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CONTRIBUTION · 7th January 2013
Bruce Clark
Editors Note: This series is from 1996 but has insight into the Indigenous of Canada and the Judicial System. Please read entire series before making judgment

A legal opinion delivered by Bruce Clark, LL.B., M.A., Ph.D.at Listuguj in the Mi'qmaq countryon September 4, 1996

[The attempt by the Supreme Court of Canada to reverse existing constitutional and international law is a pretence, one that reneges upon the crown's solemn and legally binding undertaking of protection toward the aboriginal people, and negates the rule of law.]

Since coming to the Mi'qmaq country at Listuguj in the summer of 1996, I have learned of the traditional story of the ship that brought darkness which will be followed by light and an awakening. The story brings me sadness, but also great hope.

Following the European invasion, justice for the aboriginal people was eclipsed. The darkness in the legend seems, to me at least, to symbolize the injustice.

The darkest hour occurred on August 21, 1996. Then, the Supreme Court of Canada delivered its considered opinion regarding the ultimate nature and character of aboriginal rights, in a set of four cases. In these, the Supreme Court of Canada purported to reverse the previously settled constitutional and international law, simply by ignoring its existence.

Yet only a constitutional amendment can reverse settled constitutional law. And only an international convention can over turn settled international law.
The attempt by the Supreme Court of Canada to reverse existing constitutional and international law is a pretence, one that reneges upon the crown's solemn and legally binding undertaking of protection toward the aboriginal people, and negates the rule of law.

Three of the four cases started in British Columbia: Van der Peet, Smokehouse and Gladstone. One began in Ontario: Pamajewon. These four completed a thought, the expression of which began in 1991, with the same Supreme Court's decision in another Ontario case: Bear Island. And the thought expressed is essentially the same as that recorded in a case this summer relative to the Maritimes: Marshall.

The thought is that aboriginal and treaty rights are subject to federal and provincial law, except to the extent that the aboriginal people can satisfy the federal and provincial courts that an exception should be made in individual cases.

So far as aboriginal rights, as contrasted with treaty rights, are concerned those courts have indicated the aboriginal people must now prove that whatever activity it is they want to carry out as an aboriginal right was carried out in the same way in pre-contact times by their ancestors.

The judges add that native oral history is unreliable as the means of proof, because they call it "self-serving." Since there are no written records from pre-contact times, this leaves proving the exception difficult. Oral history is not only disregarded but treated with contempt; and there is no written history. Therefore, for all practical purposes, proof of aboriginal rights, as an exception to the application of federal and provincial legislation, is virtually impossible.

Like the 1996 Atlantic Canada case of Marshall, the Pacific coast cases of Van der Peet, Smokehouse and Gladstone held that Indians cannot legally sell fish contrary to federal and provincial law. In essence, the judges reasoned that "selling" is a money economy concept; and, in pre-contact times, there was no money economy.

The fact that aboriginal people bartered fish was not regarded, by the non-native judges, as the legal equivalent of selling fish. It could have been so regarded, but it was not so regarded.

The apparent difference between the Marshall case and the three B.C. cases was the presence in the Marshall case of a treaty. But this fact turned out to make no real difference.

The treaty in question in Marshall indicated that the Indians could sell fish to non-native truckhouses. But, as the Nova Scotia court noted, the truckhouse trading system was discontinued two years after the treaty was signed. The court held that the discontinuance of the truckhouse system automatically discontinued the right to sell.

In the Pamajewon case, the exemption from the so-called need to comply with federal and provincial legislation was gambling. The Indians offered evidence that aboriginal people did in fact gamble in pre-contact times, just as in the fishery cases evidence had been offered that in pro-contact times the people bartered fish.

The reaction of the judges in the gambling case was consistent with their reaction in the fishery cases. It was not the fact of gambling that was relevant to them, but rather the way in which it was carried out. And the scale upon which it was carried out.

They decided that modern forms of gambling were not permissible, precisely because, being modern as to style and scale, they were not aboriginal. The judges thus preferred to focus upon cosmetics rather than substance; upon details rather than principles.

The Bear Island case dealt with the related issue of what defines a valid extinguishment by treaty. As background to this case it is important to be aware that the Royal Proclamation of 1763 and the Statute of Frauds, 1670 enact that an extinguishment of aboriginal rights is valid if, but only if, the intent of the particular Indian community to cede or sell is arrived at in a "public Meeting or Assembly," and then recorded in a contract that describes with legal accuracy the land being conveyed.

The contract must then be signed by the community's leaders. None of these mandatory preconditions were met in the Bear Island situation. No matter, said the Supreme Court of Canada. Instead, the court held that the acceptance by some community members of treaty payments under a treaty negotiated and signed with other native communities, and the unilateral setting apart by Canada of Indian Act "reserve" lands, effected an "adhesion" to the other communities' treaty.

Therefore, even though the Bear Island aboriginal people never negotiated and approved or signed any treaty, the court held that their aboriginal rights had been extinguished by a treaty.

When these 1990s cases are taken as a set, the net result is that aboriginal and treaty rights are a mirage, at least in so far as the courts of the federal and provincial governments are concerned. By whatever route the native people approach the issue of the legal priority that aboriginal occupation confers, the road is blocked by the courts of the newcomers, on one pretext or another.
This is not surprising. The newcomers' courts are in a profound conflict of interest.

The root of this conflict runs very deep. Since the European invasion began, there have always been two conflicting attitudes contending for paramountcy in the minds and hearts of the newcomers' society. From the outset, some newcomers both coveted and feared the untamed wilderness an the first people inhabiting it, and wanted cut the one down and exterminate the other.

In 1493, the year after Columbus made his great or at least so-called discovery, the Roman Catholic Church proclaimed the natural law governing questions of legal rights as between natives and newcomers. Because, at that time, the church was universal in Europe that declaration of natural law determined international law.

The declaration took the form of formal legislation, a papal bull entitled Inter Cetera. It enacted that aboriginal people were not humans with souls but rather animals without souls and, for this reason, without rights either of jurisdiction or property in the lands of the new world.

Controversy raged in European legal
circles. Not all Europeans had the same attitude of rapaciousness and racism. There was another faction, that saw the new world and its native people as a symbol of salvation, rather than a challenge and a threat; they saw a Garden of Eden peopled by more noble beings, where others imagined a dark forest inhabited by sub-human demons in peoples' form.

In 1537, a subsequent papal bull, entitled Sublimus Deus, repealed Inter Cetera on all points of law. Thus, natural law and international law came to recognize and affirm that aboriginal people are human with souls, jurisdiction and property, which must be respected as a matter of law. Sublimus Deus concluded by enacting "should the contrary happen, it shall be null and of no effect."

The contrary has happened, as clearly focused by the set of cases in the 1990s in Canada. Yet, there has been no repeal of Sublimus Deus. To the contrary, the legal point settled by Sublimus Deus became so entrenched in international law as to provide the blueprint for the constitutional law of both Canada and the United States.

On the eve of the American revolution the Royal Proclamation of 1763 restated Sublimus Deus and the various constitutional instruments reiterating its legal point over the intervening years. Thus, the proclamation confirmed that the aboriginal people could not, legally, be molested or disturbed by newcomer governments, their courts or their citizens. At least, not upon "any Lands whatever" which were not "ceded to or purchased by" the crown.

As to such Indian land, being all land for which the crown could produce no deed of sale from the Indians occupying it, the making of land grants by crown officials was proclaimed to be the crime of "Fraud."

Thus, the proclamation issued an injunction prohibiting "upon any Pretence whatever" the making of "Grants" or even "Surveys" relative to the yet-unsurrendered Indian lands.
Furthermore, any "Settlements" by "any Persons whatever" were ordered off the yet-unsurrendered Indian lands.
And this is where the rule of law began to break down. For although there was never any repeal of the international and constitutional law constituted and confirmed by Sublimus Deus and the Royal Proclamation, there was in fact a rush into the yet-unsurrendered Indian lands of illegal surveys, grants and settlements.

Among the first illegal settlers trespassing upon the Indian lands were the newcomers' lawyers, judges and police. They set up shop, made it safe for, and then invited in, the rest of the settlers.

When the Indians complained about this blatant breach of existing law, the trespassing lawyers, judges and police employed their stolen monopoly over the legal process in the Indian territories to protect the illegal settlements.
The reason this process does not represent merely a breach of the law, but an eclipse of the rule of law and therefore of justice, is precisely because the illegal invasion of the Indian lands was spear-headed and is still maintained by lawyers, judges and police. They are supposed to be the guardians of the rule of law. when they turn their coordinated talents to thwarting the law, as they have, the rule of law necessarily goes into a sleep.

This is the darkness, I think, of which the traditional Mi'qmaqs have always known and spoken. The enlightenment and the awaking that their legend forecasts may be at hand.

In accordance with their tradition, the prophesied light will come from the east from their land-the land of people of the Atlantic region, where the European invasion began.

Today's generation has a map to follow Three hundred years ago, the Mohegan Indians on the Atlantic coast faced the same dilemma as that faced today by the aboriginal people of all of North America. Then, the Mohegans had a legal dispute with Connecticut over the intent of a treaty. The Mohegans believed the treaty was intended to curb settlement by placing the land in trust But under the excuse of the treaty, the government had introduced settlers onto the Mohegan lands.

The Mohegans knew that the rule of law cannot function, ever, other than by means of third party adjudication. Therefore they did not want their dispute with Connecticut to be decided by the General Court of Connecticut. So they petitioned Queen Anne to create an independent and impartial third party court, for the constitutional purpose of adjudicating such fundamental questions between natives and newcomers.

The General Court of Connecticut strenuously opposed the Mohegans' petition. That court argued that it was already the third party court. It argued that the Mohegans were one party; that the settlers and the government of the colony were the second party; and, that it, the Connecticut court, was separate from the settlers and government of the colony. On this basis, the court argued that the rule of law's cornerstone principle, third party adjudication, was not upset by having the General Court of Connecticut being the umpire in the legal disputes between natives and newcomers.

For constitutional law purposes Queen Anne in Council rejected the submission of the General Court of Connecticut It would be a false, she held, to pretend that would be a false, she held, to pretend that there was a wall dividing the settlers and their governments from the courts they established.
She held that as human beings the aboriginal people naturally have governments and dispute-resolution mechanisms, that is to say courts, of their own. And that it is false to pretend that the newcomers' court system, any more than the natives' court system, can ever be seen to be independent and impartial in a dispute between them.
Having recognized and affirmed that the native nations are juristically sovereign bodies politic, no less so than crown governments, it logically and in justice followed that the courts of the newcomers could not be granted jurisdiction over native versus newcomer legal disputes.

This founding principle of constitutional common law was then legislatively confirmed as the cornerstone of the crown's written constitution for the judicial system in British North America. It is recorded by Queen Anne's Order in Council of 9 March 1704, which itself was confirmed by King George Ill's Order in Council of 15 January 1773. These orders in council are of the same constitutional force and effect as the Royal Proclamation of 1763. They define the constitution in so far as the issue of court jurisdiction is concerned. They are existing constitutional law.

The 1704 constitutional order created a special court, to be made up of judges who were not part of the newcomers' legal system.

That special court has never been disbanded. The constitutional law establishing it has never been repealed.
The word "existing" in the phrase "existing aboriginal and treaty rights" refers back to no principle more crucial than the due process right of the aboriginal peoples, of access to this third party court.

All that the cases of August 21, 1996 of Van der Peet, Smokehouse, Gladstone and Pamajewon when read together with the Bear Island and Marshall cases prove, is the wisdom of the Mohegan case. Judges are human beings. As such, they are prone to the frailties of the human condition; one of which, lamentably, is to see things from one's own cultural perspective, and to manipulate affairs in the interest of one's own race and economy.

The reason that the Mohegan case and the order in council enacting it as a permanent constitutional principle is not only good law, but necessary law, is illustrated by the travesty of justice that has resulted since the principle of third party adjudication has been ignored.
Ever since 1537 the law has been constant and consistent. The aboriginal people were here first Their possession of and jurisdiction over the land is original. Correspondingly, the newcomers' jurisdiction and possession is derivative. It is derived, if at all, by cession or purchase.

Yet, the newcomers' courts have come to assume the right to adjudicate, as if that right were original to them. And they have exercised that falsely assumed jurisdiction effectively to strip aboriginal and treaty rights of legal content. At the same time, they have used the usurped jurisdiction to stonewall attempts to bring forward the law that exposes their assumption as illegal.

Even though, by definition, as constitutional rights, aboriginal and treaty rights cannot be affected by federal and provincial legislation, the newcomers' courts are now pretending that aboriginal and treaty rights can be nullified by federal and provincial legislation. The entire legal point of the word and concept "constitutional" is that the rights which it describes are paramount over and immune from such legislation. The position now occupied by the newcomers courts therefore is an oxymoron, a contradiction in terms.
Queen Anne in 1704 knew that the colonists and their courts would try to evade the law limiting the newcomers' courts' jurisdiction. In 1704 the Attorney General of England identified the anticipated evasion as a form of treason, calling it "an apparent Injury to them and Her Majesty." For the assumption of court jurisdiction over an ally is an attack upon the ally, and to attack the Queen's allies is to attack the Queen, which is treason.

The Royal Proclamation of 1763 recognized the constitutional crime of "Misprision of Treason," which has no legal meaning other than as a sanction against colonial officials and judges who prematurely assume jurisdiction. Indeed, Blackstone's authoritative Commentaries on the Law of England, published in 1825, gives as the classic example for misprision of treason the breach of faith to the Queen's allies attendant upon disregarding the terms of a royal proclamation.

Furthermore, the newcomers' taking of Indian land without the Indians' prior consent is the classic form of "Pretence" and "great Fraud and Abuse" that the proclamation constitutionally intended to preclude.

These words, "Misprision of Treason", "Pretence" and "Fraud" are the proclamation's words, not mine. I do not say these words to shock; they are the words of existing law - and to bring the law into courts of law without using these words is impossible, for these words are the body and soul of the law.
The injustice resulting from the constitutionally prohibited premature assumption of jurisdiction by the newcomers courts imposes "serious mental harm" upon a "national, ethnical, racial or religious group," and therefore constitutes "complicity in genocide" within the meaning articles 2(b) and 3(e) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.

Never will the genocide be apprehended, if the words constituting the crime are not openly addressed, and applied to the facts.

This is why the Mohegan precedent and principle not only is the cornerstone of the constitution, but must be so. In virtue of ignoring that precedent and principle, the judges of the newcomers' courts are engaging in treason, fraud and complicity in genocide. The corruption of the judges results from the conflict of interest under which they labour. It corrupts the law and the rule of law, not only for aboriginal people, but in all respects.

The corruption sets a national standard of successful duplicity in high places, the influence of which reaches to every school yard. The message is not mistakable: might is right. That message should not be admissible in a society based, as Canada purports to be, upon respect for the "supremacy of God and the rule of law."

And what does this phrase mean: the rule of law? No one has explained it better than the eminent English jurist E.V. Dicey, in a set of lectures at Harvard Law School published in 1920: once a constitutional principle is first identified and formally declared, such as by the 1704 precedent and principle in the Mohegan case, thereafter it cannot legally be ignored or changed by the judges.

It must be respected, even by the judges, until it has legislatively been altered by the people by a formal constitutional amendment. Not even the monarch himself can make such a change.
In the Anglo-American legal tradition, this sense of the rule of law can be seen as springing from two key events. First, Magna Carta, 1215 established that no person or institution is above the law, not even the king.

Second, the case of Campbell v. Hall, 1774, established that once a constitutional right is conceded, such as by the Royal Proclamation of 1763, it cannot subsequently be retracted, even by the king in council that granted the right. Only a constitutional amendment can take away a constitutional right, once conceded.

E.V. Dicey stressed that judges do not have the power in effect to amend the constitution, by changing their minds about the nature and character of a constitutional right. Judges are under the law, not above the law. And it is in this essential sense that the law "rules." It "rules" absolutely, precisely because there is no person or institution above it, not even the judges.

Or, more accurately, especially not the judges, whose ultimate function in society is to serve as guardians of the integrity of the rule of law. If the judges could change constitutional law at whim, as the Bear Island to Van der Peet line of 1990s cases pretends, the rule of law would be negated by the rule of men.

Following the Royal Proclamation of 1763 there was a long series of cases that recognized and affirmed the nature and character of aboriginal rights. The series is too long to permit going into each one in the time allotted for the making of this address. I have listed the main events in the series in a typed schedule, annexed to the printed copy of this address.What the long series of cases confirms is that all the British crown ever claimed in virtue of its assertion of crown sovereignty was the exclusive right to buy jurisdiction and possession from the aboriginal people. And then only if the aboriginal people are, as the Royal Proclamation confirmed, "inclined to dispose" of the land. Until that bilateral and consensual purchase is completed, the aboriginal people are constitutionally guaranteed the integrity and inviolability of their previously enjoyed jurisdiction and possession.

Thus, for example, individual court cases over the years recognized and affirmed that the natives were free to mine gold or cut timber and to trade in the products. They were acknowledged to be at liberty to do whatever they wanted, because until they relinquished their jurisdiction and possession they were in law the absolute master in their own house.

The limited right of the crown to buy that jurisdiction and possession did not give the crown any right to interfere with the aboriginal people before the crown purchase was made.

As one case made apparent, the crown did not even claim a right of way across the natives' land, except by purchase.

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