‘Canadian Courts Making Things Worse’

When it comes to Race Based Law, Canadian courts – in particular, the Supreme Court of Canada – have been continually extending their reach. The resulting confusion has produced a continual increase in court cases while, at the same time, discouraging investment. This is a bad deal for Canadians on both counts {steering financial resources away from economic development, and towards economically-unproductive law firms and academic ‘experts’} and, unless we change direction, it’s bound to get worse.ERBLCanadianCourtsMakingThingsWorse800x800‘Canada’s courts create uncertainty on ‘aboriginal rights’

“Supreme Court of Canada decisions on the ‘duty to consult aboriginal peoples’ and the interpretation of modern treaties have begun to suggest that so-called ‘comprehensive land claims’ agreements may not be so ‘comprehensive’ after all {!?!}.

“COURTS have shown a willingness to REINTERPRET AND GO BEYOND THE TERMS of what are highly detailed agreements, IN ORDER TO IMPOSE ADDITIONAL, UNFORESEEN CONSULTATION OBLIGATIONS on governments. They have also extended consultation obligations to new types of government decision-making, in one case EFFECTIVELY OVERTURNING WHAT WAS THE LEGISLATIVE FRAMEWORK…

“It is perhaps not surprising, then, that potential investors have taken notice and have shown a greater reluctance to invest in a territory that now seems to offer far less legal certainty than it once appeared.” 

“The past year has seen a lot of Canadians paying attention to aboriginal land rights. From opposition by aboriginal groups to proposed pipeline developments in their {claimed} ‘traditional territories’, to a recent declaration of ‘aboriginal title’ in British Columbia, to ongoing disputes over modern treaty implementation, aboriginal land rights have come to occupy an increasingly prominent place in public policy discussion in this country.

“When the issue of legal uncertainty relating to aboriginal land rights is raised, the solution most often proposed is for governments to engage in negotiations with aboriginal groups aimed at comprehensive land claims settlements. Yet a recent report we authored for the ‘Fraser Institute’ {see below}, focusing on modern land claims agreements in Yukon, indicates that the certainty dividend from such agreements can prove illusory, particularly if courts do not prioritize legal certainty in their decision-making.
{Which they deliberately don’t! Why? In order to enable further profit-making for the legal profession?}

“Yukon’s successful negotiation by the early 1990’s of agreements aimed at resolving land claims disputes with ‘First Nations’ initially seemed to provide tremendous legal certainty on ‘aboriginal rights’ questions. And the territory proudly touted its negotiated agreements as an advantage in attracting investment to its natural resource sector.

“Until relatively recently, the ‘Fraser Institute’s annual surveys of mining industry executives indicated that aboriginal land claims were not perceived as generating significant investment uncertainty in Yukon. Indeed, Yukon fared well relative to other jurisdictions. However, there has been a dramatic shift in perceptions since 2012, with far fewer mining executives surveyed indicating that Yukon offers legal certainty with respect to aboriginal land claims. Indeed, an increasing number cite this uncertainty as discouraging investment.

“Our study argues that THE INCREASED PERCEPTION OF LEGAL UNCERTAINTY CAN BE LINKED DIRECTLY TO case law developments. SUPREME COURT OF CANADA DECISIONS on the ‘duty to consult’ ‘aboriginal peoples’ and the ‘interpretation’ of modern treaties have begun to suggest that so-called comprehensive land claims agreements may not be so comprehensive after all. 

“COURTS HAVE SHOWN A WILLINGNESS TO REINTERPRET AND GO BEYOND  THE TERMS of what are highly-detailed agreements, in order to impose additional, unforeseen consultation obligations on governments. They have also extended consultation obligations to new types of government decision-making, in one case effectively overturning what was the legislative framework that had long governed mining in Yukon. 

IMAGE: Supreme Courtof Canada headquarters (Oberster Gerichtshof von Kanada)
IMAGE: Supreme Courtof Canada headquarters (Oberster Gerichtshof von Kanada)

“It is perhaps not surprising, then, that potential investors have taken notice and have shown a greater reluctance to invest in a territory that now seems to offer far less legal certainty than once appeared.

“The situation in Yukon offers lessons that extend well beyond the borders of that territory. If court decisions undermine the certainty dividend that is supposed to attach to modern land claims agreements, then the incentives for governments and aboriginal groups to enter into such agreements will be diminished {Governments, maybe—but aboriginal groups keep benefitting from this fraud, so why would they stop?}. This imperils the objective of ‘lasting reconciliation’ between aboriginal and non-aboriginal Canadians. {That can only be achieved by ENDing RACE BASED LAW, not expanding it…}

“In addition, by perpetuating conditions of legal uncertainty, courts can make Canadian jurisdictions less attractive in the global competition for investment in natural resources. This undermines options for economic development and prosperity for aboriginal and non-aboriginal Canadians alike.

“As our study emphasizes, however, it is possible to provide robust protections for ‘aboriginal rights’ without creating conditions of legal uncertainty {The authors unfortunately seem to believe that Race Based Law can be ‘fixed’ and made to work…}.

“First, courts should not impose obligations that go beyond the express terms of modern land claims agreements, unless genuine gaps in the agreement are found.

“Second, courts can ‘develop doctrines’ like the ‘duty to consult’ in ways that provide better guidance to governments and other parties, such as resource companies. Crucially, doing so will require courts to engage in the gradual, case-by-case elaboration of standards, rather than engaging in ad hoc policy-making or further dramatic shifts in jurisprudence.

{NO – ALL of this is the prerogative of the ELECTED representatives of the people. The Canadian tradition (‘precedent’) was for the Supreme Court to toss this back in the laps of elected officials — as was done with the abortion law, where the Court simply struck down existing legislation and told Parliament to draft a new law. The Court did NOT ‘develop’ a ‘doctrine’ on abortion, or gradually write a new abortion law.

Since 1982, however, they view themselves as the Supreme governing body in Canada, and are acting accordingly. The chaos they are causing by the combination of arrogance and ignorance they display, is starting to have serious repercussions. Meanwhile, they remain comfortably ensconced on their unaccountable thrones, seemingly oblivious to their own mistakes…}

“The Supreme Court of Canada, a long way from Yukon in every respect, will nonetheless make major legal determinations that affect the future of the territory. We should all encourage it to get things right, and be ready to speak out when it does not. Legal certainty matters that much.”

–‘Canada’s courts create uncertainty on aboriginal rights’,
Malcolm Lavoie, Dwight Newman, Battlefords News-Optimist, October 6, 2015 {CAPS added}


‘Mining and Aboriginal Rights in Yukon: How Certainty Affects Investor Confidence’ :
See also:
‘Who Has “Final Say” On Public Lands?’ (Yukon) {January 7, 2015}:

native-protest-Pipeline-hearing-Montreal-2015Here’s just a sample of some of the recent disruptions across Canada, in a climate created by injudicious judicial rulings:

‘No Consent’: ‘First Nations’ Women Shut Down ‘Tar Sands’ Pipeline Hearing’

“Chanting “No ‘tar sands’ on ‘stolen’ {ceded by treaty} native lands”, ‘First Nations’ women disrupted and shut down a Montreal public hearing on the controversial ‘Energy East’ pipeline… the latest in a ‘resistance campaign’ against the massive project proposed by the Alberta-based ‘TransCanada Corporation’.

“Four ‘indigenous’ women took the stage and hoisted a banner reading, “No consent, no pipelines” as dozens of protesters cheered them on. The action successfully shut down the hearing, and while police were called, no arrests were made…
{Of course not – more ‘two-tiered’, race-based policing…}

“What we want TransCanada to understand is that ‘no means no’. This is ‘Kanien’ke’, this is {what used to be} Mohawk Land, and we are tired of ‘occupation’, we are tired of environmental disaster {?}, declared Amanda Lickers, who hails from the Seneca-Haudenosaunee community, at Wednesday’s hearing.

“This is our land and we are going to protect it.”

“What’s more, Lickers told ‘Common Dreams’, the hearings ‘violate’ {‘supercede’} ‘precolonial law’ encapsulated in the ‘Haudenosaunee constitution’.

“…We wanted to push home that this is a process of futility, and if we are going to stop pipelines, we need to move forward with direct action.”

She added, 

“We have a responsibility to future generations to assert our ‘sovereignty’.”

“…The organizers of Wednesday’s protest, who describe themselves as unaffiliated grassroots ‘indigenous’ campaigners, hope that the pipeline can ultimately be stopped through {illegal} direct actions…

“Wednesday’s hearing was organized by the ‘National Energy Board’ (NEB), which…has framed a series of hearings as a chance for the public to weigh in on the venture…”

–‘No Consent’: ‘First Nations’ Women Shut Down ‘Tar Sands’ Pipeline Hearing’,
Sarah Lazare, Common Dreams, September 24, 2015

Who is Amanda Lickers?: http://www.genuinewitty.com/2015/10/02/old-stock-canadian-appropriates-native-voices-leads-dubious-pipeline-protest/
‘Peterborough Asshat…(feat. Amanda Lickers)’: http://www.genuinewitty.com/2013/09/14/peterborough-asshat-desecrates-vermont-911-memorial-feat-amanda-lickers/grand-chief-stewart-phillip-vancouver-oil-spill-petition‘Chiefs threaten courts and barricades without a signed working agreement in B.C.’

“While B.C.’s Aboriginal Relations Minister John Rustad said there have been remarkable achievements on economic and social fronts with ‘First Nations’, chiefs are threatening to go back to court battles and protest camps if things don’t improve.

“Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, said they’re giving the government A ONE-YEAR DEADLINE to negotiate a reconciliation deal.

“The underlying message is if we don’t make any progress within the space of the next year, I would suggest all of this will fall through and it will be back to the courts, and pretty much back to the barricades”, said Phillip.

“Last year’s landmark Supreme Court of Canada decision that granted the Tsilhqot’in ‘Nation’ {a ‘nation’ of 3,000 people} ‘aboriginal title’ to 1,700 kilometres of land in B.C.’s Nemiah Valley remains the driving force behind the ‘reconciliation’ initiative prompted by Clark and ‘First Nations’ leaders…

“Legal scholars and political experts have suggested the ruling gives aboriginals massive powers on land-use issues, especially resource development. B.C. ‘First Nations’ are seeking government support for ‘aboriginal rights’ and ‘title’ to lands, which also includes ‘revenue sharing’… 

{It would seem that only aboriginals own the resources underground on ‘their’ land, unlike other Canadians. There is NOTHING in the original Treaties that grants them this. Yet another example of discriminatory Race Based Law…}

“Phillip said THE ECONOMY OF B.C. HANGS IN THE BALANCE and all parties are aware of the gravity of the situation.”

–‘Chiefs threaten courts and barricades without a signed working agreement in B.C.’
Dirk Meissner, The Canadian Press, September 9, 2015 {CAPS added}


Photo: Laurena Weninger
Photo: Laurena Weninger

‘First Nations’ say direct action likely’

{B.C.} Interior ‘First Nations’ suggest the economy could be disrupted if their ‘rights’ aren’t recognized. The’ Interior Alliance’, which consists of four ‘nations’, including the Okanagan {a ‘nation’ of 5,900 people} and Shuswap {a ‘nation’ of 6,500 people}, issued a release Wednesday, stating that ‘economic certainty’ {freedom to work} will only be achieved through acceptance of ‘inherent title’ {“our ancestors used to occasionally wander through here”} to the land…

“WE ARE PREPARED TO TAKE ‘DIRECT ACTION’ {‘illegal action’} to protect our {claimed} ‘traditional’ lands from ongoing exploitation without our consent”, states the press release. “WE ANTICIPATE THAT SUCH ‘DIRECT ACTION WOULD DISRUPT THE PROVINCIAL ECONOMY, AS WELL AS THE GLOBAL ECONOMY…” 

{So full of judicially-empowered self-importance…}

–‘First Nations’ say direct action likely’,
Richard Rolke, Vernon Morning Star, Sept. 11, 2015 {CAPS added}


FSIN_Logo 2 Colour_NEW2011_with Celebrating65yrs

‘Federation of Saskatchewan Indian ‘Nations’ wants project ‘put on hold’

“There are 16 ‘First Nations’ within the region of the Quill Lakes, Last Mountain Lake and Lower Qu’Appelle Valley whose treaty and ‘inherent’ hunting, fishing, trapping and gathering rights could be directly impacted by this project”, vice chief Bobby Cameron said in a news release Tuesday…  

{Every Saskatchewan Treaty clearly states that development takes precedence. For example, from Treaty 4 – which covers the Bands in this story:

“And further, Her Majesty agrees that Her said Indians shall have right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining or other purposes, under grant or other right given by Her Majesty’s said Government.” {And no mention of ‘revenue-sharing’…} 

http://www.aadnc-aandc.gc.ca/eng/1100100028689/1100100028690 }
“Cameron said the project {the Kutawagan Creek diversion project} should be “put on hold” until ‘First Nations’ have an opportunity to determine what the impacts will be…”

–‘FSI’N’ wants project ‘put on hold’,

http://www.thestarphoenix.com/life/fsin+wants+project+hold/11367020/story.htmlTreaty5Map600‘First Nation’ starts court action against province over mining claims on {ceded by Treaty} ‘ancestral lands’

“A Manitoba ‘First Nation’ says it has started court action against the province, alleging the government has failed to resolve outstanding mining claims on {Treaty 5 surrendered, former} ‘ancestral lands’.

“Chief Michael Yellowback of the Manto Sipi Cree ‘Nation’ {God’s Lake ‘First Nation’, a ‘nation’ of 800 people} says the statement of claim was filed today in Manitoba Court of Queen’s Bench.

“The ‘First Nation’ alleges that Manitoba failed to properly implement an outstanding land entitlement under ‘Treaty Number 5’…” {But even if they were given their ‘land entitlement’, they’re still not entitled to interference in mining, as clearly outlined in Treaty 5:

“Her Majesty further agrees with Her said Indians, that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, MINING, lumbering or other purposes, by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.’’

“…they will not molest the person or property of any inhabitant of such ceded tracts, or the property of Her Majesty the Queen, or interfere with or trouble any person passing or travelling through the said tracts, or any part thereof…”

–‘First Nation’ starts court action against province over mining claims on ‘ancestral lands’,
FNWARM, 10 Sept. 2015 {CAPS added}


Tsilhqot'in“The Tsilhqot’in ‘National’ Government {representing a ‘nation’ of 3,000} has issued a statement demanding ‘Amarc Resources’ stop mineral exploration in the Dasiqox Tribal Park.

“The statement says the province granted Amarc a permit to conduct mining exploration…over their objections.

“In the statement, Chief Roger William of the T’N’G said Amarc Resource’s project time frame isn’t appropriate, and that they need to respect the T’N’G’s community process if they want to gain their consent.

“Amarc Resources Executive Vice-President, Jason Quigley, says the ‘Ike’ project has all the proper permits.

“He also points out it’s 80 km. OUTSIDE THE TITLE AREA.

“He adds the T’N’G doesn’t have the authority to unilaterally declare ‘no-go’ zones, and says they’ve partnered and worked with the T’N’G in the past.

“Quigley says they remain open to talks, and hope the T’N’G will eventually come to support their project, adding that they’ve offered a very generous benefits agreement…”

–‘Tsilhqot’in ‘National’ Gov’t wants ‘Amarc Resources’ to halt exploration’,
Gene Law, CFNR Network, September 16, 2015 {CAPS added}


The proposed Ajax Mine‘Local ‘First Nations’ hosting own review of ‘Ajax Mine’. The Stk’emlupsemc te Secwepemc ‘Nation’ {a ‘nation’ of 1,000 people} has declared ‘aboriginal title’ in the Jacko Lake {B.C.} area.’

“A group representing local ‘First Nations’ will delve into the potential impacts of the proposed Ajax Mine on their {claimed} ‘traditional territory’…

“The ‘nation’ believes the Ajax Mine project cannot be assessed using the same consultation process or environmental assessment methods and must respect ‘Stk’emlupsemc te Secwepemc’ customs and culture {which didn’t have a clue what ‘mining’ even was}…” 

–‘Local ‘First Nations’ hosting own review of Ajax Mine’,
Dana Reynolds, Vernon InfoNews, September 10, 2015


Photo: Sacheen Seitcham
Photo: Sacheen Seitcham


“Members of Ahousaht ‘First Nations’ {‘nations’ of 2,000 people} are currently blockading the attempts of ‘Cermaq’ to install a new open-net salmon farm at Yaakswiis, north of Tofino, B.C.

“… Ahousaht members took boats out to the site and prevented Cermaq from anchoring the controversial new farm, which was assembled off-site and towed to Yaakswiis.

“We will stop any future activity at this location. We will stay out there until we are moved—we will be arrested if need be”, said Tom Paul, an Ahousaht member…

“ ‘Cermaq’ is a Norwegian-based corporation recently acquired by ‘Mitsubishi’. They currently hold 17 salmon farm tenures in Clayoquot Sound, which was the site of major logging confrontations in 1993.

“Cermaq applied in 2014 for two new tenures in Ahousaht ‘First Nations’ territories. The Department of Fisheries and Oceans approved one application in late July this year, and one was refused.

“The salmon farming industry is poised to increase four-fold on the BC coast by 2030. These new applications are the first round of this major expansion.”

Clayoquot Action, September 10, 2015


Lax Kw'alaams Band ‘First Nation’ lays claim to Lelu Island’

“The Lax Kw’alaams ‘First Nation’ {a ‘nation’ of 3,737 people, only 700 on reserve} is seeking ‘aboriginal title’ to Lelu Island and Flora Bank in order to force changes to the Pacific NorthWest LNG proposal, casting further doubt on the $36-billion LNG export project.

“Lax Kw’alaams leader Gary Reece said in an interview Friday that while the ‘First Nation’ is open to development, they want Lelu Island near Prince Rupert to be off-limits. They will go to court next week to claim the land, he said.

“Once a claim is established, the ‘First Nation’ said, governments would be obligated to seek its consent for development.
{This is yet another ‘special’ race based legal approach developed specifically for aboriginals by our courts. ANY CLAIM – no matter how unproven or ridiculous – gives a tribe final say on development on that land — at least until it works its way through the courts…}

“Pacific NorthWest LNG has already received provincial environmental approval and is awaiting federal approval…

“If the ‘First Nation’ is successful in getting the terminal moved from Lelu Island, it could mean a major delay for the project.

“Our ‘traditional law’ {?}, backed by our scientific reports, has made it clear that Flora Bank cannot be touched by (Pacific NorthWest) or any other company that proposes development”, Reece said, adding that the title claim has support of the 3,700-member Lax Kw’alaams community.

“The reason we’re launching the territorial claim is to clarify who owns this territory and what the federal and provincial government obligations are to the {claimed} territory’s ‘owners’…”

{What about YOUR ‘obligations’? Why are there never ANY???}

–‘First Nation’ lays claim to Lelu Island’,
Brian Morton and Derrick Penner, Vancouver Sun September 18, 2015


http://www.fraserinstitute.org/blogs/what-is-the-lax-kw%E2%80%99alaams-first-nationGitxsanLNGBlockade“Gitxsan Hereditary Chiefs are showing their support for the Lelu Island occupation camp.

“The Gitxsan Hereditary Chiefs {representing a ‘nation’ of 9,000 people…} have their own camp at Madii Lii, in opposition to TransCanada’s ‘Prince Rupert Gas Transmission Project’, which would bring natural gas to Lelu Island if completed.

“Madii Lii spokesperson, Richard Wright, said in a statement that they’re taking the government to court…

“He adds that people are now ‘on the ground’, {illegally} blocking the ‘Petronas’ project from the coast to far inland. Lelu Island is the proposed site for the Petronas-backed Pacific Northwest LNG plant.”


Pipeline map - Gitxsan territoryAnd one positive development:

‘Drilling at proposed LNG terminal starts despite ‘First Nation’ opposition’

“Pacific NorthWest LNG has started test drilling off of Lelu Island, location of its proposed $11.4-billion liquefied natural gas terminal in northwest B.C., despite {some} ‘First Nation’ opposition.

“Members of several ‘First Nations’ — including the Lax Kw’alaams and the Gitxsan — appeared to stop drilling on the weekend, but the presence of Prince Rupert Port Authority boats has allowed the work to start…

“Port authority personnel told him to stay at least 50 metres away from a drilling rig when he approached with his boat, said Lax Kw’alaams ‘First Nation’ hereditary chief Don Wesley, a hereditary chief of the Gitwilgyoots, one of the nine tribes of the Lower Skeena River region… Wesley said he is seeking legal advice to determine whether he should adhere to the 50-metre warning.

“Wesley is leading a three-week-old occupation camp on Lelu Island in an effort to halt the project…”

–‘Drilling at proposed LNG terminal starts despite ‘First Nation’ opposition’,
Gordon Hoekstra, Vancouver Sun September 16, 2015



United Tribal Transboundary 2‘Alaskan and B.C. Aboriginals Form Tribal Alliance To Stop Development and Job Creation’

“An… alliance of B.C. ‘First Nations’ and Southeast Alaska natives has been forged… and tribes, who have not worked together for generations, are aiming to put the brakes on B.C.’s border mining boom.

“…{anti-Canadian} Union of B.C. Indian Chiefs (UBCIC) president Grand Chief Stewart Phillip and vice-president Bob Chamberlin agreed to support the newly formed ‘United Tribal Transboundary Mining Work Group’ in its bid for Alaskan — and particularly tribal — input into B.C.’s decision-making process on mines along the Southeast Alaska border.

“We are bringing together the tribes from both sides of the border and building a relationship. WE CAN MAKE MORE NOISE TOGETHER than when we are separated by a border that has not been part of our tradition”, said Mike Hoyt, leader of the Teeyhittaan clan from the Stikine River…

“The group wants the issue sent to the ‘International Joint Commission’, the body designed to resolve U.S./Canada water and air disputes. The commission operates under the ‘Boundary Waters Treaty’ that forbids either nation from polluting waters flowing across the boundary.

“The principle of free, prior and informed consent must be applied in advance of mining operations, from exploration through all phases of development, including post-closure”, says the report of the B.C. ‘First Nations’ Energy and Mining Council. 

“Mines Minister Bill Bennett told the Globe and Mail that ‘First Nations’ will have an equal seat at that table with industry and organized labour…

“…Some are optimistic the relationship with the Alaskan government will improve as Lt. Governor Byron Mallott, a member of the Tlingit ‘Nation’, becomes increasingly involved.

“Mallott… said in an interview with ‘DeSmog Canada’ that he hopes to add ‘tribal interests’ to the government-level task force…”

–‘Alaskan and B.C. Aboriginals Form Tribal Alliance To Stop Development and Job Creation’,
Judith Lavoie, DeSmog Canada, August 12, 2015 {CAPS added}

“The U.S. State Department will not propose putting Southeast Alaska’s transboundary mine conflict before the International Joint Commission. That’s the U.S.-Canada panel that addresses cross-border water issues…

“If the State Department isn’t willing to step in and help us, then this is something that we have to step up and take on ourselves”, says Rob Sanderson Jr., a member of the Central Council of the Tlingit and Haida Indian Tribes of Alaska’s Executive Committee…

“Basically, when they say ‘We’re not going to seek a referral’, we are going to have to take matters into our own hands”, he says…

“Sanderson says they’ll seek additional support before using their role as ‘sovereign governments’ to ask the State Department for International Joint Commission involvement.”

–‘Feds: B.C. mines won’t go before international commission’.
Ed Schoenfeld, CoastAlaska News, September 16, 2015

IMAGE: The Supreme Court of Canada justices – the new power in the land
Post also at: 




mail to: endracebasedlawpetition@gmail.com