Jul 25, 2013 3:23 AM

Here is the follow up post, its a long one but its about the laws and judgments in courts that are attempting to show how EUROPEAN LAW or Canadian law believe they are superior or have the right to rule over all the lands and people who are original due to the benefits of Crown protection, i for one dont see any protection other than the tearing apart of the nations in purpose. How is that protection? So the following post is a post from i assume a lawyer of some kind with many cases from courts as evidence that Originals nations do not have the rights you think you do here in so called Canada ? ---------------------http://www.quatloos.com------------------------------------ The items you have identified are not ones that I understand are authorized by law in Canada. That broader kind of self-governance may be something that emerges in the future, but if it does, that will be decided by Canadian provincial and federal politicians, and aboriginal politicians. I will not comment one way or another on if I think that is right or wrong - that is not a subject for Quatloos, in my opinion.

I suspect comments on the legitimacy of certain actions in places like the Middle East would also fall into this prohibition. Only a guess.

If I�m wrong on this I am sure the administrators will straighten me out.

So instead, to law. I understand aboriginal people in Canada have special rights, and that these are protected by the Constitution via the Charter of Rights and Freedoms, s. 35:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and M�tis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

A couple quick observations, you will notice that Canada�s law treats Indian, Inuit, and M�tis in the same way. I know you previously wondered whether law concerning the M�tis applies to other aboriginal peoples, and as you can see here, it does.

There are two kinds of rights recognized explicitly: aboriginal rights, and treaty rights. Treaty rights are something I�ll talk about later, but let us first discuss what are aboriginal rights. The Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507 said these rights are part of aboriginal culture: �... an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right ...� and that is a �... crucial [element] of the distinctive aboriginal societies that occupied North America prior to the arrival of Europeans ...�.

Aboriginal rights are not just treaty rights, but exist even after Britain and then Canada took authority over this land. It was put this way in Tsilhqot�in Nation v. British Columbia, 2012 BCCA 285 at para. 167:

The assertion of Crown sovereignty did not, as a matter of common law, serve to extinguish the pre-existing traditional rights of First Nations, and those rights survived. Aboriginal rights, then, are recognized rather than created by the common law.

So you see, common law and aboriginal rights are different.

There are a huge number of cases that talk about aboriginal rights and when they still exist today. I am going to just look at one Supreme Court of Canada case, Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 (http://canlii.ca/t/fnr69) as it is quite recent and illustrates how these rights work. In this case a group of British Columbia Indian bands claimed they had an aboriginal right to operate a commercial fishery. The Supreme Court said they did not.

This is a four step process (see para. 46):

1) what is the actual right claimed?

2) has the aboriginal group proved �(a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right and (b) that this practice was integral to the distinctive pre-contact Aboriginal society.�

3) is the modern claimed aboriginal right �connected� to the pre-contact practice:

Third, determine whether the claimed modern right has a reasonable degree of continuity with the �integral� pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.

4) what is a modern form of the aboriginal right that is fair to both the aboriginal people and Canadians as a whole.

In this case there was absolutely no question that the Indian band�s ancestors had engaged in an extensive fishery, so that was clearly an aboriginal right. What they had not done is engaged in a commercial fishery. They did not engage in trade of fish or fish products in a manner that made that �an integral part of their distinctive culture�: para. 52.

There is a complication in that an aboriginal right that existed at contact can be taken away, or "extinguished", by either a treaty or by a �unilateral act of the sovereign�. The treaty part is simple - if a treaty for example limits the area of land used by an Indian band to do something then that �extinguishes� the aboriginal right to do things outside that space. �Unilateral act of the sovereign� means just that - the Crown (Britain or Canada) has created rules, usually legislation, that takes away a right to do something by displacing it.

I found a case that is very helpful in understanding when a treaty or aboriginal right is extinguished: Mitchell v. M.N.R., 2001 SCC 33 (http://canlii.ca/t/521d). Mohawks from Akwesasne claimed they had an aboriginal right to import things into Canada without paying customs. They argued this was a modern extension of their traditional trade practices. The Supreme Court of Canada talks about when rights are extinguished.

You have asked why aboriginal communities do not have full rights today? The law for that is explained at para. 9:

Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse of land in organized, distinctive societies with their own social and political structures. The part of North America we now call Canada was first settled by the French and the British who, from the first days of exploration, claimed sovereignty over the land on behalf of their nations. English law, which ultimately came to govern aboriginal rights, accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation: see, e.g., the Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1, and R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1103. At the same time, however, the Crown asserted that sovereignty over the land, and ownership of its underlying title, vested in the Crown: Sparrow, supra. With this assertion arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation, a duty characterized as �fiduciary� in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335.

So there you go. Pre-contact aboriginal rights were removed by cession (aboriginal people not using those rights), conquest (self-explanatory) or legislation. So what about the Mohawk�s claimed international trade rights? It turned out they didn�t have the evidence to back up that actually occurred and was an integral part of their pre-contact culture: para. 60.

These cases talk about �Crown sovereignty�. That means, bluntly, �there can only be one boss�. When English law governed Canada that meant the �country-like� functions of aboriginal people like law-making, running courts, waging war - all those went away. They belong to the Crown, and that is that.

But, as you remind us, this is not just a one-way street. When the Crown took over those rights it gained an obligation identified in Mitchell v. M.N.R. �... to treat aboriginal peoples fairly and honourably, and to protect them from exploitation�. We�ll talk about that fiduciary duty later.

So, this answers your argument that aboriginal people can just set up their own governments - they lost those rights in return for Crown protection. Further, many of the things you mentioned have clearly been extinguished by legislation. Aboriginal groups have no right to set up their own police forces because any right to that was �extinguished� by the Criminal Code and legislation that authorized police forces. The same goes for courts - the only right to organize courts is found in the The Constitution Act, 1867, 30 & 31 Vict, c 3 (http://canlii.ca/t/8q7k), ss. 91-92. And the same goes for �Militia, Military and Naval Service, and Defence.�: s. 91.

Oh, and if an aboriginal group were to somehow set up a court? Again, the inherent jurisdiction of the Canadian superior courts would mean the inherent jurisdiction courts would have the right (and duty) to review and reject any 'aboriginal court' decisions that are contrary to Canadian law. The same, by the way, goes for Indian band counsels - their decisions are currently reviewed by the Federal Court.

So let�s talk about treaties. I found a very interesting Supreme Court of Canada case, R. v. Sioui, [1990] 1 SCR 1025 (http://canlii.ca/t/1fsvg) that talks about what treaties with aboriginal people are and how they come about. And it�s a neat historical story, too! The case on its surface deals with something very different. Four Huron were arrested and convicted for cutting down trees and camping in a Quebec provincial park. They said they had a treaty right to do that. The Supreme Court agreed.

Now the �treaty� the Huron identified is short so let�s look at the whole thing:

THESE are to certify that the CHIEF of the HURON tribe of Indians, having come to me in the name of His Nation, to submit to His BRITANNICK MAJESTY, and make Peace, has been received under my Protection, with his whole Tribe; and henceforth no English Officer or party is to molest, or interrupt them in returning to their Settlement at LORETTE; and they are received upon the same terms with the Canadians, being allowed the free Exercise of their Religion, their Customs, and Liberty of trading with the English: -- recommending it to the Officers commanding the Posts, to treat them kindly.

Given under my hand at Longueil, this 5th day of September, 1760.

By the Genl's Command, JOHN COSNAN, JA. MURRAY. Adjut. Genl.

It was signed by Brigadier General James Murray of the British army. He was the commander of the British military in what would later become Canada.

These were exciting times! Britain and France had been dueling over North America for close to a century, and for France the end was at hand. The previous year Britain had invaded Quebec, and in 1759 the climactic battle of the Plains of Abraham decided the contest. The French were defeated and the British seized the entrance to the St. Laurence river. Remaining French forces retreated to Montreal, where, surrounded, they surrendered. That ended France�s military presence in what is now Canada.

So who were these Huron, and why did Murray make this arrangement with them? They were Indian allies of the French, and with this agreement they made peace with Britain after the defeat at Quebec City.

Interesting stuff - so what else does this case tell us about treaties? A lot. For one, a treaty with an aboriginal community is not an international law treaty - it is something different:

... an Indian treaty is an agreement sui generis which is neither created nor terminated according to the rules of international law (p. 404).

...

... a treaty with the Indians is unique, that it is an agreement sui generis which is neither created nor terminated according to the rules of international law. ...

That quotes another Supreme Court of Canada, Simon v. The Queen, [1985] 2 SCR 387 (http://canlii.ca/t/1fv04), and I think it might be helpful to quote the whole passage, for context:

... While it may be helpful in some instances to analogize the principles of international treaty law to Indian treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law. R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), at pp. 617 18, aff'd [1965] S.C.R. vi, 52 D.L.R. (2d) 481; Francis v. The Queen, 1956 CanLII 79 (SCC), [1956] S.C.R. 618, at p. 631; Pawis v. The Queen, reflex, [1980] 2 F.C. 18, (1979), 102 D.L.R. (3d) 602, at p. 607.

A treaty with an aboriginal group is �sui generis�. Frankly, I don�t like that term, it�s latin for �of its own kind and therefore unique�. A treaty with an Indian community is not an international treaty because Indian communities are not countries, but it is a bargain:

... a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity. ...

A treaty created this way is a treaty under s. 88 the Indian Act - again, not an international treaty.

Here there was a promise by the Huron to cease fighting, and the British to respect the religion and customs of the Huron and �treat them kindly�. However, was it �solumn� enough? The Supreme Court says it was, even though there was no providing of traditional peace treaty belts. This was negotiation in wartime, and the paperwork was good enough for all.

The court also investigates whether this right was extinguished and determines it was not.

There is something else interesting in R. v. Sioui. Freemen seem to talk a lot about �de jure� and �de facto� governments and authority. Well, the Supreme Court here makes clear that is a very foolish argument. British �de facto� authority was established by military conquest, in 1760:

In fact, the total defeat of France in Canada was very near: the Act of Capitulation of Montreal, by which the French troops stationed in Canada laid down their arms, was signed on September 8, 1760 and signalled the end of France's de facto control in Canada.

�De jure� authority was established three years later, by international treaty between Britain and France:

Great Britain's de jure control of Canada took the form of the Treaty of Paris of February 10, 1763, a treaty which inter alia ensured that the "Inhabitants of Canada" would be free to practise the Roman Catholic religion. Some months later, the Royal Proclamation of October 7, 1763 organized the territories recently acquired by Great Britain and reserved two types of land for the Indians: that located outside the colony's territorial limits and the establishments authorized by the Crown inside the colony.

Where did Canada get it�s �de jure� authority? In 1867 the U.K. passed the The British North America Act, 1867 (now called the Constitution Act, 1867) and Canada was granted authority to govern itself, as a country, by the country (the U.K.) that had previously had that authority. You can think of it as one country splitting into two.

So much for all that �de facto� crap.

So, last major point. I was a little disappointed you did not look closer at the Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (http://canlii.ca/t/fwfft) because as I read the decision it requires Canada maintain a duty called the "honour of the Crown" to all aboriginal people in Canada (para. 66):

The honour of the Crown arises �from the Crown�s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people�: Haida Nation, at para. 32. In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to �the several Nations or Tribes of Indians, with whom We are connected, and who live under our Protection�: see Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 (CanLII), 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42. This �Protection�, though, did not arise from a paternalistic desire to protect the Aboriginal peoples; rather, it was a recognition of their strength. Nor is the honour of the Crown a paternalistic concept. The comments of Brian Slattery with respect to fiduciary duty resonate here:

The sources of the general fiduciary duty do not lie, then, in a paternalistic concern to protect a �weaker� or �primitive� people, as has sometimes been suggested, but rather in the necessity of persuading native peoples, at a time when they still had considerable military capacities, that their rights would be better protected by reliance on the Crown than by self-help.

In this case Canada did not live up to its obligation in a bargain with the M�tis. The M�tis had their own community in what is now Manitoba, the Red River Settlement:

In 1869, the Red River Settlement was a vibrant community, with a free enterprise system and established judicial and civic institutions, centred on the retail stores, hotels, trading undertakings and saloons of what is now downtown Winnipeg. The M�tis were the dominant demographic group in the Settlement, comprising around 85 percent of the population, and held leadership positions in business, church and government.

The M�tis were prepared to defend their community and its independence (para. 26-27), but in the end Canada and the M�tis came to an agreement. The Red River Settlement would join Canada as a province, Manitoba, and the M�tis in return would get a large grant of land to maintain their community: paras. 30-31.

The sad remainder of this judgment discusses how that bargain was not respected by the Canadian authorities and the M�tis land grants were either delayed, had �strings attached�, or were set up in a way that broke up the M�tis community. That failure to live up to the bargain breached the honour of the Crown, and ultimately indirectly led in 1885 to an armed M�tis rebellion in what is now Saskatchewan.

The Supreme Court of Canada does not say what should be done to fix the breach of the honour of the Crown because the M�tis and Canada did not ask for that answer, so now presumably there are going to be some very interesting negotiations in the next few years!

So I hope that is helpful and interesting. I certainly learned a lot more about aboriginal title, rights, and treaty reading these cases.

I am also quite convinced that your position is absolutely incorrect, in law, in Canada.