Tuesday, September 18, 2007

Electoral Reform on Hold?

A few weeks back I commented upon the Electoral Boundaries Commission Report recommending a major revamp of the electoral boundaries in British Columbia to better assure the 'one person one vote' principle and to ensure better representation of the growing urban areas of British Columbia. On September 13, 2007, the Premier's Office announced that it was pre-empting this reform process by introducing new legislation that would protect existing rural ridings. The Premier's press release said:

“Since the commission released its initial report on Aug. 15, 2007, we have heard clearly from British Columbians that reducing rural British Columbians’ representation in government is unacceptable,” said Premier Gordon Campbell. “We are committed to protecting the number of electoral districts in rural British Columbia. At the same time, the commission clearly identified growing regions of the province where more representation is needed. We will set broader guidelines under the Electoral Boundaries Commission Act to give the commission the flexibility necessary to adjust electoral boundaries and ensure fair and equal representation for all regions of the province.”

If truthfull, the new legislation could achieve the goal of actually standing up for democracy and advancing the one person/one vote principle. If new seats are added to the legislature in sufficient numbers and concentrated in the new urban areas of British Columbia, the same effect will be created, albeit at a significantly higher cost (particular with MLA's recent pay raises). I fear though that given the Premier's last bad experience with electoral reform of this nature, and his recognition that the coastal urban areas are not his party's stronghold, we will see something quite different.

My money is on rural seats being protected and the number of seats in the conservative interior growth areas being increased to recognize their population growth and correct politics. This will be a strong affirmation of the principle of one liberal/one vote -- one non-liberal/0.75 votes.

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The Northwest Passage

The Danish National Space Centre confirmed that the Northwest Passage has now opened up and it is now possible to navigate from the Atlantic to the Pacific along the north coast of Canada. Given that the low point of sea ice in the Arctic typicaly occcurs in October, this means that we can look a month or more of navigability this year. If the arctic ice continues to melt at the pace that it has been over the last couple of years (far exceeding the predictions of the even the aggressive global warming models) this will likely mean that the Northwest Passage, after more than a half millenium of fantasy, will become a reality and we should expect to see regular shipping traffic in the near future.

When the Manhattan smashed its way through the Northwest Passage in the 1960's Canada defended its sovereignty in the Arctic by giving it unasked for 'permission' to carry on. Unless the government plans to create the Department of 'I Know You Did Not Ask, But Of Course You May,' we are now going to have to develop a serious position on how what position we are going to take on our sovereignty and, unless we concede the point, figure out how we are seriously going to defend (legally, militarily and practically) that position.

Our opponents in this regard will not be Afghan tribesmen using improvised explosive devices, they will the United States, the EU and the flag of convenience countries like Panama who will be dusting of their claims that the Northwest Passage is international waters open to free navigation by everyone. Moreover, what is at stake in these discussions is not peanuts. The ability to ship from Europe and the eastern seabord to Asia without passing through the increasingly limited Panama Canal is a huge financial prize. For larger vessels (such as supertankers) which would otherwise have to navigate around Cape Horn the stakes are even larger.

Now is the time to start this discussion in a serious way. Personally I believe there are good policy reasons (such as international security and environmental regulation) to assert and maintain the position that the Northwest Passage falls under Canada's sovereign jurisdiction as 'internal waters' however there are alternative positions and the legal nuances are mindnumbing (even for lawyers). Moreover, all of the legal argument in the world will not serve any purpose if Canada is not able to practically enforce its position. Enforcement of Canada's position does not just require military positioning -- no amount of military positioning will work if the United States and the major EU nations are not onside. Canada is going to have to get the powers in Washington and Brussels to engage in this debate and to be able to persuade them. This may require trade-offs in some areas ('yes, we will allow your warships through but not your tankers -- or vice versa'); it may require having a spine in others ('yes, we would love to continue to act as target practice for armed goatherders, but we are re-assigning these troops to picket duties in the Arctic, Denmark ... so we hope you enjoy Kandahar') but it is first and foremost going to involve pulling together a vision and plan for how we are going to look at the Arctic in a warmer time.

This is an issue that streches across party lines. I just hope that the current leadership can see that.

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Sunday, September 16, 2007

77 Mathematics Undergraduates

In the Business Section of the New York Times today there is a small piece on microtrends (that is small rends in society that should be recognized and understood) which mentions that at Harvard there are only 77 students studying undergraduate mathematics out of a student body of approximately 6700. This is a tremendously depressing fact, particularly since I suspect (and this would have to be tested) that it disguises the fact that there are likely few non-mathematics majors who are studying mathematics as a significant part of their stream of electives.

Before going to law school I studied mathematics in undergraduate and graduate school, focusing principally on graph and number theory as I moved into the more advanced courses. While I wish I could report that in my daily practice of law I have a steady need to apply the theory of Dirichlet L-Functions or use the insights I gained from studying partial geometric lattices, I can't. However, I can report that every day I apply the skills and, more deeply, the way of thinking that I acquired in those six years of learning about how to analyze problems, to break them down, to re-assemble and to constantly doubt statements like. 'it is obvious that ...' or 'anyone can see it is trivial that ....'.

There has been much written about how the dearth of scientists and engineers being produced by our univeristies does not bode well for our economic future. Frankly, I think this misses the real point -- the abysmal production of educated students across the board who are knowledgeable about mathematics and the scientific method does not bode well for the health of society as a whole. The mindset of the scientist and mathematician -- and I distinguish the engineers as a separate crowd in this regard -- is built around an edifice of doubt but inspired by a deep respect for the idea of insight. That is the scientific undertaking is generally driven by insight that is unproven and untested -- Newton having his flash that the apple falling and the moon orbiting are different manifestations of the same thing. But thre process does not stpo at insight but instead demands that make that the insight be put to the test and every step be put in place before it can be said that the insight is anything more than a nice idea. Thus science and mathematics are not the cold processes of calculating often potrayed in popular culture, but instead the very human processes of having an insight and then doing the hard work to make it real.

When I read the paper or listen to the news what I see too often is the triumph of assumption, prejudice and their close relative superstition. There are so many things where there is little real analysis of what is being said and what underlies it and we are willing to settle into a mindset of blind acceptance of various forms of authority over independent critical thinking.

Where does the fault for this decline lie? I expect that in can be spread far and wide. On the teaching side a lack of elementary school teachers well versed in mathematics and a cohort of univeristy professors who do not value accessibility and style in teaching is part of the problem. A society that is intolerant of any failure is another -- for the very premise of mathemaics and science is one of attempting with a recognition that failure may well follow may also be partly to blame. The disproportionate financial rewards and prestige attributed to other callings is surely also a contributing factor. But I fear that the real reason is that we have evolved in to a society that does not value being disturbed or challenged and particularly does not value being told the truth and these are values that are wholly inconsistent with the mind of the mathematician or the scientist.

Lewis Lapham has commented on how we have become a society of courtiers -- that is a society that flatters and fawns upon those in power and that this creates a mindset incompatible with true democracy. It is also a mindset that is inconsistent with mathemathematical or scientific inquiry. Sadly though, it is mindset that leaves us unprepared for either external or internal challenges. When faced with challenges to preconceptions we are unwilling and more and more seriously unable to rethink those preconceptions.

A great deal of this leads back to the discussion that many people are unwilling to have: that is a real discussion about what is it that underpins what we could loosely call the west. For the most part we have replaced real thought about this with sloganeering ("we are a Christian nation" or "multiculturalism is the core of what we are"). To my mind so much of what we are today in the western world flows from taking on the values of mathematical and scientific ways of thinking -- that is ways of thinking that constantly challenge received wisdom and constantly demand, well, thinking. It is a shame to see the field that places this at the express centre of its being fade away.

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Sunday, September 9, 2007

John Tory and Aboriginal Blockades

John Tory continues to give all indications of either being a simpleton or having an unerring instinct for pandering to the simple-minded. His latest symptom in this regard is his statement that he intends to ensure that there is 'one law for all' enforced in respect of aboriginal blockades. His comments, reported in CBC, suggest that he would deal with blockades, first, with a good stern talking to, followed by more aggressive court action.

An aboriginal blockade can in fact constitute one of the most challenging issues that a government, a band council or a court can face. They often arise out of complex legal situations and give rise to difficult questions of political legitimacy and enforcement. In fact aggressive judicial, followed by aggressive police, action is often just what the blockaders want, as their actions are fundamentally political, not legal, in nature. For them the political theatre of confrontation in the courtroom and on the line serves to rally their people around their cause and to harden the views of their constituencies.

The first problem with the 'one law fits all' approach is sorting out the legal rights and wrongs of the situation at hand. Say you and your neighbor have a dispute over a driveway that you say is yours and your neighbor says is a common driveway. One method the common law has always recognized for resolving the dispute is for you to put up a gate and see what happens. If the neighbor goes away -- well that is strong evidence that you were right. If the neighbor removes the gate or goes to court -- well that is a different story. Whether you were lawfully exercising your rights or unlawfully interfering with your neighbor's rights is something that will remain to be seen. In aboriginal law there are few blockades that do not arise in much greyer situations than one that can arise between neighbors.

Of course in these disputes one party or another can always go to court for an interlocutory injuction -- that is an injunction that is put in place before the rights and wrongs of the situation are straightened out. If a blockade is continued in the face of such an injunction then there is a clear legal problem -- contempt of court. Then a problem that is grey and is open to negotiation is converted into a true rule of law issue and the question then becomes enforcement.

If the injunction is enforced and contempt charges laid, then often the scene will be one of violence or of little old ladies and children being dragged away by riot police. These scenes will tend to smear Canada internationally, sicken us domestically and serve as a rallying point inside the aboriginal community. British Columbia's experiences at Clayquot Sound and Haidi Gwaii (the Queen Charlotte islands) have taught the British Columbia government that lesson in spades. There in each case the government and the logging companies won the injunction and contempt of court battle but lost the political (and ultimately legal) war.

On the other hand, if the injunction is not enforced, then the authority of the Court system is brought into a certain degree of disrepute. Third parties and the public feel that dearly held principles around the rule of law are being flaunted with impunity. This is turn leads to resentment and undermines political support in the general public for negotiated resolutions.

What is often missed by bystanding observers in these situations as well is that blockades often (but not always) reflect internal divisions within aboriginal communities and often arise as matters get close to being resolved. In many cases band councils or other traditional forms of tribal governance are in negotiation with governments or industry over the resolution of a claim or dispute. Within the community there is a segment either with different interests or different views who feel (rightly or wrongly) that their interests have been neglected in these circumstances. The approach of a final settlement will usually makes these concerns very concrete and the aggrieved part of the community will begin to look for menas to make its views known. Often -- particularly if the next council election is some time away -- they take the most direction action available to them and a blockade is set up.

People like John Tory fail to recognize that such blockades thus have the effect of creating serious issues within the aboriginal community. The elected band council is suddenly faced with a dilemma: does it support the blockade or not? If it does, then often negotiations will end and the Band will find itself faced with an escalating situation. If it does not, then it faces being painted as a group of 'apples' (red on the outside -- white on the inside) or sell-outs within their communities. As long as matters do not escalate however, most aboriginal governments can manage these matters themselves through traditional or political processes. This may involve finding ways to satsify the blockaders' concerns or alternatively bringing social or even legal pressure to bear to end or minimize the blockade. Once the courts are brought into the matter the dynamic changes -- and not for the better.

Once the courts are brought in there is almost irresistable internal pressure brought to bear on the First Nation government to support the blockaders. This can range from providing legal support or providing physical and political support on the ground to the blockade. Furthermore, once matters get to the stage where the police are being brought in to break up the blockade on behalf of government or industry on what is perceived to be First Nation's land -- well, it would only be a council intent on political suicide that would not fall in line with the blockaders. This generally results in an hardening of positions, the loss of trust at the negotiating table and to extended litigation over the underlying rights issue. In essence, the intervention makes it inevitable that the First Nation as a community act to prove that it in fact had the rights it claimed and was acting lawfully and legitimately. The possibility of sensible, creative settlement is of ten lost for months or years, if not forever, as a result.

In fact governments have learned from lessons of the past that blockades -- particularly aboriginal blockades -- require a nuanced approach. In some cases court and the police are the answer. In other cases there are 'work-arounds' (for example a blockade is allowed to stand because there is an alternative route into the relevant area). Finally in some cases the solution lies in pressing ahead with negotiations under the shadow of the blockade. If nothing else, one would have thought that this would have been the lesson learned from the events at Ipperwash and the Report of the Inquiry into the Ipperwash confrontation. By not responding with force and might, the government can often demonstrate to the aboriginal government and to the larger aboriginal community that it is dedicated to the resolution of issues through negotiation or final legal determinations of rights. The measured lack of response thus increases the legitimacy of the government's actions, the First Nation government and any final settlement in the eyes of the aboriginal community.

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Friday, September 7, 2007

The Trudeau-Mulroney Grudge Match

There is no doubt that Pierre Trudeau behaved terribly as a young man. In the context of the ultra-conservative catholic school environment of 1930's and 1940's french Quebec, he adopted the then in vogue views (amoung some but not all sectors of Quebec society), that supported Vichy France and was silent in the face of Nazi persecution of the Jews. The fair question that Brian Mulroney raises is did that behaviour as a young man render Trudeau morally unfit to serve as a leader of Canada.

In Trudeau's case we have the benefit of being able to look at the whole arc of his career and on the balance it seems that a misguided youth does not disqualify one from adult leadership. Indeed, the whole thrust of his adult life seems to have been a rebellion against that childhood and Catholic Quebec society. It is only in that light can his devotion to individual human rights and his use of the military in October Crisis be reconciled. We are not talking here about the actions of a Kurt Waldheim but instead ineffective, youthful rabble-rousing.

Trudeau and Mulroney are both remarkable in the manner in which they each effectively limited the scope of government in our day to day lives. Trudeau acted by introducing constitutional protection for individual human rights which has hugely limited the power of the executive and significantly limited the power of the legislature. A Maurice Duplessis, a wholesale repression of labour unions, day to day censorship or the banning of Indian potlaches are impossible to imagine in today's society -- largely because of Trudeau.

On the economic front Trudeau was a very different man. He believed in early, frequent and aggressive intervention, for example wage and price controls (which were also supported by Stanfield in the day). Mulroney brought an end to that era, mainly through the negotiation of the Free Trade Agreement, the dismantling of the National Energy Board and most limitations on foreign investment and the priviatization of many Crown corporations. As a result of this modern Canadian governments have a much more limited role in the management of the economy (and the Bank of Canada is the main tool)than would have been imagined in the 1970's.

This substantive legacy of both men is coming under critical examination today as a result of modern issues. Trudeau's indvidual rights reforms are under fire as governments struggle with (or take advantage of) the threat posed by terrorism. Free-ranging economic liberty is also being examined in the context of the rise of terrorism but more importantly in the context the global warming debate.

Rather than spending too much time looking at a dead man's childhood idiocy (which deserves to be condemned) perhaps we should be looking more seriously at the adult legacy of both these men. It is only by understanding the whys and whats of what they did that we will be well-equipped to have the debates we need to have in the modern conetxt.

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Shocked, Simply Shocked

There has been much, and undoubtedly will be much more, commentary on John Tory's moment of creationism self-immolation. What I find more amusing is David Asper's shocked reaction to the media and liberal reaction to all of this. David Asper suggests that it is somehow odious that the Ontario Liberal Party would make the campaign 'all about' the reigious schools issue and now John Tory's spectacular creationism gaffe.

Let's see, the Tory Tories idenitfied what they thought was a wedge issue between the Ontario Liberals and a couple of their power bases -- immigrant communities and the establishment Jewish community in Toronto. They designed a platform plank -- which they presented and touted -- around the funding of non-Catholic religous schools (something which the Tories could have done at any time during the Bill Davis or Mike Harris eras) for the express purpose of expanding the gap. Suddenly the plank swings around and smacks John Tory in the face -- let's see what should the Liberals do?

Unless they are somehow planning to get out of the election business and take up basketweaving they are going to exploit that issue and make it what the election is all about. Why wouldn't they? They did not pick the fight -- but it seems they plan to win it.

What mystifies me though is this: surely any person who reads newspapers and is moderately informed about current events could have expected the question sometime, somewhere. The answer should have been sharpened and honed and rehearsed until it was reflexive. Instead it seems like the question had never been considered before and the answer fully improvised. It is this that should raise real questions about the Tory Tories' capacity to develop policy and govern.

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Tuesday, September 4, 2007

Tom Flanagan and Polygamy

Tom Flanagan weighs in on polygamy in today's Globe and Mail, again further suggesting that this is becomig a social issue. He makes a good observation -- namely that a large cohort of unmarried, mature males is a socially destabilizing factor. This something that China and India are dealing with in spades as the demographics of the male to female balance is thrown out of whack by sex selection through techniques such as abortion and infanticide. Unfortunately, he mixes his thoughts with some pseudo-biology and bad legal thinking.

First, let's look at the psuedo-science. The first aspect is that he suggests that there is a real relationship between polygamy and anti-democratic values because of the effect that polygamy has on the balance of available women to available men. That is, Professor Flanagan's theory is that rich and privileged men will sop up all the women leaving a large unmarried class men free to stir up trouble and destabilize society. This assertion is made without any real evidence that even in the areas where it has been practiced that polygamy has a significant effect on the male to female balance. It also fails to explain the growth of democracy in colonial communities such as the United States and Canada where there were likely early imbalances in the sex ratio due to the fact that early settlers were more frequently men than women (at least for a few generations).

The second piece of pseudo-science is that Professor Flanagan suggests that there is no evolutionary advantage for women, as opposed to men, to have multiple sexual partners. He argues this from the idea that women do not increase the number of off-spring by sleeping around. This oversimplifies the evolutionary principle which focuses on survival rather than purely numbers. For example, biologists observe the cuckhold phenomena where females look for partners to father their children who are not necessarily the partners who will raise their children since the characteristics that are desired in each role are not necessarily the same. While there may be truth to Professor Flanagan's argument absent greater analysis it seems like wishfull thinking replacing scientific observation, experimentation and analysis.

The bad piece of legal thinking this: Professor Flanagan suggests that even if the law is never enforced it should be maintained in the criminal law as signal of societal values. This is a very evil type of reasoning for two reasons. First, it undermines and makes a mockery of the criminal law. The criminal law should, to my mind at least, represent the code of reprehensible conduct that will attract the most severe of society's punishments. To the extent that we include behaviour that is then tolerated we undermine that message. The second evil embodied in this approach is that it opens the criminal law to selective and unprincipled application -- we will tolerate mormons but African muslims with multiple wives? Forget it. In many ways our drug laws embody these problems already: they are openly flaunted and unevenly applied and they undermine respect for the criminal law.

Arguing against polygamy from science should be backed by more than simplified grade school male dream versions of Darwn ('it is my destiny to mate with as many women as possible'). The early twentieth century's experiments in eugenics came from oversimplified Darwinian approaches to linking science and political or cultural behaviour. It should also recognize that the law and society have many different tools to communicate values. For example, polygamy could be decriminalized but not legalized (eg no polygamous marriage will be recognized). Similarly, the social tools of derision and exclusion can be equally, if not more, effective in communicating a message about societal norms.

All that being said, I am still not sure why this debate needs to be had at all or if had, had in the abstract. If Bountiful is an issue -- use the law and get on with it. If it is not, then move on.

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Monday, September 3, 2007

The Supremes and the Aboriginal Brief

Over the last few years the Supreme Court of Canada has maintained a blistering pace in rendering judgments in the area of aboriginal law. These judgments have been different in character than the more famous decisions of the 1980's and 1990's (Delgamuukw and the first and second Marshall decisions) in that they have tended to be shorter and more focused in their effect. In this sense they appear to reflect the changing character of the leader of the Court as we move from the Dickson-Lamer years to the McLaughlin era. Where the Dickson and Lamer courts had to cope with the terra nullius of the post-1982 constitutional reforms, McLaughlin is strongly indicating a desire to consolidate what has happened over the last twenty five years and to assume a more traditional, incrementalist approach to the law. This shift is best summarized in a brief comment by Chief Justice McLaughlin in the Haida decision (where the Court was faced with an entirely new problem):

This case is the first of its kind to reach this Court. Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided. As this framework is applied, courts, in the age-old tradition of the common law, will be called on to fill in the details of the duty to consult and accommodate.

The Haida decision ran to a brief 80 paragraphs (including the summary of the lower court decisions and the facts). The equivalent judgment in the Lamer court undoubtedly would have run to well above a hundred heading to the two hundreds.

It appears that there may well be some slackening of the pace in the production of aboriginal decisions. There are only two cases currently on the Supreme Court of Canada docket that touch on aboriginal matters in any significant way, neither of which is an aboriginal rights case at all; indeed one of the cases is notionally not an aboriginal rights case at all on its face.

The first of these cases, which is scheduled to be heard on December 11, 2007, is the Kapp case. This is a so-called 'reverse discrimination' case concerning a group of non-native fishermen who went fishing in defiance of a closed season to protest a commercial opening that had been authorized for three Fraser River bands by the Department of Fisheries and Oceans. The commercial fishermen where charged and at the first level of court the charges against them were stayed on the basis that the opening for the three bands constituted racial discrimination against the commercial fishermen contrary to the Charter of Rights and Freedoms. Subsequently two other courts overturned the stay and convicted the commercial fishermen on the basis that there was no discrimination.

Kapp will be an important test for the Surpeme Court of Canada's approach to aboriginal matters. The Supreme Court has continually emphasized the concepts of negotiation and accommodation as the preferred means of resolving aboriginal rights disputes. That is, that it is up to the Governments and First Nations to contructively engage at the political level to devise solutions to these problems in the modern context. The Court has continually underlined the impracticality of having the court resolve these matters on a case by case basis where the implications of the decisions for either side and the general public are very hard to predict or manage. Inevitably though this approach will bump up against the expectations that some sectors have of formal equality between different people -- that is that different people will be treated the same way and will work in accordance with the same set of rules. Both the concept of aboriginal and treaty rights and the concept of accommodation imply different treatment for different segments of society. The question in Kapp will be how much room for movement does the Crown really have to move in accommodating aboriginal peoples?

What is particularly interesting about the timing of the Kapp decision is that it will come just as DFO is going through the process of outlining its vision for single, integrated commerial fishery without accommodation for aboriginal or treaty rights though commercial harvesting, except through participation in the general commercial fishery. Canada's New Government from an early date indicated its intention to move in this direction largely accepting the failed arguments in the Kapp decision as if they were in fact correct (watch how many times the political leadership on this issue over the next few months use the phrase 'racially segregated' or 'race based' fisheries in describing the alternative approach).

The course that the Supreme Court of Canada must run is a tricky one. If it moves too far toward the discrimination analysis then it establishes a narrow field of movement for the Crown in trying to accommodate aboriginal concerns. This will inevitably push aboriginal concerns toward court -- exactly what the Supreme Court has being trying to discourage. On the other hand, anti-discrimination is a matter near and dear to heart of this Court and so it will have to articulate some clear basis upon which the commercial opening can be justified without completely eviscerating s. 15 of the Charter (at least when it comes to aboriginal matters). What makes this task particularly tricky is that the Federal government itself actually refuses to characterize the commercial sales project as being either rights based or as an accommodation -- instead it is presented as a pure exercise of political and administrative will.

My suspicion is that the Court will uphold the decision of the Court of Appeal (that is hold that the opening was lawfull) but it is very hard to predict the basis for such a holding. There are three possibilities and all are reasonably in play. One could be to hold that there is no discrimination at play in this case at all -- a result reached in an earlier aboriginal rights/s. 15 case where non-status aboriginal people objected to the fact that only status Indians got a share of the money from Casino Rama. The second could be to hold that there is discrimination but that the discrimination is justified in a free and democratic society and is therefore a reasonable limit to s. 15. The third -- and this is a wild card -- would be to invoke s. 25 of the Charter which specifically protects aboriginal, treaty and 'other rights' of the aboriginal peoples from the impact of the Charter. This section has yet to be invoked by the Supreme Court of Canada for any purpose but there is a reasonable chance they will have to grapple with it in this case.

The second major case on the docket has just been given leave to appeal and will not be heard until 2008. This is an appeal (actually two appeals) arising out of the first two phases of the Victor Buffalo litigation. This is a case brought by two Alberta bands concerning the management of their monies over an approximately 100 year period. The reserves of these two bands produced significant oil and gas revenues which were invested by the Crown in general revenue at pathetically low interest rates that were essentially fixed by the Cabinet. After a very length trial the issue at its heart boiled down to a simple one -- could the Crown as fiduciary for the Band invest the Band's money in obviously unwise investments in reliance on the Indian Act? The evidence was clear that invested in even a relatively safe mix of investments the Band would likely have made 100's of millions if not billions more. At the Federal Court of Appeal all the judge's agreed that the Crown was a fiduciary (that is, had a special duty to protect the Band's interests) but split on the question of whether the Indian Act let the Crown off the hook. Two held that it did, while one very well respected judge held that it did not.

Personally I was surprised that the Supreme Court of Canada gave leave given the factual complexity of the case (the trial went on for years)but now that it has given leave suspect that things do not look so good for the Crown. The Supreme Court of Canada has been increasingly conservative in the area of aboriginal or treaty rights where there may be major policy implications concerning the allocation resources off-reserve, but has been increasingly aggressive where the issues relates to the reserves (the core homelands for the bands) and the remedy is money. Counterbalancing this is the Court's recent decision denying mentally disabled veterans damages for the government's failure to properly deal with their pensions, but there the case was much clearer that Parliament turned its mind to the issue and deliberately crushed their claim. The situation is nowhere as clear here.

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