Wilson-Raybould’s Practice Directive has already caused great mischief in Canada’s courts, most obviously in the Restoule case decided late last year. This case involves claims made by Ojibway First Nations about treaties they signed in 1852 for territory on the north shore of Lake Huron and Lake Superior. Despite the treaties’ explicit contract of fixed annual payments in exchange for the surrender of land to the Crown, the claimants sought to re-write this century-and-a-half-old agreement in order to receive in perpetuity a portion of all Crown income currently generated in the area once surrendered. A summary judgement found for the Ojibway, and negotiations are now ongoing over how great a share they will get. They are demanding between two-thirds and 100 percent.

According to Best’s analysis, federal lawyers acted exactly as required by the Practice Directive in Restoule and, unsurprisingly, came out on the losing end. Examples of this commitment to failure can be seen in neglecting to challenge self-serving testimony from native elders, ignoring the post-treaty conduct of Indigenous groups that suggested they accepted the treaties as written, and agreeing to a summary judgement rather than litigating aggressively. In further obeisance to Wilson-Raybould’s spell, Ottawa chose not to appeal this deeply-flawed ruling, placing its fixation with reconciliation firmly above legal coherence. (Thankfully, co-defendant Ontario under the Progressive Conservative government of Premier Doug Ford is not similarly eager to surrender and is pursuing an appeal.)

No job for judges

The Practice Directive’s spirit seems to have seeped across the courtroom floor to infect the bench as well. In Restoule, Ontario Superior Court Judge Patricia Hennessy appeared to abandon her traditional role as an impartial arbiter of justice in order to seek the pleasure of her Indigenous claimants’ company. As part of the court proceedings, the judge moved the hearing to three different native reserves, where she and the entire court party participated in community feasts, sweat lodges, eagle feather ceremonies and other events that immersed – some might say indoctrinated – them in the ways of traditional Indigenous teachings. Her judgement even expressed great gratitude for all this hospitality.

In other circumstances, this sort of behaviour would be considered an egregious and fatal error for a judge. How would it look, for example, if the judge in the upcoming SNC-Lavalin fraud case was seen to be wined and dined by the firm’s executives and directors as they instructed her in their unique corporate practices and traditions? And what if that judge explicitly thanked the firm in her judgement for being such a great host?

While it may be politically beneficial, at least in the short term, for the federal Liberals to create a system of subterfuge in which they deliberately lose every case involving native claimants in order to provide solace and success to Indigenous groups, such an approach violates the very core of our finely balanced system of justice. The courts are not supposed to act as a reconciliation device; they are designed to seek justice. Their well-worn framework, carefully nurtured over millennia, ensures each side clearly and unambiguously sets forth and argues its own position. Over this a judge presides: observing and ultimately ruling with strict neutrality on the merits of what has been put before them.

Reconciliation is not a job for judges, however much Liberal politicians might like to shift that responsibility onto them. The claimants in Restoule or the Saugeen Ojibway Nation case over the Bruce Peninsula hope to win enormous sums of money and/or land for themselves; federal lawyers should be there to present their best case on behalf of Canada and all its citizens, the majority of whom do not wish to see their interests treated in such a cavalier or sloppy manner. Simply giving-up does not facilitate reconciliation or justice. Similarly, neither objective is achieved when the judge meant to oversee such proceedings acts in a manner that raises questions of bias in an effort to reach reconciliation.

Despite the many concerns raised about Wilson-Raybould’s Practice Directive by lawyers inside and out of government, it remains in force. Considering Prime Minister Justin Trudeau’s precarious position with the Indigenous community, it seems unlikely to be withdrawn anytime soon. Yet the longer it stays, the more damage it does by undermining existing cases and encouraging the filing of new ones by native groups who’ve just seen their odds of winning grow exponentially.

No financial risk to Indigenous litigants, for Ottawa pays everything

Other new policies are contributing to this stacking of the odds. In the 2018 federal budget, Ottawa announced it will henceforth pay all legal costs incurred by Indigenous groups negotiating comprehensive claims with “non-repayable contributions”. Previously, Indigenous groups’ legal expenses were covered by federal loans to be repaid when the case was concluded. This was a reasonable system that recognized legal action is not costless and should not be engaged in frivolously.

Now, however, Indigenous groups can sue the federal government without regard to cost. The 2019 federal budget set aside a further $1.4 billion over the next seven years to forgive all currently outstanding land claim loans and to repay groups that had previously paid off older loans. According to Ryerson University’s Yellowhead Institute, there are 45,000 outstanding Indigenous land claims waiting to be adjudicated in this country. With the government ensuring future legal action is now entirely free for Indigenous claimants, the number of potential new cases should probably be considered limitless.

To the pernicious implications of the Practice Directive and cost-free legal action may be added a variety of other current government policies, behaviour and legal doctrines. These include recent judicial inventions such as the concept of the “honour of the Crown” and “duty to consult,” both of which have been used to insert new meanings into old treaty documents. In addition is the de facto veto Indigenous groups now hold over large new resource developments. Also included should be the steady stream of government announcements recognizing any and all demands made by Indigenous lobby groups, from native language rights and spurious cultural appropriation demands to changing the names of historic buildings to the endless series of government apologies and self-abasements. All of which leave Canadian taxpayers and property owners at the mercy of ever-more vexatious and potentially damaging demands made by Indigenous claimants.

The meaning of Treaty 45½

Many troubling aspects of Indigenous litigation are crystallized in the Saugeen Ojibway Nation case. With 200 court days scheduled over the next three years, the Battle for the Bruce Peninsula is predicted to be the longest trial in Ontario legal history. As with Restoule, many of the hearings will take place on reserves and in community centres, outside traditional courtrooms. This creates the risk that, like Judge Hennessy, presiding Judge Wendy Matheson will become entranced and entangled by native spirituality. Also like Restoule, the case rests on an imaginative reworking of existing treaties and new legal theories designed to stack the deck against Canadian taxpayers. But in many ways Saugeen Ojibway Nation is far more audacious even than Restoule.

First, some history. The two constituent parties of Saugeen Ojibway Nation − Saugeen First Nation and Chippewas of Nawash Unceded First Nation − each signed treaties with the Crown covering what they claimed to be their traditional territories. The first, in 1836, is the curiously numbered Treaty 45½, which transferred about 600,000 hectares of potential farmland in the area south of present-day Owen Sound to the Crown in exchange for Indigenous control over Manitoulin Island and the Bruce Peninsula, plus various government supports such as housing. Significantly, this treaty included a promise to the natives that the government of Upper Canada “engages for ever to protect for you from the encroachments of the whites.”

Eighteen years later, however, the Crown found itself powerless to stop settlers from moving into the Bruce Peninsula area. It therefore sought to rework the land arrangement by means of Treaty 72, which established specific and well-protected reserves for the Saugeen and Nawash tribes in exchange for broader white settlement of the region. Further, in recognition of the problems inherent with Treaty 45½, all proceeds from land sales in this region were to be placed in an annuity fund, with annual payments disbursed to the bands. These financial obligations are not at issue in the current claim. Rather, the Saugeen Ojibway Nation case against the federal and provincial governments, as well as four local municipalities, essentially seeks to have Treaty 72 cast aside or entirely reinterpreted.

What the Bruce lawsuit is about

Saugeen Ojibway Nation makes three specific demands. First is a unique and unprecedented claim of Aboriginal title over the “water territory” of Lake Huron and Georgian Bay, on the basis that such water rights are indivisible from the claimants’ traditional way of life and should have been included in the original treaties. Second is the handing over of land not presently privately-owned, including publicly-accessible road allowances, shorelines and parks, due to the Crown’s failure to abide by the first treaty. Third, a staggering $90 billion in compensation for land that cannot be returned, as well as lost hunting rights surrendered when the treaties were signed.

The meaning and import of Aboriginal title over navigable waters is entirely uncertain within Canadian law. Nowhere in the Saugeen Ojibway Nation statement of claim do they explain what they wish to achieve by gaining control of lakebeds or rivers, or what the implications might be for the rest of the country. Rather than a practical demand, it is probably best seen as yet another grasping attempt to widen the scope of future native land claims by asserting ownership over yet another part of Canada – the watery part.

The second and third demands are equally problematic. Many Canadians might reasonably express some sympathy for the Ojibways’ loss of the Bruce Peninsula more than a century ago due to settler encroachment; perhaps some additional compensation is even due, mainly to assuage white guilt. But taken broadly, the westward expansion of Canada and the United States ought to be considered an unstoppable force of nature. As with King Canute and the tides, the British Crown was never able to hold back European settlers moving westward in any circumstance. An attempt to set a boundary between native and white lands in Colonial America following the Seven Years’ War − using the Appalachian Mountains as the border and as described in the Royal Proclamation of 1763 − ended in abject failure and helped spark the American Revolution. The Canadian government likely came to realize it similarly lacked the ability to stem the tide heading towards the Bruce Peninsula.

Given the history of North American settlement, the Canadian government arguably did all that could reasonably be expected to enforce the first treaty. Treaty 72 should thus be seen as a well-intentioned effort to adjust to reality by creating permanent reserves and supporting them with income earned from land sales. Any claim that seeks the return of all remaining public land along with tens of billions of dollars in cash must necessarily abrogate the second treaty, which both parties signed in good faith. It is an attempt to rewrite history and tear up a legally-binding contract.

Given the Practice Directive and Ottawa’s panoply of accommodationist Indigenous policies, there is no good reason to expect vigorous defense against these new claims. Reconciliation-seeking federal government lawyers will likely cave-in at the first opportunity rather than defend the enormous private and public interests at stake, as well as the profound, age-old points of law and principle now in play. That was certainly the case in Restoule, where the judge – perhaps after having enjoyed herself at the sweat lodge or eagle feather ceremony – ignored the plain meaning of the treaties before her and instead ordered the federal and provincial governments to enter into negotiations with the Ojibway claimants, with potentially crippling financial implications.

The legally-toxic “sharing doctrine”

Restoule and Saugeen Ojibway Nation are properly seen as the latest iterations of a legally-corrosive concept that’s been growing in the background for decades. The “share the land” doctrine posits that signed documents do not mean what they actually say or were understood to mean when they were signed. Although the words on the treaties’ paper may plainly state that they are land surrender documents, they should be interpreted as mutual pledges by government and Indigenous groups to jointly “share” the land in question.

Of course this upends the entire concept of treaties, transforming them from clearly demarcated final settlements into mere opening rounds of endless negotiations, payments and concessions. For the first 100 years after the signing of the treaties, anyone who put forward such a fantastical theory would have been laughed out of court. The St. Catharines Milling case of 1887, for example, makes it crystal-clear what the treaties meant: land was being surrendered for consideration including cash, annuities and the promise of government assistance.

Many, if not most, past generations of Indigenous leaders accepted treaties as such. William Wuttunee, the first Indigenous lawyer to practise in western Canada and the founder of what is now the AFN, publicly chastised his native colleagues who pretended treaties were more than they appeared to be. Wuttunee recommended that his compatriots integrate with the rest of society and seek success by the sweat of their brow, rather than living in the past. “A great injustice is being done to Indian people if we tell them that the white man did not keep his promises under the treaties,” Wuttunee wrote in his 1971 book Ruffled Feathers. “We must therefore make every effort to re-educate all Canadians to the facts of history. The federal government has kept its promises under the treaties.”

The origin of the current “share the land” campaign is murky. The phrase began to appear in speeches and pro-Indigenous essays and books soon after the Charter of Rights and Freedoms’ promulgation in 1982. Once courts and governments began to financially reward Indigenous claim-seeking, advocates dumped Wuttunee’s emphasis on individual responsibility in order to blame governments as the source of all their woe: demanding open-ended, perpetual compensation and arguing treaties were meant as virtual pensions-for-life for every reserve resident. Indigenous firebrands like British Columbia’s Bill Wilson (Jody Wilson-Raybould’s father) and Manitoba’s Chief Louis Stevenson eagerly promoted radical ideas about land ownership in the 1980s and 1990s.

Still, the notion that treaties do not mean what they clearly say has only taken firm hold in the past decade. Today, however, Indigenous publications, Supreme Court rulings and even official government documents state or implicitly accept the sharing doctrine as fact. But what does such a thing mean for the concept of private property?

By repeatedly stating privately-held land is not covered by these latest, high-profile claims, “share the land” advocates have so far avoided alarming ordinary Canadians concerned about the fate of their own homestead. Restoule, for example, demands a share of Crown rent rather than the wholesale transfer of Crown property. Saugeen Ojibway Nation goes further in seeking the return of Crown land on the Bruce Peninsula, control over waters, plus massive amounts of compensation. But again, it stops short of demanding the surrender of private property. The transfer of public lands demanded in this case does, however, open the possibility of new and unexpected innovations in ownership rights.

All privately held property in Canada may fall under threat

If Indigenous claimants obtain road and shore allowances from the public domain, cottagers or beach users could be cut off from the water and/or forced to pay for access to these public resources as well as to their own properties (since the litigation claims control over public road allowances). This is not mere speculation. The area’s world-famous Sauble Beach is administrated by the local municipality and is free to all visitors. The beach’s southern portion, however, is owned outright by the Saugeen First Nation, which charges an admission fee of $20 per vehicle, as well as a pedestrian rate.

Such beach-access practices can be seen as a possible sign of things to come for the entire Bruce Peninsula and environs. And beyond the “mere” cottagers, the area’s farms and more isolated businesses could find themselves cut off or forced to pay fees to the new Indigenous overlords of formerly public roads. While the decades-long “share the land” campaign has sometimes been about culture, it has always been about money and control.