced their self-government rights back to their alliance with the British Crown in the American Revolution, an autonomy handsomely acknowledged in writing in 1784. No, said Justice King, merely by settling they had become subjects of the Crown, subject to the same rules as everyone else.

We are told there is a land-claims process going on and a self-governance one too. It is suggested there are venues for these disputes to be heard and settled.

But should we expect any conclusions before, say, the 23rd century? Meanwhile, the exploitation of the disputed lands goes on apace. Why does it always take the courts barely 24 hours to grant the injunctions that will send in the tactical squads, when they never over generations take judicial notice of how complicit our courts have been in the very injustices that have caused the confrontation in the first place.

Lawyers and judges, perhaps more than anyone, must stand for the rule of law. But they need to defend the rule of all the laws all the time and for everyone, not just some of them sometimes for some of us.


Christopher Moore is the author of McCarthy Tétrault (2005) and other works in legal history. His web site is www.christophermoore.ca

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