Monsters of Injustice: Undead Legal Arguments
The Canadian legal system is based on precedents. It looks at how past cases were decided and uses that to make a decision on the case it’s faced with. Only on rare occasions can a court depart from how a case was decided before. This means that legal arguments that are horribly outdated and rooted in unjust settler colonialism are still the bedrock of how we make decisions. This is what makes it incredibly difficult to actually remove these doctrines from Canadian legal systems.
Across what we know as Canada, we see the legal system struggle with Undead Legal Arguments floating their way into court systems and decisions, haunting our thoughts and keeping us from breaking free and moving forward.
While the Canadian courts have said that the doctrine of terra nullius does not apply, in the same decision it went on to say:
At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival . . . The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.
The Crown merely acquired title. The judge in one case went on to say: “Some argue, in my view correctly, that the whole construct is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada.”
But if we all know the arguments don’t make sense, why are we so haunted by the Undead Legal Arguments? Why do we still have to use this legal fiction, argue around them, and tie our brains into knots trying to make it make sense? Because if we don’t we end up down an even wilder rabbit hole. A court can only make decisions and rulings within its realm of jurisdiction. And who gives a court jurisdiction? Canada. So, if a court finds Canada doesn’t validly exist, the court has no jurisdiction to make that finding.
Or as a judge has said:
“[202] First and foremost is the fact that the system of law and government imported by settlers into British Columbia and superimposed upon Indigenous peoples has become firmly and intractably entrenched. It is the foundation for Canadian society as it exists today. The laws relating to ownership of land are the basis for this country’s wealth and the very foundation for its economy. It is these same laws which provide legitimacy to this Court.
[203] As the Court noted in Delgamuukw, “we are all here to stay”, and while the legal justification for Crown sovereignty may well be debatable, its existence is undeniable and its continuation is certain. The task of the Court is therefore to somehow reconcile continued settler occupation and Crown sovereignty with the acknowledged pre-existence of Aboriginal societies. In my view, such reconciliation will not likely entail wholesale evisceration of common-law concepts such as private ownership of land or the enforceability of contractual obligations.
[204] The second harsh reality, closely related to the first, is that this Court is bound by the doctrine of precedent, which requires it to apply the law enunciated by the Supreme Court of Canada. If that construct or analytical framework attracts academic or political criticism, no matter how justified, this Court is nevertheless bound to apply it, subject only to incremental changes not prohibited by precedent or legislative change, a subject to which I now turn.”
The arguments surrounding Canada’s sovereignty and assertion of sovereignty aren’t the only Undead Legal Arguments that continue to haunt us, no matter how hard we try. An example of the ongoing harms done by the Undead Legal Arguments can be seen as more and more cases regarding access to clean water on reserve are brought forward. Indigenous Nations have to hear again and again, “well that’s not our problem,” from the Crown.
According to the Constitution Act, Canada claimed jurisdiction over “Indians, and Lands reserved for Indians.” The Crown, primarily as Canada, took over every aspect of life on reserves, limiting the authority of First Nations and preventing their economic success and ability to practice cultural ways of well-being. With the assertion of this jurisdiction over them, Canada assumed responsibility over matters that would typically fall under other levels of localized government, such as water infrastructure. Canada has made clear time and time again that it views itself as responsible for providing clean water on reserve. Until it was time to take action.
When sued over a lack of access to clean drinking water, Canada has argued that the government supports the delivery of drinking water for First Nations as a policy decision, calling it “a matter of good governance rather than legal duty,” and states that Canada does not owe any legal obligations or duties to operate and maintain the plaintiffs’ water systems. This is because we continue to see the government take control over First Nations decisions, but only when convenient, always arguing that there is no obligation or duty.
The Honour of the Crown is a concept that is brought forward repeatedly in Aboriginal law. It encompasses the idea that the Crown must act honourably, and not engage in sharp dealings with Indigenous people. It is meant to ensure that governments be fair, honest, and honourable. The duty in fact arises from the way the Crown asserted sovereignty and control and the resulting tension between Aboriginal title and rights and Canada’s sovereignty. Honour of the Crown is the foundation for concepts like the duty to consult and accommodate. However, the legal arguments that continue to haunt us are those that allow the Crown to minimize this duty. But, as we have seen, even in the face of abhorrent behaviour, the Crown will argue it had no duty to the Nations. We hope that is not the result we will see in the end of these drinking water cases.
For example, the Crown has largely dismissed their responsibility to Neskantaga First Nation as they have been dealing with the longest boil-water advisory in Canada. The Indigenous community has been without clean water for almost three decades now. Canada’s lack of action saw Neskantaga and two other First Nations launch a national class action lawsuit against the country, resulting in a $8 billion settlement and commitments for the construction, operation, and maintenance of infrastructure to support clean drinking water in First Nations’ communities.
Honour of the Crown is meant to influence all historic Treaty interpretations and yet we continue to see Treaty obligations being unfulfilled. For example, Treaty No. 6 is supposed to protect Beaver Lake Cree Nation’s inherent rights to hunt, fish, trap, and gather on their territory, but the Crown continues to authorize development that strips the land bare and contaminates the water, affecting those rights. The unilateral authorization of development is being challenged by the Beaver Lake Cree Nation in court, and, during advanced costs application, Alberta and Canada did not dispute the case is likely to be successful. Yet, the Crown is still arguing against Beaver Lake Cree Nation in court.
But, these Undead Legal Arguments are being challenged by Indigenous Nations across the country with hope and resilience. One step was taken in British Columbia (B.C.) when Gitxaała Nation and Ehattesaht First Nation forced the provincial government to reform the Mineral Tenure Act to honour the duty to consult and accommodate when mining claims are staked. Not only do over 200 First Nations need to be consulted in the mineral claims process as of March 2025, but the court declaration has inspired other First Nations across the country to file their own claims against mining acts; First Nations in Ontario have filed multiple cases, and Mitchikanibikok Inik First Nation received a similar declaration in Quebec.
Inch by inch, Indigenous Nations are moving the yardstick toward a better, more just world for all. Undead Legal Arguments will keep trying to claw their way up to the surface, aiming to take away the beautiful, bright future that Nations envision for their communities, territories, and nature. Funding Indigenous-led litigation is one of the most impactful ways to continue to push back on Undead Legal Arguments. Donate to RAVEN to make sure Indigenous Nations have access to justice to actualize a better world.
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