Could Caledonia become a constitutional crisis for Canada?
The occupation of the Douglas Creek Estates has been going on for months -- since February, in fact. In the first days of the trouble, Justice David Marshall ordered the protesters removed.
They're still there. Meanwhile the provincial government has been negotiating to end the stand-off, while refusing to enforce the judge's orders.
Today, Justice David Marshall has weighed in. Now he is ordering the negotiations to end until his orders are executed and the protesters removed. Will the province listen? If the province refuses again and continues to negotiate, can an argument be made that the federal government has a constitutional obligation to get involved?
From the Toronto Star via NealeNews:
A judge is ordering an end to negotiations between the province and aboriginal protesters over a contentious tract of land until the occupiers move off the property.
Superior Court Justice David Marshall says the talks must be suspended until the barricades come down at the Caledonia, Ont., housing development.
So now if provincial negotiators meet with the Natives, the government of the province of Ontario will be in violation of a court order. Presumably Public Safety and Security Minister Monte Kwinter could be held in comtempt of court. Maybe even Premier Dalton McGuinty himself.
Will the negotiations continue, or will the government move to end this? Will the Six Nations demand that negotiations continue despite Justice Marshall's order? Or will they simply entrench themselves in?
Think about it. When you enter into negotiations over a dispute, one of the first things both sides do is freeze any activity in order to allow the negotiations to have a chance at succeeding. It's a good faith measure. But if there aren't any negotiations going on, and the government is not trying to enforce the law, what will keep the Natives from reinforcing their position, perhaps by grabbing some more land at the perimeter of the claim? With more land under their de facto control, they'd be in a stronger position should negotiations start up again, since they'd have more land to trade back as a price for de jure recognition of their claim.
Potentially worse, though, is the Ontario government proceeding with negotiations in defiance of the court order. Can the court enforce its will? The OPP has already shown itself unwilling to enforce court orders. If a provincial government is acting contrary to the will of the courts, the federal government might have a role to play under the POGG principle, and that could lead to some constitutional fireworks.
"Peace, Order, and Good Government", or POGG, is a founding principle of the Canadian federation. In part, the principle allows, or even demands, that the federal government intervene in a provincial matter when the issue could be deemed an emergency with national implications:
Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion. But great caution must be observed in distinguishing between that which is local or provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada.
That was written by Lord Watson of the Judicial Committee of the Privy Council in England in 1896, ruling on the case of the Attorney General for Ontario v. Attorney General for the Dominion, and the Distillers and Brewers’ Association of Ontario.
Funny how, in Canada, beer can the basis of a major constitutional ruling.
If a provincial government is seen to be repeatedly ignoring court orders, undermining said court while at the same time apparently losing control of a situation deemed illegal by that same court, and then compounding the problem by ordering the police to also ignore court orders, an argument could be made that under the POGG principle, the federal government has a duty to intervene. All that needs to be established is that the problem is no longer local or provincial, but has national implications. Justice Marshall would sign off on that in a heartbeat, I'm sure. We've already had trouble on other reserves, though those incidents seem to have been resolved. But one more flare-up outside of Ontario related to Caledonia, and Justice Marshall's orders still being ignored, and it's hard to think how the federal government could avoid becoming involved.
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Comments
OK, Let me get this straight. Premier McGuinty goes ballistic over presumed interference by Mike Harris, in the form of pressuring the OPP to enforce the law. He convenes a multi million dollar inquiry and no such interference is found. Meanwhile, an Ontario Superior Court Judge makes an Order and there is every reason to believe there is provincial government pressure on the OPP to NOT ENFORCE THE LAW! This is even a greater level of hypocrisy than could be expected from a Premier who broke almost every one of his major election promises. Simply breathtaking.
Posted by: BobZ at August 8, 2006 01:01 PM
Why doesn't Judge Marshall find the Premier, his whole cabinet, and the head of the OPP in contempt of court, and put them all in jail until they obey the law? I think it would set a fine example.
For if Liar McGuinty fails to obey the law and a judgement of the court, why should anyone else follow the laws Right now I should be smoking in a restaurant.
Posted by: Erik Sorenson at August 8, 2006 01:28 PM
"Why doesn't Judge Marshall find the Premier, his whole cabinet, and the head of the OPP in contempt of court, and put them all in jail until they obey the law? "
they could have a Caucus meeting and decide to enforce the rule of law
Posted by: Fred at August 8, 2006 01:44 PM
"Why doesn't Judge Marshall find the Premier, his whole cabinet, and the head of the OPP in contempt of court, and put them all in jail until they obey the law? "
Make it so.
Posted by: Ross at August 8, 2006 03:33 PM
There most certainly will be a constitutional imperative for the federal government to intevene if it is obvious that a court order to re- establish the rule of law in the area...as Steve points out POGG gives the feds the autority to intervene in provincial policing matters if the rule of law cannot be re-established over a period of time and court orders to do so go unheeded by the local government...actually, constitutionally the feds could establish martila law until an uprising is resolved....I hope the Mohawk mafia hiding on the reserve remember that and if the feds determine that you pose an onging threat to society if you are allowed to remain free to run your criminal terrorism agendas, you will find the new anti terroism acts allow police and prosecutors some very wide options in gathering you up and locking you away without much to stop them......think about it...particualrly if you are here from a residence in the US...then even habias corpus is not applicable if your actions or organization are deemed an organization instrumental in an uprising...and from what we have seen the last decades the warrior's society should be on the list with Hezbollha.
Posted by: wlyonmackenzie at August 8, 2006 05:23 PM
...I miss this thing called Dominion of Canada...
Posted by: tomax7 at August 8, 2006 05:46 PM
I just heard the most bizarre segment on CBC radio one here in Alberta about the Caledonia land dispute, and Justice David Marshall's second ruling.
The guest argued said 8/10 legal experts agreed that the OPP's raid in Caledonia completed the court order, and therefore Justice David Marshall did not have the legal authority to stop negotiations.
She then went on to say that the McGuinty government seemed eager to finish the negotiations, but that the Federal government has been dragging its feet.
What the hell is this crazy woman talking about?
Posted by: James at August 8, 2006 08:08 PM
8 out of 10 legal experts agreed on that?!?!?!?
The order was specific: the barricades had to come down and the natives removed. Neither has occurred. And the fact that McGuinty government has stated that buying the land has rendered Marshall's ruling irrelevent to the situation is a categorical admission that the court order does not have to be fulfilled and thus -- by extension -- has not been fulfilled.
These experts are morons if they can't even figure that out... that or they are using some kind of extreme loophole that they all got together and worked out before that show. If it takes this little intelligence to be a lawyer, then I'm in the wrong line of business.
Posted by: Surecure at August 8, 2006 09:43 PM
Cheers, thank you for the coverage of this event. But I think you may find this news interesting:
http://start.shaw.ca/start/enCA/News/NationalNewsArticle.htm?src=n080829A.xml
"A spokeswoman for the aboriginals said the ruling has already impacted on talks. Hazel Hill said government negotiators cancelled a meeting Tuesday to address the group's claims of significant archeological finds on the site, saying they would be in contempt of court." Quoted from the article I posted.
So it seem like the provincial government is starting to listen to the court, finally!
Posted by: Crazy Dan at August 8, 2006 09:59 PM
Ya know, there's a house for sale up the road and I know of some tech companies that are looking for engineers... You could move West Angry... Just think, no more Dalton...
Posted by: Richard Evans at August 8, 2006 10:35 PM
Yes, there needs to be a full constitutional debate which should hopefully result in the Indians joining the rest of us in the real civilized world of the 21st century. It's archaic to have people living on reserves and tossing money at them with no control over how it's managed.The recent lawless thuggery and flag desecrations in Caledonia brings home the need to revisit the treaties which are nothing but relics of a bygone era and not carved in stone. How much longer can we allow ourselves to be taken for fools? How can we deal with people who refuse to abide by the laws of our land feel they have special status to do so?
Posted by: LizJ at August 9, 2006 07:41 AM
LizJ: ...the need to revisit the treaties which are nothing but relics of a bygone era and not carved in stone.
Existing treaties between the Government of Canada and Indian bands are protected primarily by Sections 25 and 35 of the Constitution Act, enacted in 1982, and the Indian Act, the latest version of which was enacted in 1985. These are hardly "relics of a bygone era." Indeed, they continue to be studied by constitutional scholars, and interpreted by the courts in support of case rulings. In other words, they are very much current documents.
Having said that, a constitutional document is, whether from the perspective of state, court, or individual, about as "carved in stone" as it gets. "Revisiting" existing treaties is possible, of course, but would require amending relevant sections of the Constitutional Act and others. As s. 35.1 states, constitutional amendments with respect to aboriginal issues are not to be undertaken lightly.
How can we deal with people who refuse to abide by the laws of our land feel they have special status to do so?
One of the fundamental issues underlying this current clash in Caledonia is that aboriginal groups believe that this is also their land. You are correct that as individuals, aboriginals have no special status to violate Canadian laws. As a people, however, the Indian Act does recognize special status among Registered Indians, and the Constitutional Act preserves aboriginal rights as distinct from, and in addition to, the individual rights embodied in the Charter.
Posted by: A at August 9, 2006 09:03 AM
"A" Well then let's just all shut up and let the thugs have their way with us. Stupid is as stupid does. No debate here thanks.
Posted by: LizJ at August 9, 2006 10:23 AM
LizJ: You keep insisting that you want debate, and that I'm shutting down your attempts at contributing to one. Well, a debate requires at least two opposing viewpoints; otherwise, it's just a bunch of people agreeing with each other. So far, I've yet to see you post any comment on Steve's blog that doesn't support everything that either he or his supportive readers have said.
I've always attempted to reply to the substance of your comments, in this thread and others. Here, you claimed that existing treaties are relics of the past; I countered by saying they are in fact modern and relevant. You claimed that a constitutional debate is needed to bring aboriginal groups into "the real civilized world of the 21st century"; I countered by pointing out only that constitutional amendments are a serious business, and should not be introduced lightly. I cited evidence for all of these counterpoints. I could have also pointed out that your point about needing a constitutional debate to revisit treaty agreements mistakenly conflates two separate issues. The only plausible constitutional question here is whether federal intervention is warranted to force provincial/territorial governments to obey a court order originating from a superior court. The fact that this particular court order involves a First Nations protest is entirely irrelevant from a constitutional law perspective.
In any case, your reply in turn merely claimed that I'm stiffling debate (and I think you also call me stupid). On the contrary, I'm happy to debate you. I just need you to refer to something of substance in my comment, or perhaps ask me a question about what I've written. In the meantime, let's leave the personal accusations and insults aside, shall we?
Posted by: A at August 9, 2006 11:08 AM
"A" Since you are not the subject here I cannot understand how you deduct you were being called stupid. Totally wrong assumption. At this point you are welcome to this blog, I'll just be a reader. We all have our opinions. We don't all have the time to analyze them to death, best to leave that to those who do it appears. Doubt any of us are blogging for stress or aggravation.
Posted by: LizJ at August 9, 2006 01:15 PM
The Government of Ontario has announced plans to appeal Justice Marshall's court order, a decision that has the blessing of the Feds. Huh.
Posted by: A at August 9, 2006 03:00 PM
The Government of Ontario has announced plans to appeal Justice Marshall's court order, a decision that has the blessing of the Feds. Huh.
Posted by: A at August 9, 2006 03:02 PM
I told you so...
Posted by: James at August 9, 2006 11:30 PM
The Government of Ontario has announced plans to appeal Justice Marshall's court order. Why they do not have to take any responsibility for killing a native. What they have not thought out to clearly; what would happen if a native killed a non-native even accidentally. This could back fire on them and the judge would be correct which he is. I was out that night the judge made his call. I seen natives carrying lacrosse sticks with golf balls in them. A hit in the right spot on the head and some one could be dead.
Posted by: jim smith at August 10, 2006 07:41 PM
Did you also see where they got the golf balls from, Jim?
Are you still allowing yourself to be manipulated by Hewitt, Jim?? He's a loser you know. Still doing his dirty work for him??
Did you and your friends manage to hit anyone with the rocks you were throwing, Jim?? ... or were you hitting the rocks at them with baseball bats?
Posted by: saga at August 15, 2006 12:35 AM
 
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