[First published (without notes) in the Two Row Times (25 December 2013): 7,

https://www.tworowtimes.com/opinions/opinion/justice-legality-sisters-antigone/. The issues broached in this

article were further explored in comments on my article published by local historian Garry Horsnell on the
website of the Two Row Times, and in my response to him.]

[Index: Canadian politics, First Nations, environmental law]

[Date: December 2013]

Justice and Legality: The Sisters of Antigone

Michael Keefer

Canada does seem to be having persistent problems with the law. The Supreme
Court of Canada ruled in its Delgamuukw and Marshall decisions, in 1997 and 1999, that
First Nations peoples who never made treaties ceding their lands and resources to the
Crown retain aboriginal title to their ancestral territories.1
But Canadian governments, federal and provincial alike, have often simply
ignored inconvenient court rulings on what constitutes the law of the land. The Burnt
Church fishery dispute of 1999-2002 was nudged toward violence by the Department of
Fisheries and Oceans' refusal to accommodate Mi'kmaq rights confirmed by the Marshall
decision; and in recent months the New Brunswick government, the RCMP, and the lower
courts that have glibly handed out injunctions criminalizing any obstruction of fracking
exploration on unceded Mi'kmaq land, appear again to have been violating the law.
Two leading experts in natural resources law have commented on this recent bout
of lawlessness. Bill Gallagher has remarked that there are seven high-level court cases
1 See Chelsea Vowel, The often-ignored facts about Elsipogtog, Toronto Star (14 November 2013),
http://www.thestar.com/opinion/commentary/2013/11/14/the_oftenignored_facts_about_elsipogtog.html
. (Vowel also blogs under her Cree name: see pihtawikosisn: Law, language, life.) My two next
paragraphs echo what I have written in Canada's Problems with the Law, Two Row Times (20
November 2013): 7, http://www.tworowtimes.com/opinion/canadas-problems-with-the-law/; also
published as Canadian Justice, the Rule of Law and the Rob Ford Affair, Centre for Research on
Globalization (18 November 2013), http://www.globalresearch.ca/scandal-and-political-impasse-intoronto-canadian-justice-and-the-rob-ford-affair/5358566.

which the natives won on a very profound point of law, with the courts giving a series
of admonitions to the losing parties, governments and interveners and industry
despite which the New Brunswick government has left these court decisions sitting on
shelves.2 And Michael McClurg has written that in the Elsipogtog case, the rule of law
[...] would arguably dictate that the protesters had every right to be where they were,
while others, including the Crown and resource extraction companies, are trespassers.3
What are we to do when the very people who should be applying the rule of law
fling it out the window, and when foolish or malignant pundits like Rex Murphy or Ezra
Levant do their best to obstruct public understanding of what's going on?
But a further problem arises from the fact that even when governments respect the
law, its structures may embody and legitimize wrongs and injustices.
Only in Utopia, the land of Cockagne, or the Big Rock Candy Mountain are
legality and justice wholly one and the same. Think of the words of the prophet Amos
that Martin Luther King famously quoted in his I have a dream speech. Amos didn't say
Let legality roll down: he said, Let justice roll down like waters, and righteousness
like a mighty stream (Amos 5: 24). What the civil rights movement was struggling
against, in the name of justice and righteousness, was quite precisely a perverted legality:
the laws and state practices of Jim Crow racism.
The Canadian legal system has moved towards remedying some institutionalized
features that run counter to justice. Attempts are being made to provide restorative justice
through Gladue courts; and the Royal Commission on the Donald Marshall, Jr.
Prosecution (1989) declared that Native Canadians have the right to a justice system [...]
which has respect for them, and which dispenses justice in a manner consistent with, and
sensitive to their history, culture and language.4
On the level of resource issues, it's clear that a system of law and justice that was
2 See Sharing Resources, Interview with Bill Gallagher, CBC Radio One New Brunswick (6 November
2013), http://www.cbc.ca/shift/2013/11/06/sharing-resources/; and Bill Gallagher, Will the Canadian
Native Legal Winning Streak Hit 200? Bill Gallagher/Strategist/Lawyer/Author (4 August 2013),
http://billgallagher.ca/2013/will-the-canadian-native-legal-winning-streak-hit-200/.
3 Michael McClurg, Do we need the 'rule of law' in New Brunswick to deal with native protestors?
Olthuis Kleer Townshend LLP (23 October 2013), http://www.oktlaw.com/blog/do-we-need-the-ruleof-law-in-new-brunswick-to-deal-with-native-protestors/.
4 Chief Justice T. Alexander Hickman et al., Royal Commission on the Donald Marshall, Jr. Prosecution:
Digest of Findings and Recommendations (Halifax, 1989), p. 11,
http://www.novascotia.ca/just/marshall_inquiry/_docs/Royal%20Commission%20on%20the
%20Donald%20Marshall%20Jr%20Prosecution_findings.pdf. I owe this reference to Leslie Jane
McMillan, Koqqwaja'ltimk: Mi'kmaq Legal Consciousness (University of British Columbia Ph.D.
Thesis, 2002), http://www.collectionscanada.gc.ca/obj/s4/f2/dsk4/etd/NQ79241.PDF, p. 169.

respectful of and sensitive to native history, culture and language would not for a moment
permit practices like fracking. But the corporations involved in resource extraction are
bound by corporate law to understand value as a matter of maximizing shareholders'
profitsand to discard the real values of justice, respect for aboriginal title, and the
responsibility to preserve the land for future generations.
The hollowness of this perverted legality can be exposed by comparison to higher
understandings of what binds us to the land we belong to.
We can find such forms of understanding in the Mi'kmaq system of justice
(koqqwaja'ltimk), one of whose principles, as Leslie Jane McMillan explained in her
2002 doctoral thesis on Mi'kmaq Legal Consciousness, is sharing (utkunajik) within a
common territory (netukulimk).5 We can find them, perhaps more fully elaborated, in the
Six Nations or Haudenosaunee Kaienereh'ko:wa, known in English as the Great Peace.
In 2006, two women of the Six Nations, Katinies and Kahentinetha, explained
their intervention in an issue involving environmental degradation in the Haldimand Tract
lands as prompted by the Kaianereh'ko:wa's Wampum 44, which defines the women as
the progenitors of the soil, and makes them, the elders said, the Caretakers of the land,
water and air of Turtle Island. As the trustees, we are obligated to preserve and protect the
land's integrity for the future generation.6
In the same year, another Six Nations woman, Hazel Hill, informed local
newspapers in Grand River and Caledonia that the controversy that had erupted over a
land reclamation near Caledonia was not just a question of ownership, but a conflict
between two laws, one that has served oppression and another higher and much older
law:
It's not about disrespecting [...] the laws of Canada, but more
importantly about respecting [...] the Universal Law given to us by
the Peacemaker and Gigonsaseh, and upholding our responsibilities
as individuals in accordance with that law [....] It's not about an
occupation, but about asserting our jurisdiction.7
5 See Leslie Jane McMillan, Koqqwaja'ltimk: Mi'kmaq Legal Consciousness.
6 Demand from Women Title Holders of the Rotinohnsonnion:we/Six Nations to Enbridge Gas
Distribution Inc. of Barrie Ontario to Cease and Desist the Building of a Natural Gas Pipeline Under the
Pine River in Homings Mills on the Haldimand Tract, Mohawk Nation News (15 September 2006),
http://www.mohawknationnews.com/news/print.php?lang=en&layout=mnn&newsnr=300.
7 MNN 'Ongwehonwe Women's Manifesto' at Six Nations, introduced by Kahentinetha Horn, MNN
Mohawk Nation News (12 April 2006),
http://www.gatheringplacefirstnationscanews.ca/PressReleases/sixnations/060412_01sixnationsmanifest

Canadians of European heritage may find it easier to understand these appeals to a

system of justice higher and more ancient than the law of the Canadian state if they
remember a story that forms part of their own heritage. It is the story of Antigone, a
daughter of the royal house of Thebes, as told by Sophocles, one of the great tragic
playwrights of ancient Greece, four and a half centuries before the beginning of our
Common Era.
Antigone's two brothers quarrelled over the throne of Thebes. One, who was
banished, returned with an army and attacked the city. When the brothers killed each
other in battle, their uncle, who became king, proclaimed that the one who had defended
the city should be buried with due honours, while the other's corpse should rot outside the
city and be consumed by dogs and carrion birdsand anyone who gave the body burial
rites should die.
It is made clear that the king's decree violated a primal order of justice. Carrioneating animals and birds refused to touch the corpse; then, after Antigone defiantly gave it
burial rites, which the king reversed, exposing the dead body again, the carrion-eaters
gorged themselves and vomited the rotting flesh onto the altars of the city's temples.
At a central moment in the play, Antigone tells the king that his law went against
the highest god, Zeus, and against an order of Justice higher than any decree of the state. I
quote from Robert Fagles' translation:
It wasn't Zeus, not in the least,
who made this proclamationnot to me.
Nor did that Justice, dwelling with the gods
beneath the earth, ordain such laws for men.
Nor did I think your edict had such force
that you, a mere mortal, could override the gods,
the great unwritten, unshakable traditions.
They are alive, not just today or yesterday:
they live forever, from the first of time....8
Set aside this tragedy's lurid details: its central conflict, between a law arrogantly
and unjustly proclaimed by the state, and a higher sense of justice, of unshakable
traditions that Antigone courageously obeys in principled resistance to the state's brute
o.htm?selected=77.
8 Antigone, lines 499-507 (450-57 in the Greek text), in Sophocles, The Three Theban Plays: Antigone,
Oedipus the King, Oedipus at Colonus, trans. Robert Fagles (1982; rpt. London: Penguin, 1984), p. 82.

force, has a familiar ring.

The women of the Six Nations, and the Mi'kmaq women who have taken a stand,
together with their menfolk, in opposition to fracking exploration in New Brunswick, are
sisters of Antigone.

Sequel: An Exchange with Garry Horsnell

Local historian Gary Horsnell offered a
response to this op-ed, to which I replied.

Garry Horsnell's response:

When it comes to the Mikmaq in the eastern provinces of Canada, they and other
First Nations (Indian) bands in that area made a Peace and Friendship Treaty in 1760/61.
Here is an excerpt from that 1760/61 treaty:
We the said Saugaaram als Loron Arexus Francois Xavier and
Megamumbe Delegates from the said Tribes of Penobscot
Naridgwalk St. Johns, Cape Sables and other Tribes inhabiting
within His Majestys said Territories of Nova Scotia or Accadie
and New England So in the Name and behalf of the said Tribes
we represent acknowledge his Said Majesty King Georges
Jurisdiction and Dominion over the Territories of said Province
of Nova Scotia or Accadie and make our Submission to his Said
Majesty in as ample a manner as We have formerly done to the
Most Christian King.
The Mikmaq joined that treaty later, but the Indians agreed the Crown would reserve
Jurisdiction and Dominion over the Territories.
Here is another excerpt from that 1760/61 treaty: And we further promise in
behalf of the said Tribes we represent that the Indians shall not molest any of His
Majestys Subjects or their Dependants in their Settlements already or lawfully to be

made or in their carrying on their Trade and other affairs within said Province.
The Mikmaq in New Brunswick can protest peacefully against fracking in New
Brunswick but it is against the Criminal Code of Canada to cause mischief by blocking
roads, highways, other thoroughfares or access to property.
In 2010, the government of Nova Scotia signed an agreement to consult with the
Mikmaq in Nova Scotia but I doubt that would affect the Mikmaq in the separate
Province of New Brunswick.
In the 2004 Haida case, the Supreme Court of Canada said that Third parties
cannot be held liable for failing to discharge the Crowns duty to consult and
accommodate. The honour of the Crown cannot be delegated, and the legal responsibility
for consultation and accommodation rests with the Crown. The Crown now includes
only the Canadian federal government (the big Crown) and provincial government (the
little Crowns). Municipalities and private developers are not the Crown and are not
obliged to consult with Indian bands.
I would think the New Brunswick government (a little Crown) should consult
with the Mikmaq in New Brunswick about fracking but, in section 48 of the 2004 Haida
case, the Supreme Court of Canada also said, This process does not give Aboriginal
groups a veto over what can be done with land pending final proof of the claim.

My reply:
I don't think Garry Horsnell has adequately understood the historical and legal
issues he alludes to. I'll go over them briefly.
By 1760 France, with whom the Mi'kmaq had been in alliance during part of the
1750s, had been decisively defeated in North America by the British. In the Peace and
Friendship Treaty of 1760-61 from which Horsnell quotes, the Mi'kmaq did indeed
acknowledge King George III's political sovereignty, his Jurisdiction and Dominion,
over Nova Scotia (which at the time also incorporated the present-day province of New
Brunswick). But according to what I believe is a large majority of contemporary expert
interpreters, this didn't involve giving up what we now call aboriginal title to the land
they inhabited, or their rights to its resources.
The point seems obvious enough. When George III at the same time asserted
sovereignty over the province of Qubec, he wasn't cancelling and erasing the existing

system of land tenure and ownership. The British did of course put native people and
settler populations (whatever European language they spoke) into different categories;
and they made clear their intention to engage in what the Royal Proclamation of 1763
termed the speedy settling of their newly conquered colonies. But the aim of the
policies the British announced in the early 1760s was to pacify those colonies, not to
drive the French-speaking or the native people into acts of desperate resistance by
declaring that they had no rights to their ancestral lands.
The treaties made by the British with the Maliseet and Mi'kmaq in 1726, 1752,
and 1760-61 promised, explicitly or implicitly, the protection of their fishing, hunting,
and planting grounds. (Such an interpretation, the Supreme Court stated in its 1999
Marshall decision, is required to uphold the honour and integrity of the Crown in its
dealings with the Mi'kmaq people.) And the Royal Proclamation of 1763 declared that
the several Nations or Tribes of Indians, with whom We are connected, and who live
under Our protection, should not be molested or disturbed in the Possession of such Parts
of our Dominions and Territories as, not having been ceded to, or purchased by Us, are
reserved to them, or any of them, as their Hunting Grounds....
The Proclamation acknowledged native rights by setting out procedures, to the
End that the Indians may be convinced of Our Justice, by which native lands could be
purchased by colonial governments from specially summoned assemblies of the native
people concerned, and it forbade any unauthorized form of land surveying and land
transfer. These provisions applied not just to the territories west of the Thirteen Colonies,
but to any Lands whatever, which, not having been ceded to, or purchased by Us as
aforesaid, are reserved to the said Indians, or any of them.
There is ongoing debate among experts and in the courts over the precise meaning
and applicability, in different contexts, of aboriginal title and resource rights. But it's an
uncontested fact that within a few decades after 1761 the Crown's treaties with the
Mi'kmaq were being systematically dishonoured by colonial (and subsequently Canadian)
governments. Mi'kmaq lands were appropriated as private property or Crown land
without any form of agreement or purchase as outlined in the Royal Proclamation. But
the dishonouring of the treaties doesn't alter their legal force.
I think Garry Horsnell and I would agree that people really ought to obey the law.
(I also believeas I indicated by quoting Martin Luther King and Sophoclesthat in
cases where the law is manifestly unjust or iniquitous, people have a right, indeed a moral

obligation, to disobey it.)

In the Elsipogtog case, obedience to the law should have begun with the Crown
exercising its duty to consult. Horsnell's view that this duty was somehow merely
optional for the New Brunswick government reveals an inadequate understanding of the
basic principles of common law.
The relevant court decision here is the July 2008 judgment of the Ontario Court of
Appeal in the case of Frontenac Ventures Corporation v. Ardoch Algonquin First Nation.
As Annie Leeks of the law firm Blake, Cassels & Graydon has written, the Court of
Appeal surveyed two decades of Supreme Court jurisprudence in its attempt to weigh
asserted aboriginal rights against the interests of a uranium mining company:
The court found that this clear line of jurisprudence required that
where constitutionally protected aboriginal rights are asserted,
injunctions sought by private parties to protect their interests
should only be granted where every effort has been made by the
court to encourage consultation, negotiation, accommodation
and reconciliation among the competing rights and interests.
The Court of Appeal cautioned in particular that if the injunction
is intended to create a protest free zone for contentious private
activity that impacts upon an asserted aboriginal right, the court
must be extremely careful to ensure that the duty to consult with
the First Nation has been fully and faithfully discharged and that
every effort has been exhausted to obtain a negotiated or
legislated solution.9
Barring a contrary decision by Parliament or the Supreme Court, that's the law of
the land. Wouldn't it be nice if New Brunswick felt like obeying it?
And in the absence of the legally required consultation, doesn't it look rather as
though the provincial government, the fracking exploration company, and the RCMP
were molesting the Mi'kmaq, and not the other way round?

9 Available at
http://www.mondaq.com/canada/x/63390/Public+Sector+Government/Frontenac+Ventures+Corporation
+v+Ardoch+Algonquin+First+Nation+Platinex+Inc+v+Kitchenuhmaykoosib+Inn....