There are several timeless conservative principles of political philosophy that in the past 30 years have been abandoned by all our political elites, and that if restored as fundamental guiding principles, would renew and galvanize conservatives. And if adopted by any political party, these old/new-again policies, which transcend regional interests, would make it, in the eyes of most of mainstream Canada, the occupant of the politically moral high ground and the party of daring reform, compassion, competence, and adult responsibility. It would set that party apart in a really positive way.
The first is the principle of absolute and sole Crown law-making sovereignty and authority. Historically in Canada, since its inception, there were only two founts of Crown sovereignty: Ottawa and the provinces. Under this constitutional regime, solely regulated by federal and provincial laws, Canada went from being a tenuous rural/wilderness nation in the 19th century to a strong, modern, and very accomplished nation in the 20th and 21st centuries, governed by a strong rule of law—a beacon to the world. We owe everything we have to this dual-sovereignty regime, characterized by a clear system of hierarchical control, the latter of which author Robert Kaplan describes as “the ordering principle of domestic politics.”
Now, as the result of Supreme Court of Canada decisions, that dual-Crown sovereignty regime has been seriously diminished and undermined. Fully endorsed by our elites, including our conservative elites, the Supreme Court has mandated a partial devolution of Crown sovereignty to First Nations, resulting in their existence as a de facto third fount of constitutional sovereignty who must be consulted and accommodated in relation to any corporate or government project proposed to take place in what any nearby First Nations band loosely regards as their “traditional lands,” and, in aboriginal title areas of Canada, regarded as virtual co-equals.
The Canadian state, particularly in the area of large resource projects—a huge part of the Canadian economy—has been shorn of its full sovereignty and law-making and law-enforcing powers, with the inevitable results of major resource projects being cancelled or delayed, a dwindling of predictability and trust in the marketplace, the flight of capital from Canada, and, as evidenced by the unchecked indigenous blockades in British Columbia and Ontario earlier this year, a serious and dangerous diminution of the rule of law. I can think of no other country in the world where this situation is permitted to exist.
There is another result of this new de facto, tri-sovereignty regime. Despite utopian predictions of how this “nation to nation”-oriented regime would improve the lives of indigenous Canadians, the opposite has happened. All the indicators of social success show that despite all these new indigenous powers, the situation—which structurally is essentially one of benign and unintentional quasi-apartheid—just keeps getting worse for the vast majority of powerless and marginalized indigenous Canadians. More power and money won’t improve their situation. Only structural change will, which can only occur under a dual-sovereignty regime.
In 1790, the great conservative philosopher Edmund Burke wrote “Reflections on the Revolution in France,” his magnificent rebuttal to the anti-conservative utopians in France who were bent on destroying the country’s past and all its present authority in order to forge a “brave new world.” He wrote that “the house of commons cannot renounce its share of authority. The pact of society forbids such surrender. The constituent parts of a state are obliged to hold their public faith with each other and with all those who derive any serious interests under their engagements. Otherwise competence and power would soon be confounded, and no law left but the will of a prevailing force.”
Conservative Brian Lee Crowley has written to the effect that Canada’s real resources are not our natural resources. Rather they are our “more important endowment of rules, institutions, and behaviours … the rule of law … a moderate, predictable and stable taxation and regulatory burden.”
We are now experiencing, as evidenced most recently by the Mohawk rail blockades and the B.C. Wet’suwet’en blockade of the Coastal GasLink pipeline (the latter justified by the not-unreasonable legal position that “Canadian law” does not apply in the Wet’suwet’n “traditional territories”), the entirely predictable consequences of shorn, diminished, and undermined Crown sovereignty.
The Supreme Court and all our political elites have wrongfully, in the name of distinctly anti-conservative “progressivism,” renounced a significant share of our Crowns’ “share of authority” in favour of First Nations, and permitted First Nations to argue that they are in effect sovereign “substates” within the state of Canada. In so doing they have broken “their public faith” with Canadians and with their “serious interests,” such as promoting equality under the law, the rule of law, and the proper working of the marketplace.
Secondly, by permitting First Nations reserves to be the locus of essentially non-indigenous, non-traditional, non-tax-paying businesses (e.g. cigarettes and marijuana), they are permitting attacks against the revenue of the state to occur. As Burke wrote: “The revenue of the state is the state. In effect, all depends on it, whether for support or for reformation. … It is the spring of all power, it becomes in its administration the sphere of every active virtue. … Through the revenue alone the body politic can act in its true genius and character.” To the extent that tax revenue is siphoned off to tax-free First Nations, our governments are further hampered in their ability to provide for the needs of all Canadians, including indigenous Canadians.
As predicted by Burke, the federal and provincial governments’ “competence and power” have been confounded by this fragmentation of sovereignty, diminishment of the power of the state and of its revenue, and of Mr. Crowley’s strong rule of law, to the detriment of all. And all this in the unthinking, ahistorical, and illiberal name of “progress.” And all this contrary to the above fundamental conservative principles, which in their application have created the fantastic world we Canadians are so lucky to live in.
The virus pandemic we are currently experiencing is proof positive that it is only strong, totally sovereign governments that have the resources and powers to cope with the existential threats that the pandemic represents. It has shown that legal distinctions among Canadian citizens based on race are a trivial luxury that our country can no longer afford. Our national ship is leaking and foundering. We all now realize that we have to bail and row and sacrifice together. When this pandemic is over, as it will be, we must take this lesson we are now learning and live it and apply it by changing our laws so that all the citizens of Canada begin living in a state of complete legal equality.
Thirdly, apropos the immediately forementioned, it is a fundamental conservative principle that all citizens of a country should be treated equally under the law. This is not the case in Canada, where indigenous peoples are to a large extent governed by different laws than the rest of Canadians. We exist under a kind of “separate but equal” legal regime, reminiscent of America before the civil rights movement of the 1960’s. The historical reasons for this are well known. But true conservatives in Canada, citing Nelson Mandela, Martin Luther King, and Gandhi, should be daringly and openly advocating that this situation, being totally illiberal and thus unacceptable in 21st-century Canada—and which is producing such catastrophic consequences for the vast majority of powerless, marginalized, indigenous Canadians—should be reformed.
The restoration and advocacy of the above basic Enlightenment, conservative principles would set any Canadian political party positively and completely apart from the other parties. By bravely going back to conservative roots and policies, this party would set out on an inspiring mission for Canada which—even though it would require profound legal reforms and take years to accomplish, and would encounter ferocious opposition from vested interests—would inspire the admiration and respect of most Canadians. It would deeply tap into Canadians’ rich vein of conservative, racially decent, “better angels” instincts toward equality, peace, order, and good government.
Peter Best has practiced law in Sudbury, Ont., for the past 45 years. He is the author of “There Is No Difference,” released in May 2020. (thereisnodifference.ca)
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.