A legal opinion delivered by Bruce Clark, LL.B., M.A., Ph.D.at Listuguj in the Mi'qmaq countryon September 4, 1996
In 1875 the government of Canada legislatively acknowledged that it was legally obliged under the constitution to disallow as unconstitutional provincial legislation of British Columbia and the other provinces that did pretend to affect unsurrendered native land.
But for political reasons, because the disallowing would have been very unpopular in British Columbia and elsewhere, the government of Canada instead of doing its duty, in the following years enacted Indian Act provisions designed to destroy the traditional Indian governments.
Yet the Indian Act cannot legally even be applied to yet-unsurrendered Indian land. In its own terms, it only applies to reserves set apart when the crown purchase of Indian land is made. The Indian Act only comes into operation as a result of the treaty. And it is domestic legislation. As such, it could not legally interfere with existing aboriginal rights even it pretended to.
Aboriginal rights exist before the treaty and are constitutionally protected. Domestic legislation, like the Indian Act, by definition, cannot legally derogate from constitutional rights. To pretend otherwise is to overturn the rule of law paramountcy of constitutional law over mere domestic law.
Instead of upholding the constitutional law, the federal and provincial governments knowingly embarked together upon a coordinated criminal programme of forced assimilation of the Indians, and the theft of their lands.
The unconstitutional onslaught on the natives was total. Their traditional cultural ways were made criminal offences under domestic legislation, and the elders were put in jail for practicing them. Generations of children were kidnapped from their parents and incarcerated in residential `schools, where their languages literally were beaten out them. Without the children, the aboriginal cyclic economy whereby families returned to the bush to winter was crushed. Death rates soared. Indeed, it was generally assumed that soon there would be no Indians, which was the point of the unconstitutional onslaught.
Before this process began in earnest in Canada, with the Indian Act of 1876, the model for it was built first in the United States. In 1830 the US Congress enacted the Indian Removal Act. It allowed the President and the Executive Branch of the US government to move the Cherokee nation of Indians out of Georgia, to lands west of the Mississippi River. But only upon the condition of those Indians consent.
In 1831 the Cherokee nation took the state of Georgia directly to the US Supreme Court, under the auspices of a clause in the US Constitution which says that disputes between states and "foreign" nations can go directly to that court, thus leapfrogging over the lower courts that sit in the states. In short, the Cherokees attempted to persuade the US Supreme Court to take over the function of the independent and impartial third Party court constitutionally created by Queen Anne in 1704.
The US Supreme Court declined to do that, on the ground that the native nation was not "foreign." This case was called Cherokee Nation v. Georgia.
The following year, 1832, in another case involving the Cherokees' region, Worcester v. Georgia, the US Supreme Court confirmed the sovereignty of the native nations. Putting the two cases together, the conclusion effectively confirms the British Order in Council of 9 March 1704 in the matter Mohegan Indians v. Connecticut The native nations are juristically sovereign, but the US Supreme Court cannot serve as the third party court.
This US Supreme Court did not say that the American courts lower than itself do have the third party jurisdiction. All the US Supreme Court said was that it, itself, did not have that jurisdiction.
In the 1830s there was no place else for the Cherokees to turn. At that time there was no International Court of Justice, no United Nations Human Rights Committee, no European Court of Human Rights. The route to the crown court constituted by Queen Anne seemed to be blocked by the American Revolution and the Peace of Paris, 1783.
The route to the Vatican seemed to be blocked by the fact that the United States were overwhelmingly Protestant.
The Cherokees found that for practical purposes they were recognized for legal purposes as a sovereign nation, with a corresponding right to third party adjudication, but that there was no third party court in existence with jurisdiction to hear their case.
It was at that juncture in history that President Jackson ordered the forced removal of the Cherokee nation. In spite of the fact that the consent of the majority of the Cherokees was never obtained as required by the Indian Removal Act of 1830, by 1838 the forced removal on the infamous "Trail of Tears" was a fact. One third of the nation died on route; more deaths followed in the new homeland: the reserve lands where those Indians were concentrated for more gradual extermination.
The genocide in North America had begun. Canada learned quickly. The lesson taught by the Cherokee cases of 1831 and 1832 and the "Trail of Tears" was that, regardless of the Indians' rights, those rights could be ignored with impunity in practice, because there was no third party court around to which the Indians could turn for assistance in the enforcement of their rights.
The General Court of Connecticut, and all the newcomer courts like it, lost the jurisdictional contest on the law, but effectively got the jurisdiction back because there was no third party to uphold that law.
The resulting assumption of jurisdiction by the newcomers' courts in both the United States and Canada, that we have come to regard as normal, has all along been illegal. But the illegal practice cannot possibly amend the law. The fact of its existence is the evidence of the breach of the law. It is the evidence that proves the treason, the fraud, and the means of the genocide.
The Indians were not, until now, able in general to challenge the illegal assumption of jurisdiction. To have done so would have been to as to bring down upon their heads the wrath of the criminals who were judging them in fact, regardless of right. And when they did in exceptional cases question the assumption of jurisdiction, they were ignored, or beaten to set an example to other Indians.
The obscene show trials of the Gustafsen Lake natives and their supporters presently in progress in British Columbia, are a case in point There, in the summer and fall of 1995, some natives drew a line on the ground and threatened not to be taken out of its perimeter alive, unless and until the newcomers' governments agreed to submit the question of jurisdiction and possession to third party adjudication, as required by law.
Rather than permit the law to come out, the newcomers' governments, the lawyers, the judges, the police, the Canadian army and the Governor General conspired to frustrate the law. The Indian resistance at Gustafsen Lake was overcome, and the natives now stand trial before a judge and jury that will not address the law indicting that same judge and jury for their own crimes-the crimes of trespass, and usurpation of judicial power.
All the lawyers, judges and police are members of the club that is still carrying out the genocidal programme, and none of them breaks rank. Historically, even the raising of money for land claims purposes was made a criminal offence, as was talking with Indians about their rights in a way that might encourage civil disobedience to the genocidal programme.
Even today, for any lawyer to break rank, by remarking the legal establishment's ongoing crimes, is to invite quick and certain professional suicide, if not disbarment.
This activity, this virtual reign of terror by newcomers over natives, all of which was and is outside the law, and all of which is still fostered by the complicity of the legal establishment whose sacred trust it is to uphold the rule of law, is the norm.
Billions of dollars of real estate illegally has been granted upon the basis of it, all in spite of the Royal Proclamation's clear and plain injunction against any grants "upon any Pretence whatever." Millions of settlers have been introduced onto the unconstitutionally granted lands, all in spite of the Royal Proclamation's clear and plain injunction against any
"Settlements" by "any Persons whatever."
This grotesque negation of the rule of law has become so accepted that when, in 1973, one half of the Supreme Court of Canada bench decided that there might be aboriginal rights in British Columbia, it hit like a bomb shell. The Calder case held that aboriginal rights presumptively do exist, at a time when the newcomers' society had convinced itself there was no such thing as aboriginal rights that could affect their comfort.
To admit the fact of aboriginal rights, as was done in 1973, implicitly raised certain collateral questions. what about the billions of dollars of real estate and the millions of settlers? what about the hundreds of thousands of Indian deaths arguably attributable to the injustice of ignoring the aboriginal rights?
What about fact that the genocide would not have occurred but for the complicity of the legal establishment in the great land theft?
After 1973, it could no longer easily be pretended that aboriginal rights were nonentities. Nor that the acknowledged aboriginal rights had, as if by magic, been superseded by mere federal and provincial law even though the international and constitutional law recognizing and affirming those rights had never been repealed.
That pretence would be the equivalent of being seen to return to the position set out in 1493 by Inter Cetera. It is not feasible, not realistic, at the close of the twentieth century, to be seen to deny the humanity of the aboriginal people, as the pretext for denying their rights of jurisdiction and possession. But how, otherwise, to deal with the fact that if those rights are admitted the billions of dollars of real estate and the millions of settlers will be seen as illegal? How otherwise to cover up the exposed guilt of the legal profession in the genocide?
These are the hard practical questions. The cases of the 1990s, from Bear Island to Van der Peet and Pamajewon, are the delayed reaction to them. What these 1990s cases attempt to do is put the cat back into the bag. Since it is too late to deny aboriginal rights, the answer adopted by these cases is to trivialize aboriginal rights, to such an extent as virtually to deny them absolutely.
This answer proceeds by two carefully placed steps. Step one is to make aboriginal rights virtually impossible to prove. Deny their existence globally, so as to put the burden of proof on particular bands. Say that aboriginal rights must be proven to have been enjoyed in the same way in pre-contact times. And then say that oral history is unreliable and there are no written records.
The problem with step one, from a rule of law perspective, is that the previously established constitutional and international law does not care to put the burden of proof upon individual bands in this fashion. That approach has already been rejected, as a "Fraud" and a "Pretence," by the Royal Proclamation of 1763.
The proclamation recognizes and affirms aboriginal rights as being vested "in them or any of them." The law does not care which of them. They bear no burden of proof. All land is Indian land, originally; and remains so until the crown can prove the land has been "ceded to or purchased by Us." There is only that one burden of proof, constitutionally, and it is on the newcomers, not on the natives.
Step one is a transparently unconstitutional attempt to shift the burden of proof from the crown to the Indians. If the rule of law has any meaning or significance whatsoever, that attempt judicially to rewrite the constitution must fail.
Step two consists in trivializing aboriginal rights to the point of non-existence for all practical purposes. This, the 1990s set of cases attempt to achieve by embracing the unconstitutional opening premise: that federal and provincial law presumptively applies to land not yet "ceded to or purchased by Us."
On the basis of that fraudulent opening premise, the newcomers' courts persuade themselves that aboriginal rights are limited to activities that do not unduly upset the social programme advanced by federal and provincial legislation.
This does not leave much room for aboriginal rights. According to the lights of this skewed perspective, for example, the Indians can catch and eat a few fish, but not make a living trading their catch, at least not without federal and provincial consent.
But the constitutional and international law has long since already determined that opening premise to be not only false, but treasonably, fraudulently and genocidally so. The constitutional and international law is deeply entrenched that holds that the derivative federal and provincial law does not come into operation until after the aboriginal jurisdiction has been relinquished.
The absurd idea of federal and provincial law qualifying aboriginal rights is by definition of constitutional and international law an absolute impossibility.
Federal and provincial law quite simply does not exist relative to a region where aboriginal rights are unsurrendered. Not being in existence, how can federal and provincial law qualify, indeed trivialize aboriginal rights as the Supreme Court of Canada pretends? The only way in which the Supreme Court of Canada can maintain the pretence that federal and provincial law can qualify and effectively trivialize aboriginal rights is by overturning the rule of law itself. The Supreme Court must, and has, assumed a jurisdiction that is beyond its power, in circumstances where the assumption constitutes treason, fraud and complicity in genocide. It has then exercised the criminally usurped jurisdiction to shift the burden of proof from the crown to the aboriginal people, and it has nullified the constitutionally protected character of the aboriginal rights by treating them as subject to federal and provincial law.
The privy Council of England in the 1897 case of Attorney General of Canada v. Attorney General of Ontario held that the crown's title in yet unceded land is "subject to" the Indian "Interest" within the meaning of those phrases in section 109 of the Constitution Act, 1861 In the 1990s the Supreme Court of Canada has effectively pretended to up-end that settled constitutional cornerstone.
The Supreme Court of Canada now says that the Indians hold their aboriginal rights "subject to" the federal and provincial interest. This is the equivalent of a radical constitutional amendment of revolutionary consequence.
Because Magna Carta and Campbell v. Hall are the cornerstones of the rule of law, what the Supreme Court of Canada has pretended to do is blatantly impossible. Or, more accurately, it is impossible if Canada is a rule of law society. And the Constitution Act 1982 is expressly based upon the premise that Canada is founded upon the "rule of law."
So why has the Supreme Court of Canada pretended to do it? Because it is attempting to evade accountability for the true answers to the hard questions-the questions the answers to which indict the judges of the newcomers' courts for treason, fraud and complicity in genocide. This is why the court is willing to destroy the integrity of the rule of law.
The oldest reason of all: self-interest what can the aboriginal people do to defend themselves against the omnipresent and seemingly omniscient injustice that is killing them? How can the appalling and rising mortality rates from the indicators of enforced social break down the litany of teenage suicides and internecine violence, the escapism though alcohol and drug addiction - how can the flow of the blood of the innocents be stopped?
The first great challenge will be for the aboriginal people to admit to themselves that the people they have been trusting are the very people leading them to the slaughter.
The lawyers who have been and who still are acting for the aboriginal people have been, and still are, labouring under a massive conflict of interest. They themselves are trespassers. And they make their livings doing anything but asserting that they themselves along with the other lawyers, the judges and the police are assuming a jurisdiction which the law denies them.
It is not difficult to see how even the most empathetic of lawyers allow themselves to aid and abet the eclipse of justice. In law schools lawyers are taught that the whole field of constitutional jurisdiction is divided between the federal and provincial levels of government.
The professors do not realize that the division relates only to the field of newcomers' jurisdiction, and that the prior jurisdiction of the aboriginal people is outside the parameters of that frame of reference. Possession and jurisdiction relative to the Indiana' yet-unsurrendered lands is simply not affected by the constitutional apportionment of possession and jurisdiction relative to land that has been purchased from the Indians.
In the United States' constitution this is implicit. In the Canadian constitution, because of section 109 and the case of Attorney General of Canada v. Attorney General of Ontario, this is explicit.
Those few constitutional law professors who do carefully examine and therefore realize the error of the jurisdictional assumption, nevertheless, so far at least, have fallen into the opportunism of thinking that, regardless of the law the judges will do whatever they want to do, and then find legal-sounding pretexts to justify it Many of these professors then help the judges in this negation of the rule of law, such as by arguing that the "reasonableness test" in part 1 of the Constitution Act, 1982 applies to aboriginal and treaty rights, which are in part 2 of that statute.
The net result is that the professors persuade the lawyers and the judges that aboriginal and treaty rights can be disregarded, if to allow them in full would seem "unreasonable." On the ostensible basis of this legally inapplicable reasonableness test, the newcomers' judges hold that conservation requires the imposition of federal and provincial limitations on the uses of the lands and waters by the aboriginal people.
But if the existing international and constitutional law were upheld, there would be no newcomers pulling pressure upon natural resources. There would, for example, be no pressure on the fishery, because the newcomers would not be fishing.
There would be no "need" to regulate the native people, who from time immemorial lived, and still would, if permitted, live in harmony with the natural resources.
The newcomers' judges do not think it "reasonable" to enforce the law that says the newcomers are trespassing. Rather than the curtail the criminals among whom the most prominent are the lawyers, the judges and the police, the newcomers' judges feel that imposing restrictions upon the victims is more reasonable." The application of the reasonableness test to part 2 of the Canadian constitution, when it belongs only to part 1, is a fraud.
Recall that I said that it was on the "ostensible" basis of the misapplied constitutional reasonableness test, that the newcomers judges are doing what they are doing. If that were all they were doing, it could be excused on the basis of honest mistake. One might argue that the judges had been misled by the professors and the lawyers advising them.
Especially by the lawyers acting for the Indians, whose primary task it should have been to inform the judges that the concept of aboriginal rights precludes and renders criminal the newcomers' judicial assumption of jurisdiction.
But to suggest that the professors and lawyers are misleading innocent judges would be a false and naive argument.
On July 2, 1995 the Supreme Court of Canada refused leave to appeal each case in a set of eleven applications for leave to appeal, that I as legal counsel had brought before that court. The cases arose from Quebec, Ontario, Alberta and British Columbia. In each case the issue raised was the absence of newcomer court jurisdiction over aboriginal rights, and the unconstitutional criminality of the assumption of that jurisdiction.
The court denied leave to appeal to all, on the ludicrous ground the issue raised was not important.
Yet before getting to the that juncture, the judges had to read the precedents and the legislation that I had put before them in the applications.The judges also had to read the responses of the Attorneys General for Canada and her provinces. Having done so, the judges knew that there was no answer to the precedents and the legislation refuting the assumption of jurisdiction, and indicting its criminality.
All the Attorneys General had done, was to put forward the Sparrow case, in which an earlier Supreme Court of Canada had made a general comment that the crown was sovereign, as if Sparrow had repealed all the precedents and legislation without even addressing them. And as if the crown had not exercised its claim of sovereignty constitutionally to preclude the assumption, prior to treaty, by crown governments and courts of jurisdiction and possession.
The point is, as at July 2, 1995 the Supreme Court of Canada was fully informed of the law. It chose to bury the exposition of that law, by the pretence that the issue was not of importance.
Then, on September 12, 1995 I again put the same law before the Supreme Court of Canada, this time in the context of making an application to state the same constitutional question of court jurisdiction in the Delgamuukw case, from British Columbia. In that case leave to appeal had already been granted.
Remarkably, the lawyers for the Indians in the Delgamuukw case, except for my client, joined with the lawyers for the Attorneys General, and opposed the challenge to the newcomers' courts' assumption of jurisdiction.
The court then refused to state the constitutional question, this time on the ground the Indians had not raised the challenge before in the case, and the majority of the Indians apparently did not want to do so now.
Thus, when the issue had been raised in the lower courts the Supreme Court of Canada refused on July 2, 1995 to address the issue on the ground it was not important. Then, on September 12, 1995 the same court acknowledged the great importance of the same issue, but refused to address it because the lower courts in that case had not done so.
The perfect Catch-22.
The name for Catch-22s in the legal context is chicanery, and chicanery by judges defeats the rule of law.
In arriving at the decision not to address the issue in the context of the Delgamuukw case, the judges of the Supreme Court of Canada again had to read the precedents and the legislation that I put before them.
Again, they knew full well from the Attorneys General response, that there was no legal rebuttal to the position set out in the precedents and the legislation.
Again, rather than own up to the law, the judges of the Supreme Court of Canada refused to state the constitutional question, the stating of which would have required them to address the law.
But they know! They cannot help but know! The law that I put before them is far too clear and plain not to know
Instead of addressing the law publicly, the court not only refused but, having refused, had the Registrar of the Court report me to the Law of Society of Upper Canada, for no offence other than that of having raised the law in the written materials filed in support of the applications.
Rather than address the law in public, the court preferred privately to try to have the lawyer disbarred for raising it. Part 1 - Click Here Part 3 - Click Here