Aboriginal Lawyer Attacks the Rule of Law. as "Convenience Weapon"

Vincent J. Curtis

29 Feb 20

The Saltport & Rind, in its Feb  29 edition, ran an op-ed piece written by lawyer Cory Shefman.  He works for Olthus Kleer Townshend LLP, representing Indiginous persons and organizations.  It was slugged, "Rule of law is a convenient weapon."  He attacked, not the law, but the rule of law, and made mention of a number of things which to modern ears may sound unjust.  Modern ears are unmindful of history going back seventy and more years.

The article written by lawyer Cory Shefman is lacking in philosophical refinement.  He fails to distinguish between the principle of the rule of law and what the law is in particular circumstances.  Here is the difference: the law can be changed, and changing the law is a vindication of the rule of law, for a change in law implicitly acknowledges that law must prevail.

The alternative to the rule of law is rule by force, and lawyers will find very little employment under a regime of rule by force.  If, in order to achieve a desired political outcome, the rule of law is discredited, changing the law is futile – for there is no reason to abide by it.  The principle of obedience to the law is no more, and it is the weak who are most at risk.

Mr. Shefman divides Canadians into two types, settlers and Indigenous.  The settlers are the evil doers, and Indigenous their innocent victims.  Mr. Shefman seems unaware of Ontario history, for the Haldimand Tract was purchased by the British from the Mississauga band in 1784 in order to provide a home in British North America for their Six Nations allies of the American Revolution.  Six Nations, though indigenous to North America, are settlers in Canada.

The anger and logical incoherence expressed in Shefman’s article are reflected in the illegal disruptions for spurious reasons in Ontario, as if they will affect matters in British Columbia

In his effort to show that settlers have been victimizing Aboriginals throughout Canadian history, Corey Shefman, makes reference to the year 1951.  He said that until 1951, the rule of law prohibited First Nations from hiring lawyers to protect their rights, and that Aboriginals had to get permission from the local Indian Agent to leave the reserve and get a job.

What is significant about 1951 is that that was the year the Canadian Citizenship Act came into effect.  Prior to that, Canadian citizenship did not exist.  We were British subjects.  Since Aboriginals were definitely not British subjects and did not want to be, by treaty they did not enjoy that legal status, or suffer any of its obligations, such as be subject to conscription or to pay taxes.  The adjudication of civil rights before a Canadian court was also problematic since rights laws did not then exist - all rights existed in the Common Law.  Treaty rights were Nation-to-Nation matters not justicible in Canadian courts.  And Canadian taxpayer dollars went to support treaty obligations, not to fight questionable legal battles then ultra vires of Canadian courts.

The principle at that time was to segregate Aboriginals.  British subjects could not settle on reserves or otherwise make use of Aboriginal territories.  If an Aboriginal chose to live in Canada, this is, off the reserve, the Indian Agent was there to make sure they understood the concept of paying provincial taxes and being personally responsible for debts.

The Second World War changed perceptions.  Some of these differences in legal status were obliterated by the passage of the Citizenship Act and by changes to the Indian Act in 1951, which together granted Aboriginals Canadian citizenship, whether they wanted it or not.  More significant changes happened with the passage of the Federal Bill of Rights in 1960.

It was the not the rule of law which changed, but the law itself.

When Shelman assails the rule of law, he completely misses the mark.
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