Angry in the Great White North

Here's the email, apparently sent to Caledonia Mayor Marie Trainer:

"About 90 minutes ago, Judge Marshall, the Attorney General and a group of lawyers had a conference call. It was decided, based on secret meetings yesterday, that the Liberal Government does not have the option to appeal. The reason is there is no cause. The ruling says: 'should not' and not: 'cannot'. Now McGuinty is going to have to find out how to get the egg off his face!"

Consider what I think are the relevant portions of Justice Marshall's ruling:

The negotiations are important to the native people and everyone else and I appreciate that reality, but land claim negotiations by their very nature tend to be protracted. It is trite that justice delayed is justice denied.

It is fundamental in our society that all members of the public -- including the various levels of government should respect the lawful orders of the court.

Certainly government officials should not act deliberately in a way that would ignore the court's orders and hence depreciate the court and the rule of law in our society. To act otherwise, will be seen as acting in defiance of the court's order.

For that important reason, the government agents involved in these negotiations should, in deference to the court order, withdraw from these negotiations until the court's orders are respected and the rule of law returned and the barricades removed.

This is a delicate matter but it seems to me that the submission of Mr. Elliot has considerable merit.

He said, and used this metaphor, that the government had with respect "put the cart before the horse." Return to the Rule of Law should precede the negotations of the land claims.

In summary then, for all these reasons I have given, there will be an order that the finding of contempt of court issued by this court will be referred to the Attorney General of Ontario of carriage. The injunction issued in favour of Henco Ltd, is hereby dissolved atthe request of Henco. However, that order to dissolve will not take effect till this court's order for criminal content has been disposed of. Negotiation should cease till the Rule of Law returns and arricades come down.

Each time the word "should" is used. The thinking described in the email is that the court is not challenging the right of the Crown to negotiate. That would be a ruling subject to appeal, since of course the Crown would maintain it must haev te power to negotiate. But Justice Marshall is saying that in his opinion, the negotiations lack legitimacy when they take place in an environment in the Rule of Law has been suspended. That government shouldn't sign any agreements under these conditions because such an agreement might be challenged.

It is friendly advice more than an order.

But I think this paragraph matters even more:

The court has no intention to abandon this matter. The court will remain patient but seized of the matter until it is resolved for the reasons I have given.

I think Justice Marshall is saying in effect that he understands that the court can't really prevent the negotiations from taking place if the government insists on going forward. The Ontario Provincial Police have seen fit to follow the lead of the politicians and not the courts.

So the advice of the court will stand, essentially ignored. Why bother then? Because at some point, a settlement will be reached. The natives and the government will think the issue is passed. And then someone will challenge it.

How will they challenge the settlement? By pointing to Justice David Marshall's ruling, a ruling the Justice Marshall will patiently keep up-to-date, the ruling that says the settlement should never have happened.

The government will have to explain why they ignored such a clear warning concerning the legitimacy of a settlement reached under such circumstances and in defiance of this and other rulings. Whether it is a good settlement or not won't even factor into the argument.

Who might challenge the ruling?

Maybe the citizens of Caledonia figuring that their rights were ignored. Maybe Henco figuring they weren't fairly compensated after all.

Maybe, and perhaps most likely, another native faction figuring that they settled for too little or gave back too much in order to get the settlement. That would be ironic if they were to use Justice Marshall's ruling to back up their challenge, since Justice Marshall's ruling only came to happen because those same natives refused to obey his earlier rulings.

See what happens when laws are ignored? Lewis Carroll would not have imagined such a bizarre situation.