JACOB ZIEGEL
Aug 11, 2006
Globe and Mail
This week's ruling by Mr. Justice T. David Marshall of Ontario Superior Court on the disputed Caledonia land claim pointedly raises the question whether the rule of law applies to native protesters as well as to other Canadians or whether a fear of violence is sufficient reason to suspend the judge's order while Ottawa and Ontario continue to negotiate with Six
Nations representatives.
The two goals are not incompatible, as the judge himself acknowledged. Talks should indeed continue but only after the protesters have vacated the land as required in the court's original order of last February. A gesture may be appropriate to accommodate the protesters' concerns. This could take the form of allowing the Six Nations members to put up a notice on the disputed land affirming their claim to the land, but only on condition they leave the land.
Litigants often feel that the law is unfair, but this doesn't entitle them to ignore a court order given after a proper hearing -- not, at any rate, unless the objectors are willing to face the consequences.
Last year, the B.C. Teachers' Federation was fined $500,000 for ignoring a court order to call off a strike that had been outlawed by the B.C. government. Similarly, an environmental group trying to stop the extension of the Upper Levels Highway outside West Vancouver was faced with jail sentences if it did not abandon the construction site; the group complied with the court order. These examples of the rule of law being applied to enforce a court order could be multiplied many times.
So, the question remains: Why should the Six Nations protesters be treated differently? Certainly, the threat of violence is no excuse; in fact, it compounds the contempt of court. And if the threat of violence is legitimate, why isn't it equally open to striking unions engaged in a bitter dispute with an employer or to motorists refusing to leave service stations until the price of gasoline is reduced to affordable levels?
The native protesters say they have been litigating against the federal and provincial governments since 1995. Unfortunately, complaints about the slow pace of lawsuits are common, although there are remedies. Even assuming the complaints are well-grounded in this case, how does this justify defiance of Judge Marshall's orders?
Some apologists for the standoff at Caledonia argue that disputes involving native claims are ones between "nations" and that native land claims cannot be measured by the yardstick of domestic (meaning "white persons") Canadian law.
This is a dangerous argument. There is only one basic law in Canada, and it applies to everyone. There are many subdivisions (including the rules governing aboriginal rights), but they all derive their ultimate authority from the Constitution.
Whatever the limitations and weaknesses of the rule of law, it is the only glue that holds Canadian society together. If we allow it to be dissolved at will, it can only be a matter of time before we develop that contempt for laws and governments that we have come to associate with conditions in ThirdWorld countries. This is an evil to be avoided at all cost.
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