The lengthy article below, “Eclipse and Enlightenment” by Bruce Clark, speaks to an understanding of “The Rule of Law“. (Note to self: put a referral on the above posting.)
Clark’s work is in support of First Nations’ rights, and therefore related to:
- The recent move of First Nations in New Brunswick to seek Aboriginal Title to part of the Province. The destruction done by fracking was a motivator.
Note: Manuel is critical of Clark who was eventually disbarred as a lawyer. Clark may have been under less duress and in better mental/emotional health when he wrote “Eclipse and Enlightenment” (1996). I did not see criticism of the soundness of the legal arguments presented by Clark.
The UN Declaration on Indigenous Rights was in 2007. It incorporates historical (old!) legal precedents that are in “Eclipse and Enlightenment“. I do not know who dug deep to uncover the records, whether it was Clark or whether Clark played a role in making them known. There’s a bit more on Clark below, along with a copy of “Eclipse and Enlightenment“
- The Haida Gwaii Lesson, A Strategic Playbook for Indigenous Sovereignty, by Mark Dowie. See
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Experience and activism open your eyes; I have said to friends: we are all the Indians. You just don’t know it yet.
In my experience, the Rule of Law in Canada has a significant element of myth. (We are in a time of myth-busting our institutions.)
Examples, my “experiential learning” with regard to mythology around the Rule of Law:
- The Rule of Law does not exist in Canada. The Rule of Law means that NO ONE is above the Law. It applies equally regardless of perceived status. Quisling authorities in Canada don’t have the toughness of spirit to carry out the Rule of Law. Related to visits by George Bush and Dick Cheney to Canada, Arrest George Bush. Rule of Law essential to democracy. (Bush and Cheney stopped coming to Canada; well-informed citizens clamored for their arrest. It became too uncomfortable.)
2. Governments nor the Courts cherish or will defend some of our Charter Rights. The LEGAL ARGUMENT discusses what the law says and how it has been applied by the Courts in the instance of Lockheed Martin Corporation’s participation in the work at Statistics Canada (censuses and surveys, a very large and comprehensive data base on Canadians). A specialty of Lockheed Martin Corp is surveillance. StatsCan collects large amounts of personal information through coercion, using the threat of prosecution if citizens object.
A short posting lays bear the myth of Charter Rights: The Oakes Test to over-ride Charter Rights. How Prosecutors get around it.
- Universities are supposed to be our backup, our defence against tyranny. I was an elected member of the University of Saskatchewan Senate for 6 years. Peter MacKinnon was the then-president, former dean of the law school with a Doctor of Laws. University Administration exhibited poor regard for the Law; the attitude continues. There is currently a lawsuit against the University over a refusal to comply with the Privacy Commissioner’s opinion that the University has to un-redact material related to a “Symposium” held at the University, organized by a Professor who has ties to Monsanto.
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Bruce Clark is very controversial. No matter, to me his article below, ECLIPSE AND ENLIGHTENMENT (1996), is informative.
The UN Declaration on Indigenous Rights was passed in 2007. Canadian Arthur Manuel (“Unsettling Canada”) played a significant role in the development of the UN Declaration.
I have not read Clark’s book “Justice in Paradise“., but found this:
On Oct 30, 2018, Octopus Books hosted an event with Bruce Clark. (https://octopusbooks.ca/event/ongoing-genocide-book-launch-with-the-author-dr-bruce-clark).- – – – –
About Bruce Clark:
An account of the author’s life and his battles on behalf of Native rights and the rule of law.
As a newsmaker, Bruce Clark is infamous – not for his discussions of the finer points of the law in relation to Aboriginal rights but for being dragged away by the police at the Native standoff at Gustafsen Lake, British Columbia. He has also challenged the United States’ ownership of Liberty Island and the rest of the Hudson River drainage basin – the site of the world’s most potent symbol of freedom, the Statue of Liberty.
A jurisprudential adventure story, “Justice in Paradise” recounts how a commitment to Native rights and an extraordinary passion for the rule of law have determined the course of Clark’s life. From a childhood in an Indian residential school, to the defence of aboriginal rights before the World Court, to being disbarred, Bruce Clark’s struggle has led him to a fight against the justice system itself.
“Justice in Paradise” explains the legal and philosophical position behind Clark’s opposition to the Indian rights industry. He argues that the North American legal system causes the genocide of those indigenous peoples who embrace traditional religion and identity and accuses those who administer it of chicanery and abandoning the rule of law.
Smeared in the media for his beliefs and attacked from the bench – he has been called “a disgrace to the bar” by the Chief Justice of Canada’s Supreme Court – his book “Native Liberty, Crown Sovereignty” has been hailed as “the most important and meticulous recent study of native rights in common law” (Canadian Journal of Political Science).
Clark turned his back on a comfortable lawyer’s life to defend the rule of law and Native rights. He moved with his family to Indian reservations and then to squats while he argued his case before the World Court in Europe. In his extraordinary memoir, “Justice in Paradise,” Bruce Clark – hero to some, extremist to others – details the battles of a renegade’s life.
ECLIPSE AND ENLIGHTENMENT
A legal opinion delivered by Bruce Clark, LL.B., M.A., Ph.D.
at Listuguj in the Mi'qmaq country
on September 4, 1996.
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.
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 hi 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.
That attempt apparently was discontinued when the Law Society rejected the previous attempts by other judges to achieve the same reprehensible end, of silencing the bearer of unwelcome tidings, rather than face them honestly.
The idea that a lawyer can be in contempt of court for raising a point of law that he can substantiate, is itself an outrageous contempt of the rule of law. How else can the truth come out, if it cannot be spoken in courts of law? Justice, after all, is supposed to be the application of truth to affairs.
How can any lawyer, or any other citizen for that matter, keep silent, when they know that what is going on in the courts aids and abets the genocide of the aboriginal people? To maintain silence about the genocide, once you know that it exists and how it is perpetrated by the judges, is itself complicity in genocide.
This is the reason the Law Society refused to go along with judges’ obscene attempt to cover up their crimes by silencing the raising of the law exposing them.
No, the judges of the Supreme Court of Canada did not make an innocent or honest mistake on August 21, 1996, when they handed down their decision in the Van der Peet, Smokehouse, Gladstone and Pamajewon cases. At that time, they knew they did not have jurisdiction in aboriginal rights matters. They knew that the newcomers courts were in the habit of committing treason, fraud and complicity in genocide by assuming jurisdiction. They attempted to perfect those crimes by effectively reading aboriginal rights out of the law.
The attempt is impossible. Only a constitutional amendment can legally achieve what the judges illegally have attempted. By making the attempt, they have abused their power profoundly. They have turned the rule of law into a cruel and vicious hoax.
At the same time as the Supreme Court of Canada was handing down its decisions in the Van der Peet, Smokehouse, Gladstone and Pamajewon cases, the Toronto Globe & Mail prophetically ran a set of anagrams. One these rearranged the letters in the phrase “Supreme Court of Canada,” to read “Accursed paramount foe.” As head of the beast that is committing genocide against the aboriginal people, in willful blindness to existing international and constitutional law, the anagram represents a fair and just assessment.
For as matters stand the Supreme Court of Canada is not only an enemy of the aboriginal people, but of all people who believe in the rule of law and the cause of justice.
Still the question remains, how can the aboriginal people defend themselves, when all these institutions for upholding the rule of law-academic, professional and judicial-seem to conspire to defeat the law and the integrity of the rule of law?
The Passamaquoddy Declaration of 27 August 1996, perhaps, lights the way. The Passamaquoddy nation has gone back to the map of the way provided by the Mohegan precedent and principle. That nation has resolved to take its dispute with the State of Maine and the United States to its own court system, which means reviving the court system of the Wabanaki Confederacy. For purposes of international relations and third party adjudication, the Passamaquoddy tradition and customary law regards the confederacy as the appropriate forum.
The Passamaquoddy nation has made two extraordinarily important legal points. First, there are native courts. They do exist, for all that have been suppressed. The idea that if there are no newcomer courts there would necessarily be a vacuum is an invalid assumption.
Second, the enforcement of the orders made by the native courts will benefit from if not require the cooperation under the rule of law of the courts of adjoining jurisdictions, whose citizens without that cooperation might otherwise destroy the rule of law by force.
In this sense, the approach taken by the Passamaquoddys is en route to putting the rule of law itself to the test. And the world’s community of nations increasingly depends for its economic well-being and security upon the universal integrity of the rule of law.
Fifty years ago perhaps, the newcomers’ governments and courts in North America would have been willing to crush the native people who had the courage to challenge their jurisdiction. Perhaps today, and even more so in the tomorrows, the willingness to be seen crushing the resistance will be less present The Gustafsen Lake show trial, it can be hoped, is a last gasp of a corrupt regime, which will by its example demonstrate what ought never again be done by the newcomers’ legal establishment.
In order to turn to the native courts, the Passamaquoddys have resolved by their Declaration of 27 August 1996 to repudiate the covenant chain of Atlantic coast treaties, from the Boston Treaty of 1725 to the Maine Settlement Treaty of 1980.
This is of interest to the Mi’qmaq and Maliseet nations in what is now called New Brunswick and Quebec. The Mi’qmaqs and Maliseets are parties to the covenant chain up to but not including the Maine Settlement Treaty of 1980. And they are constituents of the Wabanaki confederacy.
The Passamaquoddys have ruled in their own court at the first level, subject at this stage to confirmation at the confederacy level, that the entire covenant chain was a fraud upon them. They repudiate it as such.
The basis for the repudiation begins with the 1704 ruling by Queen Anne that the crown governments in British North America were obliged in law directly to protect the aboriginal peoples’ possession and jurisdiction; and that the local crown courts have no jurisdiction capable of being used indirectly to molest or disturb that possession and jurisdiction.
In 1725 the local governor promised to uphold that legal obligation, provided the aboriginal people contractually were to concede to the local crown courts the jurisdiction to act. The natives signed. Hardly was the ink dry, than the newcomer judges allowed the settlers onto the Indians’ yet-unsurrendered lands, and then used the contracted-for jurisdiction to persecute the Indians who interfered with the settlers.
Similar treaties were signed in 1752, 1761-2 and 1779, and all ended the same way. As soon as court jurisdiction contractually was allowed by the natives to the newcomers, it was profoundly abused.
The Passamaquoddys have observed that not only in terms of aboriginal peoples’ law, but equally in terms of the newcomers’ own law, this is illegal. The crown governor promised to uphold existing law, which he was constitutionally bound to do anyway, and therefore the contracts are void for failure of consideration.
Furthermore, the treaty contracts were signed under duress:-the governor threatened that if the Indians did not sign, their lands would be overrun by uncontrolled settlement.
And, the contracts fundamentally were breached:-the promised protection at the root of the them never materialized.
when the facts and law go before an independent and impartial third party court, the Passamaquoddys will win, if the rule of law exists.
This legal position will be expressed in defense of the aboriginal peoples’ original jurisdiction and possession in the North American courts of the newcomers, and in the international courts of the world.
The question now is, who will stand with the Passamaquoddys. Indications are that the Mi’qmaqs at Listuguj are with them.
The injustice thrives in the dark. The newcomers’ governments and courts have divided the aboriginal people. They have scapegoated the truth-tellers and rewarded silence. Band government systems have been set against traditional government systems. Indeed, bands have been financed to supplant traditional governments. And in the past, bands governments that have reverted to the traditional model have been punished economically. Why?
By definition, all the band governments have ever had are the restricted powers listed in the Indian Act. These do not include either the power of international relations or the court function. Yet these two powers are the crucial ones for asserting the aboriginal and treaty rights in a way that breaks the strangle hold of the interpretive monopoly assumed by the newcomers’ courts. The traditional governments had, and still have, those greater powers, though suppressed. The band governments have the skills and technology to work with and through the traditional governments. Together, in mutual solidarity, the truth can be told for the benefit of the aboriginal people which both of those native governments exist to serve.
In contrast with the situation facing the Cherokees in the 1830s, when it seemed that there were no courts to which to turn as candidates for carrying out the crucial function of third party adjudication, today there are courts that do exist for this purpose. Not only has the court constituted by Queen Anne in 1704 never been repealed, but a range of additional alternatives exists, all of which can be resorted to.
For example, one of the several international alternatives yet to be tried includes the Vatican, the author of the papal bull Sublimus Deus, 1537, which so elegantly still stands as a bulwark against the illegal genocide in progress.
In recent years the lawyers and judges and police who as an institution have masterminded the genocide have taken, sanctimoniously and hypocritically, to prosecuting the religious community for abuses of jurisdiction over the native people. Yet the legal establishment which made those abuses possible and probable shirks accountability for its own crucial role.
The major churches that contributed to the more lamentable and illegal aspects of the European invasion have had the grace and courage and honesty to acknowledge their mistakes, publicly, and so to begin the process of atonement and healing.
The legal establishment sits on the sidelines, and judges the priests. Yet it is the infinitely more evil eminence noire, without whose complicity the wound that the religious community is working honestly to heal, would not exist. The legal establishment sits smugly and complacently, and seemingly securely, immune from prosecution for its crimes, because it has hijacked the rule of law.
This does not mean that the aboriginal people should give up on the capacity of the newcomers’ judges to do what is right, in the end. When the aboriginal people are forced into the newcomers’ courts, as will continue to happen for a time, until the jurisdiction issue can be straightened out, they can and should inform the newcomers’ judges that they are making a terrible mistake.
Out of respect for those judges the very least the aboriginal people can and should do is inform them of the law, in the ignorance of which they will commit treason, fraud and complicity in genocide. The aboriginal people are entitled to assume that not all the newcomers’ judges necessarily want to commit those crimes under the mask, as some obviously do want, of willful blindness to the law.
Eventually, whether it be in the newcomers courts in North America or in the international courts of the world, or both, the whole truth will not only be told, but listened to, and respected, and implemented.
It is in the telling of that truth that enlightenment will begin. And this is where the Mi’qmaq prophecy with which I began this talk may come into play.
The Mi’qmaqs and the other aboriginal people of the Atlantic Maritimes, including the Passamaquoddys, in ancient times traditionally grouped themselves as the Wabanaki confederacy. The very word Wabanaki signifies the land of the dawn, which can also mean the place of light, or of enlightenment. The prophecy of the Mi’qmaq nation, of the ship bringing darkness followed by an enlightening and an awaking may refer to the destiny of the aboriginal people of Wabanaki confederacy.
History may be poised to unfold from here. Humankind and all its relations dearly need the end of the eclipse of justice in the new world.
Precedents and legislation recognizing and affirming that aboriginal rights are unlimited rights of absolute jurisdiction and possession subject only to the one restriction that if such rights are going to be relinquished it can be in favour of none other than the crown in Canada or in the United States to crown's successor the United States. The preclusion of crown jurisdiction pending purchase precludes crown court jurisdiction no less than other forms of jurisdiction: - see, especially, Mohegan Indians v. Connecticut (PC, 1704); R. v. Nadean and Le Compte (Athabaska Territory, 1788); R. v. Lamothe (Saskatchewan Territory, 1802); R. v Cadien (Quebec, 1838); Connelly v. Woolrich (Quebec, 1867 & 1869); St Catherine's Milling & Lumber Co. v. R. (SCC, 1887, per Gwynne J. re Restigouche grants).
Sublimus Deus, 1537.
Statute of Frauds, 1670.
An Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade, 7 & 8 Wm. III, c. 22 (1696), s. 12.
Order in Council of 9 March 1704. In re Mohegan Indians v. Connecticut.
Order in Council of 31 July 1740. In re Mohegan Indians v. Connecticut.
Capitulation of New France, at Montreal, 1760, article 40.
Royal Proclamation of 1763, part 2 paragraphs 1 and 2 and part 4 paragraphs 1-6.
An Act for the Better Securing the Dependency of His Majesty’s Dominions in “America” upon the Crown, and Parliament of “Great Britain”, 6 Geo. III, c. 12 (1766), ss. and 2; Royal Regulation (Spain), 1772, a. 6.
Order in Council of 15 January 1773. In re Mohegan Indians v. Connecticut; Quebec Act 1774,ss.3 and 4.
Campbell v. Hall (1774), 98 ER 848, 895-9 (PC).
R.V. Nadeau and Le Compte (Athabaska Territory, 1788). See, Foster, “Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases.” 1992 Manitoba Law Journal 343-89.
Marshall v. Clark, 1 Kent 77, 80-1 (CA, 1791).
Hughes v. Dougherty, 1 Yeat’s 497, 498 (SC Penn., 1791).
Plumstead v. Rudebagh, 1 Yeat’s 502, 504 (SC penn., 1791).
Weiser v. Moody, 2 Yeat’s 127, 127-8. (SC Penn., 1796).
Sherer v. McFarland, 2 Yeat’s 224, 225 (SC Penn., 1797).
R. V. Lamothe (Saskatchewan Territory, 1802). See Foster, “Forgotten Arguments.” An Act for Extending the Jurisdiction of the Courts of Justice in the Provinces of Lower and Upper Canada to the Trial and Punishment of Persons Guilty of Crimes and Offences within Certain Parts of North America, 43 Geo. III, c. 138 (1803), a. 1.
Strother v. Cathey, 1 Morgan’s 162, 168 (SC North Carolina, 1807).
Fletcher v. Peck, 6 Cranch’s 87, 121 (USSC, 1810).
New Jersey v. Wilson, 7 Cranch’s 164, 166 (USSC, 1812).
Thompson v. Johnson, 6 Binney’s 68, 68 (SC Penn., 1813).
Meigs v. McLungs Lessee, 9 Cranch’s 11, 17 (USSC, 1815).
An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. IV, c. 66 (1821), ss.4 and 5.
Johnson v. Mcintosh, 8 Wheaton’s 543, 574, 592, 597 (USSC, 1823).
Danforth v. Wear, 9 Wheaton’s 673, 675 (USSC, 1824).
Cornet v. Winton, 2 Yearger’s 129, 130 (CA Tenn., 1826).
Lee v. Glover, 8 NYR 189, 189 (SC, 1828).
Cherokee Nation v. Georgia, 5 Peter’s 1, 17, 48, 49, 55, 58, 71 (ussc, 1831).
United States v. Arredondo, 31 us 691, 712-13 (1832).
Worcester v. Georgia, 6 Peter’s 515, 541, 544, 546, 549, 560, 581 (ussc, 1832).
Cameron v. Kyte (1835), 12 PR 678, 682 (PC).
Mitchel v. United States, 9 Peter’s 711 (USSC, 1835).
Harris v. Doe, 4 Blackf. 412, 414 (SC Indiana, 1837).
R. v. Cadien (Quebec, 1838); Instructions to jury per Chief Justice James Reid. An Indian in the unceded Indian territory is one “over whom no jurisdiction could be maintained” by the non-native court system of Quebec. See, Foster, “Forgotten Arguments.”
Clark v. Smith, 38 us 19, 201 (1839). Georgia v. Canatoo, 8 Washington National Intelligencer 24 (SC Georgia, 1843).
Stockton v. Williams, 1 Michigan Reports 546, 560 (SC, 1845).
Bown v. West (1846), 1 P & A 117, 118 (CA Upper Canada).
Ogden v. Lee, 6 Hill’s 546, 548 (SC New York, 1846).
Montgomery v. Ives, 13 Smedes & M. 161, 171, 174-5, 177, 179 (Mississippi HC of E & A, 1849).
Stuart v. Bowman (1851), 2 LoR 369, 394.
Rowland v. Ladiga’s Heirs, 21 Ala. Reports 9, 28 (Sc, 1852).
Sheldon v. Ranisay (1852), 9 UCQIs 105, 127, 133.
R. v. McCornick (1859), 18 UoQB 131, 133.
Constitution Act, 1867, ss. 56, 90, 91(24), 92(13)(14), 109, 129, 146.
Connelly v. Woolrich (186, 11 L0J 197, 205-7, (1869) RLos 253, 356-7 (CA).
Minter v. Shirley, 3 Miss. 376, 384 (SC, 1871).
Holden v. Joy, 84 us 211, 244 (1872). Wood v. Missouri, K. & T. Ry. Co., 2 Kansas Reports 248, 264 (so, 1873).
Leavenworth [etc.] Railroad Company v. United States, 2 Otto’s 733 (usso, 1875); Order in Council (Canada) of 23 January 1875. In the matter of the power of disallowance; United States v. 43 Gallons of Whisky, 93 US 188, 196 (1876); Beecher v. Wetherby, 95 US 55, 67-8 (1877).
Church v. Fenton (1878), 28 UUCP 384, 388, 399, (1879) 4 OAR 159, 5 ScR 239.
Butz v. Northern Pacific Railroad, 119 US 55, 67-8 (1886).
St. Catherine’s Milling & Lumber Co. V. R. (1886),13 OAR 148, 169.
St. Catherine’s Milling & Lumber Co. V. R. (1887), 13 SCR 577, 608-10, 628, 631-2, 647 (see, especially, Owynne J. re Restigouche grants).
St Catherine’s Milling & Lumber Co. v. R. (1888), 14 AS 46, 51,53,60 (PC).
AG Ont. v. Francis (1889), PAD, Irving Papers, u43, P 42, Item 9, at 13 (High Court of Ontario).
AG Ont v. AG Can. (1895), 25 SCR 434, 504, 535.
AG Ont. V. AG Can. (1894 ), AS 199, 205 (PC).
Ontario Mining Co v Seybold (19O3), AC 73, 79 (PC).
AG Can. v. AG Ont (1910), AC 637, 644, 646 (PC).
Doherty v. Girour (1915), 24 QKB 433, 436.
R.. V. Ontario & Minnesota Power Co. (1925), AS 196, 197 (vs).
R. v. McMaster (1926), Ex. 68, 73. Statute of Westminster, 1931, 5. 7(1). Lasterbrook V. R. (1932), 5 SSR 210, 217-18.
R. v. Wesley, [ 2 wwR337, 348, 351.
Convention for the Prevention and Punishment of the Crime of Genocide, 1948, articles 2(b), 2(e), 3(e), 4 and 6.
St Ann’s Island Shooting & Fishing Club Ltd, v. R. (1950), SSR 211, 212-13.
R. v. George (1964), 2 OR 429, 433 (CA).
R. v. Sikyca (1964), 46 WwR 65, 66 (NMSA), 1964J SSR 642.
Brick Caftage Ltd. v. R. (1965), 1 Ex. 102, 105 (ID).
Calder v. ASPS (1973), scr 313, 320, 323, 379, 401, 402.
Constitution Act, 1982, ss. 25(a), 35(1), 38 & 52.
Law Society of Upper Canada v. Bruce Clark. Reasons for Judgment of Convocation. Unreported. June 19, 1996. Page 14: “The “genocide” of which Mr Clark speaks is real, and has very nearly succeeded in destroying the Native Canadian community that flourished here when European settlers arrived.”