Native liberty, crown sovereignty: the existing aboriginal right of self-government in Canada 9780773509467, 9780773507678, 9780773562547

Table of contents :
Frontmatter
Table of Legislation (page ix)
Table of Cases (page xv)
Acknowledgments (page xxiii)
Preface (page xxv)
INTRODUCTION (page 3)
1 COMMON LAW OF SELF-GOVERNMENT (page 11)
Domestic Common Law (page 12)
Constitutional Common Law (page 37)
2 THE PREROGATIVE LEGISLATION (page 58)
Subordination and Delegation Principles (page 58)
Royal Commissions, Instructions, and the Proclamation of 1763 (page 70)
3 CONTINUITY (page 84)
Non-Repeal of the Prerogative Legislation (page 85)
Positive Re-enactment: The Indian Territories Statutes (page 98)
4 DISCONTINUITY: THE ANTI-THESIS (page 124)
The Crimes and Offences Exception (page 124)
Responsible Government, and Enclaves (page 131)
5 LAW REFORM AND THE NEGOTIATION PROCESS (page 147)
CONCLUSION (page 191)
Appendix: Constitutional Milestones (page 205)
Bibliography (page 219)
Index (page 249)

Citation preview

Native Liberty, Crown Sovereignty

| McGill-Queen’s Native and Northern Series oo

Bruce G. Trigger, Editor a - a 1 When the Whalers Were Up North / , Inuit Memories from the Eastern Arctic |

Dorothy Harley Eber |

2, The Challenge of Arctic Shipping | | oe Science, Environmental Assessment, and Human Values © |

3 Lost Harvests 7

| David L. VanderZwaag and Cynthia Lamson, Editors | , | _ Prairie Indian Reserve Farmers and Government Policy |

Sarah Carter } , | ,

| 4 Native Liberty, Crown Sovereignty , | | _ The Existing Aboriginal Right of Self-Government in Canada , Bruce Clark

Native Liberty, Crown Sovereignty The Existing Aboriginal Right of Self-Government

in Canada OO BRUCE CLARK

7 McGill-Queen’s University Press |

, Montreal & Kingston ® London ® Buffalo

© McGill-Queen’s University Press 1990 , -

ISBN 0-7735-0767-1 / Legal deposit fourth quarter 1990 | |

Bibliothéque nationale du Québec ,

Printed in Canada on acid-free paper Reprinted twice 1991 , , This book has been published with the help of

a grant from the Social Science Federation of Canada, | using funds provided by the Social Sciences and

Humanities Research Council of Canada. , , : Canadian Cataloguing in Publication Data ©

: Clark, Bruce A., 1944, , Native liberty, crown sovereignty | studies; 4) | Includes bibliographical references. a (McGill-Queen's series in native and northern

ISBN 0-7735-0767-1 a , 1. Indians of North America—Canada—Politics

and government-—History. 2. Indians of North | - America~-Canada—Legal status, laws, etc.—

History. 3. Indians of North America—Canada— ,

Government relations—History. I. Title II. Series. : | |

, £92.C55 1990 342.71'0872 C90-090325-2 oe

Typeset in 10 on 12 Baskerville by = , , Nancy Poirier Typesetting Ltd., Ottawa, Ontario.

To Mother and Margaret |

_ Blank Page | |

Contents Table of Legislation ix

: Table of Cases xv | 7 | Acknowledgments XX ,

, Preface xxv | , | INTRODUCTION 3 , | 1 COMMON LAW OF SELF-GOVERNMENT 11

| Domestic Common Law 12

a | | Constitutional Common Law 37 | , , 2 THE PREROGATIVE LEGISLATION 58 ,

Subordination and Delegation 7 , |

| Principles 58

, , Royal Commissions, Instructions, and _ _ the Proclamation of 1763 70

_ , 3 CONTINUITY 84 , | Non-Repeal of the Prerogative |

a Legislation 85

Positive Re-enactment: The Indian ,

Territories Statutes 98

viii Contents _ 4 DISCONTINUITY: THE ANTI-THESIS 124

_ The Crimes and Offences Exception 124

| Responsible Government, and Enclaves 131 | 5 LAW REFORM AND THE NEGOTIATION | , PROCESS 147 | CONCLUSION 191 | Appendix: Constitutional Milestones 205

a Index , Bibliography 219 249

oe Table of Legislation

The legislation listed below is in chronological order. See also the appendix, "Constitutional Milestones."

1670... 76, 82, 205 |

Royal Instructions to the Several colonial Governments, |

An Act for Preventing Frauds, and Regulating Abuses in the ,

Plantation Trade, 7 & 8 Wm. Ill, c. 22 (1696) ... 69, 122, 205 Royal Declaration of Colonial Government Rank and Precedency, 1760... 60

Royal Proclamation of 1763... 7, 8, 12, 17, 23, 27, 36, 37, 38, 45~7, 56-7, 62, | 66, 67-8, 72—5 , 77, 79, 80,83, 84, 85, 86, 88, 89, 90, 93, 94, 95, 96, 97, 99,

101, 106n49, 107, 110, 118, 120, 121, 122, 125, 133, 134—7, 139, 141, 143, | 145, 147, 162~3, 164, 165, 169, 181, 196, 202, 204, 205, 206, 207, 208, 212,

216 , 7

Royal Commission of Governor Murray of Quebec, 1763... 77 Royal Instructions to Governor Murray of Quebec, 1763... 77, 93, 208 Royal Proclamation of 1764 (Grenada) ... 46 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. II, , c. 12 (1766) ... 69, 206 Carleton Proclamation, 1766...92n11, 99, 122

Royal Commission of Governor Carleton of Quebec, 1768... 77 Royal Instructions to Governor Carleton of Quebec, 1768 .. . 77, 93 Royal Instructions of the Commander in Chief of His Majesty’s Forces, 1768 .. . 78, 206 ~ Royal Instructions Endorsing a Representation of the Lords of Trade,

1768... 99, 206 , |

Order in Council Sustaining a Report of a Board of Review of a Decision of Board of Enquiry into Complaints of the Mohegan Indians, 1773... 44

| x Table of Legislation , An Act for Making More Effectual Provision for the Government of the | , Province of Quebec in North America, 14 Geo. Il, c. 83 (1774) ... 86-98, oe 100, 105, 122-3, 125, 162, 165, 206, 207 Royal Instructions of Governor Carleton of Quebec, 1775 . . . 78-9 An Ordinance for Establishing Courts of Civil Judicature in the Province of

- ~ Quebec, 17 Geo. m, c. 1 (1777 Que.) ... 39 | |

An Ordinance to Prevent the Selling of Strong Liquors to the Indians in the , Province of Quebec, as also to Deter Persons from Buying Their Arms or —

, Clothing, and for Other Purposes Relative to the Trade and Intercourse |

| Affairs, 1783... 79 | 1783... .79 | oo

with the Said Indians, 17 Geo. I, c. 7 (1777 Que.) .. . 92, 99, 155, 206

- Royal Instructions to Governor Haldimand of Quebec, 1778 .. . 79

Royal Commission of Sir William Johnson, Superintendent of Indian Affairs,

Subordinate Instructions to Sir William Johnson, Superintendent of Indian

Royal Instructions to Governor Carleton of Quebec, 1786... 39, 79 © ,

_ United States Constitution, 1789, as amended... 20, 191 Constitutional Act, 1791... 39, 100, 105, 11’7n80, 122-3, 207,208 , _ An Act to Establish a Superior Court of Civil and Criminal Jurisdiction, _

and to Regulate the Court of Appeal, 34 Geo. m1, c. 2 (1794) ... 39 | An Act for Extending the Jurisdiction 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. 1, c. 138 ,

(1803) ... 100, 104, 122-3, 124-8, 207, 213, 214, 216 | 7

Governor’s Proclamation by Isaac Brock, President Administering the -

Government of Upper Canada, 1812... 92 ,

Royal Proclamation of 1817... 101, 122-3, 207 , | Maitland’s Proclamation, 1820... 102, 207

An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil _ , Jurisdiction within Certain Parts of North America, 1 & 2 Geo. I, c. 66

(1821)... 102-3, 104, 122-3, 124-8, 207, 213, 214, 216 An Act the Better to Protect the Mississauga Tribes Living on the Indian Oo

Reserve of the River Credit, in Their Exclusive Right of Fishing and

, Hunting Therein, s. Prov. u.c. 1829, c.3...19, 155 ,

An Act for the Protection of the Lands of the Crown in This Province from

Trespass and Injury, s. Prov. u.c. 1839, c. 15... 138, 155 a Union Act, 1840... 39, 103, 105, 117n80, 122—3, 138~9, 141n53, 208 , _ An Act to Explain and Amend an Act of Parliament of the Late Province of Upper Canada, Passed in the Second Year of Her Majesty’s Reign, Intituled

| “An Act for the Protection of the Lands of the Crown in this Province from

Trespass and Injury,” and to Make Further Provision for That Purpose,

s. Prov. C. 1849, c.9...138, 155 | |

7 x1 Table of Legislation An Act to Make Further Provision for the Administration of Justice, by the Establishment of an Additional Superior Court of Common Law and also a Court of Error and Appeal, in Upper Canada, and for Other Purposes,

, s. Prov. CG. 1849, c. 63... 39 a

An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, S. Prov. C. 1850, c. 42...155

| An Act for the Protection of the Indians in Upper Canada from Imposition, and the Property Occupied or Enjoyed by Them from Trespass and Injury,

S. Prov. C. 1850, c. 74... 138, 140, 155 | An Act to Authorize the Setting Apart of Lands for the Use of Certain Indian

, Tribes of Lower Canada, S. Prov. C. 1851, c. 106... 155 Consolidated Assessment Act of Upper Canada, s. Prov. c. 1853, c. 182... 141 , An Act to Empower the Legislature of Canada to Alter the Constitution of the Legislative Council for that Province, and for Other Purposes, 17 & 18 Vict.,

c, 118 (1854) ... 103

_ An Act to Encourage the Gradual Civilization of the Indian Tribes in this | Province, and to Amend the Laws Respecting Indians, s. Prov. Cc. 1857, __

c. 26... 19, 138, 152, 155, 192, 194—5 : An Act to Provide for the Government of British Columbia, 21 & 22 Vict., c. 99 (1858) ... 77, 103, 122-3, 208 : Royal Commission of Governor Douglas of British Columbia, 1858 .. . 77, 208 Royal Instructions to Governor Douglas of British Columbia, 1858... 105

An Act to Make Further Provision for the Regulation of the Trade with the , _ Indians, and for the Administration of Justice in the North-Western _ ,

| Territories of America, 22 & 23 Vict., c. 26 (1859) .. . 104-5, 122-3, 208

, csc 1859, c.9... 19, 138, 155 : | An Act Respecting the Civilization and Enfranchisement of Certain Indians, An Act to Prevent Trespass on Public and Indian Lands, CSuUC 1859,

c. 81... 138, 140, 155 | ,

An Act Respecting Indians and Indian Lands, Ss. Prov. c. 1860,c.2...155 | , An Act Respecting the Management of the Indian Lands and Property, S. Prov. GC. 1860, c. 151... 138, 140, 155, 208

Stickeen Order in Council (UK) 1862...105 An Act to Define the Boundaries of the Colony of British Columbia; and to

Continue an Act to Provide for the Government of the Said Colony, 26 & 27 Vict., c. 83 (1863) ... 105, 122-3, 208

1864 ... 62, 77, 105, 208 ,

Royal Commission of Governor Seymour of British Columbia,

An Act to Remove Doubts as to the Validity of Colonial Laws, 28 & 29 Vict.,

c. 63 (1865) ... 72-4, 101, 121, 122, 207, 208

Constitution Act, 1867 (BNA Act) ... 20-1, 50-2, 58, 84, 105-23, 131, 134,

139n48, 143, 144, 145, 188, 192, 204, 209, 210, 211, 212, 216 , ,

xl Table of Legislation |

Rupert's Land Act, 1868... 110 , An Act Providing for the Organization of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordnance Lands,

| Sc 1868, c. 42... 136n38, 140, 154~5, 209 : Assessment Act, SO 1868-69, c. 36... 141 }

Statutes Law Revision Act, 1868-69, RSO 1970, appendix .. . 165 _

An Act for the Temporary Government of Rupert’s Land and the NorthWestern Territory when United with Canada, sc 1869, c. 3... 111, 122-3 An Act for the Gradual Enfranchisement of Indians, the Better Management |

209-10 : , ,

of Indian Affairs, and to Extend the Provisions of the Act, 31 Vict. c. 42, | ,

sc 1869, c. 6... 106n49 ,

Rupert’s Land and North-Western Territory Order, 1870... 112, 122-3, , Manitoba Act, 1870... 111, 114n67, 116, 122-3,210

British Columbia Terms of Union, 1871... 114-16, 120, 122-3, 131, 210-11 Constitution Act, 1871... 107, 113-14, 117, 118, 122—3, 210, 211, 212, 213 Prince Edward Island Terms of Union, 1873... 116, 122-3 : An Act to Amend and Consolidate the Laws Respecting Indians, sc 1876,

—¢. 18...120, 136n38, 140, 141, 154-6, 209, 211 , Assessment Act, RSO 1877, c. 180...141 | Adjacent Territories Order, 1880... 117, 122-3, 211-12 | An Act to Amend and Consolidate the Laws Respecting Indians, Sc 1880,

c. 28... 140, 141, 156 -

The Indian Advancement Act, 1884, Sc 1884, c. 28... 154n9, 156

Indian Act, RSC 1886, c. 43... 140, 141, 156 , |

Assessment Act, RSO 1887, c. 193... 141 , The Canada (Ontario) Boundary Act, 1889... 118 |

An Act for the Settlement of Certain Questions between the Governments

c. 3... 119, 212 |

of Canada and Ontario Respecting Indian Lands, sc 1891, c. 5; so 1891, a ,

Assessment Act, RSO 1897, c. 224... 141 | | : — , The Yukon Territory Act, 1898... 117, 122, 213 ,

- An Act Respecting the North-Western, Northern and North-Eastern

} Boundaries of the Province of Quebec, Sc 1898, c. 3... 118 ,

Alberta Act, 1905... 117, 122, 213 oo, Saskatchewan Act, 1905...117, 122, 213 a . Indian Act, RSC 1906, c. 81... 140, 141, 156 , | ,

- Ontario Boundaries Extension Act, 1912... 118, 122, 213 , , Quebec Boundaries Extension Act, 1912... 118, 122, 213 , Manitoba Boundaries Extension Act, 1912...119 , An Act to Amend the Indian Act, sc 1919-1920, c.50...157 — /

Act of June 2, 1924 (us.) ch. 233, 43 Stat. 253... 20 ,

| , xin = Table of Legislation An Act for the Settlement of Certain Questions between the Governments |

of Canada and Ontario, sc 1924, c. 48... 120, 139, 213 | Indian Act, RSC 1927, c. 98... 140, 141, 156

214, 216 |

Constitution Act, 1930... 107, 119, 120, 122, 128, 213, 214, 216 Manitoba Boundaries Extension Act, 1930 ...118 Statute of Westminster, 1931... 106—8, 114, 121, 122, 198, 209, 210, 211, 212,

An Act to Amend the Indian Act, sc 1932-33, c. 42... 157

Indian Reorganization Act, ch. 576, 48 Stat. 987 (1934); codified (as ,

amended) at 25 usc 461-79 (1982) ... 26-7 ;

Assessment Act, RSO 1937, c. 272... 141

| Newfoundland Act, 1949... 121, 122, 214 ,

Assessment Act, RSO 1950, c. 24... 141 : The Indian Act, sc 1951, c. 29... 35, 127, 156-7, 177, 207, 213, 214

‘Indian Act, RSC 1952, c. 149... 127, 140, 141, 156-7 | | Assessment Act, RSO 1960, c. 23... 141

| 215 | | Canadian Bill of Rights, 1960... 20-21 Canada Elections Act, SC 1960, c. 7... 195, 214

Assessment Act, RSO 1970, c. 32... 141, 168 | Indian Act, Rsc 1970, c. -6... 8, 17, 26, 27n48, 35, 108, 127, 136-7, 140, 141,

145, 156-7, 169, 170, 177, 182-3, 184, 199n18, 207, 214 © ,

James Bay and Northern Quebec Native Claims Settlement Act, 1977... 167,

Indian Band Council Procedure Regulations, CRC 1978, c. 950... 156 :

‘Indian Band Election Regulations, CRC 1978, c. 952... 156 | Indian Referendum Regulations, CRC 1978, c. 957... 156 Canada Act, 1982... 26, 83, 122 Constitution Act, 1982... 4-7, 25-7, 32, 33, 34, 35, 56~7, 58, 59, 85, 86, 107-8, 111n58, 112n59, 113n63, 114n65, 116n73, 117n78, 117n81, 117n82, , 119n88, 121, 122, 128n7, 131n19, 130, 145, 166, 169, 172n67, 181, 182-3,

185-6, 189, 195, 198, 200-4, 210, 211, 212, 214, 216 , Constitution Amendment Proclamation, 1983... 179, 216, 217 |

Cree-Naskapi (of Quebec) Act, 1984... 167, 217 , | Indian Self-Government Act, 1984, Bill c-52... 169, 217

215,217 a

Federal Court Act, 1985... 53n131, 55n139

| Sechelt Indian Band Self-Government Act, SC 1986, c. 27... 168, 169, 171,

An Act to Amend the Indian Act and Another Act in Consequence Thereof, : Bill C-115, first reading March 9, 1988... 177, 217-18

lable of Cases

Abeyesekera v. Jayatilake, [1932] ac 260 (pc)... 85 : Amodu Tijaniv. Secretary, Southern Nigeria, [1921] 2 ac 399 (pc) ... 31, 139, 140 AG Can. v. AG Ont., [1897] ac 199 (pc) .. . 44, 50-2, 56, 110, 133-4, 140, 143,

144, 192, 212, 215, 216, 217 ,

AG Can. v. Canard, [1976] 1 scr 170... 20, 22, 208, 213, 216 , , AG Ont. v. Bear Island Foundation (1984), 49 or (2d) 353 (uc), aff'd (1989), , 68 or (2d) 394 (ca)... 57n146, 89-98, 107n51, 132, 137, 142, 144, 145, ,

161, 165, 194, 218 | , |

AG Ont. v. Francis [1889], Archives Ontario, Irving Papers, box 43, file 42,

item 9 (Ont. Hc)... 137, 140, 141 ,

AG Ont. v. Price (1868), 15 Ch. 304 (Ont.) ... 140 oe AG Que. v. AG Can. (1920), 56 DLR 373 (scc) ... 139 AG Que. v. AG Can., [1921] ac 410 (pc)B... 118, 139

Re Beaulieu’s Petition (1969), 67 wwr 669... 18

Re Bell (1977), 16 or (2d) 197 (sc) .. . 130 | Bown v. West (1846), 1 Grant’s E & aR 117 (Ont.) .. . 23, 140 | | Blackfoot Indian Band No. 146 (Members) v. Canada (1986), 5 FTR 23... 55 , Brick Cartage Ltd. v. r., [1965] 1 Ex. cr 102... 85, 120, 137, 140, 141

| Burke v. Cormier (1890), 30 NBR 142... 75 , Buronv. Denman, [1848] 2 Exch. 167... 63 Calder v. AG for Bc, [1973] scr 313....5, 27, 31, 49n122, 62, 64-5, 71-3, 75, 81,

85, 89, 115n71, 131-2, 134, 139, 140, 141, 142, 159, 194, 214-15 | California v. Cabazon Band of Mission Indians, 107 s Ct 1083 (1987) ... 16

— Calvin’s Case (1608), 77 R 377... 47 |

Cameron v. Kyte (1835), 12 ER 679... 37, 45, 48-50, 52, 56, 207 ;

Campbell v. Hall (1774), 98 ER 848 ...19, 37, 45-8, 50, 52, 56, 63, 66, 162

Campbellv. Sandy, [1956] own 441 (cc)... 129 |

Canada v. Ontario, [1910] Ac 637 (Pc)... 137 |

Canard v. AG Can., [1972] 5 wwe 678 (Manca) ...140 | ,

xvi Table of Cases | , , _ Canatonquin v. Gabriel, [1980] 2 rc 792 (ca) ...53, 181 | Cardinal v. ac Alta, [1974] scr 695... . 23, 134, 135-7, 141, 142, 146, 212, 215

, (1980) ...16, 17 } |

—— Central Machinery Co. v. Arizona State Tax Commission, 448 u.s..160° |

: Cherokee Nation v. Georgia, 5 Peters 1 (1831) .. .16, 20 : _ Cherokee Nation v. Southern Kansas Ry. Co., 135 u.s. 641 (1890) ...17 -

_ Choctaw Nation v. u.s., 119 u.s. 1 (1886) .. .16 oe Church v. Fenton (1878), 28 uccr 384, aff'd (1879), 4 oar 159, aff'd (1880)

5 scr 239... 103, 137, 140 Claxton v. Saanichton Marina Ltd., (1987) 4 cNLR 48 (Bcsc) .. .5 | | Coleman v. Tish-Ho-Mah, 4 Smedes & M 40 (Miss. HG of £ & A, 1844)... 16

Colliflower v. Garland, 342 F 2d 369 (9th Cir., 1965) ... 180 : Connolly v. Woolrich (1867), 11 ucy 197 (Que.) . . .13-19, 28 , _ Connolly v. Woolrich (1869), 1 RLOs 253 (Que. cA) .. .17-19

Cornet v. Winton, 2 Yerg. 129 (Tenn. ca, 1826) ...16 , Ex Parte Cote (1971), 5 ccc (2d) 49 (Sask. ca)... 18 , County of Oneida v. Oneida Indian Reservation, 105 s Ct 1245 (1984) ... 16

Croftv. Dunphy, [1933] ac 156 (pc)... 54 , ,

Ex Parte Crow Dog, 109 u.s. 556 (1883) ... 16 i | Davey v. Isaac (1977), 77 DLR (3d) 481 (scc) ... 156

_ Re Deborah, [1972] 5 wwr 203... 18 : Dick v. R., [1985] 2 scr 309 . . .128 | | |

' Doherty v. Giroux (1915), 24 Qxs 433 (ca)... 137, 139 , Doneganiv. Donegani (1835), 1 LRAcC 50 (pc)... 19

Earl of Antrim’s Petition, [1967] ac691...164

Easterbrook v. R., [1931] scr 210... 85 , | , |

| Fegan v. McLean (1869), 29 ucgs 202... 23, 140 | Fellows v. Denniston, 23 Ny 420 (cA, 1861)... 16

Finlay v. Canada [1986] 2 scr 607... 55 | Fishery. District Court, 424 u.s. 382 (1976) ... 16 , | Fort Alexander Indian Band v. Canada (1988), 19 Fre 315... 55

, 421 (scc) ... 23, 134, 137 , , , , _ Four B. Manufacturing Lid. v. United Garment Workers of America (1979), 30 NR |

| Geoffries v. Williams (1959), 16 DLR (2d) 157 (Bc Co. Ct)... 115

Gibb v. White (1870), 5 Practice R 315 (Ont.) ...19 | | ,

a Goodell v. Jackson, 20 Johnson R. 693 (NY Ct E, 1823)... 20.

Grand Trunk v. Robertson, [1909] Ac 325... 164 | Guerin Vv. R., [1984] 2 scr 335... 5, 28, 31, 160 a ,

, Hamlet of Baker Lakev. Min. of Ind. Aff. (1979), 107 pir (3d) 513 (rc)... 75 Harcourt v. Gaillard, 12 Wheat. 523 (1827) ... 76°

Hodelv. Irving, 107 s Ct 2076 (1987) ... 16

Holden v. Joy, 84 u.s. 211 (1872) ...16 | a Holland v. Pack, 8 Martin & Yerger 119 (sc Tenn., 1823) ... 20 ,

xvii Table of Cases

The India (1865), 12 trns 316... 164 | | Re Indian Claims: An Arbitration Award, Public Archives Canada,

Record Group 10, vol. 2546, file 111834, pt. 1, at 13... 29-30 Idaho (State) v. Coffee, 56 p 2d 1185 (1976) ...57,97 Towa Mutual Ins. Co. v. Laplante, 107 s Ct 971 (1987) ... 16

Isaacv. Davey (1974), 5 oR (2d) 610 (cA)... 23, 137, 139, 140, 141 7

Jack v. R., [1985] 2 scr 332... 128 , Jackson v. Wilkes (1835), 4 ucr 142... 23, 140

Joev. Canada, [1986] 2 scr 145...55 , Johnson v. McIntosh, 8 Wheat. 543 (1823) ... 16, 76 ,

Johnstone v. Pedlar, {|1921] 2 ac 262... 63 Joint Tribal Council of the Passamaquoddy Tribev. Morton, 528 F 2d 370

(Ist Cir., 1975) ...25 , ' Re Kansas Indians, 72 us. 737 (1866) ... 16 , |

Re Katie’s Adoption Petition (1961), 38 wwr 100... 18 Kennerly v. District Court, 400 u.s. 423 (1971)... 16 | Kerr-McGee Corp. v. Navajo Tribe, 105 s Ct 1900 (1985) ... 16, 25 ,

Kielley v. Carson (1843), 3 Moo. pc 63... 33 — |

Kimball v. Callahan, 590 ¥ 2d 768 (9th Cir.), cert. denied, 444 u.s. 826 |

(1979) ... 25 Kingv. Gull Bay Indian Band (1983), 38 cec 1 (Ont pc) .. . 53, 181

| Kruger v. R., [1978] 1 scr 104... . 128-9, 216 The Lauderdale Peerage (1885), 10 ac 752... 163

Logan v. AG Can., [1959] own 361... 19 | Lone Wolfv. Hitchcock, 187 u.s. 553 (1903) ...17 Mackey v. Coxe, 59 u.s. 100 (1855)... 16 ~ Manuelv. Ac, [1982] 3 All eR 786 (Ch.) ... 108, 122, 216 McClanahan v. Arizona State Tax Commission, 411 u.s. 164 (1973) ... 16, 24

McCurtain v. Grady, 38 sw 65 (1896) .. . 16 a McDiarmid v. McDiarmid (1862), 9 Ch. 144 (uc) ... 140

Menominee Tribe v. u.s., 388 ¥ 2d. 998 (Ct Cl., 1967), 391 u.s. 404 (1968) ... 25 , Merrion v. ficarilla Apache Tribe, 455 u.s. 130 (1982) ... 16, 25, 26, 178-9, 217

Mescalero Apache Tribe v. Jones, 411 u.s. 145 (1973) ... 24

174 (Nssc) ... 130 , :

_ Millbrook Indian Band v. Northern Counties Tenancies Bd. (1978), 84 DLR (3d)

Minter v. Shirley, 3 Miss. 376 (1871) ... 16 |

Mitchel v. u.s., 9 Peters 711 (1835) ... 76 , , Mohegan Indians v. Connecticut, in Smith, J.H., Appeals to the Privy Council,

| 429-49... 28-9, 37-45, 49-50, 52, 56, 143, 206 Montana v. Blackfeet Tribe, 105 s Ct 2399 (1985) ... 16 Montana v. u.s., 450 u.s. 544 (1981) ... 25

Montoyav. u.s., 180 u.s. 261 (1901) ...17 | | Mortensen v. Peters (1906), 14 Scot tr 227...5 , ,

- xviii Table of Cases , Morton v. Mancari, 417 u.s. 535 (1974) ... 21 an ,

Mowat v. Casgrain (1897), 6 QLR 12 (ca)... 137,139,140 —— oe , National Farmers Union Ins. Co. v. Crow Tribe, 105 s Ct 2447 (1985) ... 16, 25

~ (Man. ca)... 130 a |

Nelson v. Children’s Aid Society of Eastern Manitoba,[1975] 5 wwr 45 |

| _ New Mexicov. Mescalero Apache Tribe, 462 u.s. 324 (1983) ... 16

Nissan v. A.G., [1968] 1 gp 286 (ca), [1970] ac 179... 63 - |

| Re Noah Estate (1961), 2 DLR (2d) 185 (Terr. Ct) ... 18 : | } Northcharterland Exploration Co. (1910) Lid. v. R., [1931] 1 Ch. 169...85

Ogden v. Lee, 6 Hill’s 546 (Ny, 1844) ... 16 Oliphant v. Suquamish Indian Tribe, 435 u.s. 191 (1978) ...17 |

(1977) ... 160 | | .

: Oneida Indian Nation v. County of Oneida, 414 u.s. 661 (1974), 434 F Supp. 527,

Ontario Mining Company v. Seybold (1900), 32 or 301 (Div. Ct), (1901), |

32 scr 1[1903] ac 399 (pc) .. . 23, 137, 139, 141 7 |

(1985)... 25 | | |

Oregon Dept. of Fish & Wildlifev. Klamath Indian Tribe, 105 s Ct 3426 | Palm Dairies Ltd. v. R. (1978), 91 DLR (3d) 665 (FC) .. . 130, 184 , Pap-Wee-Inv. Beaudry (1933), 1 wwr 138 (Sask. KB)... 130 Oo

Parks v. Ross, 52 us. 362 (1850) ... 16 oe | Re Paulette, [1976] 2 wwe 193 (NwTca) ... 139 I Peoplev. Dibble, 18 Barbour’s scr (NY, 1854) ...16,20 | |

Pichev. Cold Lake Transmissions Ltd., [1980] 2 rc 369... 55 , | | Pratt v. Sproxton (1977), 6 cpc 121 (Sask gs) .. . 53, 181

Princev. Tracey (1913), 13 DLR 818 (Man.) ...19 - | |

Procureur Général du Québec v. Paul, [1977] csp 1054... 129 | Puyallup Tribe, Inc. v. Department of Game, 433 us. 165 (1977) ...25 Ramah Navajo School Bd. v. Bureau of Revenue, 458 us. 832 (1982) ...16,17 | Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1981), | :

125 pir (3d) 1 (scc)... 54 | i Reference as to Powers, [1943] scr 208... 5 ,

, Reference Re The Seabed and Subsoil of the Continental Shelf Offshore Newfoundland

(1984), 5 DLR (4th) 385 (scc) ... 54. , .

R. v. Agawa (1989), 65 or (2d) 505 (ca)... 200

| R. v. Baby (1855), 12 ucgB 346... 140 — | | :

Rv. Bear’s Shin Bone (1899), 4 Terr. LR 173... . 18 | Oo

| R. v. Bonhomme (1917), 38 DLR 647 (Ex cc)... 76

R. v. Dennis, [1975] 2 wwe 630 (Bc Prov. Ct) ... 129 | oe , R. v. Denny (1990) March 5 unreported (Ns App. Div.) ... 129 - Oo

R. v. Dick, [1989] 1 cNLR 132 (Bc Prov. Ct) .. . 33-4, 200 oe -

R. v. Farrell (1831), [1825-59] 1 Legge 5(scnsw)...55 |

(scc) ... 85, 129, 139 |

R. v. George, [1964] 1 or 24 (HC), [1964] 2 or 429 (ca), (1966), 55 DLR (2d) 386 Oe

xix Table of Cases

Rv. Gingrich (1958), 29 wwe 471 (Alta. App. Div.) ... 19, 130 .

, R.v. Great Western Rwy. Co. (1862), 21 ucgB 555... 140 : R. v. Groslouis (1944), 81 ccc 167 (Que. Ct of Sessions) ... 129

Rv. Hill (1908), 15 ot 406 (ca)... 129 | ,

-_ RV. Horse, [1985] 1 wwr 1 (Sask. ca), aff'd doc. no. 19164 | |

Supreme Court of Canada, January 28, 1988... 129 , , | R. v. Horseman (1990) May 3, unreported (scc) .. . 130 | : R. v. Isaac (1975), 13 NsR (2d) 460 (ca)... 75, 85, 128, 129, 139, 141 a

R.v. Jim (1915), 22 Bcr 106 (sc) ... 129 , R.v. Kogogolak (1959), 28 wwr 376 (Terr. Ct) .. . 75, 85 ,

R. Vv. Koonungnak (1963), 45 wwe 282 (Terr. Ct) ... 75, 85 , R.v. Lady McMaster, [1926] Ex. cr 68 .. . 85, 88, 137, 140 |

R.v. Martin (1917),41 otr 79 (App. Div.) ... 129 , | , R. v. Moses, [1970] 3 or 314 (pc)... 129 | | : R. Vv. Nan-b-Quis-A-Ka (1889), 1 Terr. tk 211...18 R. Vv. Peters (1966), 57 wwr 727 (yrca) ... 129 R. v. Point (No. 2) (1957), 22 wwr, 527 (BccA) ... 115

R. v. Pritchard (1973), 32 DLR (3d) 617 (Sask. Dist. Ct) ...6 R.v. Ruddick (1928), 49 ccc 323... 164

R. v. Secretary of State for Foreign ( Commonwealth Affairs, [1982] |

2 All eR 118 (ca)... 84, 85, 107, 122, 216 | | |

| R.v. Stkyea (1964), 46 wwe 65 (Nwrca), aff'd [1964] scr 642... 75, 85

R. v. Simon (1986), 24 DLR (4th) 390 (scc) ... 71 a R.v. Stout (1990) May 24, unreported (scc) ... 130 R. v. Smith (1980), 113 DLR 572 (Fca) ... 85, 130, 139

~(scc) ... 71, 129,130 © | |

R. v.. Sparrow, [1987] 1 cNLR 145 (Bcca), (1990) May 31, unreported |

| (Alta. sc)... 129 a | |

R.v. Stoney Joe (1910), Public Archives Canada, Rc vol. 6732, file 420-24 | R. Vv. Syliboy (1928), 50 ccc 389... 75

R. v. Symonds (1847), [1840-1932] Nz pcc 387... 55 , , :

R.v. Taylor (1981), 34 or (2d) 360 (ca)... 129 , R. v. White (1964), 50 DLR (2d) 613 (BccA) ... 85, 137 R.v. Williams (1958), 120 ccc 34 (Mag. Ct) ... 129 Reynolds, 5 Dillon Crt Ct R 394 (Ark., 1899) ... 20 Riderv. Ear (1979), 103 DLR (3d) 168 (Alta. sc) ... 53, 181 _

, Roy Little Chiefv AG Canada (1986), 5 woce 431 (FcTp)...55 -

(Ex. cc)... 139, 140 St. Ann’s Island Shooting & Fishing Club Ltd. v. R. (1949), 2 DLR 17

St. Catherine’s Milling & Lumber Co. v. rk. (1885), 10 or 196 (Ch. D) ... 163, 165

_ St. Catherine’s Milling ( Lumber Co. v. R. (1886), 13 OAR a ,

148... 30, 140, 163, 195 : : ,

xx Table of Cases , St. Catherine’s Milling & Lumber Co. v. R. (1887), 13 scr 577... 12, 13, 36, 39,

40, 76, 80, 85, 88, 140, 162-3 ,

St. Catherines Milling ( Lumber Co. v. R. (1888), 14 ac 146 (pc) ... 13, 88, 110,

, 119, 121, 133, 134, 135, 138-43, 162, 164n41, 192, 212 | Salaman v. Secretary, [1906] 1 kB 613... 63 , | Sammut v. Strickland, [1938] Ac 518... 85 Sanderson v. Heap (1909), 11 wir 238... 19 Sandy v. Sandy (1979), 25 or (2d) 192 (Hc) ... 130, 137 Santa Clara Pueblo v. Martinez, 436 u.s. 49 (1978) ... 16, 25, 56, 179, 216

Sask. v. Crane, [1979] 4 Sask. R. 161 (QB) ...6 Oo | oe

213, 216 . ,

Serov. Gault (1921), 50 oLR 27... 19, 22-23, 28, 29, 30, 129, 208, 213, 216 Sheldon v. Ramsay (1852),.9 UCR 105 (gs) . . . 19-20, 21, 22, 23, 28, 30, 140, 208,

Simon v. R. (1986), 24 DLR (4th) 390 (scc) ... 71 | Skaarup Shipping Corp. v. Hawker Industries Ltd. (1977), 81 ptr (3d) 101

| (FCTD) ... 54

Sobhuza iv. Miller, [1926] ac 518... 63, 139 Sunmonav. Disu Raphael, [1927] ac 881 (pc)... 139 Surrey v. Peace Arch Enterprizes Lid. (1970), 74 wwr 380 (Bcca) ... 130

Talton v. Mayes, 163 u.s. 376 (1896) ... 16, 25 Three Affiliated Tribes v. Wold Engineering, 104 s Ct 2267 (1984) ... 16, 17 Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 54 UsLW

4654 (1986) ... 25 ,

, Ex Parte Tiger, 47 sw 304 (1898) ... 16

Totten v. Watson (1858), 15 ucgp 392... 140 a

U.S. V. John, 437 U.S. 634 (1978) .. . 25 ,

U.S. V. Kagama, 118 u.s. 375 (1886) ...17 :

u.S.v. Mazurie, 419 u.s. 544 (1974)... 16 , |

u.S. v. Sioux Nation, 448 u.s. 371 (1980) ... 160 } , u.S. Vv. United States Fidelity & Guaranty Co., 309 u.s. 506 (1940) ... 16

U.S. V. Wheeler, 435 u.s. 313 (1978) ... 16, 17, 24 , ,

Re Wah-Shee (1975), 57 DLR (3d) 743... 18 | , Warman v. Francis (1958), 20 DLR (2d) 627 (NBSC) .. . 139 , , | Warren Trading Post v. Arizona State Tax Commission, 380 u.s. 685

| (1965) ... 16,17 (1980) ... 16, 25, 26-7 | | , Washington v. Confederated Tribes of Colville Indian Reservation, 447 us. 134 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n,

443 us. 658 (1979) ... 25 ,

Webster v. Reid, 1 lowa 467 (1846) ... 16 oe Westbrooke v. AG (1865), 11 Ch. 330 (Ont.) .... 140 , Western International Contractors Ltd. v. Sarcee Developments Lid., | |

[1979] 3 wwe 631 (Alta App. Div.) ... 130 -

, xxi Table of Cases : Wewayakum Indian Band v. Canada (1989), 92 NR 241 (scc), [1989] 1 scr 332

, sub nom Roberts v. Canada... 5, 30-2, 52~7, 146, 218 White v. Boot (1728), 2 TR 274; 100 ER 149... 164 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) ... 16, 17

Re Williams Estate (1960), 32 wwe 686 (Bcsc)...130 |

Williams v. Lee, 358 u.s. 217 (1959) ... 16 ,

Winters v. United States, 207 u.s. 564 (1908) ... 25 Worcester v. Georgia, 6 Peters 515 (1832) ... 13-19, 28, 36~7, 55-6

— Acknowledgments

Professor and Dean of Law Dr Geoffrey MacCormack as my doctoral

thesis mentor guided, encouraged and facilitated the enquiry upon which this book is based. He made the process a genuinely enjoyable dialogue, one that I treasure. From the more distant past, I remember — and have to thank Gary Potts, James Morrison, William Eccles, the —

late Edward Rogers and his widow, Mary Black-Rogers, John Nichols, _ James Wright, Brian Slattery, Donald Smith, Craig Macdonald, Thor

Conway, Richard Lee, Conrad Heidenreich, Basil Johnson, the late Kermit Moore, Kirk Wipper, Rosemary McCormack, and also the late : Phylis Berger for her tireless support of aboriginal peoples. More

recently, I have in addition to thank Roy Clark and David Book. Fortune smiled upon me when Frances Emery became my copy

editor at McGill-Queen’s University Press, and I want to thank her, , _ as well as Grace Campbell who so efficiently typed and re-typed the | manuscript through its countless scratch-outs and revisions. For seven years my wife Margaret and I, and our children David,

, Zoe, and Beau, lived on the Indian reserve of the Temagami Band of Indians at Bear Island, Lake Temagami, Ontario. For better and | for worse, but never to be the same or what they might have been, _

| our lives were changed. As our friends, neighbours, and mentors, the aboriginal people at Bear Island occupy a large place in our hearts

and I wish to acknowledge this. |

I also thank the C.B. Davidson Bequest Scholarship Trustees, and _ the Canada Mortgage and Housing Corporation Scholarship Program,

for financially aiding my research. | - |

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Preface

— It might be desirable to amend the constitution of Canada to acknowl-

edge the distinctiveness of native society as a symbolic gesture and

as an aid to construction of instruments. But it is unnecessary to amend : the constitution to add an aboriginal right of self-government, for that right is already entrenched as an “existing aboriginal right” within

the meaning of section 35 of the Constitution Act, 1982. The right was confirmed by prerogative legislation and by consti-

tutional common law precedents in the eighteenth and nineteenth centuries. It has been reiterated in the statutes of the imperial government which also established the corresponding constitutional powers of the federal and provincial governments. As originally constituted

and since perpetuated, the right has meant that federal and provincial __ , governments may not legally encroach upon the natives’ jurisdiction

to govern their own civil affairs in relation to unceded territory. But those federal and provincial governments are not under any express constitutional obligation financially to support native governments. This means that although the political constitutional debate (misguidedly) concerns the existence of the right, the underlying economic problem is how to apply the right that in fact already exists.

| The aboriginal peoples of Canada do not need a new right - they | need the money and the cooperation to make the existing constitutional right work in practice. They need enough of their land back

to have a territorial base upon which to exercise their right.

| Although the basis for the right was not the domestic common | law, the only basis consistent with current federal policy is that it be treated as if it were domestic common law. That policy presumes

that if ever the aboriginal right had existed it had been superseded | historically by actions of federal and provincial governments inconsistent with it. I submit, however, that since the imperial legislation

| — -xxviss Preface | , , | that actually confirmed the right and subsequently reiterated it has never been repealed, such supersession is a legal impossibility. Because _

| it is basic to federal policy the supersession idea nevertheless dominates __ _ the current approach to law reform. It also dominates the negotiation process, which proceeds upon the assumption that the municipal form _ of self-government on offer, with its delegated enumerated powers

to carry out local works, is at least “something” where (if the super- | session idea were true) “nothing” exists at the present time. In reality,

: the existing right is an inherent and full right of civil self-government, |

not a restricted set of enumerated powers. | |

The federal and provincial policy of ignoring the existing law, in | practice, creates an erroneous but nonetheless pervasive popular assumption that no right of self-government presently exists at law. The native people, out of political pressure, engage in constitutional negotiations in order somehow to dislodge this assumption. Unfortunately, the very process of ongoing constitutional negotiations places the existing right at risk by threatening to substitute a paler version. __ I submit that the process of law reform, and indeed race relations

domestically and Canada’s reputation internationally, would be | advanced by recognizing the law as presently constituted, and either ,

| - honouring it or changing it. | 7 It is not, therefore, the focus of this book to argue the moral case _

reform. | ,

for or against the aboriginal right of self-government; it is only to identify the existing law. The character of the existing law must _ surely be a threshold for assessing the appropriate direction of law

Native Liberty, Crown Sovereignty |

Not beneath nature and pagan gods ,

, Nor above nature as God's agent

But as wholeworld beings :

The way was felt not calculated. |

Until the continuity was battered ; ; By abstract laws of a foreign reason

Thai were thought a gift | But experienced as tyranny. , | The struggle subsided |

Wait for the cycle , | To bring liberty back. And the children of quietness and heirs of peace

, , BC.

Respect replacing condescension

Hope quickening.

Blank Page

Introduction a

Native liberty and crown sovereignty complement each other in Canada. Faced with numerous and warlike tribes, and not being entirely impervious to sentiments of natural justice, the imperial government

of Great Britain in the eighteenth century recognized the liberty of

, the indigenous peoples not to be molested or disturbed on their unceded territories. This liberty received constitutional protection throughout British North America. The imperial government claimed overall sovereignty. Pursuant to that sovereignty it constituted the powers

of the colonial governments. The powers delegated by the imperial government to these colonial governments were made to accommodate

the previously recognized liberty of the natives. This constitutional

| pattern was never abrogated and thus, under the umbrella of crown sovereignty, it continues to describe a constitutional status in Canada. The jurisdiction of federal and provincial governments to govern ceded territory is constitutionally counter-balanced — by the jurisdiction of the aboriginal peoples to govern themselves upon territory that they

never voluntarily ceded. oo For this reason, if the right of self-government exists at law, it means

that what has been called the Indian race! has a legislative jurisdiction from which non-natives are excluded. The right’s connotation is that,

for political purposes, Canadians are legally segregated into racial : 1As used here, “Indian race” means the set of persons or political entities that claim to trace descent to pre-Columbian original inhabitants of North America. This concept includes a range of potential constituent subsets, from individual , Indians to political associations such as those styled “first nations.” The text focuses upon the right of self-government constituted for legal purposes with _ reference to several of the subsets, in relation to the particular circumstances

and territories described. | :

| _ 4 Native Liberty, Crown Sovereignty classes. This study demonstrates both that the right does exist? and that its concomitant of racial segregation (or racial liberty, depending

| upon one’s perspective) has been a feature of Canadian constitutional _

, law for as long as the country has been in existence. | The right was confirmed under legislation enacted by the imperial government, which has never been repealed, and it has been endorsed , ‘by constitutionally binding common law precedents. Nevertheless, some native leaders in Canada may not necessarily wish to press for

, recognition of the existing aboriginal right of self-government. That | | right constitutes merely a bare power, and has no financial or other support. For practical purposes, however, it takes money to run a modern government. For reasons of political pressure, therefore, it , may be thought to be counter productive to press for court recognition

of the existing right. Even if the will to proceed exists, the very | process of going to court takes the debate out of the political forum, where the native leaders are active participants, and places it almost |

entirely in the hands of non-native lawyers and judges.

The non-native federal and provincial governments do notnecessarily = want the imperially enacted law to be acknowledged either, but they ,

, have different reasons: these governments have been ignoring the law in practice, and for reasons of political expediency therefore have

, an interest in avoiding accountability for their transgressions. - These political considerations are disincentives to an acknowledgment | that the aboriginal right of self-government is already an “existing aboriginal right” recognized and affirmed under section 35 of the Constitution Act, 1982. The politically acceptable course may be to | ignore the right as presently constituted in order to be free to reinvent it, but in a more comfortable context. In the weaving of this political , web the law has been entangled, and misunderstood. My objective | is to reassess the law’s provisions, with two ends in view. An entrenched , -2In. contrast, see Bartlett, Subjugation, Self-Management, and Self-Government of _ Aboriginal Lands and Resources, abstract, ix: “It is concluded that self-government | of aboriginal lands and resources has not, and does not yet, exist in Canada.” Other academic writers have argued that the right of self-government does exist,

but erroneously have attributed the right primarily to common law rather than | . to binding written constitutional instruments. See, for example, Slattery, “Understanding Aboriginal Rights,” 736-41. Still others have stressed domestic

legislation and relegated the more significant constitutional legislation to a background context role. See, for example, Mason, “Canadian and United States

| Approaches to Indian Sovereignty,” and 423-4, Nakatsura, “A Constitutional Right of Indian Self-Government,” 96, 99. At no time have the several constitutional

instruments all been analysed together, as is both appropriate and necessary

existing aboriginal right. :

to an integrated and complete analysis of the right of self-government as an

5 Introduction , habit of thought in Canada is the popular assumption that natives _ do not already have the right of self-government. From this cherished

| misconception often springs a concomitant assumption that the law, by not providing for this right, is oppressive. The truth is that the law has all along made provision for the aboriginal right of self-government, though those charged with application of the law have not consistently applied it. The defence of the law, of its integrity against these baseless assumptions, which would make the law a scapegoat for native society’s

misfortunes, is therefore my first aim. Second, because law reform | will be more effective if based upon an accurate view of the law to be reformed, I attempt to provide that more accurate view. The sources that make the right of self-government an “existing”

aboriginal right, for legal purposes, are the cases and legislative - instruments. Those are the primary sources I have used. Sources of law of more remote character, such as the international law of human

rights, have been excluded from this study’s frame of reference, although naturally moral principles from a philosophical or inter-

national law context may previously have worked their way into the | |

| cases or legislation.° - o

The determinative section of the Constitution Act, 1982 regarding this word “existing” is section 35(1): “The existing aboriginal and treaty — rights of the aboriginal peoples of Canada are hereby recognized and affirmed [emphasis added].” The first point to be made is that the “right” referred to in the title of this work must have been “existing”

17 April 1982.4 : |

by having been constituted as of the date that act came into force,

, The term “aboriginal” is the second important component of the ’See generally Langan, Maxwell on the Interpretation of Statutes, 183, 185; Dreidger, : The Construction of Statutes, 129-30; Reference as to Powers, [1943] scr 208, 213-14;

and Mortensen v. Peters (1906), 14 Scot. Lr 227, 230, 232. In contrast, there is a view that international commitments can be directly transposed and made . binding of their own force in domestic law, regarding which see, Comment,

Title in Canada 102-6. , The Review: International Commission of Jurists 35, no. 7 (1985); and Clark, Indian

* This is the conventional approach toward identifying aboriginal rights in Canadian law. See, for example, Calder v. ac for ac, [1973] scr 313, 401. The issue relative to the existence of the aboriginal proprietary right was defined as follows: “This

important question remains: were the rights either at common law or under i the Proclamation extinguished.” The relevant sources were taken to be, as they are here, the cases (“common law”) or legislation (“the Proclamation”). See also Guerin v. R., [1984] 2 scr 335, 377; and Wewayakum Indian Band v. Canada (1989), 92 nr 241, 257-9, 262~3. And see Claxton v. Saanichton Marina Ltd., [1987] —

4 cNLR 48 (Bcsc), 60, per Meredith, J.: “rights cannot exist in a vacuum: they _ must be conferred, they must be recognized, and they must have a means of

| protection [emphasis added].”

| 6 Native Liberty, Crown Sovereignty , , title. As used in this study “aboriginal” means the racial class identified

at law as having rights and liabilities distinguished from the rights and liabilities of other Canadians. Domestic laws may distinguish natives for some purposes but not for other purposes, and the definition of aboriginal can vary from case to case and from legislative instrument

to legislative instrument. This does not matter for present purposes. Here “aboriginal” is meant in its broadest sense. It is the “them” (or

the “us,” depending upon one’s racial affinity) that serves to identify | the race segregated for legal purposes in a legal system that constitutionally acknowledges a racial “them versus us” dichotomy. No , - other race is identified as severable for legal purposes in Canadian

constitutional law. |

The law is less than clear on the rules for determining membership

' in these racial classes. There is no independent and consistent | , interpretation act or academic convention that precisely defines the content of this racial concept for constitutional purposes.’ Section , | 35 of the Constitution Act, 1982 uses the phrase “aboriginal peoples.” However, the vagueness of the section’s phrase adds no definitional _ Clarity. The section constitutes an open-ended category, defining the general term “aboriginal peoples” as “including” three subcategories,

each of which is itself an open-ended, undefined term: “35(2) In __ this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada [emphasis added].” This lack of precision

is not, however, a failure on the part of the law. The law has left open the question of the identification of the aboriginal peoples so that they can identify themselves. They continue to have the jurisdiction to determine their own membership in their own political organizations, —

as they had in aboriginal times. The third component in the title phrase is “self-government.” Herein

it is taken to mean the power to enact laws that courts will enforce as being paramount when in conflict with the laws of other bodies politic. “Self-government” is predicated on the existence of native bodies

politic. It does not suggest that native individuals as individuals are | severally laws unto themselves. Most important, self-government must be carefully distinguished from self-management or self-administration.

, The latter terms can include the function of managing or administering laws made by some other body politic; “self-government” however, as

used here, means making one’s own laws, laws that can have precedence °A credible attempt to define a “constitutional Indian” category was made in R. v. Pritchard (1973), 32 pLR (3d) 617 (Sask. Dist. Ct), 619-21; and in Sask. v. Crane, [1979] 4 Sask. R 161 (QB), 163-8. See also Reference whether term "Indians"

includes "Eskimo", [1939] scr 104. |

7 Introduction over the laws of outside lawmakers when the laws conflict. The study’s frame of reference is determined therefore by the word “right” as modified by the word “existing” of section 35 of the Constitution Act, 1982, restricting the relevant sources to cases and legislative

instruments. The word “aboriginal” in the title designates that the existing right in question is referable to racially defined legal collectivities. The character of the existing right enjoyed by this particular race as “self-government” is that of independent lawmaker. Government is normally understood to have a territorial extension. The aboriginal right of self-government is no different. It is the right of a race to govern itself with reference to territory. Historically that

territory was identified as a residual category of land, being “such

, Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as | their Hunting Grounds.”° These words, from the Royal Proclamation of 1763, are representative of a continuous and consistent approach. A series of constitutional instruments promulgated by the imperial government speaks of land that is “reserved.” Evidence of the land’s still being reserved is found negatively in the fact that the land has

never demonstrably been unreserved — that is, never “ceded to or purchased by” the crown. The crucial point is that all land in what is now Canada started out by being reserved.’ The aboriginal right of self-government was conceived as existing with reference to this original category of reserved land. Subsequently, treaties deemed that portions of the previously unceded “hunting grounds” (or some similar designation, such as “Indian territory”) would henceforth be regarded as “reserves.” The effect of this was to make certain domestic legislation

known as Indian acts referable to the territorial subdivisions so | established. The self-government power considered in this work will be shown to exist in relation to this concept of “reserved” land, in | both the original and subsequent senses just identified. | Under the Royal Proclamation of 1763 and several other imperial legislative instruments constituting the self-government right, the natives were assured that the crown would not unilaterally usurp any | part of British North America. The proclamation thus enacted that the natives “should not be molested or disturbed” upon “their Hunting

| Grounds,” until they sold “their” lands to the crown.’ Depending upon , the precise wording of each given treaty (whereby lands became

to as “the proclamation”). ,| ’See chapters 2 and 3. | ’Supra note 6, at 128. ,

oe ’Royal Proclamation of 1763, rsc 1970, app.u, no. 1, at 127 (herein referred

, 8 Native Liberty, Crown Sovereignty , purchased by the crown and hence freed of the burden of aboriginal | rights), subsequently created “reserves” might or might not still be subject to the original right of self-government as constituted by the proclamation. In some situations, therefore, all that may exist on the

| “Indian reserves” is the truncated form of self-government spelled out in the Indian Act.’ In other situations the treaties in question may have to be interpreted so as to leave the original “Indian territory” right of selfgovernment presumptively intact relative to the “reserve” newly established by the given treaty. The territorial extension of the

aboriginal right of selfgovernment in Canada cannot be easily settled , in advance of particular cases. The status of each piece of land must be determined on the basis of the merits of the legal history of that particular ground. Even so the fact remains: historically all land was constitutionally reserved, and hence rendered subject to the aboriginal

, right of self-government. Whether the right continues in a particular case depends upon the interpretation of the documentation purporting => to have interrupted the continuity of the right by altering the legal — ,

status of the particular land to which the right related. _ A point of terminology that must be clearly understood is that

to statute law. © a _ , “common law,” as used herein, means “judge-made” law as opposed

Chapter 1 of this study deals with the common law as a distinct issue, severable from statute law when identifying the basis for the

aboriginal right of self-government. It will not do to assume, as has a | occasionally been done, that colonial governments in the pre-confederation era had inherent sovereign powers permitting them to override __

the powers vested by the imperial government in native governments. | The constitutional common law identified in chapter 1 and, even more oe important, the legislation identified in chapters 2 and 3,confirmed = the existence of the aboriginal right of self-government. In the first | place, federal and provincial governments simply were never assigned | sovereign powers over the indigenous race by the imperial government.. Furthermore, by reiterating the continued existence of the Indian territory concept first identified in the 1763 proclamation, the imperial Parliament perpetuated the legal attributes of the Indian territory,

, including the aboriginal right of selfgovernment. Thuswhen the powers | _ of federal and provincial governments were constituted in Canada they were made to accommodate this previously established aboriginal = right. In the nineteenth century, as chapter 4 demonstrates, the imperial , government did constitutionally take back some of the power formerly allowed the natives. The law regulating crimes and offences as defined —>

*rsc 1970, c. 1-6. , | ,

9 Introduction , , by domestic governments and their courts was made universally applicable throughout what is now Canada. Thereafter the aboriginal

| right of self-government can be understood only in terms of a civil

jurisdiction, not in terms of a crimes and offences jurisdiction. , Chapter 5 identifies as a major obstacle to the practiceof self-government

the recent position of the federal government that the aboriginal right has been “superseded.” Federal policy since 1973 has made the

assumption that if ever this aboriginal right existed it has by now been superseded by actions taken by federal and provincial governments inconsistent with it. Such a supersession might have been legally possible

if the basis for the aboriginal right had only been domestic common _

| law. It is not legally possible, however, that federal and provincial actions could have superseded the legislation of the imperial government and the colonial law precedents constituting the powers of

, the federal and provincial governments. Operating upon the basis of its erroneous assumption, the federal government now offers a municipal style of self-government, with enumerated local government

powers. The illusion is that this is something being offered in the _

place of nothing. In this chapter the recommendation is made that , substantial progress could result from recognizing the existing law and upon that basis moving forward to negotiate reforms of it. In the Conclusion the issue of segregation versus integration, which

underlies the self-government debate, is put in a historical context.

In the eighteenth century segregation of society into racial enclaves _ for legal purposes.was the dominant political philosophy. Integration ideology challenged this in the nineteenth century, until eventually

in the mid-twentieth century Canadian courts were assuming the integration ethic to be overwhelmingly dominant. Yet even as the courts were doing this, the forces of segregation (or liberation,

, depending upon one’s perspective) ideology were gathering , strength for a major offensive, which now appears to be sweeping the field. Racial compartmentalization therefore seems destined to

‘persist as a feature of Canadian constitutional law. |

The essential premise that underlies this manuscript is that legal protection and reservation of tribal sovereignty follow from legal protection and reservation of tribal land. The British crown historically : reserved all unceded North American land, and enacted that upon such land the native nations or tribes should not be molested or disturbed. The argument is that by not molesting or disturbing these : political entities, one necessarily leaves them in aself-governing condition.

| Many cases have been decided and many legislative instruments enacted that indirectly speak to the issue and therefore must be accounted

for. These have the capacity to structure the debate, even though

| 10 Native Liberty, Crown. Sovereignty _ | few ask and fewer answer the direct question. This book is specifically a study of the law as it affects the aboriginal right of self-government. It does not attempt to deal with the broader

moral and philosophical issues related to that right. Although the study refrains from moralizing about social justice, a linkage between social and legal justice is perhaps inevitable. I intend to suggest that

rights improperly and illegally ignored should be restored, and - compensation be made for past wrongs. But I should want this sugges- . tion to be based upon respect for the rule of law, not upon sentiment.

This study therefore considers all the surrounding judicial and | legislative commentary to determine whether it is more or less consistent

with the underlying premise that the right exists. It begins with the | common law, which might be argued to constitute the obligation not | to molest or disturb; it concludes with the legislation, which indisputably

constitutes exactly that obligation. |

| CHAPTER ONE : , Common Law of Self-Government

The common law exists in two senses, as ordinary domestic law and

as constitutional law. In the former sense, as domestic common law, , it consists in judicial decisions that govern some point of private law

in society, such as the right to possess land. In the latter sense, as constitutional common law, it consists in judicial decisions that govern

some point of public law, such as the constitution of powers and the vesting of them in federal, provincial, or aboriginal peoples’

-| Thegovernments. | common law comes into play when a court makes a decision, not by construing and applying statutory law, but rather, in the absence

of a statutory law governing the point in question, by identifying a | fundamental principle and choosing to recognize that principle as having the legal force to settle the point. In this sense the common law is purely judge-made. In Canada it is doubtful whether there is a sufficient body of domestic

common law to justify an opinion that the aboriginal right of self government has been constituted on this particular basis. It is, however, _ fair to say that the right exists on the basis of established constitutional —

common law precedents. |

The significance of the distinction between the domestic and con-

stitutional forms derives from the fact that federal or provincial governments can easily change domestic common law. To do that all

they have to do is enact legislation that conflicts with the domestic common law. In that event the domestic legislation overrides or supersedes the domestic common law. In contrast, such domestic legislation could not override or supersede the constitutional common law. This

is a concomitant of empire. As successors of colonial governments

exercising powers historically conferred, federal and provincial governments enjoy delimited powers. The terms of the delimitation

12 Native Liberty, Crown Sovereignty

are defined in part by constitutional cases. When the judges decide 7 _ such cases, they are primarily guided by constitutional legislation. But , occasionally the judges will have to draw upon first principles, if the legislation does not settle a given point. When this occurs the judges | create constitutional common law —- “constitutional” in the sense that

the decision delimits constitutional powers. |

The first section of this chapter deals with domestic common law. |

The second deals separately with the constitutional common law. —

DOMESTIC COMMON LAW , A uniquely “domestic” common law aboriginal right of self-govern- _ ment has not yet been recognized by Canadian courts, although it has become well established in the case law of the United States of

America. |

, Nevertheless, a possible argument can be made that the American | | courts domestically have enunciated a doctrine applicable to the whole

of North America, based ultimately upon the same original British / _ principles shared by both countries.! The problem with this argument

is that in spite of the undeniable existence of the British tradition _ in the colonial era, American and Canadian courts have since taken divergent paths. In the United States the self-government law has been

_ jJudge-made, whereas in Canada the emphasis has been upon legislation. , _ There was an ideological reason for this: the American judiciary’s

focus. | |

perspective was politically oriented, whereas in Canada the domestic courts expressly identified a racial focus and rejected the political

In the formative years it may at one point have seemed as if a _ , Canadian domestic common law upon the subject of aboriginal rights was in the offing. Strong J. of the Supreme Court of Canada in the | St Catherine’s Milling case of 1887, in the course of discussing a leading | legislative instrument,* held that “it gives legislative expression to what , I have heretofore treated as depending on a regulation of policy, or at most on rules of unwritten law and official practice, namely the © ‘See, for example, Clark, Indian Title in Canada, 6; Slattery, “Understanding _ Aboriginal Rights,” 736-41. It may be legitimate to use American common law : in Canadian cases involving “Indian title,” that is, the specifically proprietary aspect of the broad complex of rights sometimes generically called “aboriginal

rights.” I argue, however, that greater care must be taken when using American , , common law precedents in relation to the aboriginal right of self-government

aspect of the aboriginal rights complex. i

, *Royal Proclamation of 1763, rsc 1970, app. , no. 1. Note that “Strong J.” is the abbreviation common in law works for the title “Mr Justice Strong.” This

throughout this study. - ,

and similar abbreviations (“Marshall cy.” for “Chief Justice Marshall”) are used _

, | | 13. Common Law of Self-Government a | right of the Indians to enjoy, by virtue of a recognized title, their lands not surrendered or ceded to the crown.”

The process by which the “rules of unwritten law” became constituted

a uniquely common law right was enunciated in the classic decision of Marshall cj. of the Supreme Court of the United States in Worcester

v. Georgia.* This case at one time promised to figure prominently in | Canadian law because of its wholesale adoption by Monk J. in the leading Quebec case Connolly v. Woolrich.’ Indeed, an entire passage of Worcester, quoted in Connolly, is such a complete code upon the North American common law aboriginal right of self-government that, in spite of its unusual length, it is well worth considering in its entirety.

This constitutive primary source for the right at common law in the , United States, as introduced to Canada by Connolly was as follows: [Will it be contended that the territorial rights, political organization such as it was, or the laws and usages of the Indian tribes, were abrogated — that they ceased to exist when these two European nations [France and Great Britain] began to trade with the aboriginal occupants? In my opinion it is beyond controversy that they did not — that so far from being abolished, they were left in full force, and were not even modified in the slightest degree

, - in regard to the civil rights of the natives. As bearing upon this point, I , cannot do better than to cite the decision of a learned and august tribunal ~ the Supreme Court of the United States. In the celebrated case of Worcester

| against the State of Georgia, (6th Peters Reports pages 515-542), Chief Justice. Marshall ~ perhaps one of the greatest lawyers of our times in delivering

, the judgment of the Court, said: America, separated from Europe by a wide ocean, was inhabited by a distinct

people divided into separate nations, independent of each other and of :

the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition,

_ that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over ~ the lands they occupied; or that the discovery of either by the other should _ give the discoverer rights in the country discovered, which annulled the ,

, pre-existing rights of its ancient possessors. |

After lying concealed for a series of ages, the enterprise of Europe, | guided by nautical science, conducted some of her adventurous sons into 5 St Catherine’s Milling & Lumber Co. v. R. (1887), 13 scr 577, 621 (emphasis added).

Although Strong J. was dissenting in the result, upon his essential point that — the Indian right was strictly speaking a legally recognized one, he was upheld

on appeal to the Privy Council. See (1888), 14 ac 46 (Pc). *6 Peters 515 5(1867), 11 ucy 197(1832). (Que.). | ,}

14. Native Liberty, Crown Sovereignty this western world. They found it in possession of a people who had made _ ,

small progress in agriculture or manufactures, and whose general

| employment was war, hunting and fishing. |

, Did these adventurers, by sailing along the coast, and occasionally , landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from

the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred : these rights over hunters and fishermen, on agriculturists and manufac-

turers? | ; | ,

But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might

shed some light on existing pretensions. _

The great maritime powers of Europe discovered and visited different _ parts of this continent at nearly the same time. The object was too immense

for any of them to grasp the whole; and the claimants were too powerful

to submit to the exclusive and unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, acknowledged byallEuropeans, , because it was in the interest of all to acknowledge it, gave to the [European] nation making the discovery, as its inevitable consequence, the sole right

of acquiring the soil and of making settlement on it. It was an exclusive , principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who

had not agreed to it. It regulated the right given by discovery among | the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue

of a discovery made before the memory of man. It gave the exclusive

right to purchase, but did not found that right on a denial of the right

of the possessor to sell. ,

The regulation between the Europeans and the natives was determined

in each case by the particular government which asserted and could maintain , this pre-emptive privilege in the particular place. The United States succeeded ! to all the claims of Great Britain, both territorial and political; but no attempt, |

so far as is known, has been made to enlarge them ... Soon after Great Britain determined on planting colonies in America, the king granted charters ... They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations,

15 Common Law of Self-Government } equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies

under whom they were made, acquired legitimate power by them to govern

the [Indian] people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they

might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could

not be understood to grant what the crown did not affect to claim; nor -_-was it so understood ... Certain it is, that our history furnishes no example,

from the first settlement of our country, of any attempt on the part of |

| the crown to interfere with internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might. seduce them into foreign alliances. The King purchased their lands when they were willing to sell, at a price they were willing to take; but he never coerced a surrender of them. He also purchased their alliance and depend-

ence by subsidies; but never intruded into the interior of their affairs, or | interfered with their self-government, so far as respected themselves only. Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines,

| is manifest throughout [the Worcester decision]. The principles laid down in this judgment [of Marshall CJ.], (and Mr Justice Story as a member of the Court concurred in this decision), admit of no doubt.®

In Connolly the Canadian court was considering the validity of a , marriage contracted according to Indian custom upon lands that had

never been ceded to or purchased by the crown. The court held © that the Indian custom was binding, and that the marriage was valid and cognizable in the Quebec court. That decision was based upon

the holding that Indian laws in general continued to be enforceable. , That conclusion in turn was based upon the American decision in the Worcester case. The Worcester decision was based upon a convention

of international law — namely, that the European discovery of North America was without prejudice to the aboriginal peoples’ preexisting _ right of self-government. During the years in which Chief Justice Marshall sat, the American Supreme Court handed down a series of other cases of first instance in which unwritten laws, policy, practice, international law concepts,

and ideas about natural justice were canvassed. These sources were *‘Ibid., at 205-7 (emphasis added).

| 16 Native Liberty, Crown Sovereignty . _ interpreted to require the American courts to admit the overall sover-

eignty of the European nation with as little prejudice as possible to :

, the right of the natives to continue governing their own daily affairs. The legal status of aboriginal peoples under this notion came to be . expressed by the phrase “domestic dependent nations.”’ Thus by this

| process, the idea of the domestic dependent nation was constituted | a right at domestic common law. The right meant that the several indigenous nations, tribes, or bands had a recognized legal personality. They were, by this common law concept, recognized as political entities with the constituted jurisdiction to govern their own civil affairs. The

ss point of the adjectives “domestic” and “dependent” was that those , _ native bodies politic did not have any legal personality as nation-states for international law purposes. The natives’ political identity wasrestricted

, to the domestic forum and depended upon the domestic common

, law that constituted it for legal purposes. ;

The concept of domestic dependent nations has been a consistent ,

and prominent feature ever since, in the American cases.° This does

not mean that the issue of aboriginal self-government was never “Johnson v. McIntosh, 8 Wheat. 543, 574 (1823); Cherokee Nation v. Georgia, 5 Peters

1, 16 (1831); Worcester v. Georgia, supra note 4, at 582 per McLean J.

-8Cornet v. Winton, 2 Yerg. 129, 130 (Tenn. ca, 1826); Coleman v. Tish-Ho-Mah, | | 4 Smedes & m. 40, 48 (Miss. Hc of E & a, 1844); Ogden v. Lee, 6 Hill's 546, 550

(Ny, 1844); Webster v. Reid, 1 Iowa 467, 476 (1846); Parks v. Ross, 52 u.s. 362 (1850); People v. Dibble, 18 Barbour’s scr 412, 413 (Ny, 1854); Mackey v. Coxe, 59 us. 100 (1855); Fellows v. Denniston, 23 Ny 420, 431 (cA, 1861); Re Kansas Indians, 72 u.s. 737, 756 (1866); Minter v. Shirley, 3 Miss. 376, 384 (1871); Holden v. Joy, 84 us. 211, 242 (1872); Ex parte Crow Dog, 109 us. 556 (1883); Choctaw Nation v. U.S., 119 u.s. 1 (1886); McCurtain v. Grady, 38 sw 65, 72 (1896); Talton

, Mayes, 163 us. 376, 384 (1896); Ex parte Tiger, 47 sw 304, 305-6 (1898); Us. 7 v. United States Fidelity levy it. The second ground identified by Lord Mansfield argued that

regardless of the capitulation the duty was enacted subsequent to the proclamation and that the proclamation, by granting an elected _ assembly with taxation powers, had implicitly deprived the king of ©

his assembly. | ,

the power to tax except upon the advice and with the consent of ,

The relevance of the first ground to the aboriginal right of self| government derives from the parallel between the terms of the capitulation | of Grenada and the capitulation of Canada. Article 40 of the capitulation of Canada stipulated: “The Savages or Indians, allies of His © - Most Christian Majesty will be maintained on the lands that they inhabit,

| if they wish to remain there, they will not be disturbed under any ''4 Articles of Capitulation of Canada, Montreal, 8 September 1760. Shortt and | Doughty, Documents relating to the Constitutional History of Canada 1759-1791,

Supra note 77, at 895.

| | 47 Common Law of Self-Government | pretext whatsoever for having taken up arms and serving His Most Christian Majesty.”''°

, Lord Mansfield held that capitulations in general were binding upon the king in council, though Parliament itself could by statute depart

from the arrangement in virtue of the absolute supremacy of the imperial Parliament. Since in the Indian context Parliament never withdrew the covenant made by article 40, therefore that article, which , protected the aboriginal right of self-government, remained binding | | upon the king in council and therefore upon a colonial government

constituted by the king in council. |

The importance of the second ground of attack upon the duty in Campbell v. Hall concerns the binding effect of the Royal Proclama-

tion of 1763 upon colonial governments. The proclamation enacted that “the several Nations or Tribes of Indians ... should not be molested

or disturbed.” If the argument were upheld — that the proclamation was binding upon the king in council ~ a fortiori it would be binding upon the colonial governments as bodies politic subordinate to the

- king in council. With these parallels in mind, we can consider Lord Mansfield’s judgment

more fully. He listed principles of law governing constitutional powers |

| relative to all colonies, among which appeared: “[Thirdly,] articles of capitulation upon which the conquest is surrendered, and treaties of peace by which it is ceded, are sacred and inviolable, according to their true intent ... [Fifthly,] laws of a conquered country continue _

- until they are altered by the conqueror. The justice and antiquity of this maxim is uncontrovertible; and the absurd exception as to | pagans, in Calvin’s case, shows the universality of the maxim.”!!” This was sufficient to dispose of the case of Campbell v. Hall solely upon the ground of the capitulation, without the proclamation’s even being

, addressed. The impugned 4.5 per cent duty was contrary to the intent of the capitulation; and the laws as they existed before the duty was.

purportedly enacted should therefore continue. | , | The second ground for the invalidity of the duty was also upheld,

| in the alternative. By promulgating the proclamation and granting the colonists the right to an assembly with power to tax as an incident of self-government, Lord Mansfield held that the king had precluded

himself from thereafter imposing taxes unilaterally pursuant to his prerogative power.!!8 The prerogative power upon that subject, in | other words, was spent.

‘“8Supra note 114 (emphasis in the original). |

"7Supra note 77, at 895-6. U8Tbid., at 896-9.

| 48 Native Liberty, Crown Sovereignty Transposing the principles established by Campbell v. Hall leads us

- to the following inferences. First, local laws and rights presumptively _

ss continue upon a change in the ultimate sovereign authority. Second, _ , the old rights and jurisdictions cannot be taken away by a subsequent exercise of the royal prerogative, if they have previously been confirmed = =——-

by a prerogative instrument bearing the great seal of Great Britain. _ In Canada the aboriginal right was conceded under both the capitu-

lation and the proclamation. Either would have been sufficient to confirm the right. Only a subsequent act of the imperial Parliament

therefore could have changed the rules once the aboriginal right had been so confirmed, and no. such act of Parliament exists. | Cameron v. Kyte!!9 in 1835 then settled the constitutional point that colonial governments were not sovereign and accordingly had no inherent power to enact laws in derogation of aboriginal rights. It | , held that, to have existed, such a power must have been expressly | and explicitly given to the colonial government in the great seal _

instruments constituting its powers. , a Cameron v. Kyte came before the Judicial Committee of the Privy

- Council from the Supreme Court of Civil Justice of the colony of Berbice. The facts involved a disputed claim by the vendue master of the colony to a 5 per cent commission on an estate sale. As grounds for entitlement, the official put forward evidence of a long-standing —

practice, confirmed by resolution of the directors of the chartered colony. Pursuant to this practice, the vendue master was allowed the

commission on all property sold by public auction in the colony. The | party opposite in interest relied upon a proclamation promulgated

. by the governor of the colony which purported to reduce the duty _ | from 5 per cent to 1.5 per cent. Baron Parke, for the Privy Council,

held: “The amount of five per cent, is, therefore, in our opinion, proved to be a legal fee, unless it has been reduced by competent | | authority. And the only question is, whether the Governor’s notification

| or proclamation was valid for that purpose?”!?° , The court held that the answer to this question depended on the

| extent of the governor’s constitutional power. Since the power to | reduce the fee had not expressly been conferred in the governor's | commission, the question became whether some other basis could _ be identified. Two arguments were presented in that connection. One | said that the governor’s proclamation was valid since the imperial government acquiesced in it. The other said that the governor’s power. could be implied. As for the first argument, the court held that “such

Supra note 78.7, | 20Ybid., at 681.

oe , 49 Common Law of Self-Government | an order cannot be supported on the ground that the acquiescence of the Crown is equal to its express authority ... We are, therefore, > Clearly of opinion that the notification cannot be rendered valid on

| this ground.”!! , | , Having disposed of the concept of validity through imperial

acquiescence, the court turned to implied authority: | Then the question is reduced to this single point, whether or not such an authority can be implied. It is not pretended by the appellant, that the Governor had by his commission or instructions any authority of this nature expressly

communicated to him ... If a Governor had, by virtue of that appointment,

the whole sovereignty of the Colony delegated to him as a Viceroy, and , represented the King in the government of that Colony, there would be good | reason to contend that an act of sovereignty done by him would be valid and obligatory upon the subject living within his government, provided the _ act would be valid if done by the Sovereign himself, though such act might ' not be in conformity with the instructions which the Governor had received for the regulation of his own conduct ... But if the Governor be an officer, merely with a limited authority from the Crown, his assumption of an act | of sovereign power, out of the limits of the authority so given to him, would be purely void, and the Courts of the Colony over which he presided could not give it any legal effect. We think the office of Governor is of the latter

| description, for no authority or dictum has been cited before us to show that a Governor can be considered as having the delegation of the whole

, Royal power, in any colony, as between him and the subject, when it is not expressly given by his commission. And we are not aware that any commission —_ to colonial Governors conveys such an extensive authority ... All that we decide is, that the simple Act of the Governor alone, unauthorized by his commission, _

, and not proved to be expressly or explicitly authorized by any instructions, is ,

not equivalent to such an Act done by the Crown itself.!** : , In general therefore colonial governments could enact laws only _

to the extent that the power relative to the topic was “expressly or , explicitly” vested. The power could not be “implied”; nor could an

act be validated on the basis of imperial “acquiescence.” | The following pattern emerges when Mohegan Indians v. Connecti-

21Ibid., at 682. | |

, '22Tbid., at 682-4 (emphasis added). Compare Calder v. ac for sc, [1973] scr 313, 406, per Hallj.: “A Governor has no powers to legislate other than those given

| in the Commission.” Contrast Calder, ibid., at 333, 344, where Judson J. assumed

sovereign authority.” , . , |

that the colonial government exercised “absolute sovereignty” and was “the

50 Native Liberty, Crown Sovereignty

cut, Campbeliv. Hall, and Cameron v. Kyte are read together. Aboriginal

, peoples retained the right of self-government at constitutional common law, after the inception of British sovereignty. The king in council could not derogate from that right once he had confirmed it under the terms of the capitulation or by royal proclamation. Colonial

governments, being subordinate to the king in council, could not possibly have exercised greater powers than the king in council. Thus

where the king in council has been bound to respect the aboriginal i right, the colonial governments could not have assumed a greater power and legally derogated from that right. Furthermore, even if the king in council had the power to derogate from this right it cannot be assumed that such power was delegated to the colonial governments. The power of colonial governments to interfere with the natives’ right

of self-government would have to have been expressed in the great | seal instruments constituting the colonial governments. The power

| could not be implied, or supplied ex post facto upon the basis of

imperial acquiescence. | | No royal commission or proclamation constituting a colonial

government in what is now Canada ever expressly or explicitly | purported to vest in a colonial government the power to enact laws in derogation of the aboriginal right of self-government over unceded lands. Nor was legislation in derogation ever enacted by the imperial |

Parliament, except in relation to crimes and offences.'” , The strictly independent and paramount character of aboriginal | rights, as suggested by the triumvirate of Mohegan, Campbell, and Cameron,

was then affirmed in a fourth case just before the turn of the nineteenth

century. In 1897 the Privy Council decided the case of AG Can. v. AG Ont.'** or as it is sometimes called the Indian Annuities case. It construed the meaning of section 109 of the Constitution Act, 1867.

That section says: All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all such Lands, Mines, Minerals or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other

than that of the Province in the same [emphasis added]. , , Regarding the meaning of the word “Interest” in that section, the | Privy Council held that the Indian title to unceded Indian territory | was such an interest. And it said “On the other hand, ‘an interest

'4Supra note 107. |

_1See chapter 4 under the heading “The Crimes and Offences Exception.”

51 Common Law of Self-Government

other than that of the province in the same’ appears to them [their Lordships] to denote some right or interest in a third party, independent of and capable of being vindicated in competition with the beneficial

interest of the old province.”!*° | That is perhaps the most crucial passage in aboriginal rights law in Canada. For by it the Privy Council confirmed first that the aboriginal

peoples’ claim to land was an “interest” for legal purposes, not a mere privilege unprotected by positive law. Second, the interest was called “independent” —- it exists as of right even as against crown

governments. Third, this independent interest is constitutionally | protected. It was implicitly identified in section 109 of the Constitution

Act, 1867, as being paramount to the crown’s interest, both before , and after confederation. That is the meaning of the phrase “capable of being vindicated in competition with the beneficial interest of the

old province.” , |

It is important to be aware that in this passage Lord Watson, speaking for the Privy Council, was directing his remarks at land that was never surrendered Indian territory. He considered that such land, asa category

for constitutional purposes, is in effect a series of adjoining “Indian reserves,” occupied by the several nations or tribes. He said that before the Robinson-Huron Treaty of 1850 was made with the Indians “for

the cession of certain tracts of land,” the land “had until that time

- been occupied as Indian reserves.”!*° | Thus unceded land for constitutional purposes was identified in _

both sections 91(24) and 109 of the Constitution Act, 1867. Section 91(24) allotted jurisdiction over “Lands reserved for Indians” to the federal government. Section 109 recognized that with respect to such lands the aboriginal peoples enjoyed an independent and constitutionally paramount interest. That interest predated confederation and

was paramount at that time, since the point of section 109 was to ,

the treaty process. a

continue the pre-confederation status quo. And that interest predated

Indeed, the objective of the treaty process was precisely to acquire , the Indian “interest,” otherwise the crown had no right to deal with the land. As Lord Watson stated, “The effect of these treaties was,

that, whilst the title to the lands ceded continued to be vested in the Crown, all beneficial interest in them, together with the right _ to dispose of them, and to appropriate their proceeds, passed to the

Government of the Province.”!?’ In a similar vein he added, “The , beneficial interest in the territories ceded by the Indians under the

2'6Tbid., Ibid., at 210-11. | | | at 204. , '27Ybid., at 205. ,

52 Native Liberty, Crown Sovereignty |

| of Ontario.”!*8 | oS

treaties of 1850 became vested, by virtue of s. 109, in the Province

, The immediate issue in the Indian Annuities case of 1897 was deciding whether the federal or the provincial government had to pay the Indian annuities created as crown debts in the course of making the Robinson-Huron Treaty of 1850. The court held that this was a federal —

government debt, even though the legal consequence of the treaty

| was that the province acquired the Indians’ beneficial interest, per- _ _ mitting the province to open the land up for development purposes. The federal government was not comfortable with the idea that it

had to make and pay for the treaties in Canada, if the provinces

| acquired the benefit of the treaties. But that, nonetheless, is what , , the Privy Council held to be the law. In the course of resolving this issue the Privy Council assessed the legal nature of the Indian interest , _ in unceded land, for constitutional purposes. In arriving at that assessment the court created a constitutional common law precedent regard-

ing the nature of aboriginal rights. The court did not suggest that | the Constitution Act, 1867 created or constituted any new aboriginal _ rights. Section 109 referred only to interests in general. Section 91 (24) assigned a jurisdiction; it did not create or constitute substantive rights.

| The court on its own, and not in any apparent reliance upon any particular constitutive instrument, took it as given that the aboriginal peoples had rights in the pre-confederation era, that these continued in the post-confederation era, and that one aspect of such rights amounted

to an “interest” within the meaning of section 109. — | |

Given this constitutional common law legacy deriving from the colonial era, the recent case of Wewayakum Indian Band v. Canada'** may take on a dramatic relevance to the existing aboriginal right of self-government. In Wewayakum the Supreme Court of Canada in _ 1989, it will be recalled, held that “the law of aboriginal title is federal -

, common law.”'*? This federal common law arguably subsumes or | incorporates the constitutional common law identified above, and as

, common law. _ | | :

well stands on its own as a distinct source of constitutional Wewayakum involved one Indian band that. was suing both another

Indian band and also the federal government for declaratory and. other relief to determine which band had the better right to possession , _ of a specific Indian reserve. The action lay in trespass, a tort normally

28Tbid., at 206. : | |

Ibid, at 262.0 . , |

'29Supra note 61. See text accompanying note 61 for a discussion Of Wewayakum

, as a domestic common law precedent. |

, 93 Common Law of Self-Government considered a matter falling within the provincial governments’ ' legislative jurisdiction in relation to “Property and Civil Rights in the Province” conferred by section 92(13) of the Constitution Act, 1867. As such, one might have thought that the action as against the defend, ant Indian band would properly have been commenced in the Supreme

- Court of the province, rather than in the Federal Court of Canada where in fact it was commenced. One might also have thought that the plaintiff should have split its case, proceeding separately against the federal government in the Federal Court of Canada in view. of the exclusive original jurisdiction of that particular court in suits against _ the federal government. But the plaintiff was not content with splitting

, its case in this fashion, and so sued both the other Indian band and the federal government in the same court — the Federal Court of : Canada. The defendant Indian band applied to strike out the plaintiff band’s claim on the ground that the Federal Court lacked jurisdiction to deal with the trespass claim against the band.'*' This application | was appealed all the way to the Supreme Court of Canada and resulted

- in the decision under analysis. To settle this jurisdictional point, the court had first to identify an existing and applicable body of federal law as being essential to , the disposition of the case. It was in satisfaction of that test that the court made its observation that “the law of aboriginal title is federal common law.” Other federal law was also held to be important to the eventual determination of the dispute. And on the basis that this body of federal law satisfied the jurisdictional test, the court dismissed the defendant band’s application. The court’s finding that “the law _ of aboriginal title is federal common law’ is crucial for present purposes, since “aboriginal title” and the existing aboriginal right of self-government

are two aspects of the same legal point. They derive from the same source, namely the “Indians’ historic occupation and possession of

| their tribal lands” which “pre-dated colonization by the British and

survived British claims of sovereignty.”'** |

In his book Liability of the Crown,'*’ Professor Peter Hogg contrasts 131The short answer to the defendant band’s application to strike, interestingly,

was not raised by the plaintiff band. This is that the defendant band is a “federal board” within the meaning of section 2(h) and 18 of the Federal Court Act rsc 1985, c. F~7. That being so, the Federal Court has exclusive jurisdiction since the action was for “declaratory relief” and an “injunction,” species of relief assigned exclusively to the Federal Court jurisdiction. See Canatonquin v. Gabriel, [1980] 2 rc 792 (ca); Rider v. Ear (1979), 103 pir (3d) 168 (Alta. sc); King v. Gull Bay Indian Band (1983), 38 cpc 1 (Ont. pc); and Pratt v. Sproxton (1977), 6 cec 121 (Sask. Qs). 132 Wewayakum Indian Band v. Canada, supra note 61.

‘83 Hogg, Liability of the Crown, 274-7. , |

, 54 Native Liberty, Crown Sovereignty , | the concept of federal common law as understood respectively in the

| United States, Australia, and Canada. He suggests that while the concept is familiar in the United States, “Canadians and Australians have tended

| not to think in terms of a distinct federal common law.”!*4 And he adds that, while in Canada there is no federal common law corresponding to the full range of federal legislation jurisdiction in occupying that field to the extent left vacant by federal statutes, nevertheless “enclaves” of federal common law exist. Citing the Wewayakum case

(under the name of Roberts v. Canada) he states, “Another area of federal common law is the law of aboriginal title.”!®> He concludes, “Although the court has never offered any criteria for the identification of the little enclaves of federal common law, it may be that the Court has in mind those federal common law doctrines that cannot be altered by the provincial Legislatures.”!°® Because of the entrenching effect

, of sections 35 and 52 of the Constitution Act, 1982, a “federal” constitutional common law arguably may have been created, which

cannot be altered by the federal legislature any more than by the |

amendment.!?’ | |

provincial legislatures, at least not in the absence of a constitutional _ Whether or not the constitutional common lawrepresented by Mohegan,

: Campbell, Cameron, and the Indian Annuities case is also “federal” in the Wewayakum sense, that previously established law is nonetheless “imperial.” As such, it remains constitutionally binding upon the federal

and provincial governments, regardless of which particular court has , Jurisdiction to apply it. The supreme courts of the provinces in some | situations therefore have jurisdiction to apply the quatrain of Mohegan, Campbell, Cameron, and the Indian Annuities case whether as imperial —

| law, federal law, or both. The Federal Court of Canada would also have jurisdiction to apply it specifically as federal constitutional common

law incorporating’** imperial constitutional common law.!* ;

MTbid., atnote 275. | 5— Tbid., at 277, 6 Ibid., at 277. |59. , | '°7For a general discussion of the difference between constitutional and domestic (municipal) law, see Reference Re The Seabed and Subsoil of the Continental Shelf Offshore Newfoundland (1984), 5 DLR (4th) 385 (scc), which distinguished international law, imperial constitutional law, and municipal law; and which identified

: the resulting severable legislative and provincial governments. Reference Re Amendment of the Constitution of Canada (Nos. 1, 2, and 3) (1981), 125 pLR (3d) 1 (scc) distinguished constitutional law, which courts would enforce, from mere

| constitutional convention, which they would not. See also Croft v. Dunphy, [1933] AC 156 (pc), 163, 165, relative to the concept of the “fully sovereign state.” 8 Skaarup Shipping Corp. v. Hawker Industries Ltd. (1977), 81 ptr (3d) 101 (FcrD),

- incorporating by reference statute and non-statute law of another jurisdiction considered.

| 55 Common Law of Self-Government Finally, there is an alternative way of regarding Wewayakum that , admits its constitutional force and effect without necessarily relying upon the imperial constitutional cases Mohegan, Campbell, Cameron,

and the Indian Annuities case. From this perspective Wewayakum is | treated as harkening to the concept of inherent aboriginal sovereignty and may therefore come to be regarded as the Canadian counterpart

to the leading American case Worcester v. Georgia.'*° | 7 It will be recalled that in Wewayakum “the law of aboriginal title” as “federal common law” was held to be “derived from the Indians’

historic occupation and possession of their tribal lands” and that “aboriginal title pre-dated colonization by the British and survived British claims of sovereignty.”'*! The court thus did not purport to identify the constitutive source for aboriginal rights as being locked into a time subsequent to the inception of British sovereignty. Instead, the court reached back to a time before that sovereignty, and looked upon the aboriginal state of affairs as being continuous, in spite of the intervention of British sovereignty. The court categorized the Indian

interest arising on this basis as being “sui generis”!** (of one’s own

| ‘The choice of courts issue will therefore depend upon the identity of the parties and other strategic considerations in particular cases. For example, an Indian band might sue a private party for trespass, relying upon its aboriginal title, in the Supreme Court of the province. But if it wanted to join the federal

government in the action, the case would have to be heard in the Federal Court of Canada, since that court has exclusive jurisdiction over cases against that government. Federal Bill c-38 (first reading, September 9, 1989) would give the Supreme and Federal courts concurrent jurisdiction in such a case by amending section 17 of the Federal Court Act, Rsc 1985, c. F~7. If, however, the plaintiff band were suing another Indian band rather than a private party, the Federal Court could still have exclusive original jurisdiction because of

, section 18 of the Federal Court Act. See supra note 131. See also Roy Little Chief v. AG Canada (1986), 5 wocp 431 (FcTD); Joe v. Canada [1986] 2 scr 145;

Blackfoot Indian Band No. 146 (Members) v. Canada (1986), 5 Frr 23; Fort Alexander . Indian Band v. Canada (1988), 19 Fre 315; Piche v. Cold Lake Transmissions Lid.,

[1980] 2 rc 369; Finlay v. Canada [1986] 2 scr 607. The complex question of court jurisdiction can be raised here, but not completely resolved, for reasons

both of space and focus. Here the emphasis is upon defining the right, and

the question of the forums for its vindictation is peripheral. _

'0Supra note 4. See also z v. Farrell (1831), [1825-59] 1 Legge 5, 19 (scnsw); and Rr. v. Symonds (1847), [1840-1932] nzpcc 387, 388, 390. The first of these

two colonial cases asserted the existence of “general unwritten laws of the Empire ... emphatically called common law.” The second recognized the American

courts’ position as being an illustration of “the principles of the common law

as applied and adopted from the earliest times by the colonial laws.” 4! Wewayakum v. Canada, supra note 61. ‘2 Ybid., at 257, 259.

56 Native Liberty, Crown Sovereignty

kind, peculiar, a thing apart, an isolated specimen) ,'* as most certainly it is, since law normally is thought to spring from crown sovereignty

rather than to precede and survive it. | | Even though Wewayakum was decided on its own, without reference

to American cases, the parallel with Worcester is unmistakable. Chief Justice Marshall in that great case of first instance also reached back

, in time to the historical epoch when the natives were masters in their _ own house, and he regarded the constitutive basis for the natives’ , right as flowing from that perception rather than from subsequent

constitutive sources identifiable in the written American constitution. More recently, in 1978, in Santa Clara Pueblov. Martinez“ the American

Supreme Court reiterated this position and held: “Indian tribes have , long been recognized as possessing the common law immunity from suit traditionally enjoyed by sovereign powers... Indian tribes are ‘distinct

independent political communities, retaining their original natural

515, 559 (1832).”'* , , |

rights’ in matters of local self-government. Worcester v. Georgia, 6 Pet.

If Wewayakum is approached in this manner, then its significance arises from the fact that the “federal common law” is a separate basis _ for aboriginal rights, distinct from the imperial common law identified by Mohegan, Campbell, Cameron, and the Indian Annuities case. Although

there is a parallel between this Canadian federal common law and the American federal common law, yet there is also an important difference. In America, the federal common law on this subject is not binding upon the federal government itself, since it is not con-

| firmed in the American constitution. In that sense it began as, and remains still, merely domestic common law. By contrast, in Canada

it is binding upon the federal government itself, since it is written into the constitution. The series of constitutional instruments reviewed

in the subsequent chapters of this book, beginning with the Royal —

Proclamation of 1763 and culminating in section 35 of the Constitution

| Act, 1982, when read together, have this binding effect. ,

, - Furthermore, since the federal common law, according to Wewayakum, recognizes the continuity of aboriginal rights from before the

inception of British sovereignty, therefore the aboriginal right of self- | government was “existing” within the meaning of section 35 when

the Constitution Act 1982 came into force on 17 April 1982. As a |

result, even if the right had not been confirmed in the Royal

44.436 us. 49. ,

‘8 This definition of “sui generis” is from The Compact Edition of The Oxford English , Dictionary (Glasgow: Oxford University Press, 1971).

'STbid., at 56, 58 (emphasis added).

57 Common Law of Self-Government | Proclamation of 1763 and the other written constitutional instruments ,

, preceding the Constitution Act, 1982, the 1982 act would still have constitutionalized this federal common law retroactively from 17 April

1982.

In America the federal common law upon this subject binds state governments, which are powerless to change it. The American federal | government, though bound by this law until it changes it,’“° is nevertheless

at liberty to change it by normal domestic federal legislation. No constitutional amendment is needed. The Canadian position compares

and contrasts, in this respect. Provincial governments, like state governments, are bound by and cannot change the federal common law. But in contrast, in Canada the federal common law, whether seen as incorporating imperial common law or alternatively as being complementary, has constitutional force and effect. Not even the federal government can change it unilaterally. In Canada constitutional

amendment is the necessary precondition to derogation from the ,

existing aboriginal right of self-government. | The irony or paradox of the ongoing constitutional negotiations in Canada, where the natives are seeking to have the aboriginal right of self-government expressly identified in the constitution, is that it is already there implicitly. The risk is that by specifying a new right, the revised constitution could tacitly repeal the old right: expressio unius est exclusio altertus. A new lamp is being exchanged for the old one. The genius of the old is that the power of its genie is inherent and full. It seems unlikely that any new right in substitution will be

sO expansive. -

—-'46 See, for example, State of Idaho v. Coffee, 56 P 2d 1185 (1976), at 1192-3, applied in AG Ont. v. Bear Island Foundation (1984), 49 or (2d) 353 (Hc), 438, (1989)

68 or (2d) 394 (ca), 412-13. In the Coffee case the Supreme Court of Idaho held that the congressional intent to take Indian land extinguished Indian title at the point when the congressional intent was formally ratified by the American Senate, regardless of the absence of any valid Indian intent to cede

the land in question. In other words, the federal government in the United | States is not constitutionally bound to respect aboriginal rights. It exercises unrestricted sovereign powers. The trial judge and the Court of Appeal in the Bear Island case applied that American case to Canada, and held that the

, _ federal government in Canada similarly had sovereign power to extinguish aboriginal rights unilaterally by order in council. The trial judge on this basis concluded that in Canadian law “there was no legal right of internal administration

or self-government by the local band.” None of the constitutional common law cases applicable in Canada were applied. Nor was the Canadian constitutional

legislation applied. The Court of Appeal said, “Counsel, whose research has

been extensive, were unable to find a Canadian case dealing precisely with this subject.” The Bear Island case is bad law. See the discussion in chapter 3 under the heading “Non-Repeal of the Prerogative Legislation” and in chapter 4

under the heading “Responsible Government and Enclaves.”

a CHAPTER TWO | The Prerogative Legislation

| The prerogative legislation is that body of law enacted by virtue of the king’s pre-eminent power to make law independently of statute and the courts. As far as the existing aboriginal right of self-government

is concerned, the relevant enactments pursuant to this power were, first, the individual royal commissions and instructions to the several

: governors, and second, certain royal proclamations applying to all colonial governments in an omnibus way. The imperial government was the author of these constitutional legislative instruments. Of the three sources for law— common law, statute law, and prerogative

legislation — the last is both the most ancient and the least familiar. Since that particular form was the form by which the existing aboriginal

right of self-government was first confirmed relative to what is now Canada, an examination of its principles is the first task of this chapter. This is followed by an analysis of the particular prerogative instruments

- that historically were promulgated confirming the aboriginal right

of self-government. : a

The essential perception is that the imperial prerogative instruments

were Canada’s first constitutions. When subsequent constitutional instruments such as the Constitution Act, 1867 or the Constitution

, Act 1982 subsume preexisting constitutional laws, they effectively

cessor legislation. ,

incorporate the unrepealed general principles settled by this prede-

PRINCIPLES SUBORDINATION AND DELEGATION

The federal and provincial governments in Canada, like their predecessor colonial governments, are not sovereign governments exercising inherent powers. They are subordinate governments, exer-

59 The Prerogative Legislation

cising delegated powers. The predecessor colonial governments were subordinate to the imperial government, and their legislative jurisdictions were constituted by that imperial government. The successor _ federal and provincial governments continue to be subordinate, even though the imperial government no longer has authority. The federal

and provincial governments today are subordinate to the constitution, | and can exercise only the powers delegated to them in the constitution.

They are bound by a continuing constitutional restriction, requiring colonial governments not to molest or disturb native governments on unceded territory. “Constitution” here means the several constitutional common law precedents identified in the preceding chapter, plus the several constitutive legislative instruments enacted up to and including the Constitution Act, 1982 identified in this and the following chapters.

Conjure up an image of the imperial government. balancing the | scales of power, the scales weighted on the one hand with the indigenous tribes and on the other with the colonial governments of the colonists.

Although the balance could have been left a political question, to be determined on an ad hoc basis as future events might dictate, it was not. The balance was determined instead by established rules of constitutional law, knowable a priori. The crucial principles were subordination and delegation — the colonial governments were subordinate to the imperial government, and could validate only such legislative acts as were within the mandate of power expressly delegated by the imperial to the colonial governments. In particular, the imperial

government withheld from colonial governments any mandate to negate the imperially constituted aboriginal right of self-government. Heading the colonial government structure! within each colony was the governor, an imperial government appointee. Neither the governor nor the government constituted under his authority were sovereign.

‘Their powers were delegated under the governor’s commission of | office, made by the king under the great seal of Great Britain. Particular rules of conduct were settled in the king’s royal instructions, sup‘Sir William Blackstone observed that there were three sorts of colonies, namely provincial establishments, proprietary governments, and charter governments (Chitty, Prerogatives of the Crown, 29-31). In what is now Canada, the relevant

point.

, forms were provincial establishments and the chartered, quasi-governmental Hudson’s Bay Company. For practical purposes, however, it is sufficient to deal with provincial establishments, since that is enough to demonstrate the central point which is that colonial government was subordinate, with a restricted legislative

jurisdiction as determined by instruments constituting overseas governments. - The particular form of colonial government is neutral regarding that substantive

60 Native Liberty, Crown Sovereignty

plementing the governor’s commission. Such instructions bore the signet and sign-manual of the king.* These royal commissions and instructions, although reissued with each change of governor or upon _ a change of sovereign, were standard in form and content.” Much of continental British North America, though considered British by the imperial government, was in the formative years left outside the civil administration structure just described. This unorganized residual area was thought to be primarily of military rather than

of civil concern. Instead of being put under a governor’s authority, it was put under direct control of the military establishment, as regulated by commissions and instructions to officers. These, so far as the natives were concerned, were consistent with the commissions and instructions

to civil governors. , |

The importance of the jurisdictional lines of authority in the colonial era may be gathered from the rules promulgated for establishing the rank and precedency within this colonial military-civil hierarchy. A declaration under the royal signet and sign-manual issued 17 December 1760 defined the relative powers of officials in the following descending order: 1 The Commander in Chief of our forces, by Commission under our Great Seal of Great Britain.

7 2 Captains-General and Governors in Chief of our Provinces and Colonies, when in their respective governments, as appointed by Commission under

our Great Seal of Great Britain.

3 General Officers upon the Staff. —_ 4 Captains-General and Governors in Chief of our Provinces and Colonies,

when out of their respective governments. _ ,

6 Colonels. | . 5 Lieutenant-Governors and Presidents of Council, when Commanders in

_ Chief of our Provinces and Colonies, in their respective governments. |

7 Lieutenant-Governors and Presidents of Council, when Commanders in Chief of our Provinces and Colonies, out of their respective governments.’ |

Thus the top two officials in the colonial government structure, both

constituted in office pursuant to the great seal of Great Britain, were | the commander in chief and the governor in that order, others ranking *Chalmers, Opinions of Eminent Lawyers, 1: 225. *Stokes, Constitution of the British Colonies, 149-86, in which a typical commission

is reproduced accompanied by a summary of typical instructions. | *Tbid., at 187-9. The descending list continues on down through the lower orders

of the civil and military ranks. | ,

61 The Prerogative Legislation

in descending order thereafter. At the apex, off the list and above it, sat the supreme authority — the imperial government represented by the secretaries of state in the Privy Council and above them, the king himself.

The point is that when policy was set at the top-most level and enacted into prerogative legislation, every subordinate level thereafter

was bound by the rules so established. It is wrong to assume that in those circumtances any colonial official had a power without first establishing the evidence delegating and vesting that power. It is also

wrong to assume that an attitude, practice, or even enactment of a subordinate office has the force of law, without making sure that the attitude, practice, or enactment was not superseded by a contrary

position expressed by a superior office in the hierarchy. It is important , to insist upon the hierarchical approach that the declaration represents,

since in later ages difficulties have been caused through a failure _ to appreciate the relative powers held by particular officials. There

has, for example, been a tendency in modern writing to ascribe exaggerated importance to statements or enactments of governors. As illustration, one noted Canadian historian quoted a dispatch from Governor Frederick Seymour of British Columbia in 1864 to

the colonial secretary at the Colonial Office in London as having _ said: “I may find myself compelled to follow in the footsteps of the Governor of Colorado ... and invite every white man to shoot each Indian he may meet.” As a historical fact it was accurate to have observed that the governor expressed that sentiment. Unfortunately the impression was generated that the Indians were without legal rights,

or that their rights were of no account at law. For legal purposes the reply of the colonial secretary, which went unremarked in the historian’s article, was far more relevant. The reply put the governor

gently but firmly in his place, and reminded him of the imperial government's official policy which was quite to the opposite effect. Cardwell, the colonial secretary, replied, “I do not understand the meaning of the paragraph in which you speak of inviting every white man to shoot every Indian he might meet. I shall rely on your continued

adherence to the line of conduct hitherto pursued by you, which , appears to have been perfectly consistent with humanity and good policy.”° This reminder of the need to conform to “good policy” harkened * Fisher, “Joseph Trutch and Indian Land Policy,” 158, citing “Seymour to Cardwell,

23 September 1864, governor’s despatches, vol. tv.” °Secretary of State E. Cardwell to Governor Seymour, | December 1864, letter no. 53, Entry Books of Correspondence 1861-67, Colonial Office Records (389/ 2 PRO London) Public Archives Canada microform reel 890, at 271.

62 Native Liberty, Crown Sovereignty

back to the mandatory terms of the royal commission which had, under the great seal of Great Britain, constituted Governor Seymour in his office and stated. “ xxvi. And it is Our further will and pleasure ... that you do especially take care to protect them [the Indians] in their Persons and in the Free Enjoyment of their Possessions, and

that you do by all lawful means prevent and restrain all Violence and Injustice which may in any manner be practiced or attempted against them.”’ The reminder was, therefore, that the governor could | not do whatever he wanted. He was a subordinate official exercising

delegated powers, not a sovereign authority. | Courts have been known to lose sight of this essential point of | jurisdiction. Mr Justice Judson, for example, in the 1973 case Calder | v. AG for Bc,® said that the first governor of British Columbia in 1858

was constituted in office with “full executive powers,” and that the , pre-confederation colonial governments of that province enjoyed “absolute sovereignty” meaning “a sovereignty inconsistent with any

conflicting [Indian] interest.” Judson J. on this basis held that the governor and the colonial government over which the governor presided _

had unfettered discretionary powers, a proposition that belied the | cornerstones of colonial constitutional law — subordination and delegation — an error facilitated by insufficient attention to the basic rules

ofTherank and precedency.’ | | only government with sovereignty in the colonial era was the

imperial government. The basis in law for that government’s original assumption of sovereignty was that discovery, conquest, or treaty gave

the king in his imperial Privy Council the jurisdiction to legislate regarding overseas dominions pursuant to the royal prerogative."” This

was an a priori assumption. It relied for its legal effect upon no other

“Royal commission of Governor Seymour of British Columbia, 11 January 1864, Entry Books Series 1 no. 18, Commissions &c., Colonial Office Records (381— 18 pro London) Public Archives Canada microform reel 890, 106, at 141-2.

The references to “good policy” also harkened back to the omnibus provisions made by the Royal Proclamation of 1763, rsc 1970, app. u, no. 1 (herein referred to as “the proclamation”). See chapter 3 under the heading “Positive Re-enactment:

The Indian Territories Statutes” in which it is shown that the imperial law _ established by the proclamation in the view of the imperial government applied to British Columbia.

811973] scr 313, 331-3. |

*The final section of chapter 1, under the heading “Constitutional Common Law” analyses the leading cases confirming the constitutional rules of subordination and delegation, rules that refute the suggestion by Judson J. that the colonial government was presumed to be sovereign.

Chitty, supra note 1. ,

63 The Prerogative Legislation

authority than that it was made, and that the courts once it had been made would thereafter enforce legislative acts made pursuant to it.!! That subordination and delegation, not sovereignty, were the founding principles of colonial government was confirmed in an opinion rendered by “the attorney and solicitor general, Murray, and Lloyd,

in 1755, on the question whether the governor and council have the | power of making law.”! Addressed to the right honourable the lords commissioners for trade and plantations, this opinion recited that: Pursuant to your lordships’ desire, signified to us by Mr Hill, in his letter of the 3lst of March last, setting forth that a doubt having arisen, whether the governor and council of his majesty’s province of Nova Scotia have a power of enacting laws, within the said province ... for the public peace, welfare, and good government of the said province, and the people and inhabitants thereof: we ... are humbly of opinion, that the governor and council alone are not authorized, by his majesty, to make laws. Til there can be an assembly, this majesty has ordered that government of the infant =| colony, to be pursuant to his commission, and instructions, and such further directions, as he should give, under his sign manual, or by order in council.'®

The instruments identified by this 1755 opinion as being necessary

and sufficient evidence of the delegation of a power to make laws upon a given subject were the governor’s royal commission and instructions, or else subsequently issued further royal directions. Such subsequently issued directions could be in the form of private royal

instructions under the royal sign manual, or alternatively could be in the form of a public order in council, meaning an instrument bearing the great seal of Great Britain.’* The matter of form was NTbid., at 27. Chitty, although in context speaking more directly of the colony of Ireland, made the pointed general reference: “Sovereigns, who considered

it as a dependent conquered dominion; and as such, possessed a legislative — right over it,” citing in authority [Campbell v. Hall, 98 ER 848 (xB), Lofft 665] Cowp. Rep. 210, post 29. See also, Salaman v. Secretary, [1906] 1 KB 613, 639; Sobhuza iv. Miller, [1926] ac 518; Buron v. Denman, [1848] 2 Exch. 167; Johnstone

| v. Pedlar, [1921] 2 ac 262, 278, 290; Nissan v. ac, [1968] 1 QB 286 (ca), [1970] Ac 179, 207; Halsbury’s Laws of England, 4th ed., 28: 1413.

Chalmers, supra note 2, at 1: 261.

'Tbid., at 261-2. The lords commissioners for trade and plantations were an | advisory body reporting to the Privy Council and charged with bureaucratic

responsibility for overseas dominions, trade, Indian relations, and colonial government. ! “The next section of this chapter, under the heading “Royal Commissions, Instructions, and the Proclamation of 1763,” gives a more detailed consideration

of such instruments under the signet and sign manual and the leading order in council under the great seal — namely, the Royal Proclamation of 1763.

64 Native Liberty, Crown Sovereignty

of central importance. A voluminous correspondence existed between | the governors and the colonial office in London, and it was not open for governors to assume from mere dispatches expressing opinions oe or sentiments a jurisdiction to make laws upon a subject. Jurisdiction — was delegated by specific instruments, only. These had to bear either |

| the signet and sign-manual of the king or else the great seal of Great Britain. That is, the power had to be vested pursuant to specific instru-

ments promulgated by the imperial government. The king’s hand , was literally and directly, not just figuratively and vicariously, necessary. Once again the Calder case illustrates the pitfalls of insufficient , attention to this matter of form. “Instructions” dated 31 July 1858 were sent by E.B. Lytton, secretary of state for the colonies, to Governor

_ James Douglas of British Columbia. But these were not “royal instruc- | tions” in the legally relevant sense necessary for evidencing a delegation

of jurisdiction from the imperial government to the colonial govern- , ment. This was just a letter, in which the colonial secretary gave some

advice to a subordinate officer to guide him in the administration of his office, a form quite incapable of constituting the powers of

that office in any strictly legal sense. These “instructions” did not , bear either the signet and sign-manual of the king or the great seal of Great Britain. Nevertheless, much was made of them by the judges | in the Caldercase, in a way that completely misconceived their materiality

for legal purposes. Judson J. quoted these so-called instructions of 31 July 1858, and he placed the emphasis thus: “I have to enjoin upon you to consider the best and most humane means of dealing

| with the Native Indians. The feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive measures towards

them. At this distance, and with the imperfect means of knowledge which I possess, I am reluctant to offer, as yet, any suggestion as to the prevention of affrays between the Indians and the immigrants. This question is of so local a character that it must be solved by your knowledge

and experience, and I will commit it to you, in the full persuasion that you will pay every regard to the interests of the Natives which enlightened

- humanity can suggest.”! | a

Judson J. thus emphasized a clause that had the appearance of granting to the governor a discretionary power. In reality, since the instrument

did not bear the signet and sign-manual or the great seal of Great Britain, it was incapable of constituting any power, discretionary or

otherwise, in the governor. Nevertheless, this statement on the part , of the secretary of state was what Judson J. advanced to substantiate | 'SSupra note 8, at 329, (emphasis that of Judson J.).

65 The Prerogative Legislation

his crucial opinion that the colonial government was “sovereign” relative |

to the extinguishment of Indian rights. ,

Mr Justice Hall, also in the Calder case, disagreed with Judson J. regarding the capacity of the governor to extinguish Indian rights. He quoted the very same letter, but by emphasizing different sentences

took the same passage as evidence of an absence of power in the colonial government: “J have to enjoin upon you to consider the best and most humane means of dealing with the Native Indians. The feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive

measures towards them. At this distance, and with the imperfect means

of knowledge which I possess, I am reluctant to offer, as yet, any suggestion as to the prevention of affrays between the Indians and the immigrants. This question is of so local a character that it must be solved by your knowledge and experience, and I commit it to you, in the full persuasion that you will pay every regard to the interests of the Natives which an enlightened humanity can suggest.”'®

As a result of not paying due attention to the form of the instrument, , an extremely important point (the extinguishment of aboriginal rights

in British Columbia) was therefore treated largely as a matter of interpretation of a mere letter, a letter better to have been set aside in order to concentrate upon genuinely relevant instruments. In fact, the genuinely relevant instruments were not addressed at all in the case ~ namely, the enactments of the Parliament of the United Kingdom

which made it clear that what is now British Columbia was regarded by the imperial government as part of the Indian Territory reserved — for the Indians.!”

The .1755 opinion of the solicitor general and attorney general quoted above is not, it should be added, just another opinion. Its coauthor the attorney general, Murray, was appointed chief justice the year after the opinion was given, at which time he took the title under which

he is now widely considered the most illustrious jurist of eighteenth century England, Lord Mansfield.'® In his capacity as chief justice, 'Thid., at 409, 413-14 (emphasis that of HallJ.). Hall j. unlike Judson J. was nevertheless

alive to the crucial subordination and delegation principle. He observed (ibid., _ at 406), “Douglas’ powers were clearly set out in his commission. A Governor had no powers to legislate other than those given in the commission.” The said commission was silent regarding Indians. '’The second section of chapter 3, under the heading “Positive Re-enactment: The Indian Territories Statutes,” portrays the imperial legislation, which, inter , alia, classified preconfederation British Columbia as “Indian territory” subject to the imperial government’s law that the Indians not be molested or disturbed. This legislation should have been determinative of, but was not considered in, the Calder case.

Chalmers, supra note 2, at i: xxxviii—xlii. |

66 Native Liberty, Crown Sovereignty

he later pronounced judgment in the leading constitutional case Campbell

v. Hall in 1774. That case confirmed the crucial importance of the form of instruments and held that the Royal Proclamation of 1763

} was binding even upon the king, since it was an order in council issued under the great seal of Great Britain.'? Most important, Campbell

__v. Hall confirmed the subordinate and delegated nature of colonial government jurisdiction, as well as the need to look carefully at the form of instruments when assessing their weight. It thus reiterated

general in 1755. | ,

the position occupied by the chief justice when he had been attorney

a The weighty nature of the 1755 opinion was not, however, entirely due to the personal identity of its authors. It also commands respect

due to the identity of its recipient. The Board of Trade (or “lords = commissioners of trade and plantations”) was “the constitutional channel

through which the colonial acts must come ... for the king’s ultimate decision.”*”° This board during the term of its existence formulated policy upon which the king and Parliament enacted law relative to the colonies. The policy it formulated was based partly upon opinions requested of the attorney general and solicitor general, such as the one delivered in 1755. When the king endorsed recommendations of this board, he tacitly endorsed the legal premises upon which the

recommendations were based.?! |

This discussion of the major players and the limitations upon their _ powers is not complete without a word for the superintendency of | the Indian Affairs department. The superintendent was ex officio a member of the colonial council in his political capacity, and beyond that was merely an administrative officer bound to carry out the terms of his office as settled by his particular commission and instructions. _ There are in every Colony twelve Ordinary Members of the Council, who | are appointed either by being named in the Governor’s Instructions, or else by Mandamus. In the Colonies on the Continent, before the Civil War [1776-83],

there were two extraordinary Members of the Council, viz. his Majesty’s , Superintendent of Indian Affairs, and the Surveyor-General of the Customs: but notwithstanding the Governor in Chief and Lieutenant-Governor, should

| be both dead, or absent from the Province, yet neither of those two extraor-

'° Campbell v. Hall, supra note 11, Lofft at 739. This case is considered at greater

length in the last section of chapter I. *°Chalmers, supra note 2, at I: xxi. , , *lTbid., at vii-xx. Chalmers provides a succinct history of the Board of Trade which is of particular value whenever it is important to weigh carefully a communication to or from the king during the period 1660-1782.

67 The Prerogative Legislation dinary Members of the Council could administer government, though next in seniority, but the command devolved on the Ordinary Member of the Council next in seniority to such Superintendent or Surveyor-General.*

The superintendent was in the council as an adviser, important enough to rank as the first named extraordinary member, but not so important

as to be entrusted with general civil power in the absence of the governor or his deputy. The governor had no law-making or policyformulating mandate of his own, and so, a fortiori, the superintendent

had none. The point is not that colonial governments could not have been given sovereign power, but rather that, in what is now Canada, they : were notgiven such power. Being itself sovereign, the imperial government,

had it wished to do so, was perfectly competent to have delegated a vice-regal jurisdiction. Another attorney general remarked upon this

theoretical option: Sir Robert Raymond, attorney-general and later chief justice,** together with Sir Philip York, chief justice** after Lord

Raymond, suggested on 14 December 1722, in an official opinion delivered to the Board of Trade regarding the king’s power to establish

a civil jurisdiction at Gibraltar, that sometimes the crown has thought fit, by particular express provisions —

under the great seal, to create and form the several parts of the constitution of a new government, and at other times has only granted general powers to the governor to frame such a constitution as he should think fit, with the advice of a council, consisting of a certain number of inhabitants, who might be supposed to be most capable of judging what the condition of the country required, and this subject to the approbation of disallowance of the crown; but which of these two methods is fittest to be followed in this case, depends upon the particular circumstances of the place.”

_ The “particular circumstances” of British North America (which

included numerous and warlike tribes) persuaded the imperial government of the impolicy of investing colonial governments with powers to interfere with the Indians’ autonomy. Thus the several royal

commissions, instructions and further directions, and the Royal Proclamation of 1763,”° as well as a series of imperial statutes,”’ all *2Stokes, supra note 3, at 237. **Chalmers, supra note 2, at I: xxxi. . 4Ibid., at I: XXXv.

*Ibid., at 1: 169, 180.

_ *°See the next section of this chapter “Royal Commissions, Instructions and the :

Proclamation of 1763.” |

| 68 Native Liberty, Crown Sovereignty construed together, recognized and affirmed that, to adopt the proclamation’s turn of phrase, “the several Nations or Tribes of Indians

.. should not be molested or disturbed.”** That the Indians might have taken umbrage had jurisdiction over their affairs been granted

, by the imperial government to the colonial governments is manifest.

As one well-known 1837 report stated: — , , The protection of the Aborigines should be considered as a special duty

peculiarly belonging and appropriate to the Executive Government, as administered either in this county or by the governors of the respective Colonies. ,

This is not a trust which could conveniently be confided to the local Legislatures. In proportion as those bodies are qualified for the right discharge of their proper functions, they will be unfit for the performance of this office,

for the local Legislature, if properly constituted, should partake largely in the interests, and represent the feelings of the settled opinions of the great | mass of the people for whom they act. But the settlers in almost every Colony, having either, disputes to adjust with the native Tribes, or claims to urge against them, the Representatives body is virtually a party, and, ought not

to be the judge in such controversies; or, if Members of the Colonial , Legislature are not chosen by the people, but selected by the Government, _ there is still a similar objection to their interference with regard to the Aborigines. Possessing an invidious elevation, in which they are supported by no other title than that of the preference of the Crown, they will endeavour to abate the ill-will which follows upon such superiority, by ministering to

| all popular prejudices which do not directly invade the power and the rights __ of the government they serve. Whatever may be the Legislative system of any Colony, we therefore advise, that, as far as possible, the Aborigines be

withdrawn from its control.2 , The essence of the recommendation was that the imperial government | should maintain an even hand between the Indians and the colonial ,

governments. . - | This the imperial government has done all along, by means of |

Statutes.” ,

27See the second section of chapter 3, “Positive Re-enactment: The Indian Territories

~ *8Royal Proclamation of 1763, rsc 1970, app. n, no. 1, at 127. : Extract from the “Report of the Select Committee of the House of Commons (U.K.) on the Aborigines of the British Settlements, 26th June 1837,” in Canada, Report on the Affairs of the Indians in Canada, appendix T, at paragraph 1 under

| the internal heading “General Recommendations”. For a clear illustration of

the anti-Indian and pro-colonist bias of colonial governments, as prophesied

, in this report, see Fisher, supra note 5.

69 The Prerogative Legislation

constitutional laws promulgated to that end, which have circumscribed the powers of colonial governments and their federal and provincial

successors.*” |

The principles of subordination and delegation were confirmed by the imperial Parliament when in 1696 and 1766 it enacted respectively An Act for Preventing Frauds, and Regulating Abuses in the Plantation

Trade,’ and An Act for the Better Securing the Dependency of His | Majesty’s Dominions in “America” upon the Crown and Parliament of “Great Britain.”** The 1696 act provided that “all Laws, By laws, Usages or Customs, at this Time, or which hereafter shall be in Practice,

or endeavoured or pretended to be in Force or Practice, in any of the said Plantations, which are in any wise repugnant ... to [this or] any other Law hereafter to be made in this Kingdom, so far as such Law shall relate to and mention the said Plantations, are illegal, null

and void, to all Intents and Purposes whatsoever.”? The 1766 act provided that “[t]he said Colonies and Plantations in America have been, are, and of Right ought to be, subordinate unto, and dependent

upon, the Imperial Crown and Parliament of Great Britain; ... And ,

be it further declared and enacted ... That all Resolutions, Votes, , Orders, and Proceedings in any of the said Colonies or Plantations, whereby the Power and Authority of the Parliament of Great Britain, to make Laws and Statutes as aforesaid, is denied or drawn into question,

are, and are hereby declared to be, utterly null and void to all intents and Purposes whatsoever [emphasis in the 1766 act].”** _ Clearly, the imperial government was protective of its paramountcy. | The colonial constitutional law established by that government was perfectly unambiguous. The colonial governments constituted by the

imperial government were subordinate governments, exercising delegated powers. They were never made sovereign governments, exercising inherent powers. That, in a real sense, is the basis for the , existing aboriginal right of self-government. Throughout Canadian history the colonial governments have constitutionally been bound to respect aboriginal rights, whether they liked them or not, because

rights. |

they were never invested with sufficient legal power to abrogate such |

Supra note 28. And see, the second section of chapter 4, under the heading “Responsible Government and Enclaves,” which describes the growth of responsible

colonial government as being without prejudice to the corresponding aboriginal right of self-government.

17 & 8 Wm. i, c. 22 (1696). 26 Geo. ml, c. 12 (1766). “Supra note 31, section 12.

“Supra note 32, sections 1 and 2. ,

, 70 Native Liberty, Crown Sovereignty ROYAL COMMISSIONS,

INSTRUCTIONS, AND THE | PROCLAMATION OF 1763 The first colonial constitutions took form as prerogative legislation. That is, colonial governments were constituted in virtue of “royal

commissions” — orders in council bearing the great seal of Great Britain and appointing the governors of the colonies. The mandatory terms and conditions of constitutional government were set out therein. Those mandatory constitutive instructions were later commonly supplemented by merely directory regulations contained in separate “royal instructions” bearing the signet and sign-manual of the king. One set of such merely directory royal instructions invariably accompanied the constitutionally binding royal commissions. Further merely

directory instructions, also under the signet and sign-manual, were

or as “additional instructions.” , sometimes issued subsequently and were then referred to as “directions”

Rarely, a constitutive instruction (that is, a mandatory term and condition of constitutional government) was declared to be of general application. Instead of inserting a provision into the individual royal _ commissions, for each of the several colonies, the crown had the option |

of promulgating a single omnibus royal proclamation, at once applicable to all colonial governors and their governments. Like the royal commissions, such a proclamation bore the great seal of Great Britain, being no less an order in council. The advantage of this royal proclamation device was that by a single stroke, constitutionally binding

terms and conditions could be imposed that otherwise would have required the cancellation and reissuance of the several individual commissions outstanding for each of the colonies. One might have thought that a serial set of additional instructions bearing only the signet and sign-manual would have served the same purpose as a royal proclamation. But such additional instructions, being merely under the signet and sign-manual, were not, in law, considered definitive

of the constitutional capacity of colonial governments to enact laws.* Only royal commissions and royal proclamations, as orders in council

bearing the great seal of Great Britain, were appropriate to that constitutional purpose.

. Local laws that were within the constitutional capacity of colonial governments to enact took three domestic forms. These were (1) a governor's proclamation, (2) an order of the governor in council, *Swinfen, “The Legal Status of Royal Instructions to Colonial Governors,” 39.

71 The Prerogative Legislation

or (3) an act of the colonial assembly. Such local enactments were | subordinate legislation pursuant to the explicit delegation of power by the imperial government duly made by royal commission or else by royal proclamation. Therefore, the question whether a given colonial law was intra vires or ultra vires (that is, within or outside of its scope) turned primarily upon the jurisdiction specifically conferred upon, or withheld from, the author of the particular law by the instruments

bearing the great seal of Great Britain. When construing domestic enactments of colonial governments, it

is also important to distinguish the two doctrines of constitutional capacity and of repugnancy. The issue of constitutional capacity can , exist even when a colonial government’s enactment stands alone. The doctrine of repugnancy however can arise only when a colonial law and an imperial law collide. The doctrine of repugnancy is a conflictsof-law rule, which asserts the paramountcy of imperial law by holding

the colonial law to be inoperative to the extent of the conflict. In

| contrast, if a colonial law were made by a colonial government not | invested with the constitutional capacity to enact upon that subject, ' then the law would be a nullity, not necessarily because of any conflict with an imperial law on the same topic, but rather because the colonial

had no jurisdiction. | :

enactment simply never acquired the force of law, since its author

The perception that constitutional capacity and repugnancy are. distinguishable bases for questioning the validity of enactments of colonial governments appears to have been outside the focus of Judson

J. in the leading 1973 decision Calder v. AG for Bc.*° He said, “in the

present case, the sovereign authority elected to exercise complete | dominion over the lands in question, adverse to any right of occupancy which the Nishiga tribe might have had, when by legrslation, it opened

up such lands for settlement, ...”°’ It was here that the difference , between repugnancy and constitutional capacity became crucial. The | basis for Judson J.’s decision was that, since in his view no express imperial law prohibited the colonial government from acting in a

*°Supra note 8. , ‘Ibid., at 344 (emphasis added). But see Simon v. Rr. (1986), 24 DLR (4th) 390

(scc). In the Simon case the Supreme Court of Canada ruled that hunting rights under a treaty could not be implicitly extinguished by general words in a statute. The implications of this for the Calder case were noted by Sanders, “Aboriginal Rights in Canada: An Overview,” at 187. Sanders suggested that a trend may have started whereby the Supreme court of Canada may be indicating

a receptiveness to reassessing past positions taken by the court relative to extinguishing Indian rights by state actions that are less than “clear.” See rR. | v. Sparrow, [1987] 1 cNLR 145 (Bcca), 160-5, in which the court did indeed appear willing to reconsider Calder.

, 72 Native Liberty, Crown Sovereignty | manner inconsistent with Indian rights, therefore the colonial govern- _

ment could do whatever it wanted. His conclusion that no imperial , legislation stood in the way was itself based upon a finding that the _ Royal Proclamation of 1763 did not geographically apply to British

| Columbia.” Judson J. in effect held that since the proclamation did not apply to the lands in question, the doctrine of repugnancy was _ necessarily also inapplicable. Once that was established, the court erroneously assumed that the colonial government was sovereign. In this way the doctrine of repugnancy effectively pre-empted the more

fundamental and preliminary issue of constitutional capacity. The , crucial enquiry should have been to identify the royal commissions investing the colonial government with positive jurisdiction unilaterally __

to extinguish Indian rights. Instead, the question became whether

_ the proclamation applied, the erroneous assumption being that if a it did not then the colonial government was effectively sovereign.”

| The Colonial Laws Validity Act*® of 1865 addressed the doctrine | of repugnancy with respect to both imperial instructions and statutes, although it is most commonly discussed only in the latter context.” Regarding repugnancy with imperial statutes, the act provided: “3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same

shall be repugnant to the provisions of some such Act of Parliament, , order, or regulation as aforesaid.” It is unlikely the Royal Proclamation

of 1763 could fit within the category of paramount imperial law contemplated by that section, since the proclamation was prerogative

, legislation rather than either an “Act of Parliament” or subordinate

38 Calder, supra note 8, at 323-5. a : | “Compare Slattery, The Land Rights of Indigenous Canadian Peoples, 315-19. Dr , Slattery stated that “colonial legislatures had the power, in principle, and subject to any particular restrictions, to modify or abrogate Indian land rights recognized by the Proclamation” (at 319). Slattery arrived at this conclusion after having

considered the doctrine of repugnancy, but, like the court in Calder, having | not considered the more fundamental issue of constitutional capacity in the light of the relevant royal commissions and instructions. Paradoxically, in another

_ part of his thesis (at 304) Slattery also stated, “Acts done in excess of such | [as specified in the governor’s commission and instructions] authority, or violating

the Crown’s direct prohibition, are invalid.” Slattery did not clarify how it was that a local colonial legislature constituted under the governor’s authority could supposedly exercise powers withheld from the instruments constituting the terms

319). ,

, of colonial government. Regarding his conclusion that the local legislature could , override the proclamation, Slattery suggested that “there is little judicial authority on the matter” (at 315) and that his conclusion was offered “tentatively” (at *An Act to Remove Doubts as to the Validity of Colonial Laws, 28 & 29 Vict.,.

c. 63 (1865). ,

“For example, Slattery, supra note 39, at 317.

73 The Prerogative Legislation

legislation under such an act. Therefore even had Judson J. viewed the proclamation as applicable to British Columbia, that order in council would not necessarily have prevented that colonial government from extinguishing aboriginal rights solely on the basis of section 3.¥

_ The doctrine of repugnancy pursuant to section 3 of the Colonial | Laws Validity Act therefore becomes determinative only by identifying

an act of Parliament or subordinate legislation under such an act | that says the same thing as the proclamation. Such acts and subordinate legislation are identified in detail in chapter 3 of this study under the heading “Positive Re-enactment: The Indian Territories Statutes.” The point developed there is that by classifying British Columbia as “Indian territory” for legal purposes the imperial Parliament effectively

, Calder case. |

applied the proclamation’s concept to that province. Those acts and : that subordinate legislation were not addressed by Judson J. in the The immediate concern, however, is to enlarge upon the issue of

repugnancy due specifically to conflict of colonial government

, enactments with imperial government prerogative legislation, as opposed to conflict with imperial statutes. Regarding this type of | repugnancy, the same Colonial Laws Validity Act provided: 4, No colonial law passed with the concurrence of or assented to by the governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any

a instructions with reference to such law or the subject thereof which may , have been given to such governor by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such governor

to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred _

to in such letters patent or last-mentioned instrument. | This crucial section in effect said that laws made by the colonial government would be deemed invalid if contrary to constitutive instructions in the governor’s royal commission under the great seal of Great Britain; but they would not be deemed invalid merely for breaching the governor’s royal instructions under the signet and sign-

manual. | | ,

®Tbid. | This result was achieved, first, by the fact that the section applied to all

“colonial law passed with the concurrence of or assented to by the |

governor.” Thus the section applied to enactments of the colonial legislature. One could not therefore argue that the governor’s commission

74 Native Liberty, Crown Sovereignty , bound fim in the issuance of governor’s proclamations or orders in

council, but did not bind enactments of the colonial legislature. | All three forms of colonial government legislation were caught by

section 4 of the Colonial Laws Validity Act.

Second, the section indicated that no colonial law would be deemed void or inoperative by reason “only” of breaching “instructions.” But,

| it added, invalidity would result if the particular instructions were contained in the very “letters patent or instrument authorizing such governor to concur in passing or to assent to legislation” — that is, in the royal commission bearing the great seal of Great Britain consti-

tuting the governor in office. | Finally, section 4 of the Colonial Laws Validity Act made it clear

that there was to be no incorporation by reference of instructions (merely under the signet and sign-manual) into commissions (bearing the great seal). It said, “even though such instructions may be referred

to in such letters patent” they were not considered to be part of such letters patent for the purpose of assessing their binding effect. The difference between commissions and instructions was that in virtue of the great seal of Great Britain, commissions were public legislation,

whereas instructions bearing only the signet and sign-manual of the king were private. A breach of the former entailed a conceptual breach

of public law, whereas a breach of the latter meant the governor was in effect reneging on a private duty. A breach of the former invalidated the colonial law, whereas a breach of the latter meant only that the governor was personally subject to reprimand or recall. Again, commissions were mandatory, whereas instructions were only

directory relative to the constitutional repugnancy issue. | I submit that the Royal Proclamation of 1763 was covered by section 4, and thereby was confirmed in its binding effect upon colonial

governments in virtue of the imperial Parliament’s Colonial Laws , Validity Act. The proclamation was an order in council bearing the great seal of Great Britain,* promulgated by means of what section 4 described as “letters patent ... authorizing such governor to concur in passing or to assent to laws for the peace, order, and good government of such colony.”** Indeed, the proclamation had said: We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by * Campbell v. Hall, (1774) Lofft 655, 739, 98 ER 848. Slattery, supra note 39, at 284-7, discusses the issue of the proclamation’s formal validity, including the __

impression of the great seal. “Supra note 6.: ,

75 The Prerogative Legislation , which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state

and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies, within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in Amenica which are under our immediate Government; And We have also given Power to

the said Governors, with the consent of our Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, _— and under such Regulations and restrictions as used in other Colonies.

The proclamation thus confirmed the uniformity of colonial government powers throughout British North America. The new colonies

constituted under it were placed on the same footing as to powers | as the “other Colonies.” All — new colonies and old alike — were then

made subject to the Indian part of the proclamation, which said “that _ the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed

in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to — them, or any of them, as their Hunting Grounds.”*® This restriction on the power of colonial governments, not to molest or disturb the Indians when applying the colonists’ laws relative to the peace, order, and good government of the colony, was universal. It was referable “upon any lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.”*’

The essential point of the proclamation was that it made mandatory, , under the great seal of Great Britain, an imperial policy that formerly *Royal Proclamation of 1763, rsc 1970, app. u, no. 1, at 125 (emphasis added). **Tbid., at 127. *"Ibid. In spite of this clear expression of legislative intent, the issue of the territorial

application of the proclamation has since become vexed. See for example, Calder , v. AG for Bc, supra note 8, at 322-3 and 325 per Judson J., contra Hall Jj. at 394-5; Burke v. Cormier (1890), 30 NBR 142, 148 per Allen cj. indicating that the proclamation did not apply to New Brunswick but only Ontario and Quebec (old Canada); R. v. Syliboy (1928), 50 ccc 389, 392-3, contra rR. v. Isaac (1975), 13 nsr (2d) 460 (ca), 468, 497, regarding Nova Scotia; rR. v. Kogogolak (1959), 28 wwe 376 (Terr. Ct), 378, Rk. v. Koonungnak (1963), 45 wwe 282 (Terr. Ct), 302 and pr. v. Sikyea (1964), 46 wwe 65 (Nwrca), 66, aff'd [1964] scr 642, 646, contra Hamlet of Baker Lake v. Min. of Ind. Aff (1979), 107 pir (3d) 513 (TC)

76 Native Liberty, Crown Sovereignty

had been expressed in merely directory instructions bearing the signet

, and sign-manual of the king.* The alternative way pursuant to the — prerogative power to have made the message a binding term of the constitution would have been to reissue all the individual governors’ commissions in British North America. But that would have lacked the element of publicity, which was a distinct objective in view of | the desire to reassure the Indians of the imperial government’s good

intentions.” Before the proclamation was promulgated, the restriction | , on colonial government powers had generally been contained in the relatively confidential and merely directory instructions rather than in the binding commissions. In terms of the repugnancy issue, the promulgation of the proclamation therefore meant that enactments of colonial governments that “molested or disturbed” the Indians _ henceforth were legally ultra vires, as opposed to merely being contrary

to policy or convention. One must, nevertheless, continue to examine carefully the terms

of the relevant commissions and instructions whenever an enactment | of a colonial government is being assessed in terms either of the regarding the Northwest Territories; St Catherine’s Milling © Lumber Co. v. Rr. (1887),

13 scr 313, contra rR. v. Bonhomme (1917), 38 DLR 647 (Ex. cc) regarding old Canada inside the colonial government boundary as defined before the boundary was extended. The very best statement on the subject of territorial application was delivered by Baldwin J. of the American Supreme Court, who said in Mitchel

v. U.S, 9 Peters 711, 756 (1835): “This proclamation was also the law of all

the North American colonies in relation to crown lands.”

*The proclamation had been preceded in 1670 by a Royal Instruction which established the imperial government policy of centralizing control of native relations in itself, and accordingly of instructing governors to respect and protect

aboriginal rights. Unlike the proclamation, the 1670 Instruction was a mere guideline, the breach of which would not necessarily invalidate a law made by a colonial government. See Canada, Report on the Affairs of the Indians in Canada, appendix EEE. Section 1 of this is entitled “History of the Relations between the Government and the Indians.” It says, inter alia, “In 1670, during the reign of Charles 1 a code of instructions was issued for the guidance of the Governors of the Colonies, from which the following are extracts ‘Forasmuch |

, as ... peace is not to be expected without the due observance and preservation of justice to them, you are in Our name to command all the Governors that they are at no time to give any just provocation to any of the said Indians

that are at peace with us.’”

“That the publicity aspect of the proclamation was the very point of employing that particular form, instead of burying the provisions in the less notorious commission format, was underscored by Johnson Jj. of the American Supreme Court in Harcourt v. Gaillard, 12 Wheat, 523, 527 (1827): “the power of the

crown was at that time admitted to be very absolute over the limits of the royal provinces; but there is no reason to believe that it had ever been exercised

| by any means less solemn and notorious than a public proclamation.” See also, Johnson v. McIntosh, 8 Wheat. 543, 597 (1823).

77 The Prerogative Legislation

~ constitutional capacity of its author or of the repugnancy of its enact-

ments. Occasionally, though not usually, aboriginal rights were expressly protected in the governor’s commission, not just in his supplemental instructions. We have already noted one exceptional illustration of this, as when the royal commission of 1864 to Governor Seymour of British Columbia had provided: “xxvi. And it is Our further

will and pleasure ... that you do especially take care to protect them [the Indians] in their Persons and in the free Enjoyment of the | Possessions, and that you do by all lawful means prevent and restrain all Violence and Injustice which may in any manner be practiced or attempted against them.”” Since, after promulgation of the Royal Proclamation of 1763, it was unnecessary to repeat in the several royal commissions the caveat

against molesting or disturbing the Indian nations or tribes to give the caveat binding constitutional effect, the general practice was to include “reminders” in the supplemental instructions. The first royal commission and set of accompanying royal instructions subsequent to the proclamation and relative to what is now Canada were directed to James Murray, governor of Quebec, on 7 December 1763. These

instructions, stated in the preamble to be under the signet and sign manual, said: “Article 61 ... You are upon no account to molest or

_ . disturb them [the Indians] in the Possession of such Parts of the | said Province as they at present occupy or possess.”°! That 1763 royal instruction to Governor Murray was subsequently repeated in the royal

instructions to his successor, Guy Carleton, as captain general and

, governor in chief in and over the province of Quebec, in 1768, once again as a separate supplemental instruction rather than as a consti-

tutive term expressly set out in the commission itself. At this juncture it may be recalled that a portion of North America | was unorganized for the purposes of colonial civil government, being under military jurisdiction only. Since the instructions to the civil governors, such as the ones to Murray and Carleton just reviewed, *°Royal commission of Governor Seymour, supra note 7. By way of contrast, the earlier royal commission of 2 September 1858, constituting Governor James

_ Douglas in office, had more typically been silent on the subject of Indians: , “Order in Council Annexing Letters Patent Granting a Royal Commission to James Douglas as Governor of British Columbia,” Entry Books Series u, Colonial __ Office Records (381/18 pro London) Public Archives Canada microform reel 890. An Act to Provide for the Government of British Columbia, 21 & 22 Vict., c. 99 (1858), similarly made no reference to an express restriction on the governor’s ,

power when by section 2 it gave the governor power to enact laws for “the Peace, Order, and good Government of Her Majesty’s subjects and others therein.” *'Shortt and Doughty, Documents Relating to the Constitutional History of Canada, 1. *2Public Archives Canada, mc40 B7, 90-102.

| 78 Native Liberty, Crown Sovereignty | a would not have applied outside the territorial boundaries of their respective civil colonial provinces, similar royal instructions were issued

to the head of the military establishment. For example, pursuant to the king’s order Lord Hillsborough communicated to the commander

in chief a report of the lords of trade on the state of Indian affairs. | Both this official report and Lord Hillsborough’s communication of

it clothed with the king’s endorsement under the signet and sign- , manual occurred in 1768. The report in virtue of that endorsement acquired the force and effect of a supplemental royal instruction.

It said: ,

To maintain a good Correspondence with the Indians is undoubtedly an Object of great importance ... The giving all possible redress to the complaints of the Indians in respect to Encroachments on their Lands, and a steady and _ uniform Attention to a faithful execution of whatever shall be agreed upon

for that salutory purpose, is a Consideration of very great Importance. It is a Service of a general nature, in which Your Majesty’s Interest, as Lord of the Soil of all ungranted Lands which the Indians may be inclined to give up, , is deeply and immediately concerned, and with which the general Security of your Majesty’s Possessions there is in some measure connected.”*

The tenor of that report, like the preceding instructions to the civil governors, viewed the natives as a force to be cultivated and pacified,

in a context that respected their rights. The description of the “Lands” | as “their” was significant. It recognized an aboriginal right in those lands. Furthermore, the description of the king as “Lord of the Soil” was subject to a limitation: it applied only to such lands as “the Indians may be inclined to give up.” Hence the instruction to the military

establishment was that the natives retained a dominion over such lands as they had not yet given up to the crown. In 1775 the Imperial Plan for the Future Management of Indian Affairs of 1764, a plan that had provided a blueprint to be applied | “throughout all North America ... so as to set aside all local interfering of particular Provinces,””’ was incorporated by reference into the royal instructions to Guy Carleton as captain general and governor in chief of Quebec in America. The 1775 instructions said: “Article 32 ... These and a variety of other regulations, incident to the nature and purpose ©

of the Peltry Trade in the interior Country, are fully stated in a Plan 33 Alvord and Carter, Trade and Politics, 11: 183-204, 245-7.

*Ibid., at 186 (emphasis added). | oe gcallaghan et al., Documents Relative to the Colonial History of New York, |

79 The Prerogative Legislation

proposed by Our Commissioners for Trade and Plantations in 1764,

merce.” |

a Copy of which is hereunto annexed and which will service as a Guide in a variety of cases, in which it may be necessary to make provision by Law for that important branch of the American ComLike the instructions themselves however, the plan of 1764 served only as a guide. It provided a basis from which to operate whenever “it may be necessary to make provision by Law” for some purpose. It did not serve as law in its own right. In the royal instructions to Governor Haldimand, and to his successor Carleton (who had been

reappointed), of 1778 and 1786 respectively, the plan of 1764 was again incorporated by reference as a guide.*’ A similar military reminder occurred in 1783 when the commander in chief of the crown’s forces in North America, Frederick Haldimand, instructed Sir William Johnson, superintendent of Indian affairs, that

“as these people consider Themselves, .and in fact are, free and independent, unacquainted with Control and Subordination, their Passion _ and Conduct are alone to be governed by Persuasion and Address.”°® This instruction was the equivalent of a royal instruction accompanying but not included in a royal commission. Johnson’s royal commission

(bearing the great seal of Great Britain) constituting him in office had said, “you are to observe and follow such Orders and Directions from time to time, as you shall receive from Our Commander in Chief of Our Forces in North America now and for the time being,

of War.”9 |

~ or any other Your Superior Officer according to the Rules and Discipline

The subsequent instruction, from Haldimand to Johnson in 1783, by recognizing that the Indians were “free and independent” therefore

reiterated but added nothing to the binding effect of the Royal Proclamation of 1763. The proclamation had already publicly enacted that colonial governments were constitutionally bound not to molest

or disturb the Indian nations or tribes. The point here is that as a general proclamation it was no less binding upon the military establishment than upon the civil governments in the colonies, and

| reminders were occasionally issued to both the military and civilian officials.

*6Given at the Court of St James, 3 January 1775, Public Archives Canada, mc40 B7, 116-60 (emphasis added). *’Public Archives Canada, mc40 B7, 213-15, 231-79. 8Public Archives Canada, MGl1 reel B-36 Colonial Office Records (42/44 pro

London), folios 95-7 (emphasis added). Sullivan et al., The Papers of Sir William Johnson, 1: 434—5.

, 80 Native Liberty, Crown Sovereignty _ , ! One can, nevertheless, also argue that such civil and military royal | instructions were more than just non-binding reminders. They were also evidence of how the previously established imperial law constituting colonial civil and military powers was understood by contemporaries.

In that connection a public representation of the crown’s position made by His Excellency Guy Carleton Lord Dorchester, Governor of Upper and Lower Canada and Commander in Chief of His Majesty’s Forces in North America, is particularly illuminating. He told the

- chiefs and warriors of the Confederated Indian Nations in 1791:

Brothers: You have told me, there were people who say that the King your father when he made peace with the United States gave away your lands to them. I cannot think the government of the United States would hold : that language, it must come from ill-informed individuals. You will know, that no man can give what is not his own ... The King’s rights with respect to your territory were against the nations of Europe; these he resigned to the States. But the King never had any rights

against you but to such parts of the country as had been fairly ceded by yourselves with your own free consent by public convention and sale. How

then can it be said that he gave away your lands? | So careful was the King of your interests, so fully sensible of your rights,

, that he would not suffer even his own people to buy your lands, without being sure of your free consent, and of ample justice being done you ... The King has not forgot your friendship, he never forgets his friends. You desire the King’s protection, you desire his power and influence may

be exerted to procure your peace and to secure your rights. | This speech represented the considered opinion of the highest ranking civil and military official in British North America as to his , understanding of the constitutional law confirmed by the Royal Proclamation of 1763. Mr Justice Strong of the Supreme Court of Canada in the leading St Catherine’s Milling®' case made essentially the same point a century

, later. He confirmed that the natives had strictly legal rights, that those rights were sufficient to prevent colonial governments from dealing with , yet unceded Indian territory, and most important, that such principles had prevailed as a matter of law rather than mere policy or convention, “at least from the year 1756, when Sir William Johnston [sic] was appointed by the Imperial Government superintendent of Indian affairs

Archives Ontario, Simcoe Papers, Letterbook 17-1791.

°! St Catherine’s Milling & Lumber Co. v. R. (1887), 13 scr 577. ,

81 The Prerogative Legislation

in North America, being as such responsible directly to the crown through one of the Secretaries of State, or the Lords of Trade and Plantation, and thus superseding the Provincial Governments, down to the , ' year 1867, when the confederation act constituting the Dominion of Canada was passed.”™ The verb “superseding” was crucial, for by it Strong J. confirmed the constitutional incapacity of colonial governments to “molest or disturb” the Indian nations or tribes. The colonial

governments did not have jurisdiction under the prerogative legislation constituting their powers to negate the aboriginal right

of self-government upon yet unceded territory, since to do so, manifestly, would have been to molest or disturb those nations or ©

tribes upon those lands. Oe

As to whyit made sense for the prerogative legislation to have expressed

that intent, a report of Sir William Johnson, superintendent of Indian affairs in North America, is instructive. He advised the Board of Trade

on 30 August 1764 that |

they [the Indians] apprehend that we design to enslave them ... if we conquer their prejudices by our generosity they will lay aside their Jealousy’s, & we may rest in security. This is much cheaper than any other plan, and more certain of success. Our extensive Frontier renders it necessary if we will provide | for their security ... [in the last campaign] they saw themselves able to effect

what was looked upon by many of our prejudiced Politicians here as utterly impossible ... The Indians all know we cannot be a Match for them in the midst of an extensive woody Country ... from whence I infer that if we are

, determined to possess Our Posts, Trade & ca securely, it cannot be done for a Century by any other means than that of purchasing the favour of ,

- the numerous Indian inhabitants. ,

| The Indians’ military alliance was important because of the need to maintain British influence in North America against the French ; crown. Colonel Bouget writing to Major General Thomas Gage, the commander of His Majesty’s British Forces in North America, on 30 November 1764, thus observed: Those [Indian] Nations being extremely indisposed against us owing to the

376-7 per Hall, J. , ,

*Ibid., at 608 (emphasis added). Approved, Calder v. ac for Bc, supra note 8, at

Alvord, The Critical Period 1763-1765, 10: 307. See also “royal instructions to , Jeffrey Amherst, Major-General of His Majesty’s Forces, and General and Commander

21697). | ,

in Chief of the Forces in North America, dated at the Court of St James, 17th December, 1760,” instructing him relative to “engaging the Indian Tribes to our Alliance and Interest” (Public Archives Canada, reel a-617, pL Add. Mas.

82 Native Liberty, Crown Sovereignty

perfidious Insinuations of the French and the contemptible Right in which they [the French] represent us. They [the Indians] would neither believe our offices sincere, nor think us able to inforce them ... The dread of English power is in my opinion the only motive capable of Making a Solid Impression

upon their minds and they must be convinced that it is not out of necessity, ,

, but out of regard for them that we offer them our alliance.” Even after the fall of New France and with the diminishing French

} influence the Indians continued to figure as a prominent force to be reckoned with by the king’s advisers. For example, a century later on 16 July 1864 the colonial secretary wrote to Governor Seymour

of British Columbia: “I should deprecate nothing so much as the breaking out of a War which you justly say would be very costly, and

| which might lead to prolonged feelings of animosity between the two races that could be productive of nothing but evil and danger.”™ On 1 August this secretary of state added: “I rejoice to see that you are fully alive to the consequences which an Indian War would entail

upon the colony and I trust that you will be especially careful not

to take any measures which might convert an isolated outrage perpetuated by a band of murderers into a tribal war.”°° Thus advice that the Colonial Office was both getting and giving over the course of two centuries, from the 1670 royal instructions to confederation, demonstrated the existence of an underlying imperial perspective that was consistent. The several colonial governments in British North America were well understood to be inappropriate vehicles _ for the formulation of law regarding Indians. The natives’ favour was

considered essential, and was to be fostered both by an appeal to their self-interest as well as by the appearance of imperial prowess and impartiality. This placed the imperial government in the position of having to be seen to maintain an even hand between the conflicting

interests of the Indian nations and the colonial governments. Constitutional law provided the means. The prerogative legislation

affirmed both the aboriginal right of self-government and the corresponding constitutional incapacity of colonial governments to

*Alvord, supra, at 336. The real-politik of the English-French-Indian triangle is portrayed by Eccles in “Sovereignty Association, 1500-1783,” and “The Fur Trade and Fighteenth-Century Imperialism.” Both articles are reproduced with , some. revisions in Eccles, Essays on New France, 144 ff. .© Secretary of State E. Cardwell to Governor Seymour, dispatch no. 23, PRO, Co 389/2, microfilm, Public Archives Canada, Entry Books of correspondence 1861-

1867, reel 890, at 244. °Tbid., dispatch no. 30, at 250.

83 The Prerogative Legislation

interfere with that right. The prerogative legislation did this in two ways: negatively, by not explicitly investing colonial governments with __ the constitutional capacity to govern natives in relation to yet unceded territory; and positively, by explicitly recognizing the aboriginal right

| not to be molested or disturbed upon such territory. The first point, non-investiture, goes to the constitutional capacity issue. The second

| point, recognition of the aboriginal right, goes to the repugnancy issue.

The discussion of the Royal Proclamation of 1763 would not be — complete without a comment on its use of the word “Indians,” in, for example, its enactment that “the several Nations or Tribes of Indians

with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or _ purchased by Us, are reserved to them, or any of them, as their Hunting

Grounds.” “Indians” there meant everyone identified as being racially | indigenous, as distinct from being “European.” The term was not restrictively defined in the eighteenth century. One must therefore guard against the impulse to equate the restrictive definition of “Indian” , employed in twentieth century Indian Acts with the broader eighteenth century usage. The modern term most closely approximating “Indians,”

in the all-encompassing sense used in the proclamation, would be “aboriginal peoples” as used in section 35 of the Constitution Act, 1982. That is a broader category than “Indians” in the Indian Act

, sense. For this reason, this book has been styled as an enquiry into | the aboriginal right of self-government rather than the Indian right |

right relates.

of self-government. The stress is upon the constitutional dimension and upon the constitutionally relevant class of persons to whom the

CHAPTER THREE Continuity

The prerogative legislation confirming the aboriginal right of selfgovernment has never been repealed. Nor have the constitutional common law precedents ever been overruled. For these reasons alone the right still exists. These reasons do not, however, stand alone. Statutes , of the imperial Parliament have reiterated the imperial law previously established by the prerogative legislation. _ The first section of this chapter, entitled “Non-repeal of the Prerogative Legislation,” demonstrates the absence of any legislative dis-

Constitution Act, 1867: continuity. As Lord Denning MR once held, when construing the

Save for that reference in s. 91(24), the 1867 Act was silent on Indian affairs.

Nothing was said about the title to property in the “lands reserved for the 7 Indians,” not to the revenues therefrom, nor to the rights and obligations of the Crown or the Indians thenceforward in regard thereto. But I have

no doubt that all concerned regarded the royal proclamation of 1763 as a still of binding force. It was an unwritten provision which went without saying. ,

It was binding on the legislature of the Dominion and the Provinces just as if there had been included in the statute a sentence: “The aboriginal

, _ peoples of Canada shall continue to have all their rights and freedoms as recognized by the royal proclamation of 1763.”!

Evidence of continuity exists not only negatively, as recognized by Lord Denning, but positively as well. Statutes of the imperial Parliament, other than the Constitution Act, 1867, were enacted that recognized and affirmed the continued existence of the royal proclamation’s concept 'R. v. Secretary of State for Foreign © Commonwealth Affairs, [1982] 2 All Er 118 (cA), 125.

, 85 Continuity of the Indian territory, and thereby ratified the adjunct aboriginal right of self-government. Most important, these statutes also constituted ; the powers of the federal and provincial governments, such that it

instruments. |

| is integral to those powers that they were inceptively counterbalanced by the aboriginal right implicitly affirmed in the same legislative The duty of one whose task it is to construe legislative intent becomes more onerous as the passage of time erases the ancient context and substitutes a modern set of natural assumptions. This must be stressed: | the aboriginal right of self-government was confirmed in the eighteenth _ century, and the normal legal presumption of continuity thus applies. The process of construction need not begin, therefore, with a quest

right. | for fresh evidence in each generation of the re-constitution of the

With this in mind, the approach in this chapter is to adopt as the relevant starting point an eighteenth-century imperialist perspective and to carry that forward. As each new constitutional era dawned in Canada, the imperial government accepted as given certain axioms of colonial constitutional law that it had previously established. Therefore,

one must read the successive legislative instruments in pari materia,

and indeed, withhold final judgment on the modern status of the right until that task has been completed. Then the emergent pattern can be perceived as historically consistent.

NON-REPEAL OF THE PREROGATIVE LEGISLATION A substantial body of case law* and the Constitution Act, 1982 have explicitly recognized that the Royal Proclamation of 1763° has never *For example, St Catherine’s Milling © Lumber Co. v. R. (1887), 13 scr 577, 621, 623, 627, 652; r. v. Lady McMaster, [1926] Ex. cr 68, 72; Easterbrook v. r., [1931] scr 210, 217; Northcharterland Exploration Co. (1910) Ltd. v. Rr. [1931] 1 Ch. 169; R. v. Syliboy (1928), 50 ccc 389, 393; Abeyesekera v. Jayatilake, [1932] ac 260 (Pc); Sammut v. Strickland, [1938] ac 518, 669 et seq.; R. v. Kogogolak (1959), 28 wwr ,

note I. , 376 (Terr. Ct), 378; Rv. Koonungnak (1963), 45 wwe 282 (Terr. Ct), 302; p.

v. George, [1964] 1 or 24 (HC); 2 OR 429 (Ca); RB. v. Stkyea (1964), 46 wwe 65 (NwTCa),

66, aff'd [1964] scr 642, 646; rR. v. White (1964), 50 DLR (2d) 613 (BccA); Brick Cartage Lid. v. R., [1965] 1 Ex. cr 102; Calder v. ac for Bc, [1973] scr 313, 395;

R. v. Isaac (1975), 13 NsR (2d) 460, 468, 497 (App. Div.); 2 v. Smith,[1980] 4

CNLR 29 (FCA); 8. v. Secretary of State for Foreign ~ Commonwealth Affairs, supra

°Royal Proclamation of 1763, rsc 1970, app. u, no. 1. The legal significance of the proclamation to the aboriginal right of self-government was assessed in chapter 2 “The Prerogative Legislation.” By enacting that the Indian nations

86 Native Liberty, Crown Sovereignty

| been repealed or otherwise rendered nugatory. The Constitution Act, _ 1982 said that the general guarantee of rights and freedoms in part I was without prejudice to “any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763 [section 25(a) |.” |

Nevertheless, claims have perennially been advanced that the proclamation has been spent for constitutional law purposes.

The Quebec Act* was the first material statute of the imperial Parliament subsequent to the proclamation. When the allegation has been made that the proclamation is no longer of legal account, the Quebec Act has traditionally been the vehicle for carrying that argu-

ment forward. Since the act unquestionably did establish a model , for later constitutional acts, it is worth examining closely. The Royal Proclamation of 1763 had constituted the colonial gov- | ernment of Quebec with territorial jurisdiction in the St Lawrence and Ottawa River valleys, but had left the lands to the west and north — under military rather than civil jurisdiction. This absence of any civil

| administration in the interior of British North America caused problems _

| which the preamble to the Quebec Act remarked: |

Whereas his Majesty, by his Royal Proclamation: bearing Date the seventh | Day of October, in the third Year of his Reign, thought fit to declare the | _ Provisions which had been made in respect to certain Countries, Territories, and Islands in America, ceded to his Majesty by the definitive treaty of Peace, concluded at Paris on the tenth day of February, one thousand seven hundred and sixty-three: And whereas, by the Arrangements made by the said Royal

: Proclamation, a very large Extent of Country, within which there were several Colonies and Settlements of the Subjects of France, who claimed to remain therein under the Faith of the said Treaty, was left, without any Provision being made for the Administration of Civil Government therein; ... May it

therefore please your most excellent Majesty that it may be enacted. ,

} The act then redefined an enlarged boundary for the old province of Quebec, so that it extended as far west as a line drawn north from the headwaters of the Mississippi River to the southern boundary of the Hudson’s Bay Company territory. The added territory, as the — or tribes should not be “molested or disturbed” by colonial governments, the _ proclamation recognized and affirmed their autonomy. This confirmed the aboriginal

right of self-government for constitutional purposes in Canadian law, setting the jurisdiction of the natives to govern themselves against the jurisdiction of

the colonists to govern themselves. ,

*An Act for Making More Effectual Provision for the Government of the Province

- of Quebec in North America, 14 Geo. m, c. 83 (1774).

, 87 Continuity oe act’s preamble indicated, had formerly been left without civil gov- | ernment. In the proclamation a vast indeterminate area encompassing

that region had been described in the following terms: And We do further declare it to be Our Royal Will and Pleasure, for the , present as foresaid, to reserve under our Sovereignty, Protection and Dominion,

for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments [Quebec, East Florida, , and West Florida], or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward

West as aforesaid. , :

of the Sources of the Rivers which fall into the Sea from the West and North !

If the aforementioned parts of the Quebec Act and of the proclamation are read together, the intent of the act is manifest. The proclamation recognized the existence of an Indian territory without any non-Indian civil government, extending indeterminately westward beyond the borders of the American seaboard colonies and Quebec. Within this territory there were pockets of French Canadian settlement.

In its preamble the Quebec Act recognized the existence of those enclaves. The problem was that since the French enclaves were situated

in the Indian territory left without any non-native civil government, _. the French enclaves themselves were left without any non-native civil government. Imperial policy envisaged segregated political spheres, with natives governing natives and colonists governing colonists. That policy was not satisfied by leaving the French colonists without any civil government except that of the surrounding natives. The French settlement at Fort Detroit is an illustration. Consequently, the Quebec Act provided non-native civil government for those enclaves. It adopted

for this purpose a redefinition of the colonial boundary of Quebec. The result was the concurrent existence of native and non-native civil

boundary. , , |

governments with segregated constituencies within the same territorial

The inference that the Indian territory did not, by reason of the Quebec Act, lose its constitutional character as lands reserved for the Indians turns upon two arguments. First, there was nothing in the Quebec Act purporting to extinguish aboriginal rights, and extinction

of vested rights is not normally inferred from silence. Second, the act in section 3 said: “Provided always, and be it enacted, That nothing

in this Act contained shall extend, or be construed to extend, to ~ make void, or to alter any Right, Title, or Possession, derived under ° Supra note 3, at 127.

| 88 Native Liberty, Crown Sovereignty | any Grant, Conveyance, or otherwise howsoever, of or to any Lands , within the said Province, or the Provinces thereto adjoining; but that

| the same shall remain and be in Force, and have Effect, as if this

Act had never been made.” _ | Nevertheless the counter-argument has perennially been made that the Quebec Act repealed the Royal Proclamation of 1763 and ac- cordingly extinguished aboriginal rights, or at least derogated from

the constitutional character of the protection afforded by the. proclamation. First raised by counsel in the St Catherine’s case, this counter-argument was considered by the court, and was there rejected.

Mr Justice Strong of the Supreme Court of Canada held that the third section of the [Quebec] act contains an express saving of titles to land, in words sufficiently comprehensive to include the Indian title recognized

by the proclamation. Its words are [section 3 quoted] ... The words “right,” “title” and “possession” are all applicable to the rights which the crown had _ conceded to the Indians by the proclamation, and, without absolutely disregard-

ing this 3rd section, it would be impossible to hold that these vested rights of property or possession had all been abolished and swept away by the statute.

I must therefore hold, that the Quebec act had no more effect in revoking — the five concluding paragraphs of the proclamation of 1763 which relate to

Indians and their rights to possess and enjoy their lands until they voluntarily surrendered or ceded them to the crown than it had in repealing it as a royal ordinance for the government of the Floridas and Granada.®

Mr Justice Taschereau concurred, and added: | | any right the Indians might have previously had could not, it seems, have been affected by this act, as by its 3rd section it is specially provided and enacted that “nothing in this act contained ...”’

° Supra note 2, at 631-2 (emphasis added). _ ’ Tbid., at 647 (emphasis added). See also, r. v. Lady McMaster, supra note 2, at 72: “The proclamation of 1763, as has been held, has the force of a statute, and so far as the rights of the Indians are concerned, it has never been repealed”; -

and at 73-4: “I am unable also to concur in the defendant’s contention that ,

_ the Quebec Act, which enlarged the limits of the province of Quebec, destroyed

_ the rights of the Indians in the lands reserved under the proclamation. This I think has been authoritatively settled.” And see the St. Catherine’s case in the Privy Council (1888), 14 ac 46 (Pc), in which the judges in the Supreme Court of Canada were effectively confirmed in their consensus that the Quebec Act |

left the proclamation unscathed. The natives’ possession was ascribed to the proclamation, and the legal consequence of the Indian intent to cede the land

was that thereby the colonial governments could use it. ne

89 Continuity | The emphasized phrases “five concluding paragraphs” and “nothing

- in this act” are crucial. In an aberrant recent case, AG Ont. v. Bear _ Island Foundation,® the Ontario Court of Appeal held that the Quebec

Act supposedly repealed the fifth paragraph, but not the preceding four paragraphs, of the proclamation. The Court of Appeal, from all that appears, based this finding upon findings previously made by the trial judge in the court below in that case. There is absolutely nothing in the Quebec Act to justify or even hint at a severance and repeal of one only of the crucial five paragraphs of the proclamation dealing with aboriginal rights. The trial judge in Bear Island apparently — got mixed up on some legislative dates and assumed that the supposed

_ repeal of some Quebec government regulations had the effect of repealing the proclamation itself, at least in part. The Court of Appeal went along with the trial judge’s assumption, without scrutinizing the

basis for it. The fifth paragraph, which was erroneously assumed to have been repealed, concerned the proclamation’s stipulated condition that the consent of the aboriginal peoples was necessary before their

lands could be taken away. That paragraph says in effect that the native community occupying the land being ceded by a treaty has to indicate its communal consent “at a public Meeting or Assembly.”

The assumed repeal of the crucial fifth paragraph apparently led the | trial judge and the Court of Appeal in Bear Island to think that the - imperial government intended to invest in the colonial governments _ of British North America “sovereign” power to unilaterally extinguish |

and no arrows. -

aboriginal rights. This is to draw a very long bow, with no string |

On the surface in the Bear Island trial judgment the argument that the Quebec Actrepealed the proclamation seemed to have been rejected. But the rejection was reasoned in a convoluted and curious manner which had the effect of ruling that, for practical purposes, because

of the Quebec Act the proclamation ceased to have any binding constitutional relevance. Steele J. said: © Before examining the Royal Proclamation of 1763, I note that by the Quebec : — Act, 1774, rsc 1970, App. u, No. 2, the Royal Proclamation, including all ordinances made thereunder, was revoked, annulled and made void so far

as it applied to the enlarged Province of Quebec, which included the lands with which we are concerned. Therefore, whatever effect the Royal Proclamation, or any ordinances or directions made under it, had was nullified upon

°(1988) 68 or (2d) 394 (ca). Contra, Calder v. ac for Bc, [1973] scr 313, 395, per Hall J.

90 Native Liberty, Crown Sovereignty | | revocation. However, cl. 3 of the Quebec Act, 1774 in effect continued the

: Royal. Proclamation itself with respect to Indians, because the Indians had been given a right of possession in their lands by the Royal Proclamation. I am of opinion that such right continued after the Quebec Act, 1774, but _ that any procedural regulations that related to that right were terminated. In other words, the Indians had the right contained in the Royal Proc-

lamation and nothing more.® | The court then assumed (erroneously) that the binding effect of the proclamation upon colonial governments was not due to the procla-

mation itself, but to the “ordinances or directions” and “procedural , regulations” made under the proclamation. The court’s conclusion that the Quebec Act “nullified” the “ordinances or directions” and “terminated” the “procedural regulations” even though the procla-— mation “itself” was “continued” therefore had great consequence. The

trial judge in Bear Island on this basis went on to hold that though _ the proclamation had been saved by section 3 of the Quebec Act, the supposed nullifi-cation of “ordinances or directions” and the supposed termination of “procedural regulations” effectively negated the binding

effect of the proclamation. Immediately after the passage just quoted

the court therefore concluded: oe

The Royal Proclamation also sought to avoid the development of a feeling , amongst the Indians that they were being defrauded of their rights ... It is also clear that, where there was no concern about an Indian insurrection, | , _ the Crown did not enter into treaties and paid no attention to any aboriginal | rights ... In later decades or centuries, the Crown has taken a different approach, such as the Williams Treaty of 1923 which settled with the Mississauga

| Indians in central Ontario. However, all of these are matters of policy and not of law.'®

| The submission here is that this Bear Island case is wrong. The trial court’s reasoning regarding the nullification of “ordinances” was based

upon section 4 of the Quebec Act; or, more precisely, the court’s reasoning must have been based upon section 4, since, although the court did not identify any specific section as the basis for its apparent assumption, there is no other section in the Quebec Act that conceivably could have supported the court’s inference. This section had enacted:

° Bear Island, (1984), 49 or (2d) 353, at 376 (emphasis added). , Ybid., at 377 and 379 (emphasis added). —

91 Continuity And whereas the Provisions, made by the said Proclamation, in respect to _ the Civil Government of the said Province of Quebec, and the Powers and Authorities given to the Governor and other Civil Officers of the said Province,

by the Grants and Commissions issued in consequence thereof, have been found, upon Experience, to be inapplicable to the State and Circumstances

of the said Province, the Inhabitants whereof amounted, at the Conquest, | to above sixty-five thousand Persons professing the Religion of the Church | of Rome, and enjoying an established Form of Constitution and System of | Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada; be it therefore further enacted by the Authority aforesaid, That the said Proclamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province,

and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void, from and after the first Day of

May, one thousand seven hundred and seventy-five [emphasis added]. oe This, then, was the section of the Quebec Act that specifically mentioned

“ordinances” and said they were “revoked, annulled, and made void.” , | Its phraseology is echoed in the Bear Island trial judgment in which the court ruled that “the Royal Proclamation, including all ordinances

made thereunder, was revoked, annulled and made void.” , A closer scrutiny of section 4 indicates, however, that the legislative intent of the imperial government had nothing to do with aboriginal _ rights. Only those ordinances that were relative to the non-native civil _

government and administration of non-native justice within Quebec | were nullified. Significantly, the preamble within section 4 recited — the problem concerning civil government and the administration of

justice as being the imposition of an English Protestant form upon a predominantly French Catholic population. The ordinances “relative

to” that specific topic were nullified. : Even if section 4, the repealing section, had been directed at repealing ordinances respecting Indians, which obviously it was not, it still would

have been without effect. The court in Bear Island did not identify the “ordinances” the repeal of which supposedly affected aboriginal | rights. The court simply held that the effect of the supposed nullification of the unidentified ordinances was to leave the native right a mere privilege and not a right at all, a “matter of policy and not of law.”

In fact there were no “ordinances” relative to aboriginal rights in existence in 1774 when the Quebec Act was promulgated.

, 92 Native Liberty, Crown Sovereignty | It is possible that the court in the Bear Island case mistakenly was thinking in terms of the ordinance enacted in 1777, which was the only ordinance relative to Indians when the Quebec Act was in force. , It was entitled An Ordinance to Prevent the Selling of Strong Liquors

, to the Indians in the Province of Quebec, as also to Deter Persons from Buying Their Arms or Clothing, and for Other Purposes Relative

_ to the Trade and Intercourse with the Said Indians.” It had provided

| in section 3 that “[f]rom and after the publication of this Ordinance, _ it shall not be lawful for any person to settle in any Indian village or in any Indian country within this Province, without a licence in writing from the Governor, Lieutenant-Governor, or Commander-inChief of the Province for the time being under a penalty of ten pounds

for the first offence, and twenty pounds for the second and every other subsequent offence.” In its historical context that ordinance was reinforcing the imperial policy of keeping settlers out of the Indian territories and controlling the access of bona fide fur traders through

the issue of licences. The ordinance also had provisions to prevent the sale of liquor to the Indians, or fraudulent practices by which __

they were deprived of their arms and clothing. This ordinance was | a local regulation, for the better administration of the imperial law upon the subject as confirmed by the proclamation. But the ordinance , by no means itself purported to constitute aboriginal rights. Nor did it purport to settle any procedural aspects of the treaty process. Hence | , the supposed repeal of the ordinance was neutral as regards aboriginal

rights. More important, the ordinance was not, in terms of section 4 of the Quebec Act, “relative tothe Civil Government and Administration

of Justice” of the colonists. In short, it is only by straining to find | some ordinance that any basis for the credibility of the Bear Island

trial judgment regarding the immediate point can be erected, and © even then no ordinance can be identified the nullification of which “17 Geo. m, c. 7 (Que., 1777). So far from being repealed by the Quebec Act, this ordinance was recognized and affirmed in 1812 by a subsequent proclamation promulgated by Isaac Brock, president administering the government of Upper Canada. See Public Archives Canada, rc 5 pi vol. 15. Alternatively,

it is also remotely possible that the trial court in Bear Island was thinking in terms of a proclamation by Governor Carleton of Quebec dated 22 December , , 1766 and published in the Quebec Gazette 29 December 1766. That proclamation was not an “ordinance,” however, and so could not possibly have been affected by the Quebec Act’s repeal of “ordinances.” And in any event, that 1766 procla- | mation only proclaimed that Quebec colonists who were trespassing in the Indian

territory were enjoined to stop trespassing and to remove themselves. It did not purport to constitute or confirm any aboriginal rights as. such, nor did it purport to say anything about how the treaty process should procedurally

be governed. | , , ,

93 Continuity

would be of consequence. And besides, the Quebec Act in 1774 could not repeal an ordinance that was not in ‘existence until 1777.

There is no basis whatsoever in the Quebec Act for the court’s _ specific finding that “directions” and “procedural regulations” were, like “ordinances,” supposedly nullified or terminated by that act. Had the Quebec Act in fact purported to nullify “directions” and “procedural regulations” it might conceivably have made a difference to aboriginal rights, although the argument would be exceedingly tenuous. Directions and procedural regulations had been established by the impenal government relative to the civil government and administration of justice

, in Quebec. Specifically, royal instructions under the signet and signmanual of the king were given in 1763 and again in 1768 to the governor of Quebec. These instructed first Murray, and later his successor, | ‘Carleton, to assure the natives “of Protection,” and “upon no Account to molest or disturb them in the Possession,” and also to apply the proclamation’s prohibition of settlement on unceded lands.'* These

reminders of the imperial law settled by the proclamation did not constitute the aboriginal right. Nor did these reminders convey a power to interfere with the aboriginal right of self-government. Nor did they settle the procedural aspects of the treaty process. They merely expressed

| a limitation upon the non-native civil power relative to colonists, in : that the non-native civil power was not to be exercised in a way that compromised the independent native power. Nevertheless, it is possible Steele J. viewed these instructions as somehow constituting the aboriginal

right in some respect, such that his mistaken assumption that the instructions were repealed might have led him to conclude that the

purposes. : : ,

right itself was implicitly compromised in the sense that, in the absence

_- of the provisions enforcing it, it ceased to be of effect for practical

There are at least three serious defects in the court’s ruling that the supposed nullification of this direction or procedural regulation

(if these royal instructions can be called by those terms) could adversely : have affected aboriginal rights. First, the improbable proposition must be accepted that the term “ordinances” in section 4 of the Quebec

_ Act included such royal instructions. There is no other section of the act that could possibly serve, and section 4 repealed only “ordinances,”

'*Shortt and Doughty, Documents relating to the Constitutional History of Canada 1759-1791, vol. 1, articles 60, 61, and 62 of Murray’s royal instructions. Those three articles were repeated as numbers 59, 60, and 61 of the subsequent royal instructions to Murray’s successor, Guy Carleton, as captain general and governor

in chief of Quebec, in 1768: Public Archives Canada, Mc 40 87, pp. 90-102.

| 94 Native Liberty, Crown Sovereignty , not “directions” or “procedural regulations.” Second, once that untenable assumption is made, it immediately becomes apparent that yet another

a clause in section 4 disqualifies the argument ~— namely, the clause “made by the Governor and Council of Quebec.” It was only to such “ordinances” as had been enacted specifically by the colonial government that the repeal effected by section 4 of the Quebec Act applied. . The repeal did not extend to legislative instruments such as the royal instructions to the governors promulgated by the imperial government. | Third, even if the royal instructions had been repealed by the Quebec Act, this could not possibly have affected the status of aboriginal rights.

_ As we have noted earlier,’? such royal instructions under the signet and sign-manual were mere reminders. They reminded the governors of the duty to respect aboriginal rights; that duty was constituted in other instruments, those bearing the great seal of Great Britain. Such great seal instruments were orders in council, of which the proclamation , is the pre-eminent example. It would be legally impossible for the

| repeal of a mere reminder effectively to repeal an order in council | constituting a right, unless the order in council was itself repealed.

: Yet thatis essentially what the courtin Bear Islandheld: that by supposedly | repealing royal instructions, Parliament effectively nullified the legal

privilege. |

_ . effect of the proclamation, and thereby converted what had been constituted a right under that imperial order in council into a mere Recall now the intent of the Quebec Act: to redress the problem

of applying an English Protestant system of government to the existing French Catholic population with its own institutions. This was the | intent behind the repeal of the proclamation’s civil government provisions made by section 4 of the Quebec Act; and that section must be read together with the saving of the proclamation for other purposes made by section 3. Section 4 as we have noted had enacted: And whereas the Provisions, made by the said [Royal] Proclamation [of 1763],

in respect of the Civil Government ... have been found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the Inhabitants whereof amounted, at the Conquest, to above sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an _ established Form of Constitution and System of Laws, by which their Persons

and Property had been protected, governed, and ordered, for a long Series

of Years ...

Proclamation of 1763.” | , ,

'SSee chapter 2, the second section, “Royal Commissions, Instructions, and the

95 Continuity , That preamble launched the operative provision of section 4 regarding the repeal of the proclamation and ordinances. The Quebec Act then

enacted in section 5: “And, for the more perfect Security and Ease

of the Minds of the Inhabitants of the said Province, it is hereby

, declared, That his Majesty’s Subjects, professing the Religion of the | Church of Rome of and in the said Province of Quebec, may have,

hold, and enjoy, the free Exercise of the Religion of the Church of Rome.” Section 5 thus resolved a civil government problem occasioned , by the proclamation’s requirement that government be “agreeable

| to the Laws of England,”'* since the laws of England required an oath endorsing the Church of England. Section 7 made the point again, and relieved Catholics in Quebec from swearing allegiance to the Church of England as a condition of civil office. A secular oath

of allegiance to the British crown was substituted. Section 8 then substituted the French civil law system in place of the English common ,

law system which had been imposed under the proclamation “for , Determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England.””

Section 8 thus enacted: 7

[I]n all Matters of Controversy, relative to Property and Civil Rights, Resort

shall be had to the Law of [French] Canada, as the Rule for the Decision of the same; and all Causes that shall hereafter be instituted in any Courts of Justice, to be appointed within and for the said Province ... shall, with respect to such Property and Rights, be determined agreeably to the said Laws and Customs of [French] Canada, until they shall be varied or altered by an Ordinances that shall, from Time to Time, be passed.

_ Upon a proper construction, therefore, it is manifest that the arrangements made by the Quebec Act were entirely without prejudice _ to the aboriginal right of self-government in relation to yet unceded

Indian territory. The act extended the boundary of Quebec to encompass the isolated enclaves of colonists within the Indian territory. And it reorganized the rules applicable to the non-native civil government and the administration of justice of the colonists. The aboriginal

rights part of the proclamation was not affected by this. Hence the reorganized colonial government in all respects remained subject to the unrepealed aboriginal rights part of the proclamation.

14 Royal Proclamation of 1763, rsc 1970, app. I, no. 1, at 125. Tbid.

96 Native Liberty, Crown Sovereignty : , Regrettably, the gaffe made by the trial judge in the Bear Island case, regarding the effect of the Quebec Act, went uncorrected in | the Court of Appeal,!® when the case was appealed. Appeal judges

Zuber, Cory, and Finlayson unanimously held that , : , the relevant procedural aspects of the Proclamation were repealed by the Quebec Act, 1774 (u.xK.), c. 83 [Rsc, 1970, app. u, no. 2]. Section 3 of the |

| Quebec Act, 1774 makes it clear that it does not make void, vary or alter | any right, title or possession. Therefore, whatever right, title or possession the Temagami Band may have had pursuant to the Royal Proclamation was

not affected by the Quebec Act, 1774. We think it clear, however, that the , procedural requirements for purchase “at some public Meeting or Assembly

the Crown.” , :

, 2” was repealed. Thus, at the relevant times there was in existence no positive law prescribing the manner in which aboriginal rights could be ceded to

| The trial court in Bear Island was thus affirmed with respect to its , legally impossible interpretation of the “procedural” effectofthe Quebec Act upon the proclamation. The Court of Appeal decision nevertheless _ is of limited precedent value, since it was made “per incuriam” (through want of care and in the absence of the information necessary to making an informed decision). The law discussed in this chapter, which dem-

onstrates the untenable basis for the assumptions made by the trial court in Bear Island was not put before the Court of Appeal. Being — unchallenged in strict point of law,” the trial court’s erroneous assumption

was effectively finessed in the Court of Appeal. _ This was crucial to the result of the appeal. On this basis the appeal

court held that the provisions of the proclamation governing the © : conduct of the treaty process were no longer binding. And on that

7 basis the appeal court concluded: “The learned trial judge held that

the acts of the Temagami Band in requesting to be added to the |

annuity list in 1882, the subsequent conduct in receiving payments, requesting and receiving a reserve, amounted to an adhesion to the

‘Tbid., at 410. oe '© Ontario (Attorney-General) v. Bear Island Foundation, supra note 6.

'8Tbid., at 397: “The case on appeal was argued largely on the facts by appellants’ counsel.” Unfortunately, appellants’ counsel on behalf of the Temagami Indians

concentrated on the facts. The adage, to take care of the facts and the law | will take care ofitself, can be a useful servant but a dangerous master in constitutional cases. For as the Court of Appeal added, at 398: “it is clear that the burden on the appellants was to persuade this court that the trial judge’s findings |

[of fact] were based on palpable and overriding error.”

97 Continuity

Robinson-Huron Treaty [of 1850] and that the Temagami Band was therefore bound by its terms. We think he was right in so holding.” The Court of Appeal in the Bear Island case then went on to supply an alternative reason to sustain the trial court’s finding that the aboriginal :

--- Yights in question had been extinguished. It held, , The treaty is an expression of the will of the sovereign to extinguish aboriginal

rights ... It follows, therefore, from this general proposition that a sovereign

, may express the intent to extinguish aboriginal rights through a treaty even though the treaty itself may be imperfect in the sense that not all of the Indian bands or tribes whose lands are involved are signatories. Counsel, whose research has been extensive, were unable to find a Canadian case _ dealing precisely with this subject. However, in State of Idaho v. Coffee, 556

p. 2d 1185 (1976) the Supreme Court of Idaho dealt with this issue.?° , | In State of Idaho v. Coffee the American court had held that all that mattered in the treaty process was the intent of the American federal __

government, that the Indian intent in general was irrelevant, and that accordingly, “whether the Indians signing the treaty had the power

to give away the land is not relevant.”*’ On this basis, the Court of | Appeal in the Bear Island case concluded that, regardless of whether the Temagami Indians had ceded the Temagami lands, nevertheless

“(t]he ratification of the Robinson-Huron Treaty by the Governor- | General in Council was a clear and unambiguous declaration by the | Sovereign that the aboriginal title was extinguished.”** The point — quite untenable — that emerges from this Bear Island

a case is that in Canada, says the case, treaties do not have to conform | to the procedure settled by the imperial government in the proclamation because the federal and provincial governments supposedly have an unrestricted sovereign power unilaterally to extinguish aboriginal rights.

In terms of the aboriginal right of self-government the concomitant ©

is that no such right exists, at least not since the Quebec Act. For | if such a right did exist, for constitutional purposes, the federal and _ provincial governments would not have unrestricted sovereign powers _ capable of overriding the independent native jurisdiction by unilaterally

obliterating it. The appeal court did not have before it the crucial law identified previously in this book under the heading “Constitutional Tbid., at 410. *Tbid., at 410, 412 (emphasis added). “Ibid., at 413 quoting the judgment of Chief Justice McFadden of the Supreme Court of Idaho in State of Idaho v. Coffee, 556 p. 2d 1185 (1976), at 1191-2.

21 bid. | :

98 ~— Native Liberty, Crown Sovereignty

Common Law,” nor did it have before it the analysis of the Quebec | , Act in this section, which demonstrates the untenable nature of the. , trial court’s suppositions. Nor did it have before it the imperial govern-

ment legislation reviewed hereafter. In the place of all the relevant law that could have been brought to the court’s attention, the appeal — | court had to rely only upon a single American common law precedent

— a precedent from a country where, unlike in Canada, as was © demonstrated in chapter 1 under the heading “Domestic Common Law,” the law of aboriginal rights does not have constitutional force binding upon the federal government. It is to be hoped that, if and

when it hears the final appeal in that case, the Supreme Court of Canada will be better informed on the law, and the aboriginal peoples |

| will then see that the rule of law does work, in spite of their racial insecurities arising from feeling that non-native society is both suitor —

and judge: nemo potest esse simul actor et judex. — - |

The pattern of territorial redefinition and colonial government | reconstitution followed the same pattern as described above in relation to the proper construction of the Quebec Act, as Canada historically came to assume its present territorial configuration and federal style of government. The process of constitutional evolution was conducted by means of imperial statutes that were either, like the Quebec Act,

merely without prejudice to aboriginal rights, or, like many of the. other statutes reviewed in the following section, even more positively

-_-reiterative of the continuity of the imperial policy confirmed by the

| prerogative legislation. © OB

~ POSITIVE RE-ENACTMENT: THE

- INDIAN TERRITORIES STATUTES : The “Indian territory” in imperial policy in the eighteenth century

was more than just a geographical concept — it was a place, buta place with a purpose. It was where the aboriginal peoples remained - masters in their own house, where the laws made by European colonists for European colonists did not run. The aboriginal peoples’ laws and

This Latin legal maxim translates as “no one can be at the same time suitor , and judge.” I say to aboriginal peoples, however, that their fear underestimates the power and the objectivity of the rule of law. The non-native legal system is not necessarily biased against natives. Judges have so far never been given the whole truth upon which to adjudge issues; they have never had put before them the necessary legislation and precedents upon which to base their decisions. The fault if any is upon the information put into the system rather than upon

some racism assumed to be inherent in the system itself.

99 Continuity

customs governed there. When the Indian territory was constituted for legal purposes by the Royal Proclamation of 1763, the concept — became a cornerstone of imperial law, and not just policy, regarding aboriginal rights. It has been referred to by several synonymous names.

It simply means the yet unceded lands reserved for the use of the

proclamation. ,

aboriginal peoples, reserved until surrendered in accordance with the

In the proclamation itself, the lands of British North America yet unpurchased by the crown from the natives were said to be reserved as “their Hunting Grounds.””* In the Representation of the Lords of Trade

: on the State of Indian Affairs’ dated 7 March 1768, it was confirmed

that “the Proclamation of October 1763 ... forbid, by the strongest | prohibitions, all Setthement beyond the limits therein described as the Boundary of the Indian hunting Ground, putting both their Commerce

and Property under the protection of Officers here acting under your , Majesty’s immediate authority, and making their Intervention necessary in every transaction with those Indians.”*° This 1768 Representation of the Lords of Trade received the king’s endorsement,”’ constituting it

a royal instruction under the signet and sign-manual. A proclamation promulgated by Guy Carleton, lieutenant governor _ and commander in chief of Quebec, dated 22 December 1766, recited in its preamble, “Settkements have been made in the said Countries,

beyond the Limits prescribed by His Majesty’s Royal Proclamation | of 1763,” and it accordingly ordered, “if any of the said Inhabitants [of Quebec] have made any Settlements on the Indian Grounds, to

abandon them without Delay.”** :

An Ordinance to Prevent the Selling of Strong Liquors to the Indians

in the Province of Quebec, as also to Deter Persons from Buying Their Arms or Clothing, and for Other Purposes Relative to the Trade and Intercourse with the Said Indians enacted, in section 3, that “it

shall not be lawful for any person to settle in any Indian village or

| in any Indian country within this Province, without a licence.”*

of 1763.”

4Royal Proclamation of 1763, rsc 1970, app. II, no. 1, at 127. See chapter 2, the second section, “Royal Commissions, Instructions, and the Proclamation 25 Alvord and Carter, Yrade and Politics 1767-1769, 183-204. *Tbid., at 184 (emphasis added). At 202 this 1768 imperial government document , referred to the appropriateness of leaving the Indians “undisturbed in the possession

of their hunting grounds (emphasis added).” |

7Ibid., at 245-7. “Direction from Lord Hillsborough to the Several Governors in North America” reciting as much, 15 April 1768.

*8Supra note 11 (emphasis added). 22917 Geo. ml, c. 7 (Que., 1777) (emphasis added).

| 100 Native Liberty, Crown Sovereignty Sometimes the concept of the Indian territory was preserved without

being explicitly identified, such as when a general saving of the pre- | existing legal status quo was confirmed in the constitutional legislation.

__‘Thus the Constitutional Act, 1791°° repealed the Quebec Act, 1774,” ; and divided the old province of Quebec into the new Province of Lower Canada and the new Province of Upper Canada. Like the Quebec Act, 1774,** the Constitutional Act, 1791 contained a saving provision

- regarding previously vested rights. It enacted, in section 33, that “all , Laws, Statutes, and Ordinances ... shall remain and continue to be | of the same Force, Authority, and Effect, in each of the said Provinces

respectively, as if this Act had not been made, and as if the said | Province of Quebec had not been divided.” Furthermore, section 42 : provided that no colonial government law could take effect with regard | to crown lands unless it had prior express approval from the Parliament of the imperial government. Mere assent of the governor or even the

| monarch was insufficient. Indian territory is crown land reserved for | the use of aboriginal peoples, and as such was covered by section 42.

On other occasions the Indian territory concept was employed as a given, recognized and tacitly reiterated. Thus in 1803 the imperial _

| Parliament promulgated 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,®® which recited and enacted: _ Whereas crimes and offences have been committed in the Indian Territories, and other parts of America, not within the limits of the Provinces of Lower and Upper Canada, or either of them, or of the jurisdiction of any of the courts established in those Provinces, or within the limits of any civil Government

of the United States of America and are therefore not cognizable by any , jurisdiction whatever, and by reason thereof great crimes and offences have

} 1791). , ,

| *°*An Act to Repeal Certain Parts of an Act Passed in the Fourteenth Year of His Majesty’s Reign, Entitled, An Act for Making More Effectual Provision for the Government of the Province of Quebec, in North America; and to Make Further Provision for the Government of the Said Province, 31 Geo. m, c. 31

| 7 Aca for Making More Effectual Provision for the Government of the Province _ :

, of Quebec in North America, 14 Geo. m, c. 86 (1774). | | **See the discussion in the preceding section of this chapter. °43 Geo. ul, c. 138 (1803). See the first section, “The Crimes and Offences |

Exception,” in the following chapter, which deals with the substance of this enactment as a partial abrogation of the aboriginal peoples’ formerly absolute domestic autonomy on unceded lands. Here the salient point is the statute’s

, bald recognition of the Indian territory. _ ,

101 Continuity | gone and may hereafter go unpunished, and greatly increase: For remedy

whereof ... be it enacted ... that, from and after the passing of this Act, all offences committed within any of the Indian Territories, or parts of the said

Provinces of Lower or Upper Canada, or of any civil Government of the , United States of America, shall be deemed to be offences of the same nature, and shall be tried in the same manner and subject to the same punishment, as if the same had been committed within the Provinces of Lower or Upper

Canada [emphasis added]. Pursuant to this statute, the Royal Proclamation of 1817 was promulgated “by His Royal Highness the Prince of Wales, Regent of the

United Kingdom of Great Britain and Ireland, in the name and on the behalf of His Majesty.”** This 1817 proclamation bore the great seal of Lower Canada,*® whereas the 1763. proclamation had borne the great seal of Great Britain. It should not, however, be thought that the identity of the particular great seal employed necessarily militated against the constitutional significance of the 1817 instrument. In virtue of being subordinate legislation under an act of the imperial Parliament, this 1817 proclamation clearly nullified repugnant colonial government enactments on the basis of section 3 of the Colonial Laws Validity Act, 1865.°° Since the 1763 proclamation was itself neither such an act nor subordinate legislation under such an act, until 1817 it could not have been argued that the earlier proclamation was similarly binding on the basis solely of the authority of section 3 of the Colonial Laws Validity Act.*” The effect of the 1817 proclamation therefore

was to clothe the 1763 proclamation with the authority of an act of _ the imperial Parliament, by adopting and reiterating the earlier proclamation’s fundamental concept which then became enforceable, inter

alia, under section 3 of the Colonial Laws Validity Act, 1865. The 1817 proclamation purported to apply to “any of the Indian

Territories, or parts of America, not within the limits of either of the 7 _ said Provinces [Upper or Lower Canada], or of any Civil Government

of the United States of America [emphasis added].” It recited the problem, which was that crimes and offences “have lately been committed within the said Indian Territories and parts of America, mentioned

*Ibid., at 35. ,

** Quebec Gazette, 18 May 1820, reproduced in Doughty and Story, Documents relating to the Constitutional History of Canada 1819-1828, at 31.

%6An Act to Remove Doubts as to the Validity of Colonial Laws, 28 & 29 Vict.,

cc. 63 (1865). See the discussion in chapter 2 above, in the second section,

“Royal Commissions, Instructions, and the Proclamation of 1763,” at notes 40-1.

7Slattery, The Land Rights of Indigenous Canadian Peoples, 3177. ,

, 102 Native Liberty, Crown Sovereignty SO and described in the said Act of Parliament [43 Geo. mI, c. 138 (1803) ],

which have arisen from contentions between certain Merchants, — carrying on trade and commerce in the said Indian Territones, under the name of the Hudson’s Bay Company, and North West Company, respectively, and other persons [emphasis added].” It then enacted — that all persons committing crimes and offences “in the said Indian Territories” were subject to be tried by certain named persons now authorized “to act as Civil Magistrates and Justices of the Peace for the said Indian Terntories or parts of America aforesaid [emphasis added ].”

‘The geographical extent of these Indian territories was understood

| to be of continental scope. On 12 May 1820, Sir Peregrine Maitland, major general commanding His Majesty’s forces in North America, | , , and president and administrator of the Provinces of Upper and Lower Canada, promulgated yet another proclamation which said, “Whereas

diverse breaches of the peace and acts of force and violence having -

been committed within those parts of the Continent of North America, commonly called and known by the name of the INDIAN TERRITORIES:”” This 1820 proclamation reiterated the injunction already made in the 1817 proclamation against the commis-

sion of crimes “in the said Indian Territories.” Then, in 1821, yet another act of the imperial Parliament was promulgated. It clarified the territorial application of the 1803 act and of the 1817 and 1820 © proclamations. Entitled An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of

| ~ North America,*® this legislation reiterated the problem of lawless-

ness resulting from the competition in the fur trade, and said: Whereas the Animosities and Feuds, arising from such Competition, have also for some years past kept the Interior of America, to the Northward and Westward of the Provinces of Upper and Lower Canada, and of the Territories

oe of the United States of America, in a State of continued Disturbance ... 4. And Whereas by a Convention entered into between His Majesty and | the United States of America, it is stipulated and agreed, that any Country on the North West Coast of America, to the Westward of the Stony Mountains,

_ should be free and open to the Citizens and Subjects of the Two powers, | , for a Term of Ten Years ... [without prejudice to American citizens’ freedom to trade] no British Subject shall trade with the Indians within such limits,

without such Grant or Licence as is by this Act required. ,

| Supra note 34, at 35-6. | _ | Supra note 33. 1 & 2 Geo. Iv, c. 66 (1821).

| 103. Continuity 5. And be it declared and enacted, That the said Act [43 Geo. m, c. 138 (1803)] ... and all of the clauses and Provisoes therein contained, shall be deemed and construed ... to extend to and over ... all the Territories heretofore

| granted to the [Hudson’s Bay Company] [emphasis added]. ° The extension .of the courts’ jurisdiction over the Indian territories was thus understood to encompass British North America extending _

to the western and northern oceans. The Union Act, 1840*! like the Constitutional Act, 1791 and the

Quebec Act, 1774, reorganized the structure of colonial government | , in central Canada without effecting any change relative to aboriginal rights. The act did not itself directly concern such rights, nor did this act increase the powers of the colonial governments so that those subordinate governments could themselves derogate from such rights.

Rather, it perpetuated existing aboriginal rights by saving the preexisting law under which such rights had been confirmed, stating ‘in section 46, “[t]hat all Laws, Statutes and Ordinances, which at _ the Time of the Union of the Provinces of Upper Canada and Lower Canada shall be in force within the said Provinces or either of them, any part of the said Provinces respectively, shall remain and continue to be of the same Force, Authority, and Effect.” Furthermore, until —

the 1854 imperial statute 18 & 19 Vict., c. 118, section 42 of the Union Act like section 42 of the Constitution Act, 1791, required the imperial Parliament’s express consent to laws relating to crown lands. After 1854 normal royal assent could validate provincial legislation regulating the disposition of crown lands, when the aboriginal rights had previously been purchased by treaty and thereby extinguished.

Before the treaty the lands were not public lands available for disposi- , tion under provincial legislation.” In 1858 An Act to Provide for the Government of British Columbia”

, effectively reaffirmed that the West Coast of British North America was included within the imperial law concept of the Indian territory. | It enacted in section 4, “From and after the Proclamation of this "An Act to Re-unite the Provinces of Upper and Lower Canada, and for the

Government of Canada, 3 & 4 Vict., c. 35 (1840). |

“An Act to Impower the Legislature of Canada to Alter the Constitution of

| the Legislative Council for that Province, and for Other Purposes, 17 & 18 ~Vict., c. 118 (1854), s. 6; Church v. Fenton (1878), 28 ucce 384, 388, 391-3,

399, aff'd (1879), 4 oar 159, (1880), 5 scr 239. |

891 & 22 Vict., c. 99 (1858), s. 4. See also, as to Vancouver’s Island, the same provision applied: pro, co 381/77 Entry Books Series, Public Archives Canada microform rée] B-889, at 6~7.

| 104 Native Liberty, Crown Sovereignty Act in British Columbia the said [acts of 1803 and 1821]... and the Provisions contained in such Act for giving Force, Authority and Effect within the Indian Territories and other Parts of America to the Process

and Acts of the said Courts of Upper Canada, shall cease to have Force in and to be applicable to British Columbia [emphasis added].”

The verb “cease” recognized that the Indian territories legislation regarding crimes and offences had applied in British Columbia. Previously the West Coast had been the western extension of British

: North America left under military jurisdiction. The time had arrived to constitute a civil colonial government there. Hence the act provided:

Whereas divers of Her Majesty’s Subjects and others have, by the Licence ! and Consent of Her Majesty, resorted to and settled on certain wild and — unoccupied Territories on the Northwest Coast of North America, commonly

| known by the Designation of New Caledonia, and from and after the passing of this Act to be named British Columbia, and the Islands adjacent, for Mining

and other Purposes; and it is desirable to make some temporary provision | for the Civil Government of such Territories ...

Having constituted a civil government there, it was no longer necessary

to transport offenders to trial in Upper and Lower Canada. Therefore the provisions of the 1803 and 1821 acts of Parliament conferring

such jurisdiction upon eastern courts were terminated. The essential , point, for present purposes, is that when the civil government of British Columbia was constituted by the imperial government in 1858

the aboriginal right of self-government had previously been confirmed by the imperial government. The region had previously been identified ,

in the imperial enactments as Indian territory. Nothing in the 1858

imperial legislation constituting this new colonial government _ extinguished the previously established aboriginal rights, or delegated

| to the new colonial government greater powers than were vested in the maturer colonies which might have allowed the fledgling colonial

- government itself to extinguish such rights. 7

Indeed, in 1859 the imperial Parliament once again referred to British Columbia as Indian territories. An Act to Make Further Provi-

sion for the Regulation of the Trade with the Indians, and for the Administration of Justice in the North-Western Territories of America®’ © referred to the northern-most portion of the province as Indian territories

in the course of providing for the jurisdiction of justices of the peace. In 1863, An Act to Define the Boundaries of the Colony of British ‘

499 & 23 Vict., c. 26 (1859). | | |

105 Continuity

Columbia; and to Continue an Act to Provide for the Government of the Said Colony*® extended the northern boundary of the province | to its present position at the 60th parallel of north latitude, without making any substantive change to the constituted powers of either — the colonial government or the aboriginal peoples. This was the legislative context in which, on 1 December 1864, the secretary of state for the colonies, E. Cardwell, when writing to Governor Seymour of British Columbia, made reference to “the difficulties of this expedition into an Indian country [emphasis added].”*°

The “Indian country” in question was the unceded Indian territory in the Bute Inlet region of mainland British Columbia. Also in 1864 the royal commission, an order in council of the imperial government

| bearing the great seal of Great Britain, to Governor Seymour of British Columbia confirmed in section 25, “And it is Our further will and pleasure ... that you do especially take care to protect them [the Indians]

in their Persons and in the Free Enjoyment of their Possessions.”*” Similarly, the royal instructions to Douglas, Seymour’s predecessor, — of 31 July 1858 had expressed the imperial government’s viewpoint: “The feelings of this country would be strongly opposed to the adoption

of any arbitrary or oppressive measure towards them [the Indians] ... Let me not omit to observe, that it should be an invariable condition,

in all bargains or treaties with the Natives for the cession of lands possessed by them, that subsistence should be supplied to them in some other shape.”** Evidently, both the imperial Parliament and the _ king in council equated the fledgling province with the older provinces

insofar as the rights of the aboriginal peoples under the previously

established imperial law were concerned. | The Constitution Act, 1867 created the current federal form of gov-

ernment in Canada. Like the Union Act, 1840, the Constitutional Act, 1791, and the Quebec Act, 1774, it expressly saved pre-existing , rights: section 129 states that “all Laws in force in Canada, Nova Scotia,

or New Brunswick at the Union ... shall continue in Ontario, Quebec,

| Nova Scotia, and New Brunswick respectively, as if the Union had not been made.” Unlike those earlier acts, however — indeed, unlike any other act ever previously promulgated — by the Constitution Act,

1867, at section 91(24) the imperial government vested in a colonial 596 & 27 Vict., c. 83 (1863). Cf. Stickeen 0 in c (UK) 1862, ssc 1871 App. 190. , *Entry Books of Correspondence British Columbia 1861-67 398/2 pro, co), Public

Archives Canada microform reel 890, at 271. *7Royal Commission, 11 January 1864, Entry Books Series 1, no. 18, Commissions

&c. (381/18 PRO, Co) Public Archives Canada microform reel 890, at 141-2. *Entry Books of Correspondence no. 1, British Columbia 1858-61 (398/1 pro, co), Public Archives Canada microform reel 390.

106 Native Liberty, Crown Sovereignty

legislature jurisdiction relative to “Indians, and Lands reserved for

the Indians.” That legislative jurisdiction vested exclusively in the , federal government, as distinct from the provincial governments of Canada. The federal government was a new concept. Formerly there | had just been royal provinces and the imperial government. Now an — intermediate level had been created, midway as it were between the provinces and the imperial government. To a degree the imperial government then shared its formerly exclusive legislative power regarding

form of government. | , the aboriginal peoples and the lands reserved for them with this new

, The federal government was not, however, vested with sovereign power

relative to that topic. Section 129 of the Constitution Act, 1867, quoted

in part above, continued on to enact that the federal government could not change “such [laws] as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland.” The acts of the imperial Parliament

analysed previously, and other similar acts analysed hereafter, consti-

tuted a law or laws that the federal government was prohibited from repealing in virtue of section 129, despite the investiture of jurisdiction

effected by section 91(24) of the same act. | :

This restriction by the imperial government upon the amplitude | of the federal government’s power was ostensibly removed by the Statute

of Westminster, 1931,°° which in section 2(2) enacted: | , No law and no provision of any law made after the commencement of this _ Act by the Parliament of a Dominion shall be void or inoperative on the

*As used in this imperial act, “Indians” meant the same thing as in the imperial Royal Proclamation of 1763 — the indigenous peoples in general. This was the

standard imperial government usage. The more restricted sense of the term , “Indian” only came into existence subsequently, in virtue of the domestically enacted federal statute entitled An Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs, and to Extend the Provisions of the Act, 31 Vict., c. 42, SC 1869 c. 6. Section 6 of this federal law in 1869

introduced the sexual bias which was to disinherit for domestic Indian Act , purposes the offspring of Indian women who married non-Indian men. Subsequent , Indian acts for their own purposes thereafter treated male-line Indians differently from female-line Indians. Children of racially mixed marriages were classed _ as “Indian” for the purposes of this domestic legislation if the father was native though the mother was not, but not vice versa. This domestic law sexual bias did not change the broader meaning of the term “Indian” as used in the imperial legislation. It meant only that the federal government had chosen to benefit

: than others. , , , some constitutionally recognized aboriginal peoples, for domestic purposes, more

*°*An Act to Give Effect to Certain Resolutions Passed by Imperial Conferences

held in the Years 1926 and 1930, 22 Geo. v, c. 4 (1931).

107 Continuity

ground that it is repugnant to the law of England, or to the provisions of | any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law

of the Dominion. }

Therefore, it could be argued that the federal government after 1931 might have exercised its legislative jurisdiction under section 91 (24) of the Constitution Act, 1867 to repeal the right of self-government

- confirmed under the imperial legislation. , It can also be counter-argued, however, as Lord Denning held in R. v. Secretary of State for Foreign © Commonwealth Affairs, that the Royal |

Proclamation of 1763 was an implicit part of the Constitution Act, — 1867, “still of binding force,” an “unwritten provision which went without

saying,” which was “binding on the legislature of the Dominion and the Provinces just as if there had been included in the statute a sentence:

‘The aboriginal peoples of Canada shall continue to have all their rights and freedoms as recognized by the royal proclamation of 1763.’”*!

The very phrase “Indians, and Lands reserved for Indians” employed | in section 91 (24) of the Constitution Act, 1867 thus implicitly reiterated , the previously established imperial law that informed the constitutional

meaning of the terms employed. If Lord Denning was right, then section 7(1) of the Statute of Westminster, 1931 must mitigate the effect of section 2(2). This crucial section (section 7(1)) enacted, “Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North _ America Acts, 1867 to 1930, or to any order, rule, or regulation made thereunder.” That is, if the Royal Proclamation of 1763 was an implicit

term of the Constitution Act, 1867 as held by Lord Denning, then section 7(1) of the Statute of Westminster would necessarily have rendered

aboriginal rights immune from federal government repeal in spite of section 2(2). The point has never been settled by the courts; nor _ does it appear pragmatically necessary that it be litigated, because the federal government in the period 1867 to 1982 never expressly purported to repeal the relevant imperial legislation; and in 1982 the Constitution Act, 1982 rendered such an unilateral repeal impossible *'Supra note 1. Contra, Bear Island, supra note 8, at 437: “The Constitution Act, 1867 allocated jurisdiction over all matters respecting Canada to the federal and provincial governments. It did not leave Indian bands with any direct jurisdiction over themselves ... There was no residue left to the independent

jurisdiction of Indian bands or nations.”

108 Native Liberty, Crown Sovereignty

| in future except by the amendment procedure provided. Even so, if a court should in future be faced with an argument that, for example, section 88 of the Indian Act implicitly repealed the Indian right before

, 1982 by making provincial legislation applicable to Indians, then the , constitutional incapacity of the federal government to do that because of section 7(1) of the Statute of Westminster would be relevant.” Before the sections of the Constitution Act, 1982 bearing upon this

question are analysed, the remaining constitutional instruments should be examined in historical sequence. When that has been done, the reason for the absence of derogating federal legislation will be manifest.

First, the federal government since confederation has been actively

lobbying the imperial government to create the country in its present | form, and one of the explicitly recognized preconditions has all along _ been the Canadian acceptance of the imperial government’s protective _ stance regarding its former Indian allies and subjects. Second, in terms = specifically of section 7(1) of the Statute of Westminster it will be seen that the several British North America acts, 1867 to 1930, further

recognized the continued existence of the Indian territory. The point |

here is that Lord Denning’s finding grows from persuasiveness to | conclusiveness when all the British North America acts have been

read together. _

The crucial section of the Constitution Act, 1867 that compels the _

reading of the British North America acts together, thereby reinforcing the continuity of the imperial law respecting aboriginal rights, is section 146. This section anticipated the evolution of Canada into its present _

form, and enacted that the process should occur upon the basis of — “Terms and Conditions” as “expressed” by the colonial governments, which the imperial government “thinks fit to approve.” The pre-existing ,

aboriginal right of selfgovernment was continued by the terms and conditions expressed and approved in due course pursuant to this

section. Section 146 provided: , , ,

It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the Houses of the respective Legislatures of the Colonies — or Provinces of Newfoundland, Prince Edward Island, and British Columbia, .

to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of Parliament of Canada to admit Rupert’s Land and the North-western Territory, or either of them, into the Union, on such 52See, Manuel v. ac [1982] 3 All ER 786 (Ch.), 790, where Megarry vc noted that argument, but held that its resolution was not necessary in the circumstances of that case. Indian Act, rsc 1970, c. 1-6. |

, 109° =Continuity Terms and Conditions in each Case as are in Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act, and the Provisions

of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland

[emphasis added]. , , ,

The submission here is that, to interpret the status of the aboriginal right of self-government under the constitution acts from 1867 forward,

it is necessary that the acts be read in pari materia. I submit that section 146 makes this approach not only sound, but mandatory.

Section 146 linked the “Terms and Conditions” to be agreed in _ “Addresses” to “the Provisions of this Act.” It said that future confederating —

| regions would be “subject to” both. Therefore, to determine the status of aboriginal rights in subsequently confederated regions one must _ read these terms and conditions and the 1867 act together. That reading

determines the status of aboriginal rights in the subsequently confederated regions. But — and this is the single most crucial perception

in the law regarding the constitutional status of the Indian right — it also determines the status of the right in the original confederating regions, Since the constitution acts make a legally binding equation |

between the original and the subsequent regions. , This equation emerged in two stages, the first of which was the enactment at the end of section 146 of the 1867 constitution act - -—s- providing that, “the Provisions of any Order in Council in that Behalf

shall have effect as if they had been enacted by the Parliament of the United Kingdom.” That is, future orders in council that related , to regions subsequently joining the union would have constitutional

effect equivalent to the Constitution Act, 1867. Then the several orders : in council eventually promulgated did two crucial things: first, they

invariably enacted that the newly joining regions were equal to the | original confederated region; and second, they enacted that aboriginal

rights were recognized and affirmed. Thus, the equality principle related , the subsequent affirmation of aboriginal rights back to the original provinces, just as it related the original status in the old provinces

forward to the new provinces. The analysis therefore depends upon | | understanding that the attributes in each region of Canadaare universally

applicable throughout Canada. The complete picture can therefore

| be seen only by pooling and reconciling the evidence.

, One. final point must be made before launching into the detailed analysis of the ensuing orders in council. Each of them referred back

to section 109 of the Constitution Act, 1867 as well as to section 146. | , Section 109 enacted that the newly created provincial governments

110 Native Liberty, Crown Sovereignty —

of Ontario, Quebec, New Brunswick, and Nova Scotia held title to crown lands after confederation that had formerly belonged to the

old colonies. That is, crown title to the former colonial lands vested | in the new provincial governments rather than in the new federal government. The section also recognized that the crown’s title was “subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same [emphasis added].” The | Privy Council in St Catherine’s Milling © Lumber Co. v. R.°> held that

the unceded aboriginal rights were such an interest subject to which the provinces held crown title. And in AG Can. v. AG Ont.,®* the Privy , Council settled that when section 109 said “subject to” it meant “independent of and capable of being vindicated in competition with the beneficial interest of the old province.” By subjecting the crown’s title to the Indian interest, section 109 implicitly subjected the provinces’ |

| legislative jurisdiction to the natives’ “independent” jurisdiction upon | such lands. Thus section 109 corresponded to the prohibition in the ~ Royal Proclamation of 1763 of colonial government activity that would

molest or disturb the Indians. If one were looking for the place at which Lord Denning’s point crystallized, it would have to be

at section 109. a

| The net result of reading these legislative acts in pari materia is as follows. The original provinces, because of the equation with the subsequent regions, can be seen as subject to the terms and conditions

regarding natives in the orders in council enacted after 1867. The subsequently joining regions, because of the same equation, are bound

by section 109 of the Constitution Act, 1867, and therefore by the |

recognition of “independent” and paramount aboriginal rights. | The Rupert’s Land Act, 1868°° was the first of the enactments of

the imperial government in the post-confederation era by means of , which portions of the Indian territory were added to the Dominion of Canada. Section 3 of that act authorized the queen to accept from © the Hudson’s Bay Company a surrender of the company’s interest in Rupert’s Land, provided that this was approved by the federal

1867.” | |

government in an address to be made “in pursuance of the One hundred and forty-sixth Section of the British North America Act, ,

, °° 5411897] (1888),ac14 ac 46 (pc), 54-5, 58-60. , a 199 (pc), 210-11. :

An Act for Enabling Her Majesty to Accept a Surrender upon Terms of the | Lands, Privileges, and Rights of “The Governor and Company of Adventurers

: of England Trading into Hudson’s Bay,” and for Admitting the Same into the Dominion of Canada, 31 & 32 Vict., c. 105 (1868).

| Ill Continuity The federal government then enacted the Temporary Government of Rupert’s Land Act, 1869,°° which repeated the reference to section , 146 of the Constitution Act, 1867, and provided that all laws in force would remain in force, subject only to the 1867 act and to “the terms and conditions of such admission approved of by the Queen.”’ The Temporary Government of Rupert’s Land Act, 1869 was continued by the Manitoba Act, 1870,°8 which then went on to establish the new province from a portion of Rupert’s Land. Section 1 recognized

that this was being done under the authority of section 146 of the Constitution Act, 1867. Section 2 made the critical equation with the

original provinces: “the Provisions of the British North America Act, : 1867, shall ... be applicable to the Province of Manitoba, and to the

like extent as they apply to the several Provinces of Canada, and as if the Province of Manitoba had been one of the Provinces originally —

united by the said Act.” a

Section 30, however, provided that title to crown land would remain

| vested in the federal government. In that respect Manitoba differed from the original provinces: section 109 of the Constitution Act, 1867

was not yet made fully applicable. Nevertheless, the federal government held crown title subject to aboriginal rights in unceded land in Manitoba, as did provincial governments in the original provinces. This was implicit in sections 31 and 32 which recognized the crown’s title as burdened by an Indian interest until such interest was “extinguished.” The sections enacted: 31. And whereas, it is expedient, towards the extinguishment of the Indian Title | to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof,

for the benefit of the half-breed residents, it is hereby enacted, that, under regulations to be from time to time made by the Governor General

in Council [lots shall in due course be selected and. conveyed to the children of the half-breed heads of families] [emphasis added]. 32. For the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them, it is enacted

| as follows: (3) All titles by occupancy with the sanction and under the

— 57Ibid., at section 5. *6An Act for the Temporary Government of Rupert’s Land and the North-Western

, Territory When United with Canada, 32 & 33 Vict., c. 3 (Canada, 1869).

*8An Act to Amend and Continue the Act 32 and 33 Victoria, Chapter 3; and to Establish and Provide for the Government of the Province of Manitoba, 33 Vict., c. 3 (Canada, 1870). Renamed the Manitoba Act, 1870, in the Schedule

to the Constitution Act, 1982.

112 Native Liberty, Crown Sovereignty ,

Oo license and authority of the Hudson’s Bay Company up to the eighth , day of March aforesaid, of land in that part of the Province in which a the Indian Title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. (4).All persons

, in peaceable possession of tracts of land at the time of the transfer to | Canada, in those parts of the Province in which the Indian Title has not — been extinguished, shall have the right of pre-emption of the same, on such

[emphasis added]. | | |

terms and conditions as may be determined by the Governor in Council |

| A similar recognition of aboriginal rights in unceded lands was | repeated in the order in council®® by which Rupert’s Land and the North-Western Territory were finally admitted into the union, 23 June 1870: section 14 stated, “Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by

the Canadian Government in communication with the Imperial Government; and the [Hudson’s Bay] Company shall be relieved of —

, all responsibility in respect of them.” Furthermore, additional ~ constitutionally binding “Terms and Conditions” within the meaning of section 146 of the Constitution Act, 1867 were set out in schedules

_ to this order in council of 23 June 1870. Schedule A was the Address : , to Her Majesty the Queen from the Senate and House of Commons of the Dominion of Canada, dated December 1867. It represented __

“It]hat the 146th section of the British North America Act of 1867

provides for the admission of Rupert’s Land and the North-Western _ Territory, or either of them, into union with Canada, upon the terms and conditions to be expressed in addresses from the Houses of Parliament of this Dominion to your Majesty, and which shall be approved © of by your Majesty in Council.”°° Then Canada undertook to remain constitutionally bound to continue the previously established imperial

, law in relation to the aboriginal peoples and their lands by agreeing “that, upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands

required for purposes of settlement will be considered and settled , in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines [emphasis added].”” - Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western

Territory into the Union, 23 June 1870, rsc 1970, app. 1, no. 9, at 257-77;

\Tbid. oe _ |

to the Constitution Act, 1982. | : “Ibid., at 264. renamed the Rupert’s Land and North-Western Territory Order in the schedule

113. Continuity | That undertaking apparently did not go far enough to satisfy the imperial government. Negotiations ensued which culminated in a further undertaking: “That upon the transference of the territories in question to the Canadian Government, it will be the duty of the Government to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer

[emphasis added].””* This additional undertaking was in the form of a resolution dated 28 May 1869 appended to a second and revised “Address” from the Senate and House of Commons dated 31 May 1869. The second address recited the first as still being in effect, and in the result both undertakings acquired constitutional status as “Terms and Conditions” under section 146 of the Constitution Act, 1867. The major difference in the two undertakings lay in the strength

| of the obligation recognized. In the first, it was enough that Indian claims “will be considered and settled,” whereas in the second, Canada

was under a positive “duty ... to make adequate provision for the | protection of the Indian tribes.” In either case the previously established law of the imperial government remained binding as the “equitable principles which have uniformly governed the British Crown in its

dealings with the aborigines.” | |

Doubts subsequently arose concerning the constitutional status of the Temporary Government of Rupert’s Land Act, 1869 and the Manitoba Act, 1870. These acts had been promulgated by the federal government. Section 146 of the Constitution Act, 1867 had enacted

only that the imperial orders in council incorporating “Terms and | Conditions” expressed in “Addresses” should “have effect as if they had been enacted by the Parliament of the United Kingdom of Great

Britain and Ireland.” But section 146 had not said the same thing of acts of the federal government constituting the governments of the newly acquired regions. Therefore those two aforementioned acts

of the federal government strictly speaking could not have constituted. , independent governments for constitutional purposes. Only the imperial government had sovereign power for the purpose of settling terms and

, conditions that were absolutely binding upon both the federal and ‘the provincial governments. This problem was redressed by the

Constitution Act, 1871. | , :

_ The solution adopted by the Constitution Act, 1871 was that of _ validating the two Canadian acts as if they were enactments of the

| ®Ibid., schedule s, at 268. An Act Respecting the Establishment of Provinces in Canada, 34 & 35 Vict., c. 28 (1871), formerly cited “The British North America Act, 1871,” per section ,

1; renamed by the schedule to the Constitution Act, 1982.

, 114 Native Liberty, Crown Sovereignty | imperial government.” By this means the imperial government made

the provisions of those acts constitutionally binding upon the federal and provincial governments, just as if they had been expressed in : addresses appended to imperial ordersin council pursuant tosection 146 _ of the Constitution Act, 1867. Furthermore, they have remained binding

up to the present time, even after Canada ostensibly became sovereign | in 1931. The Statute of Westminster, 1931, as we have noted, qualified , Canada’s sovereignty otherwise constituted under section 2(2) by the | enactment of section 7(1), which applied to the Constitution Act, -1871 no less than to the Constitution Act, 1867. Thus, the federal - acts made pursuant to the Constitution Act, 1871, as well as the terms and conditions in the addresses appended to the imperial orders in council pursuant to the Constitution Act, 1867, remained binding

upon the federal and provincial governments. | :

In fact, the Constitution Act, 1871 also said that not only Manitoba but also any future provincial government constituted by the federal government from out of what had been Rupert’s Land and the NorthWestern Territory would have the same constitutional status. All the remainder of what is now Canada was subsequently constituted under

| the constitution acts of 1867 and 1871. For this reason, the recognition of aboriginal rights in the terms and conditions incorporated into

the federal acts and the imperial orders in council have remained , binding upon the federal and the subsequent provincial governments under section 7(1) of the Statute of Westminster, 1931. Furthermore,

Canada.

because of the equation between the original and the subsequent provinces, all regions must necessarily be in the same position. Aboriginal

rights therefore must remain constitutionally binding everywhere in British Columbia was next. The Order of Her Majesty in Council Admitting British Columbia into the Union® was given at the court at Windsor on 16 May 1871. Again the authority of section 146 of

the Constitution Act, 1867 was recited, as was the fact that in virtue : thereof this order in council “should have effect as if ... enacted by the Parliament of the United Kingdom of Great Britain and Ireland.”” | The terms and conditions in the address from the federal government and the provincial government stipulated that British Columbia was

equal to the original provinces,® and that the federal government ,

6Ibid., section 5. — . : ' s-« in the schedule to the Constitution Act, 1982. | ,

Tbid., at 279-80. : psc 1970, app. 1, no. 10, 279-87; renamed the British Columbia Terms of Union

*Ibid., schedule, article 10, at 284. Compare, supra, at 111, section 2 of the Manitoba Act, 1870. The equation was not applicable regarding those parts

115 Continuity

was assuming administrative responsibility for carrying out imperial

policy regarding Indian affairs.® |

Thus, for the purposes of applying sections 109 and 91(24) of the

Constitution Act, 1867, British Columbia was placed on the same footing

as the original provinces of the union. Only Manitoba, at this point, was unique, in that there as we have noted section 109 did not apply, and therefore the federal rather than the provincial government held

crown title subject to aboriginal rights. The article confirming that the federal government would administer _ Indian affairs locally in British Columbia made it clear that the federal government was bound to continue the previously established imperial law: article 13 states, “a polscy as liberal as that hitherto pursued by

the British Columbia Government shall be continued by the Dominion

Government after the Union [emphasis added].”° | The “policy ... pursued” by the former colonial government in British

Columbia meant the official policy established for legal purposes by the imperial government.” British Columbia before the union had not achieved “responsible government” let alone sovereignty.’' Had British Columbia achieved responsible government and then graduated

of the Constitution Act, 1867 that concerned only one special province (for example, section 98, which enacted that “Judges of the Courts of Quebec shall be selected from the Bar of that Province”). Nor was the equation applicable regarding parts of the 1867 act “varied by this Minute” (for example, article 8 of the minute concerning the number of senators in the Canadian Senate).

for them.

Neither exception to the equation concerned aboriginal peoples or lands reserved

8Tbid., article 13. The case law has not dealt with the British Columbia Terms of Union (herein referred to as “the Terms”) other than peripherally. Geoffnes v. Williams (1959), 16 DLR (2d) 157 (Bc Co. Ct), for example, rejected the argument

that a federal law was invalid because contrary to the “policy” established by the Terms since there was no evidence regarding the substance of that policy. In rk. v. Point (No. 2) (1957), 22 wwe 527 (acca), 528, it was held that an individual

Indian could not rely upon the Terms because he was not a contracting party.

| See generally, Lysyk, “The Unique Constitutional Position of the Canadian Indian,” at 522-3.

Ibid.

In the context of this address, destined for communication to the imperial government and for incorporation into the imperial order in council, it would not be credible to argue that the “policy” in article 13 meant the unofficial practice of some provincial administrators of evading the official imperial policy.

See, for example, Fisher, “Joseph Trutch and Indian Land , Policy.” "Contra, Calder v. ac for Bc, [1973] scr 313, 333, 344, per Judson j. who held that the preconfederation colony exercised “absolute sovereignty” and was “the

was not addressed. , sovereign authority.” But see Hall J. in the same case, who disagreed, at 390, 406. The court was evenly split upon the point. The relevant imperial legislation

116 Native Liberty, Crown Sovereignty , |

to sovereign status this could have permitted the argument that the , colony was no longer subordinate, and therefore conceivably might

| have negated the official policy established by the imperial government. But the province had achieved neither. Article 14 of

the address provided: — , , The Constitution of the Executive Authority and of the Legislature of British Columbia shall, subject to the provisions of “The British North America Act,

, 1867,” continue as existing at the time of the Union until altered under the authority of the said Act, it being at the same time understood that - the Government of the Dominion will readily consent to the introduction of

responsible government when desired by the inhabitants of British Columbia, | and it being likewise understood that it is the intention of the Governor

of British Columbia, under the authority of the Secretary of State for the | | Colonies, to amend the existing Constitution of the Legislature by providing

that a majority of its members shall be elective.” , The Order of Her Majesty in Council Admitting Prince Edward

Island into the Union” followed on 26 June 1873. Again, the authority

of section 146 of the Constitution Act, 1867 was recited,’* and the Oo

| order incorporated by reference “the terms and conditions set forth in the hereinbefore recited Addresses.””? The schedule to the order

, appended addresses of the House of Commons of Canada dated 20 May 1873, the Senate of Canada dated 21 May 1873, and the , Legislative Council of Prince Edward Island dated 28 May 1873. The

Island joined upon the condition of equality, as had Manitoba and , British Columbia.” Concerning the holding of crown title subject to

any unceded “Interest other than that of the Province” within the ) meaning of section 109 of the Constitution Act, 1867, Prince Edward Island was placed in the same position as Manitoba.” No substantive

, change was effected by the order regarding Indians and lands reserved

for constitutional purposes. :

, The residuum of British North America (except for Newfoundland) |

| was next added pursuant to section 146 of the Constitution Act, 1867, —

| “Supra note 65, at 285 (emphasis added). | | , , a -

| ‘“Tbid., at 291. |

®rsc 1970, app. u, no. 12, at 291-8; renamed the Prince Edward Island Terms

of Union in the schedule to the Constitution Act, 1982. _ |

®Ibid., at 292. Ibid. Schedule of Addresses, at 295. Compare, supra note 58 regarding Manitoba

and note 65 regarding British Columbia. ,

_ ™Manitoba Act, 1870, section 30. Compare Prince Edward Island Terms of Union,

supra note 73, Schedule of Addresses, at 294. ,

117 Continuity by means of the Order of Her Majesty in Council Admitting All British

Possessions and Territories in North America and Islands Adjacent Thereto into the Union,” dated 31 July 1880. The operative passage for present purposes stated that the added region should “become

and be subject to the laws for the time being in force in the Dominion, in so far as such laws may be applicable thereto.” Since the previously established imperial law was subsumed as part of the laws of the Dominion, the union effected no substantive change. The federal government thus held title subject to previously established aboriginal rights, as in the case of Manitoba, Prince Edward Island,

and the remainder of Rupert’s Land and the Northwest Territories. The Yukon Territory Act, 1898” was then enacted by the federal government pursuant to section 4 of the Constitution Act, 1871 relative

to this newly acquired region. It delegated powers to the commissioner , of the Yukon Territory, which office it constituted, much as had the imperial government delegated powers to the office of governors of colonies.*° The previously established imperial law applicable everywhere in Canada continued to be applicable: section 9 stated, “Subject to the provisions of this Act, the laws relating to civil and criminal matters and the ordinances as the same exist in the Northwest Territories

at the time of the passing of this Act, shall be and remain in force.” The Alberta Act, 1905*! and the Saskatchewan Act, 1905°* were also

| enacted by the federal government to constitute provinces, like Manitoba, from the territories ceded by the imperial government. These | acts took effect for constitutional purposes, as if they were imperial acts, pursuant to section 2 of the Constitution Act, 1871.°° In each

act, sections 3, 20, and 21 placed the provinces on the same footing , as Manitoba.™ Section 16 of each continued all laws previously in force, thereby implicitly continuing the previously established imperial esc 1970, app. 1, no. 14, at 301-2; renamed the Adjacent Territories Order

7 inthe schedule to the Constitution Act, 1982. !

An Act to Provide for the Government of the Yukon District, 61 Vict., c. 6 (Canada, 1898). This act was constitutionally binding in virtue of being enacted

pursuant to the Constitution Act, 1871, section 4. |

Ibid, at ss. 3-8. Compare the Constitution Act, 1791, 31 Geo. m, c. 31, ss.

31, 52; Union Act, 1840, 3 & 4 Vict., c. 35, ss. 38, 52. :

*!An Act to Establish and Provide for the Government of the Province of Alberta, . 4 & 5 Edw. vu, c. 3 (Canada, 1905); renamed the Alberta Act in the schedule

to the Constitution Act, 1982. ,

| 82 An Act to Establish and Provide for the Government of the Province of Saskatchewan,

4 & 5 Edw. vu, c. 42 (Canada, 1905); renamed the Saskatchewan Act in the schedule to the Constitution Act, 1982.

334 & 35note Vict., c. 28 (1871). Supra 58. ,: -

| 118 Native Liberty, Crown Sovereignty law regarding aboriginal rights. Thus, the federal government continued

to hold title to crown land within Alberta and Saskatchewan, subject

to any yet unceded aboriginal rights by virtue of its being Indian

territory under previously established imperial law. - By means of the Ontario Boundaries Extension Act, 1912 and the Quebec Boundaries Extension Act, 1912,°° the boundaries of those provinces, pursuant to section 3 of the Constitution Act, 1871, were

extended north to encompass portions of the Northwest Territories | (formerly Rupert’s Land and the North-West Territory). This federal and provincial reciprocal legislation enacted into binding constitutional law a federal-provincial accord which had provided (in section 1): (a) That the Province of [Ontario, Quebec, respectively] will recognize _ the rights of the Indian inhabitants in the territory above described to the same extent, and will obtain surrenders of such rights in the same manner as the Government of Canada has heretofore recognized such rights and

has obtained surrender thereof and the said Province shall bear and satisfy , _ all charges and expenditure in connection with or arising out of such surrender;

(b) That no such surrender shall be made or obtained except with the approval of the Governor in Council [that is, the federal government]; (c) That the trusteeship of the Indians in the said territory, and the management of any lands now or hereafter reserved for their use, shall remain in the Government of Canada [that is, the federal government] subject to

the control of Parliament. , |

Thus, the continuity of the previously established imperial law, upon which the aboriginal right of self-government has depended, was again

reaffirmed. Title to crown lands in the reorganized region passed from the federal government to the provincial governments of Ontario

and Quebec, and section 109 of the Constitution Act, 1867 applied as if the region had been part of the provinces at confederation. oc 1912) c. 40: so 1912, c. 3. Constitutionally, the federal act was binding pursuant

| to the Constitution Act, 1871, section 3. In 1889 the Canada (Ontario) Boundary Act, 1889, had fixed the Ontario-Manitoba boundary. Indians were not mentioned. Similarly, the Manitoba Boundaries Extension Act, 1930, being An Act to Provide for the Extension of the Boundary of the Province of Manitoba in the Northwest

, Angle Inlet to Lake of the Woods, sc 1930, c. 28, varied the Manitoba boundary

without affecting the aboriginal rights issue. |

sc 1912, c. 45; sQ 1912, c. 7. Constitutionally, the federal act was binding pursuant

to the Constitution Act, 1871, section 3. And see 4G Que. v. ac Can., [1921]

1 ac 401 (pc), 410, confirming the application of the Royal Proclamation of , 1763 to Quebec. See also An Act Respecting the North-Western, Northern and

North-Eastern Boundaries of the Province of Quebec, sc 1898, c. 3._

| 119 Continuity This was immaterial to aboriginal rights, since the identity of the - government holding crown title becomes relevant only in the event of surrender, when it then determines which government will receive

the benefit of the surrender in virtue of the extinguishment of the aboriginal rights burden on the crown’s title.*” Manitoba, Alberta, and Saskatchewan were eventually placed in the

same position as the original provinces in relation to crown title by the Constitution Act, 1930.°° It enacted into law separate agreements between the federal government and each province, which were appended _

as schedules. Each recited in its preamble that the intent was “that the Province would be placed in a position of equality with the other provinces of Confederation with respect to the administration and control of its natural resources as from its entrance into Confederation

{emphasis added].” Echoing the phraseology of section 109 of the Constitution Act, 1867, it then recited that a transfer of title to crown | lands from the federal to the provincial governments “would be made by Canada to the Province ... subject to any trust existing in respect thereof and without prejudice to any interest other than that of the Crown in the same [emphasis added].” ‘This was essentially the same phrase that the Privy Council had interpreted as meaning that the province

held title “subject to” aboriginal rights, in that such rights were “independent of and capable of being vindicated in competition with

the beneficial interest of” the crown.” In fact, the Constitution Act, 1930 explicitly equated Manitoba, 87 St Catherine’s Milling & Lumber Co. v. R., supra note 53. See also, An Act for

the settlement of Certain Questions between the Governments of Canada and Ontario Respecting Indian Lands, sc 1891, c. 5; so 1891, c. 3; and schedule: Memorandum of Agreement, 1894, article 6. Ontario acquired a power of veto | over future treaties between the federal government and the Indians. This questionable delegation of federal autonomy was not approved by the imperial government, and cannot be considered constitutionally binding. For present purposes, the existence of the federal-provincial agreement is further evidence of recognition of aboriginal rights, the subject of the treaties in contemplation. *°An Act to Confirm and Give Effect to Certain Agreements Entered into between the Government of the Dominion of Canada and the Governments of the Provinces

of Manitoba, British Columbia, Alberta, and Saskatchewan Respectively, 20 & , 21 Geo. v, c. 26 (1930). Originally short-titled the British North America Act, 1930, this was renamed the Constitution Act, 1930, in the schedule to the Constitution Act, 1982. In 1912 The Manitoba Boundaries Extension Act, 1912, 2 Geo. Iv, c. 32, had extended the north boundary of that province to encompass

more of the Northwest Territories. Aboriginal peoples were not mentioned;

: however, section 6 had confirmed that crown title was held by the federal rather 7 than the provincial government, and section 5 gave the provincial government an annual stipend in lieu of that revenue source.

Supra note 54.

120 Native Liberty, Crown Sovereignty

Alberta, and Saskatchewan with the other provinces in terms of

section 109, by providing in each appended agreement: | 1. In order that the Province may be in the same position as the original

, Provinces of Confederation are in virtue of section one hundred and nine : of the British North America Act, 1867, the interest of the Crown in all : Crown lands, mines, minerals’ (precious and base) and royalties derived therefrom within the Province, and all sums due or payable for such lands, mines, minerals or royalties, shall, from and after the coming into force

of this agreement, and subject as therein otherwise provided, belong to the Province, subject to any trusts existing in respect thereof, and to any — anterest other than that of the crown in the same [emphasis added].

The Constitution Act, 1930 also equated the three prairie provinces | with the others in the way in which crown title was held relative to — “Indian reserves” for Indian Act purposes. Whereas crown title to never

ceded Indian territory was now uniformly vested in the provincial governments, crown title to Indian reserves especially set apart subsequent to the Royal Proclamation of 1763 for “particular bands”? | -- Was just as uniformly vested in the federal government. As to the prairie

provinces, this federal title to Indian reserves was achieved by the agreements appended to the Constitution Act, 1930, which provided at section 11: “All lands included in Indian reserves within the Province, ,

| ... Shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada [emphasis added ].”

As to Ontario, the same point had been settled by An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario” in 1924. In British Columbia, the same point had been settled by paragraph 13 of the British Columbia Terms of Union.”

As noted previously, the question of which government, federal or | | provincial, held title subject to the aboriginal rights subsisting in Indian territory and Indian reserves is a matter of indifference to the substance

of those aboriginal rights. Whichever crown government holds title,

title is held “subject to” the aboriginal rights. The identity of the par- ,

106. :

ticular crown government becomes material, for constitutional purposes, only when a treaty is made surrendering the aboriginal rights, because Indian Act, sc 1876, c. 18, s. 3(6); Brick Cartage Ltd. v. r., [1965] 1 Ex. cr 102, | "sc 1924, c. 48. Section 12 of the Manitoba Agreement, numbered section 1] in the Alberta and Saskatchewan agreements, appended to the Constitution

Supra note 65. , | | | a Act, 1930, expressly adopted the 1924 Ontario Indian Reserves Agreement and

made it applicable to the prairie provinces.

, 121 Continuity ,

land. . | |

. then and only then can the crown government holding title use the , The Newfoundland Act” of 1949 added the last province to join

the union, upon the same terms and conditions as had obtained relative

to the other provinces.”* Section 109 of the Constitution Act, 1867 was expressly reproduced as section 37 of the Newfoundland Act. In the light of the preceding constitutional enactments, the previously

established imperial law remains binding upon federal and provincial _ | governments. Lord Watson’s comment in St Catherine’s Milling (& Lumber

Co. v. RK in 1888 is therefore just as appropriate to the rest of Canada as it is to Ontario, where that case arose. He held, “Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British

Crown.””° Things equal to the same thing are equal to each other; whether or not the Royal Proclamation of 1763 was meant to apply _ everywhere in 1763, the law it constituted was subsequently extended

everywhere in Canada by the imperial government. | Until 1982 the binding effect of the previously established imperial

law respecting aboriginal rights had been as secure under section _ 7(1) of the Statute of Westminster, 1931, as it had been before 1931 under sections 3 and 4 of the Colonial Laws Validity Act, 1865. In © 1982, however, section 7(1) was repealed by the Constitution Act, 1982.%” Nevertheless, the binding effect of the imperial law did not

lapse. Rather it was reconstituted by that 1982 act, which accordingly | provided, in section 25, “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate

from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms

that have been recognized by the Royal Proclamation of October 7, 1763”; and in Section 35(1), “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” An Act to Confirm and Give Effect to Terms of Union Agreed between Canada

, and Newfoundland, 12 & 13 Geo. vi, c. 22 (1949), formerly short-titled the North America Act, 1949, and renamed by the schedule to the Constitution . Act,_. British 1982.

“Supra note 53. ,

, “*Ibid., at section 3. “Tbid., at 54.

Constitution Act, 1982, schedule, item 17, column u, amendment (b). |

122 Native Liberty, Crown Sovereignty

The right of the “several Nations or Tribes” under the Royal | Proclamation of 1763 not to be “molested or disturbed” therefore

, continues to be binding upon federal and provincial governments to the present time. For this reason, Lord Denning MR was technically

_ accurate when in the course of construing the Constitution Act, 1982. |

he held, “It seems to me that the Canada Bill itself does all that _ can be done to protect the rights and freedoms of the aboriginal peoples. of Canada. It entrenches them as part of the constitution, so that they cannot be diminished or reduced except by the prescribed

procedure and by the prescribed majorities.” Five statutes of the imperial government, in 1982, 1931, 1865, 1766, ~ .

and. 1696,°° each enacted a conflicts of law rule that deemed that , at all material times laws of provincial and federal governments have

been void if inconsistent with the law established by the imperial government. One order in council of the imperial government confirmed

: the aboriginal right of self-government, in 1763.’ There are 24 constitutionally binding imperial statutes, imperial orders in council, or federal acts authorized by and promulgated pursuant to such imperial

statutes that subsequently recognized and affirmed the continued ~—

existence and extension of that right throughout Canada in virtue | of continuing the previously established imperial law; they are dated _

1982, 1949, 1930, 1912, 1905, 1898, 1880, 1873, 1871, 1870, 1869, ,

, 1867, 1859, 1858, 1840, 1821, 1817, 1803, 1791, and 1774.'° , Rr, v. Secretary of State for Foreign & Commonwealth Affairs, supra note 1, at 129. See also, Lord Justice Kerr, at 130: “Their [the imperial laws’] binding effect

has also been accepted before us by counsel on behalf of the Secretary of

, State and of the Government of Canada as interveners in the proceedings, as well as in the Canada Bill mentioned above.” See also Manuel v. Ac, supra note 52, per Megarry, vc, “As is well known, the effect of s. 7(1) of the Statute of Westminster 1931 was to exclude the repeal, amendment or alteration of , the British North America Acts 1867 to 1930 from the legislative powers conferred

on Canada by the statute.” , ,

” Respectively, the Constitution Act, 1982, s. 52; the Statute of Westminster, 1931,

s. 7(1); the Colonial Laws Validity Act, 1865, ss. 3, 4; 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. m, c. 12: (1766), ss. 1, 2; , and An Act for Preventing Frauds, and Regulating Abuses in the Plantation

Trade 7 & 8 Wm. 1, c. 22 (1696), s. 12. ‘Royal Proclamation of 1763, rsc 1970, app. u, no. 1, at 127.

10'These are as follows: in 1982, the Constitution Act, 1982, ss. 25(a), 35(1); 1949,

, the Newfoundland Act, ss. 3, 37; 1930, the Constitution Act, 1930, ss. 1, 11; 1912, the Ontario Boundaries Extension Act, 1912, and the Quebec Boundaries

Extension Act, 1912, sc 1912, cc. 40, 45, s. 1, pursuant to the Constitution Act, 1871, s. 3; 1905, the Alberta Act and the Saskatchewan Act, ss. 3, 16, 20, 21, pursuant to the Constitution Act, 1871, s. 2; 1898, the Yukon Territory Act, 1898, 61 Vict., c. 6 (Canada), s. 9, pursuant to the Constitution Act, 1871,

123 Continuity , The striking thing is the consistency of the constitutional law. It has not varied in its essential attributes in over two centuries. The indigenous nations of British North America were told by the imperial , government that they would never be disturbed or molested in their possession of yet unceded lands. That undertaking was expressed in. legislative instruments of a binding nature, for constitutional purposes. —

The imperial government has kept its promise. At least so far as the a

| law is concerned, the promise has never been repealed.

s. 4; 1880, the Adjacent Territories Order, rsc 1970, app. u, no. 14, at 302, of which there is only one enacting clause, pursuant to the Constitution Act, — 1867, s. 146; 1873, the Prince Edward Island Terms of Union, rsc 1970, app. u, no. 12, at 294, pursuant to the Constitution Act, 1867, s. 146; 1871, the

British Columbia Terms of Union, rsc 1970, app. u, no. 10, at 284-5, pursuant | to the Constitution Act, 1867, s. 146; 1870, the Manitoba Act, 1870, ss. 2, 30-2,

pursuant to the Constitution Act, 1867, s. 146, and confirmed by the Constitution , Act, 1871, s. 5; the Rupert’s Land and North-Western Territory Order, rsc 1970,

: app. U, no. 9, s. 14, address at 264, 268, pursuant to the Constitution Act,

1867, s. 146; 1869, the Temporary Government of Rupert’s Land Act, 1869, |

32 & 33 Vict., c. 3 (Canada), s. 5, pursuant to the Constitution Act, 1867, s. 146, and confirmed by the Constitution Act, 1871, s. 5; 1867, the Constitution Act, 1867, s. 129; 1859, An Act to Make Further Provision for the Regulation

of the Trade with the Indians, and for the Administration of Justice in the North-Western Territories of America, 22 & 23 Vict., c. 26 (1859), s. 1 (and see An Act to Define the Boundaries of the Colony of British Columbia; and to Continue an Act to Provide for the Government of the Said Colony, 26

_ & 27 Vict., c. 83 (1863), which added the northern portion of the province

on the same basis); 1858, An Act to Provide for the Government of British Columbia, 21 & 22 Vict., c. 99 (1858), s. 4; 1840, the Union Act, 1840, 3 & 4 Vict., c. 35, s. 46; 1827, 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), s. 5, extending the provisions of the 1803 act 43 Geo. m, c. 138 to the west coast region; 1817, the Royal Proclamation of 1817, Quebec Gazette 18 May 1820, pursuant to the 1803 act 43 Geo. m, c. 138, which recognized and affirmed the Indian territory first constituted under the Royal

Proclamation of 1763; 1803, 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. mw, c, 138 (1803); 1791, the Constitutional Act, 1791, 31 Geo. mW, c.

, 31, s. 33; and 1774, the Quebec Act, 1774, 14 Geo. m, c. 86, s. 3.

CHAPTER FOUR oe

Discontinurty: |

- The Anti-Thesis a The counter-argument worth addressing is that the previously established imperial law no longer binds federal and provincial governments

as it once did colonial governments. The proposition is valid as to crimes and offences under federal and provincial law, in virtue of certain pre-confederation legislation enacted by the imperial government. That legislation is reviewed in

the first section of this chapter, along with section 88 of the federal | ,

Indian Act, which has reiterated the point. ;

, But the counter-argument is not valid with respect to civil affairs. | The second section of this chapter deals with the courts’ recent finding , | that no “enclaves” exist where federal and provincial laws of general application do not run. Although the theory is true as to crimes and —

offences, I submit that it was not intended by the courts to apply so as to override the natives’ independent civil jurisdiction, and that if it were, it would be constitutionally untenable.

| _ THE CRIMES AND OFFENCES a EXCEPTION

A partial abrogation of the aboriginal right of self-government as confirmed under previously established imperial law was enacted by

the Parliament of the imperial government. Two acts, one in 1803’ and another in 1821,* extended the colonial governments’ legal system ‘An Act for Extending the Jurisdiction of the Courts of Justice in the Provincesof

Lower and Upper Canada, to the Trial and Punishment of Persons Guilty of Crimes and Offences within Certain Parts of North America Adjoining to the

Said Provinces, 43 Geo. 1, c. 138 (1803). ,

*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).

125 Discontinuity: The Anti-Thesis

regarding crimes and offences to the Indian territory. Since their — promulgation the arguable scope of aboriginal self-government in Canada has been restricted to civil matters. Before this legislation it had been suspected that the natives were not subject to prosecution. On 18 September 1774, the commander . — in chief, Major General Thomas Gage instructed Guy Johnson, the

superintendent of Indian affairs for North America: | I imagine there must be some mistake in what you mention respecting the Indians of Canada being subject for the future in all things to the laws of England, Indians are commonly left to their own usages and customs in most things; perhaps they may have been informed that in cases of murder, or robbery they would be tried agreeable to English law. You will know before _ this reaches you, that the French laws in most instances are to have force in Canada, but I don’t image the Indians are much interested in this matter.’

Thus a doubt existed with respect to the crimes of “murder, or robbery,”

, but beyond that natives were governed by their own “usages and customs.” This is not remarkable — the previously established imperial

law had enacted that the Indians were to be left alone within the Indian territory.* The natural inference was as taken by Major General

Gage: that the natives’ laws would continue to govern the natives upon unceded lands, and that the colonial governments’ laws would govern citizens upon ceded lands. As he observed, the natives were “not much interested in” the application of French Canadian law to

the colonists under the Quebec Act, any more than were the colonists |

*Gage papers, Wm. L. Clements Library, University of Michigan (emphasis added).

I am indebted to James Morrison for supplying me with a copy of this. The reference in the first sentence of the quoted passage to the Indians being “left to their own customs and usages” harkens to the Royal Proclamation of 1763. The reference in the second sentence to “before this reaches you” concerns

, the Quebec Act, 1774, which reinstituted French Canadian law relative to the colonists’ civil affairs in the Province of Quebec. See chapter 3, the. section entitled “Non-repeal of the Prerogative Legislation.” *Royal Proclamation of 1763, rsc 1970, app. u, no. 1, at 127-8: “And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above , described, or upon any other Lands which, not having been ceded to or purchased

by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.” Not only were the settlers ordered out of

the Indian territory, but also the colonial governments were ordered not to . “molest or disturb” the “several Nations or Tribes” and not to grant any yetunceded Indian territory “upon any Pretence whatever.”

126 Native Liberty, Crown Sovereignty

interested in what the indigenous peoples did among themselves. | The 1803 act of the imperial Parliament noted that this situation subsequently had become untenable. Colonists were de facto in the Indian territory, and it became necessary to take measures to ensure law and order. Thus the act in its preamble and first enacting section _

decreed: | - |

Whereas crimes and offences have been committed in the Indian Terntones, and

other parts of America, not within the limits of the Provinces of Lower or , Upper Canada, or either of them, or of the jurisdiction of any of the Courts established in those Provinces, or within the limits of any civil Government of the United States of America and are therefore not cognizable by any jurisdiction whatever, and by reason thereof great crimes and offences have _ gone and may hereafter go unpunished, and greatly increase: For remedy whereof ... be it enacted ... that, from and after the passing of this Act, all offences committed within any of the Indian Territories, or parts of the said Provinces of Lower or Upper Canada, or of any civil Government of the United States of America, shall be deemed to be offences of the same nature,

and shall be tried in the same manner and subject to the same punishment, as if the same had been committed within the Provinces of Lower or Upper

Canada [emphasis added]. }

Apparently, the aboriginal peoples either would not or could not control the commission of crimes and offences within the Indian territories resulting from the influx of non-natives, whether as fugitives _ from crimes and offences committed outside or as perpetrators within

decreed: , oe

the territories. The 1821 act in its preamble and first enacting section |

Whereas the competition in the Fur Trade between the Governor and Company of Adventurers of England trading into Hudson’s Bay, and certain associations

of persons trading in the name of “The North West Company of Montreal,” , has been found for some years past to be productive of great inconvenience and loss, not only to the said Company and Associates, but to the said trade in general, and also of great injury to the native Indians, and of other persons subjects of His Majesty, and whereas the animosities and feuds arising from

such competition have also for some years past kept the interior of America, _ ; to the northward and westward of the Provinces of Upper and Lower Canada, a and of the territories of the United States of America, in a state of continued disturbance; and whereas many breaches of the peace, and violence extending to the loss of lives, and continual destruction of property, have continually occurred therein; and whereas, for the remedy of such evils, it is expedient

127 Discontinuity: The Anti-Thesis

and necessary that some more effectual regulations should be established for the apprehending, securing and bringing to justice all persons committing

such offences ... ; and whereas doubts have been entertained whether the | provisions of [the 1803 Act quoted earlier| extended to the territories granted

by Charter to the said Governor and [Hudson’s Bay] Company; and it is expedient that such doubts should be removed, and that the [1803] Act should be further extended: be it enacted ... it shall be lawful for His Majesty, his heirs or successors, to make grants or give his Royal Licence ... for the

exclusive privilege of trading with the Indians in all such parts of North | America as shall be specified in any such grants or licences respectively, not being part of the lands or territories granted to the said Governor and [Hudson’s

, Bay| Company, and not being part of any of His Majesty’s Provinces in North _ America, or of any lands or territories belonging to the United States of

America [emphasis added]. | The fifth section of this 1821 act added:

And be it declared and enacted, that the [1803] Act, and all the clauses

and provisoes therein shall be deemed and construed ... to be in full force in and through all the territories heretofore granted to [the Hudson’s Bay | Company] [emphasis added].

| The imperial legislation of 1803 and 1821 thus embraced “all persons.” The natives upon yet unceded Indian territories were no longer beyond

the reach of the colonial governments’ laws regarding “crimes and offences.” Henceforth they were subject not only to the colonists’ laws in respect of the serious “crimes,” such as murder and robbery,

but also “offences” of lesser status. , This was effectively affirmed by the Canadian Parliament, which in 1951° enacted what now appears as section 88 of the Indian Act:® Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except

this Act.

to the extent that such laws are inconsistent with this Act or any order, rule,

regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under

>The Indian Act, sc 1951, c. 29, s. 87; repeated by The Indian Act, rsc. 1952, c. 149, s. 87.

6Indian Act, rsc 1970, c. 1-6. :

| 128 Native Liberty, Crown Sovereignty | A similar confirmation had been made relative to the prairie provinces in 1930 by the imperial Parliament. The Constitution Act, 1930,’ had enacted, in section 13: In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which

the said Indians may have a right of access. , This legislation merely confirmed what the 1803 and 1821 imperial acts had established. The crimes and offences exception poses an ongoing interpretation problem in that a given activity can bear a civil as well as a criminal

aspect.° In the recent series of leading Supreme Court of Canada hunting offence cases, Kruger v. R.,’ Dick v. R.,'° and Jack v. R.,'! hunting

offences contrary to provincial game laws were treated as offences, and convictions of Indians were upheld. From another aspect, it could -

conceivably have been argued that the accused Indians had been _ hunting upon unceded Indian territory pursuant to an authorization under Indian law. From this alternative aspect, the same offences could | have taken on a civil law complexion. Therefore it might have been | argued, though it was not in fact argued, that the imperial law confirming the civil right of the aboriginal peoples to govern themselves was

| in conflict with the imperial and Canadian law deeming that the natives were subject to the “offences” provisions of colonial governments and their successors. Inasmuch as the application of the criminal law was an imperial government exception to the previously absolute autonomy of aboriginal peoples under imperial law, the outcome of the conflict - “An Act to Confirm and Give Effect to Certain Agreements Entered into between the Government of the Dominion of Canada and the Governments of the Provinces of Manitoba, British Columbia, Alberta, and Saskatchewan Respectively, 20 & 21 Geo. v, c. 26 (1930); short title the British North America Act, 1930, renamed the Constitution Act, 1930 by the schedule to the Constitution Act, 1982. Section

13 of the Manitoba Agreement appears as section 12 in each of the Alberta. and Saskatchewan agreements.

°f1978] 1 scr 104. "See the discussion of this dual-aspect problem in, for example, 2. v. Isaac (1975),

13 Nsk (2d) 460 (App. Div.), 467-8, 474, 490, 493-4, 496-9.

1071985] 2 scr 309.

: [1985] 2 scr 332.

129 Discontinuity: The Anti-Thesis

would seem foretold. If on the one hand the offending activity was genuinely in pith and substance an offence against the state, then

| the convictions would seem unimpeachable. On the other hand, Dickson J. in the Kruger case did say that a conceptual line could _ be crossed, beyond which upholding convictions was tantamount to “preserving moose before Indians.”'* By building upon that metaphor,

circumstances might be envisaged in which upholding a hunting | offence conviction would be so destructive of the native civil polity as to be unconscionable. In that event the civil aspect of the offence could be seen as dominating the criminal or quasi-criminal aspect, and convictions might be overturned. It would seem to be a question of degree, turning very much upon the particular circumstances of _ each case. As Dickson J. stated in Kruger, a “global solution”? does

not seem feasible. |

No case has litigated this argument on the basis of the natives’ civil jurisdiction under imperial statutes. Rather, the traditional defence

has been that provincial game laws allegedly could not encroach upon | federal legislative competence under section 91 (24) of the Constitution

Act, 1867. This perennial argument over federal versus provincial distribution of powers has been singularly unsuccessful in obtaining acquittals.'* This was consistent with the constitution. The normal imperial law presumption has been that provincial laws of general ‘Supra note 9, at 112. See also r. v. Sparrow, [1987] 1 cuir 145 (Bocca), 160-5. See also, rR. v. Denny (1990) unreported as yet (Ns App. Div.). In Denny it was held that a treaty extinguished only the aboriginal rights identified in it, and that accordingly certain accused Nova Scotia Indians still enjoyed an unextinguished aboriginal right to fish in waters not part of an Indian reserve in the Indian Act sense. The fishing activity of the accused Indian individuals constituted

an offence contrary to federal and provincial conservation laws. The court, however, held that those laws were ultra vires to the extent that they failed

to allow for the constitutional priority under section 35 of the Constitution _ | Act, 1982, of the Indians to fish for food purposes. This constitutional priority | was held to apply to any surplus of the fishery resource left after the reasonable

YTbid., at 109. }

aspect of the legislation protecting legitimate conservation needs was satisfied.

‘For example, zr. v. Hill (1908), 15 oLr 406 (ca), 409-15; Rr v. Stoney Joe (1910), Public Archives Canada, rc 10 vol. 6732, file 420-2a (Alta sc), 4, 7-8; Rk v. fim (1915), 22 scr 106 (sc), 107-8; Rk. v. Martin (1917), 41 oLr 79 (App. Div.), 82-3;

Sero v. Gault (1921), 50 oLr 27 (uc), 28-9, 31~4; R. v. Groslouis (1944), 81 ccc : 167 (Que. Ct of Sessions), 171-3; Campbell v. Sandy, [1956] own 441 (cc), 443; R. v. Williams (1958), 120 ccc 34 (Mag. Ct); rR v. George (1966), 55 DLR (2d)

, 386 (scc), 397-8; R. v. Peters (1966), 57 wwr 727 (yrca), 730; R. v. Moses, [1970] 3 or 314 (nc), 320-2; rR. v. Dennis, [1975] 2 wwr 630 (Bc. Prov. Ct), 642-5; R. v. Isaac, supra note 8, at 467-8, 490, 493-9; Kruger v. R., supra note 9, at 106-8, 111-12, 114, 116; Procureur Général du Québec v. Paul, (1977) csp 1054, 1056-9; R. v. Taylor (1981), 34 or (2d) 360 (cA), 368; Rr. v. Horse, (1985) 1 wwe 1 (Sask.

130 Native Liberty, Crown Sovereignty : application concerning offences apply to Indians. No federal law rebuts

that presumption; indeed, section 88 of the federal Indian Act has reinforced it. The real paramountcy issue — that between previously | established imperial law respecting the aboriginal peoples’ civil

jurisdiction on the one hand and federal-provincial laws on the other | | hand — has never been tried. Lawyers argue that their clients are not subject to provincial laws because Indians are a federal matter ~— a type of “federal immunity” argument under which Indians have,

not an independent constitutional immunity, but only a vicarious protection under the federal government. The untried alternative

would be to argue that the Indian accused has an independent constitutional immunity rather than this vicarious federal immunity. Instead of relying upon the natives' independent civil jurisdiction, recently there has emerged a “public-policy” type of defence that limits the application of the federal-provincial power over offences. Although it is still too early to assess the full ramifications, the Supreme Court seems prepared, at least in some cases,” to rule that legislation

infringing unnecessarily and unreasonably against hunting, fishing,

and other traditional activities by natives will be read down by | courts in the light of the priority lent to such activities by section 35 of the Constitution Act, 1982. The court appears to be trying to

balance its concern for conservation and enviromental protection against a concern for native culture.

oe cA), aff'd doc. no. 19164, Supreme Court of Canada, January 28, 1988. In contrast, provincial laws not involving “offences” do not necessarily apply to Indian territory: , see, for example, Pap-Wee-In v. Beaudry (1933), 1 wwr 138 (Sask. kB), 138-9, contra R. v. Gingrich (1958), 29 wwr 471 (Alta App. Div.) 474; Re Williams Estate (1960), 32 wwr 686 (Bcsc), 687-8; Surrey v. Peach Arch Enterprizes Ltd. (1970), 74 wwe 380 (Bcca), 383-4, 386-7, contra Nelson v. Children’s Aid Society of Eastern

_ Manitoba, [1975] 5 wwr 45 (Man. ca), 51; Re Bell (1977), 16 or (2d) 197 (sc), , 200-2; Millbrook Indian Band v. Northern Counties Tenancies Bd. (1978), 84 DLR 174 (nssc), 181-3; Palm Dairies Ltd. v. R. (1978), 91 pLR (3d) 665 (Fc), 670,672: Sandy v. Sandy (1979), 25 or (2d) 192 (Hc), 196-7; Western International Contractors Ltd. v. Sarcee Developments Ltd., [1979] 3 wwr, 631 (Alta App. Div.), 633-4, 636-7, 642-643, 644-5; rk. v. Smith (1980), 113 DLR 572 (Fca), 571. The application of provincial laws that do not involve “offences” is dealt with in detail in the following

section of this chapter. The basic point there is that even though domestic courts have been somewhat inconsistent in the application of non-native civil laws to natives, this is only because the courts have not been informed regarding

the constitutional legislation and precedents that settle the issue. ,

ac Que. v. Sioui (1990) May 24, 1990, unreported (scc); rR v. Sparrow (1990) May 31, 1990 unreported (scc). But see, rR. v. Horseman (1990) May 3, 1990,

unreported (SCC). , :

131 Discontinuity: The Anti-Thesis

a | RESPONSIBLE GOVERNMENT, AND ENCLAVES

Was it the intent of the imperial government that the previously established imperial law be rendered subject to change by colonial governments as a result of the introduction of responsible government?

| The answer is an unqualified no. The imperial government was aware of the risk,’® and was careful to impose constitutional terms and conditions

to ensure continuity of the natives’ right not to be molested or disturbed

in the possession of yet unceded Indian territory.’’ Unfortunately some , jurists recently have not read the legislation introducing responsible

: government in pari materia with the qualifying constitutional terms and conditions respecting the natives’ right. |

Indeed, Judson J. of the Supreme Court of Canada not only neglected to address the constitutional terms and conditions, but in

effect misconceived the date for the introduction of responsible government in British Columbia. In the leading case Calder v. Ac for

Bc, decided in 1973, he took judicial notice of the supposed fact that the colonial government of British Columbia before confederation had been “sovereign.”'® Actually, not only was the province then not

sovereign, it had not even begun to be a responsible government,

as article 14 of the British Columbia Terms of Union in 1871 had | made clear:

7 The Constitution of the Executive Authority and of the Legislature of British ~ Columbia shall, subject to the provisions of “The British North America Act,

1867,” continue as existing at the time of the Union until altered under ,

| the authority of the said Act, it being at the same time understood that the Government of the Dominion will readily consent to the introduction of responsible government when desired by the inhabitants of British Columbia,

and it being likewise understood that it is the intention of the Governor of British Columbia, under the authority of the Secretary of State for the Colonies, to amend the existing Constitution of the Legislature by providing |

_ that a majority of its members shall be elective.!® ‘Canada, Report on the Affairs of the Indians in Canada, 1847, appendix tT, containing

an extract from the “Report of the Select Committee of the House of Commons

| (UK) on the Aborigines of the British Settlements,” 26 June 1837. , '7See the second section in chapter 3.

'8[1973] scr 313, 333, 344. In terms of constitutional history, the alternative view

put forward by Hall J. in this case is undoubtedly more right: ibid., at 406:

See the first section in chapter 2. , “Order of Her Majesty in Council Admitting British Columbia into the Union, “A Governor has no powers to legislate other than those set out in his Commission.”

rsc 1970, app. un, no. 10, pursuant to the Constitution Act, 1867, s. 146; renamed

in the schedule to the Constitution Act, 1982 (emphasis added).

| 132 Native Liberty, Crown Sovereignty The erroneous assumption of Judson J. was of consequence. On | the basis of it some members of the court inferred that certain colonial government legislation inconsistent with aboriginal rights implicitly —

judges, Judson J. held: | |

extinguished the rights. Thus, speaking for himself and two other

, The result of these [colonial government] proclamations and ordinances was stated by Gould J. at the trial in the following terms. I accept his statement,

as did the Court of Appeal: “The various pieces of legislation referred to above are connected, and in many instances contain references inter se, especially xm. They extend back well prior to November 19, 1866, the date

_ by which, as a certainty, the delineated lands were all within the boundaries , | of the Colony of British Columbia, and thus embraced in the land legislation of the Colony. All thirteen reveal a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any conflicting interest, including one as to ‘aboriginal

title, otherwise, known as the Indian title’ to quote the statement of claim.”

Judson J. later summarized the position as follows: “In my opinion, in the present case, the sovereign authority [that is, the colonial government] elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe |

might have had, when, by legislation, it opened up such lands for _ settlement, subject to the reserves (for particular bands specifically) set aside for Indian occupation.”*' Aboriginal rights upon this view

were terminated relative to the Indian territory constituted under | previously established imperial law. But here one must tread carefully.

addressed. | Since the court did not address the relevant imperial law constituting

| British Columbia as Indian territory, it cannot be assumed that Judson J. would have decided the same way had such legislation been

The same erroneous position on colonial government sovereignty

was taken in the 1984 Ontario High Court case AG Ont. v. Bear Island

| Foundation.** Here the court said:

I am of the opinion that the Ontario laws in question were laws of general application, validly enacted within Ontario’s area of general legislative competence, not inconsistent with valid Canadian [that is, federal govern- ,

| *°Supra note 18, at 333 (emphasis added). Two judges concurred with Judson

J, while two other judges sided with Hall J. , “1Tbid., at 344. | |

** (1984), 49 or (2d) 353 (Hc), affirmed (1989) 68 or (2d) 394 (ca), 410, 413.

133 Discontinuity: The Anti-Thesis

| ment] laws, and therefore able, from a constitutional point of view, to extin-

, guish aboriginal rights in the Land Claim Area. This is true whether or not the lands were ceded or unceded Proclamation [that is, Royal Proclamation

of 1763] lands at the time the laws in question were passed.”

| In the British Columbia case Judson J. had prefaced his conclusion with a finding that the Royal Proclamation of 1763 was not applicable in that province.** However, according to this Ontario decision the

same result existed even where the proclamation did apply. There were two distinct bases for the Ontario decision: first, that provincial law per se could override the Indian right; and second,

: that provincial law could also do so in virtue of federal government legislation expressly making such law applicable. Thus Steele J. in the Bear Island case held: “Therefore, I conclude that a valid provincial

law of general application and administrative acts thereunder, both independently and as a function of s. 88 of the Indian Act [enacted

by the federal government], operate de facto to limit, restrict, exclude

or abrogate the exercise of aboriginal rights.”*° , , : In this light it is apparent that ultimately the significant issue reduces

to the constitutional capacity of the federal government, even when , the law encroaching the natives’ jurisdiction is provincial. That is,

there can be no point in arguing that the provincial government was powerless to interfere with the Indian right on the ground that Indians are a federal matter, because even if that were conceded the

, same provincial laws could still be applied pursuant to the federal goverhiment’s permission. Chapter 3 has already analysed the imperial

, legislation that establishes the continuing constitutional incapacity of the federal government to abrogate the aboriginal right of self-

government. Furthermore, in the nineteenth century the idea that the introduction of responsible government had pre-empted the binding effect of the previously established imperial law respecting aboriginal

rights was rejected in the Privy Council.*°

3Tbid., at 475. , ,

“Supra note 18, at 323. Contra Hall J. who held that the proclamation did apply

text. | |

to British Columbia, and that the colonial government could not legislatively extinguish the Indian right: Ibid., at 394, 401-2, 404, 406. The court divided evenly on this point.

**Supra note 22. ,

*6 St Catherine’s Milling © Lumber Co. v. R. (1888), 14 ac 46 (Pc). See also AG Can.

v. AG Ont., [1897] ac 199 (pc). These cases are analysed fully in the subsequent

134 Native Liberty, Crown Sovereignty Nevertheless, in the 1973 Calder case and — even more important _ —in the 1974 Cardinal?’ case, the Supreme Court of Canada seemingly revived the idea. Therefore a review of the earlier case law is necessary.

Lord Watson in 1888 had ruled that the “legal consequences” of any Indian treaty were that thereafter the crown could possess and develop the ceded Indian territory, which in virtue of the treaty had ceased being Indian territory.*”? He found that before the particular | treaty involved in the St Catherine’s case had been made in 1873, “The

ceded territory was at the time of the union [confederation in 1867], ,

land vested in the Crown, subject to ‘an interest other than that of the Province in the same,’ within the meaning of sect. 109; and now

must belong to Ontario in terms of that clause.”°° The dispute in that case had arisen because the federal government

had assumed that the effect of the treaty had been to permit the crown in right of the federal government to deal with the land, and as Lord Watson observed, “Acting on the assumption that the beneficial , interest in these lands had passed to the Dominion [that is, federal] Government, their Crown Timber Agent, on the Ist of May, 1883, issued to the appellants, the St Catherine’s Milling and LumberCompany, _ , a permit to cut and carry away one million feet of lumber from a specified portion of the disputed area.”*! Lord Watson held, however,

that the legal consequence of the treaty had been that the provincial _ government, not the federal government, had acquired the right to grant the timber licence when, “[b]y the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other

purpose as to Her Majesty might seem fit.”* The basis for the Indians exclusive right prior to the treaty was understood by Lord Watson as being the previously established imperial law. He said, “Whilst there

have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general

27 Cardinal v. AG Alta., [1974] 2 scr 695, aff'd; Four B. Manufacturing Ltd. v. United

Garment Workers of America, [1980] 1 scr 1031. , *8Supra note 26, at 52. , }

, *°Tbid., at 52, 54, 58, and 60. See also 4c Can. v. ac Ont., supra note 26, at 205-6, 210-11. °

Supra note 26, at 58. ‘bid., at 52. *“Tbid., at 60. , ,

135 Discontinuity: The Anti-Thesis

provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown.”°°

The point was that neither the federal nor the provincial government _ could deal with the land prior to the treaty. This the Royal Proclamation of 1763 stood for: the imperial recognition of pockets of yet unceded

Indian territory. Nevertheless, the Supreme Court of Canada in the 1974 Cardinal case held that there were no-“enclaves within a Province

by it.”°* | _

within the boundaries of which Provincial legislation could have no application ... even though Indians or Indian Reserves might be affected

The difficulty posed by the Cardinal case is that the Privy Council in the St Catherine’s case had previously endorsed the existence of enclaves, at least metaphorically speaking, by recognizing and affirming the Royal Proclamation of 1763. The difficulty is resolved when one realizes that the Cardinal case was speaking in terms of federal enclaves,

whereas the St Catherine’s case had been speaking in terms of imperial | enclaves. To see this, it will help to recall the general provision made

by the proclamation that “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting ,

Grounds.” The intent of the proclamation was to ensure that the collectivities known as nations or tribes were not “molested or disturbed.”

It manifestly defeats that intent to deny the natives’ jurisdiction to make and apply their own civil laws to their own civil affairs by the wholesale application of laws of general application made by federal and provincial governments. The task now is to see whether the St Catherine's and Cardinal cases can be reconciled in a way that respects the proclamation’s legislative

intent. |

In the crucial passage quoted above from the Cardinal case regarding

“enclaves,” the court referred to “Indian reserves.” It did not refer to unceded Indian territory reserved for aboriginal peoples in general pursuant to the Royal Proclamation of 1763. From this perspective, only lands set apart as Indian reserves for particular bands subsequent

to the proclamation, and administered pursuant to the federal Tbid., at 54.

_ “Supra note 27, at 703 (emphasis added).

Royal Proclamation of 1763, rsc 1970, app. u, no. 1, at 127.

, 136 Native Liberty, Crown Sovereignty , government’s Indian Act,” fell within the intended scope of the anti-

enclave doctrine. This explanation, furthermore, is consistent with , the section under construction in the case, namely section 88 of the Indian Act. That section had deemed that provincial laws of general application applied to “Indians.” But since the Indian Act itself was_ concerned only with Indian reserves,®’ not with unceded Indian territory | under the proclamation, the inference can be made that section 88 was correspondingly intended to be referable only to Indians in relation |

, territory.” | | , to Indian reserves, not to Indians in relation to unceded Indian

| If that is correct, problems of overlapping jurisdiction remain to be sorted out. That is, situations would exist in which the same land

, might be argued to be both unceded Indian territory and an Indian | reserve, having never been ceded, but yet having been specifically

designated subsequent to the proclamation as an Indian reserve for | Indian Act purposes.” In such situations the overlap would be resolved

by recognizing the paramountcy of the imperial legislation when in conflict with the domestic Indian Act. Since the court in the Cardinal

esc 1970, c. 1-6. .

) *Ibid., at s. 2(1) “band” defined, “Indian” defined, “reserve” defined. | | It also can be argued that section 88 of the Indian Act has built into it a saving _ provision to protect the aboriginal right of selfgovernment in relation to yet unceded Indian territory. Section 88 provides that laws of general application

do not apply to Indians in the exceptional case when an “Act” of the federal | government makes provision for the same matter. The 1868 Indian Act [An Act Providing for the Organization of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordinance Lands, sc 1868,

, c. 42, s. 6] applied to both Indian territory and Indian reserves, and continued the previously established imperial law in relation to the Indian territory. The Indian Act, sc 1876, c. 18, ss. 6, 99, applied only to Indian reserves, not to Indian territory, and expressly saved the 1868 act to the extent that the earlier | act made provision for matters not inconsistent with the 1876 act. Thus the | Indian territory and the previously established imperial law were continued and remain outstanding as the still-unrepealed portion of the 1868 Indian Act. All Indian acts since have been the same as the 1876 act in terms of application.

The 1868 act remains binding in terms of section 88 of the Indian Act, Rsc

1970, c. 1-6. The aboriginal right of self-government in relation to the Indian territory as constituted by imperial constitutional law has therefore been recon-

stituted as federal domestic law, and section 88 must be read subject to it. Many such instances of combined Indian territory and Indian reserve status exist, since it was common practice for tribes to surrender the bulk of their Indian territory except for a remainder held back; this remainder was then treated as an Indian reserve for Indian Act purposes, even though its former

legal status was not changed or even remarked upon in the treaty process. : Other Indian territory as an administrative expedient simply came to be treated

any treaty arrangement. - a

as. Indian reserves, even though the Indian occupants have never entered into ,

| 137 Discontinuity: The Anti-Thesis case did not consider the imperial legislation, the Cardinal case left

subject to it. | , | the issue open. I submit that the imperial legislation is constitutionally

binding, and that therefore the Indian Act would have to be read

Contrary to this submission, the trial court in the Ontario Bear Island ! case purported to make the federal-provincial domestic legislation ascendant relative both to Indian reserves and to Indian territory.” Steele J., who was affirmed in the result on appeal, thus held: “A province cannot enact legislation in relation to “Lands reserved for the Indians” or “Indians,” but this does not mean that either Indians, Indian Act reserves or unceded Proclamation lands reserved for Indians | became federal enclaves immune from the operation of valid provincial law.”4! The phrase “or unceded Proclamation lands” broke new ground.

Steele J. cited in authority the following: “(With respect to Indian Act reserves, see Cardinal v. a.G. Alta., [1974] 2 s.cr. 695; Four B. Manufacturing Lid. v. United Garment Workers of America et al., [1980] 1 s.cr. 1031, and Sandy v. Sandy (1979), 27 oR. (2d) 248).”* As Steele

j. here acknowledged, the authority cited extended only to “Indian Act reserves.” Without citing any authority for doing so, the trial court | in the Bear Island case extended the anti-enclave doctrine to include,

as we have noted, “unceded Proclamation lands reserved for Indians.” | It then concluded: “Provincial legislation applies unless there is valid federal legislation which is inconsistent and paramount.” This is the | crux of the problem. The court thought only in terms of “federal” enclaves and “federal” legislation. The relevant enclaves and legislation that are both “inconsistent and paramount” are “imperial,” not federal.

The imperial legislation constituting pockets of independent Indian

jurisdiction simply was not addressed. : |

Pre-confederation Ontario was not understood to be sovereign until the Bear Island case. Rather, as we have noted, the provincial power

21bid. |

| was well understood as being constitutionally subject to“ the previously

Supra note. 23 (emphasis added). Supra note 22, affirmed (1989), 68 or (2d) 394 (ca).

620. ,

®Ibid. (emphasis added). “Supra notes 26-33. See also, Church v. Fenton (1878), 28 ucce 384, 388; ac Ont. v. Francis (1889) Archives Ontario, Irving Papers, box 43, file 42, item 9 (Ont. HC); Mowat v. Casgrain (1897), 6 QLR 12 (ca), 19, 21, 24-6; Ontario Mining Company

v. Seybold (1900), 32 or 301 (Div. Ct), 302, [1903] ac 399 (rc), 82; Canada v.

Ontario, [1910] ac 637 (pc), 644, 646; Doherty v. Giroux (1915), 24 Qxp 433 (ca), 436; R. v. Lady McMaster, [1926] Ex. cr 68, 72, 74; Rr. v. White (1964), 50 DLR (2d) 613 (BccA), 618, 630, 634, 636, 638, 643, 646, 648-9, 651, 665; Brick Cartage | Lid. v. rR, [1965] 1 Ex. cr 102, 105-6; Isaac v. Davey (1974), 5 or (2d) 610 (ca),

, | 138 Native Liberty, Crown Sovereignty | established imperial law respecting the Indian right.” _ Ontario’s pre-confederation power in relation to crown land had been granted to it by the imperial government pursuant to the Union Act, 1840.*° This finding constituted the primary*’ ratio decidendi of the Privy Council’s ruling in the St Catherine’s case. Delivering the __

| Privy Council’s ruling in 1888, Lord Watson began: By an Imperial statute passed in the year 1840, the provinces of Ontario

, and Quebec, then known as Upper and Lower Canada, were united under , the name of the Province of Canada, and it was, inter alia, enacted that, , in consideration of certain annual payments which Her Majesty had agreed to accept by way of civil list, the produce of all territorial and other revenues at the disposal of the Crown arising in either of the united provinces should be paid into the consolidated revenue fund of the new Province ... In other

words, all beneficial interest in such lands within the provincial boundaries

* Pre-confederation Ontario enacted legislation the better to administer previously

enacted imperial law regarding Indians and lands reserved for the Indians, but it did not and could not purport to repeal that previously established imperial . law: see, for example, An Act for the Protection of the Lands of the Crown in This Province from Trespass and Injury, s Prov. uc 1839, c. 15; An Act to Explain and Amend an Act of Parliament of the late Province of Upper Canada, Passed in the Second Year of Her Majesty’s Reign, Intituled “An Act for the

, Protection of the Lands of the Crown in This Province from Trespass and Injury, and to Make Further Provision for That Purpose, s Prov. c 1849, c. 9; An Act for the Protection of the Indians in Upper Canada from Imposition,

, and the Property Occupied or Enjoyed by Them from Trespass and Injury, s Prov. c 1850, c. 74; An Act to Encourage the Gradual Civilization of the Indian

Tribes in This Province, and to Amend the Laws Respecting Indians, s Prov. c 1857, c. 26; An Act Respecting the Civilization and Enfranchisement of Certain

Indians, csc 1859, c. 9; An Act to Prevent Trespasses on Public and Indian Lands, csuc 1859, c. 81; An Act Respecting the Management of the Indian Lands

and Property, s Prov. c 1860, c. 151. The last mentioned provincial enactment marked the highest point achieved by any provincial government in the preconfederation era, relative to exercising legislative power with respect to Indians and lands reserved for the Indians. Its section 1 allowed the province to appoint the superintendent of Indian affairs in virtue of making the provincial commissioner

of crown lands ex officio superintendent as well. ,

*An Act to Re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada, 3 & 4 Vict., c. 35 (1840), s. 52. “Supra note 26, at 55-9. The secondary ratio decidendi in the St Catherine’s

case was the legal consequence of the treaty: per Lord Watson, who held “Although

the present case related exclusively to the right of the Government of Canada

to dispose of the timber in question to the appellant company, yet its decision | necessarily involves the determination of the larger question between that

, government and the province of Ontario with respect to the legal consequences

of the treaty of 1873,” supra note 26, at 52-3. | |

139 Discontinuity: The Anti-Thesis

| belonging to the Queen, and ezther producing orcapable of producing revenue, passed to the Province, the title still remaining in the Crown.*

, The “civil list,” Lord Watson found, had been exchanged for a provincial right to territorial revenues. That is, in virtue of the Union Act the

province was to pay the salaries of the administrators of the civil government which formerly the imperial government had paid, the

administrators being those listed on this civil list. ,

In exchange for this financial burden the province received the present and future revenue accruing to the crown land — that is, “either producing or capable of producing revenue.” It was this present- | future alternative that was essential to the aboriginal rights aspect

of Lord Watson’s decision. Lord Watson held that aboriginal rights | were a burden® on the crown’s title’? subject to which the crown *8Tbid., at55 (emphasis added). This pre-confederation provincial right to “territorial revenues” was termed “a present proprietary estate” for the purpose of construing

section 109 of the Constitution Act, 1867 which enacted that the province kept

the land belonging to it before confederation; ibid., at 58. *The Indian burden on the crown’s title was termed a “personal and usufructuary right”: S¢ Catherine's, Supra note 26, at 54, 58. See also, An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario Respecting Indian Reserve Lands, sc 1924, c. 48, preamble. Contra, Judson J. in the Calder

case, supra note 18, at 328, where this judge said it did not help to call the Indian claim a “usufructuary right.” But see, Hall J. ibid., at 390; and Re Paulette, [1976] 2 wwe 193 (Nwrca), 241, 246; Mowat v. Casgrain (1897), 6 QLR 12 (ca), 24, 26; Ontario Mining Co. v. Seybold (1901), 32 scr 1, 13; Doherty v. Giroux (1915), | 24 Qxs 433, 436; AG Que. v. AG Can. (1920), 56 DLR 373 (scc), 377; Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 ac 399 (Pc), 402-4; Sobhuza mv. Miller, [1926] ac 518 (pc), 525; Sunmona v. Disu Raphael, [1927] ac 881 (pc), 883, 884;

, St Ann’s Island Shooting ©& Fishing Club Ltd. v. rk. (1949), 2 ptr 17 (Ex. cr), 24; | Warman v. Francis (1958), 20 DLR (2d) 627 (NBsC), 637, 640; R. v. George, [1964]

1 or 24 (Hc), 26-7; Isaac v. Davey (1974), 5 or (2d) 610 (ca), 620-1; R. v. Isaac : _ (1975), 13 Nsr (2d) 460 (App. Div.), 469. The passages cited all categorize the

_ aboriginal rights as being either “usufructuary” or more simply “the usufruct.” | The word “personal” in Lord Watson’s phrase “personal and usufructuary right”

meant that aboriginal rights were for the personal enjoyment of the tribe in the sense that the land to which such rights were appurtenant could not be sold by the Indians to any third party. Only the crown could purchase it, and thereby extinguish aboriginal rights. This feature of inalienability is the sole ~

restriction on the plenary nature of the aboriginal rights, and it arises only . as a prohibition against giving up the right to anyone other than the crown. Regarding the definition of “personal,” see, AG Que. v. AG Can., [1921] 1 ac 401

(pc), 408, “a personal right in the sense that it is in its nature inalienable except by surrender to the Crown”; appl’d, Re Paulette, supra at 241; rR. v. Smith

(1980), 113 pLR (3d) 572 (rca), 544. Regarding the feature of inalienability per se, see: Royal Proclamation of 1763, rsc 1970, app. u, no. 1, at 128; An Act for the Protection of the Indians in Upper Canada from Imposition, and , the Property Occupied or Enjoyed by Them from Trespass and Injury, s Prov.

140 Native Liberty, Crown Sovereignty

: held its beneficial interest, the legal consequence of the treaty being that the province could thereafter open the land up for settlement. That is, the legal consequence of the treaty was to convert a future prospect into a present source of revenue — the territory stopped being “capable of producing revenue” and started “producing” revenue

in virtue of the treaty. 7

Lord Watson made quite clear that the primary and secondary reasons for his judgment, regarding the federal-provincial distribution of power

and aboriginal rights respectively, were to be understood together.

He said: “Although the present case related exclusively to the right of the Government of Canada to dispose of the timber in question , to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and | the province of Ontario with respect to the legal consequences of the c 1850, c. 74, ss. 1-2; An Act to Prevent Trespasses on Public and Indian Lands,

csuc 1859, c. 81, ss. 21-2; An Act Respecting the Management of the Indian , Lands and Property, s Prov. c 1860, c. 151, ss. 2, 4; An Act providing for the Organization of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordinance Lands, sc 1868, c. 42, s. 6; An Act to Amend and Consolidate the Laws Respecting Indians, sc 1876, c. 18, s. 99; , An Act to Amend and Consolidate the Laws Respecting Indians, sc 1880, c. 28, ss. 17, 19, 36; Indian Act, rsc 1886, c. 43, ss. 16, 18, 38, 136; Indian Act, rsc 1906, c. 81, ss. 21, 23, 33(2), 48, 126, 165; Indian Act, Rsc 1927, c. 98, gs. 21, 23, 34(2), 50, 117, 156; Indian Act, rsc 1952, c. 149, ss. 20, 24, 37; Indian Act, rsc 1970, c. 1-6, ss. 20, 24, 37; Bown v. West (1846), 1 & & a 117 (uc), 120-1; Sheldon v. Ramsay (1852), 9 ucgp 105, 122-4, 133-6; rR. v. Baby (1855), 12 ucgs 346, 353, 359; Totten v. Watson (1858), 15 ucgp 392, 396; McDiarmid

v. McDiarmid (1862), 9 Ch. 144 (uc); ac Ont. v. Price (1868), 15 Ch. 304 (Ont.), | 304-5; Fegan v. McLean (1869), 29 ucgs 202, 204; St Catherine's Milling © Lumber

Co. v. R. (1886), 13 oaR 148, 149; (1887), 13 scr 577, 608, 626, 639, 662; R. v. Lady McMaster, [1926] Ex. cr 68, 72, 74; St Ann’s Island Shooting & Fishing Club Ltd. v. r., [1950] scr 211, 213, 215, 217, 219; Brick Cartage Ltd. v. x, [1965] | 1 Ex. cr 102, 105, 106; Canard v. ac Can., [1972] 5 wwe 678 (Man. ca), 690; Calder v. ac for Bc, [1973] scr 313, 323-4, 376; Isaac v. Davey (1974), 5 or (2d)

| 610 (ca), 620-1. ,

°That the crown has always held the “title” to unceded Indian territory is settled law: Jackson v. Wilkes (1835), 4 ucr (os) 142 (KB.), 150; Bown v. West (1845), 1 gp (os) 639 (Ont. Ch.p), 654; (1846), 1 = & A117 (uc), 120; rR v. Baby (1855), 12 ucgs 346, 353; Totten v. Watson (1858), 15 uces 392, 395; rR. v. Great Western Rwy. Co. (1862), 21 uces 555, 578; Westbrooke v. ac (1865), 11 Ch. 330 (Ont.), 331; Fegan v. McLean (1869), 29 uces 202 (ca), 204; Church v. Fenton (1878), 28 uccp 384, 388; St Catherine’s Milling @ Lumber Co. v. R. (1885), 10 or 196 (Ch.p), 230, 235, (1886), 13 oar 148, 156, 157, 160, 161, 167, 170, (1887) 13 scR 577, 599, 600-1, 612, 639, 643-6, 648~9, 650, 651-2, (1888), 14 ac 46 (vc), 51, 52, 54-5, 56; ac Ont. v. Francis (1889), Archives Ontario, Irving Papers, box

42, file 42, item 9, at 28-9; ac Can. v. ac Ont., [1897] ac 199 (Pc), 205, 206, 210-11; Mowat v. Casgrain [1897], 6 QLR 12 (ca), 21, 25-6; Can. v. Ont., [1910] AC 637 (P.c.), 644-5; Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 ac 399

141 Discontinuity: The Anti-Thesis

| treaty of 1873.”! It was not necessary for him to decide the “precise quality of the Indian right”* that had existed before a surrender since that right was extinguished, but it was necessary that he decide , the “legal consequences” of the treaty in relation to the issue of federal-

provincial distribution of powers. ,

He found that after the treaty the provincial government rather than the federal government could deal with the land: after, but not before.’ This contingent character of the crown’s right actually to deal with the land was further stressed by Lord Watson’s reference to “the right of the provinces to a beneficial interest in these lands available to them [the provinces] as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.”°4 It seems improbable that the Supreme Court of Canada should have intended in the Cardinal case to have overruled the Privy Council |

in the St Cathenne’s case. The earlier case had been accepted and

(pc), 402—4; Brick Cartage Lid. v. R, [1965] 1 Ex. cr 102, 106; Calder v. ac for , Bc, [1973] scr 313, 320, 376, 399; Isaac v. Davey (1974), 5 or (2d) 610 (ca), 620-1; x. v. Isaac (1975), 13 Nsr (2d) 460 (App. Div.), 497. For legislative confir-

mation that legal title to the fee is in the crown, see Royal Proclamation of 1763, rsc 1970, app. u, no. 1, 127 “reserved to them” [that is, not granted to the Indians]; An Act to Amend and Consolidate the Laws Respecting Indians, sc 1876, c. 18, s. 3(6) “reserve” means land “of which the legal title is in the | crown,” An Act to Amend and Consolidate the Laws Respecting Indians, sc 1880, c. 28, s. 2(6); Indian Act, Rsc 1886, c. 43, s. 2(k); Indian Act, rsc 1906,

c. 81, s. 2 (i); Indian Act, rsc 1927, c. 98, s. 2(j); Indian Act, rsc 1952, c. 149, , s. 2(1)(0); Indian Act, rsc 1970, c. I-6, s. 2(1)(0); Consolidated Assessment Act of Upper Canada, s Prov. c 1853, c. 182, s. 6(1); Assessment Act, so 1868-69, c. 36, s. 9(1); Assessment Act, Rso 1877, c. 180, s. 6(1); Assessment Act, Rso

1887, c. 193, s. 7(1); Assessment Act, rso 1897, c. 224, s. 7(1); Assessment Act, | RSO 1937, c. 272, s. 164(1) (2); Assessment Act, rso 1950, c. 24, s. 4; Assessment ,

Tbid., at 55. |

Act, rso 1960, c. 23, s. 4; Assessment Act, rso 1970, c. 32, s. 3. :

*'Supra note 26, at 53 (emphasis added).

The “civil list versus territorial revenues” exchange was further discussed and explained by Gwynne J. of the Supreme Court of Canada in Ontario Mining Company v. Seybold (1901), 32 scr 1, 20. Gwynne J. here disagreed with Lord

Watson that the province had under the Union Act acquired future as well as present territorial revenues. However, Gwynne J. was overruled and Lord Watson was reaffirmed, on appeal: Ontario Mining Company v. Seybold, [1903]

Ac 73 (pc), 81, per Lord Davey. | , ,

**Supra note 26, at 59. This passage was construed by Ferguson J. of the High Court of Ontario in AG Ont. v. Francis in 1889, supra note 50, at 29, as follows:

| “[T]he latter part of the passage [from Lord Watson’s reasons in St Catherine’s quoted immediately above] discloses the view of the court [Privy Council] as to the period at which the beneficial interest spoken of becomes available to the province as a source of revenue, namely, when the estate of the Crown

is freed from the Indian title.”

142 Native Liberty, Crown Sovereignty _

applied as a cornerstone of the law respecting aboriginal rights for almost a century. Therefore, of the possible interpretations of the _ Cardinal case the one least inconsistent with St Catherine’s must surely

be taken as closest to the true intent of the Supreme Court. Upon , this interpretation, as Steele J. in the Bear Island case correctly held,

the Supreme Court of Canada’s comment in Cardinal regarding “enclaves” meant only that there were no “federal enclaves.” That | is, the Indians’ jurisdiction to govern themselves independently of | federal and provincial laws of general application was not constituted upon the basis of “federal” law. The Supreme Court of Canada cannot, however, be said to have prejudged the effect of the imperial constitutional legislation and constitutional common law precedents, in a case in which neither was addressed. The fact that there are no “federal enclaves” does not necessarily mean there are no “imperial enclaves.” The error made by Steele J. lay in extending the negation of federal

enclaves to imperial enclaves. If and when the Supreme Court of Canada does assess its anti-enclave doctrine in the light of the imperial legislation, I suggest that the imperial legislation® and constitutional

common law precedents” will be found to preclude the application of federal and provincial laws to aboriginal peoples, at least when _ the aboriginal peoples’ laws actually conflict, in relation to the governing of yet unceded territory, with the particular federal or provincial laws.

In the meantime, the situation is disconcerting. On the basis of the Calder and the Bear Island cases, the federal and provincial govern-

_ ments have judicial support for assuming the power to sell unceded | Indian territory and the power to.apply their laws to aboriginal peoples in a way that overrides any conflicting aboriginal peoples’ jurisdiction. This is doubly unfortunate since, in the Calder case, Judson J. not _ only failed to address the imperial legislation and precedents but also

misconstrued the St Catherine’s case. He took from St Catherine’s a | passage that said that because of the civil list exchanged for territorial revenues, the province of Ontario had a “present proprietary estate,”°’

| but he ignored the counterbalancing St Catherine’s ruling that this , provincial present proprietary estate was not “available to them [the

, provinces| as a source of revenue” until “the estate of the Crown is disencumbered of the Indian title.”’* By this means St Catherine’s —

was made to stand for the very opposite of what Lord Watson had °° See, the last paragraph of the second section of chapter 3 above for a succinct list of the imperial legislative instruments in question.

*°’See the second section *7Supra note 26, at of 58.chapter , Oo1. 58Ibid., at 59.

143. Discontinuity: The Anti-Thesis

fully said. Judson J. thus first found: “It was held [in St. Catherine’s| that the Crown had at all times a present propnetary estate, which title,

after confederation was in the Province, by virtue of s. 109 of the

B.N.A. Act. The Indian title was a mere burden upon that title which, following the cession of the lands under the treaty, was extinguished.”

Although the finding by Lord Watson that the Indian claim was a “personal and usufructuary right” was the basis for the finding in St Catherine’s that the crown held subject to the Indian “interest” within

- the meaning of section 109 of the Constitution Act, 1867,°° Judson J. then dismissed that aspect of St Catherine’s as being irrelevant. He

said, “it does not help one in the solution of this problem to call it a ‘personal and usufructuary right.’ ”®' It had, however, been essential

to the solution offered by Lord Watson. For it was on the basis of recognizing the Indian claim assucha “right” that Lord Watson concluded :

that the Indian right meant that, “land vested in the Crown, [was] subject to ‘an interest other than that of the Province in the same,’ within the meaning of sect. 109.”°* Lord Watson thus had held that the crown was bound to respect the Indian right.

As Lord Watson further explained in the 1897 Privy Council case | AG Can. v. AG Ont,” “‘an interest other than that of the province in the same’ appears to them [their Lordships on the Privy Council] to denote some right or interest in a third party, independent of and capable of being vindicated in competition with the beneficial interest of the old province.” The key word here was “independent.”© By that word Lord Watson made clearer the meaning of the famous — passage in St Catherine’s wherein he had said “that the tenure of the

Indians was a personal and usufructuary right, dependent upon the | good will of the Sovereign.”°° How can the same right have been © both “independent” and “dependent” at the same time? Lord Watson’s

first point was that in its constitution the aboriginal right was , “dependent” on the “Sovereign” — that is, upon the imperial government. The imperial government had enacted the Royal Proclamation of 1763

and the various statutes reiterating it, and could at any time repeal

“Supra note 18, atnote 320. °° St Catherine’s, supra 30. : , ‘Supra note 18, at 328.

“Supra note 30. (emphasis added). , | ,

Supra note 26.

“Ibid., at 210-11 (emphasis added). The argument that the Indians were not “independent” had been raised and rejected in the 1773 Privy Council case Mohegan Indians v. Connecticut. See the

Supra note 26, at 54. | 7 discussion in the second section of chapter 1 above, at notes 75-104.

144 Native Liberty, Crown Sovereignty |

that legislation. Clearly this made the aboriginal right “dependent.” Lord Watson's second point was that when “in competition with” the colonial government, which was a subordinate not a sovereign government, the aboriginal “right or interest” was both “independent” and paramount. The paramountcy of this independent aboriginal right _ was found to be constitutionally affirmed, pursuant to section 109

of the Constitution Act, 1867.

The flaw in the reasoning of Judson J. was his erroneous assumption —

that the pre-confederation colonial government had been sovereign. The decision of Steele J. in the Bear Island case was flawed for precisely

the same reason — the mistaken attribution of sovereignty toa merely

subordinate government. , | Indeed, it was precisely because he misconstrued the word “independent” in Lord Watson’s decision that Steele J. in the Bear

Island case concluded that the aboriginal right of self-government

did not exist. Thus Steele J. held: ,

, In considering the clause “and to any Interest other than that of the Province in the same” in s. 109 of the Constitution Act, 1867, Lord Watson stated with respect to lands, in A.-c. Can. v. A-G. Ont., [1897] a.c. 199 at p. 219 (Indian

Annuities), that there was no independent interest conferred by treaties upon

_ Indian communities. There is also no independent interest in lands not so surrendered, merely a limited dependent interest, that is, aboriginal title.®’

Steele J. thus took Lord Watson’s term “independent,” put a “no”

in front of it, and then concluded that Lord Watson had meant “dependent.” Lord Watson in the 1897 Indian Annuities case had said

the Indian interest was independent of and paramount relative to | the colonial government interest in land both after as well as before confederation. Steele J. reversed Lord Watson’s point, interpreting it to mean that the Indians had “merely a limited dependent interest.” __ Under this misconstruction, section 109 of the Constitution Act, 1867 was taken by Steele J. to mean that the Indian interest was “subject to” the provincial interest, rather than the other way round. The liberty

thus taken with the wording of section 109 is patent. The section — said: “All Lands ... belonging to ... Canada ... at the Union ... shall

belong to ... Ontario ... subject to ... any interest other than that of the Province in the same [emphasis added].” On the basis of this : glaring misreading of Lord Watson, Steele J. then concluded, in the , "4G Ont. v. Bear Island Foundation, supra note 22, at 437 (emphasis that of the court).

145 Discontinuity: The Anti-Thesis

law, that:

only passages in Canadian legal history ever to have squarely addressed

the issue of the aboriginal right of self-government at constitutional ,

Although it was the custom in Canada not to interfere with the internal affairs of a local band or to extinguish aboriginal rights except by treaties, there was no legal right of internal administration or self-government by the local band. It was purely at the sufferance of the Crown, or, to use the words of the Royal Proclamation, “at the pleasure of the Crown.” It is clear that

| prior to the Constitution Act, 1982, Canada could have given Indians internal self-government, and in fact by the Indian Act it did give them limited rights. Just as a province could take away municipal rights, Canada could also have unilaterally taken away aboriginal rights. (There may be some question as

to Canada’s unilateral power to do so now in view of s. 35 of the Constitution Act, 1982.) Hence, the Indian nations or bands were not sovereign and their aboriginal rights could be extinguished unilaterally by validly enacted legislation

or treaties ... the Constitution Act, 1867, in its division of powers, did not

leave to the Indians any independent rights or area of competence.” , By wrongly assuming (as did Judson and Steele jj.) that federal and provincial governments have been sovereign, the consequence has

been the correspondingly wrong conclusion that a treaty is an option, rather than a necessary condition to land grants as confirmed by section

109 as interpreted by Lord Watson.” The anomalous result has been that federal and provincial governments habitually have continued _

to encroach upon the existing aboriginal right of self-government by selling yet unceded lands and thereby removing the territorial base | of the Indian jurisdiction, and by overriding aboriginal peoples’ laws __ in practice. I submit that this has been to “molest or disturb ... the several Nations or Tribes” contrary to the Royal Proclamation of 1763,

| contrary to the imperial statutes. constituting federal and provincial governmental powers, and contrary to the constitutional common law. | The solution, obviously, is to put the said imperial legislation and

| constitutional common law precedents before the courts in Canada. ‘8Ibid., 438-9 and 466. The trial court’s misapprehension of federal sovereignty ,

was affirmed on appeal: (1989) 68 or (2d) 394 (ca), at 413. |

The “option” approach to treaties denies that they have any “legal consequences”

at all. Since it views the colonial (federal and provincial) governments as possessing the right to deal with the land in the absence of a treaty, the Indian claim is a mere privilege. See Clark, Indian Title in Canada, chapter 3, “Right or Privilege,” 25-35; chapter 4, “Effect of a Grant of Unceded Indian Territory,”

| 37-63; chapter 5, “Onus of Proof,” 66-71; and chapter 6, “Extinguishment,” 73-93, where a fuller refutation of the “option” approach to treaties is undertaken.

146 Native Liberty, Crown Sovereignty

This has not been done before. When that has been achieved, the existing aboriginal right as an “imperial” enclave, not as a “federal” | enclave can be vindicated. a | It would be better, however, to avoid the use of the word “enclave”

entirely. It is a metaphor that has probably outlived its usefulness, though it has a persistent half-life.” Literally, “enclave” means “a portion

of territory surrounded by foreign dominions.” By this definition, the Supreme Court of Canada in Cardinal and Four B Manufacturing”

unquestionably was right when it settled that no enclaves exist in Canada. For the constitutional law of aboriginal rights does not suggest

that the Indian territories are surrounded by foreign dominions. In | imperial law and hence in Canadian constitutional law there is only one, unified, dominion — Canada. The aboriginal peoples and the lands reserved for them are in no sense foreign, nor are other Canadians

foreign. The people no less than the lands are Canadian, for all that they are subject to aboriginal rights. The use of the word “enclaves,” therefore, was never justified except when speaking metaphorically. As a metaphor, it was at least suggestive. For the constitutional law of Canada as settled by imperial legislation and precedents does define for constitutional purposes a set of existing aboriginal rights in relation to lands reserved for the use of the aboriginal peoples. Upon such lands such peoples have, among other rights, the existing aboriginal right of self-government. This constitutes a jurisdiction however, not an enclave. It would probably be better to avoid using the metaphor,

since it overstates the case. — : ,

See, for example, the 1989 book, Hogg, Liability of the Crown, 277, note 59: “Another area of federal common law is the law of aboriginal title: Roberts v. Canada [1989] 1 s.cr. 322,” and the text, also at 277, which states, “Although | the Court has never offered any criteria for the identification of these little enclaves of federal common law, it may be that the Court has in mind those few common law doctrines that cannot be altered by the provincial Legislatures” (emphasis added). Expanding upon Professor Hogg’s suggestion, an imperial

| common law “enclave” would be one that established a point of imperial law

| governing the powers of colonial governments, which could be binding upon federal as well as provincial legislatures. (The Roberts case cited by Professor Hogg has been referred, to in this book as Wewayakum Indian Band v. Canada (1989), 92 NR 241 (scc)). See the second section of chapter 1. "The Compact Edition of the Oxford English Dictionary, 1971.

“Supra note 27.

CHAPTER FIVE : Law Reform and the

| Negotiation Process

The previous chapters have identified the existing aboriginal right of self-government as legislatively confirmed by the imperial government

and recognized according to the common law of the constitution. Although in Canada this right has been recognized under imperial

legislation and constitutional common law precedents rather than at , domestic common law, it is nevertheless just as inherent and full as

_ that conceived at domestic common law by United States Courts. | The imperial legislative approach was simply to enact that the abo-

riginal peoples should not be molested or disturbed by colonial governments. The common law of the constitution confirmed that | the colonial governments have no sovereign authority. to interfere with that arrangement. By these means the aboriginal right of selfgovernment was confirmed as an open-ended residual jurisdiction, as in America, but with the added protection, not present in America,

of being in the constitution since at least 1763. The federal government in Canada, without acknowledging this existing inherent and full right, has offered to reform the law by giving

the aboriginal peoples a more truncated enumerated set of self- | government powers. To contrast the existing inherent and full right with the enumerated set of rights on offer, in this study, for convenience

they are styled the inherent-traditional versus delegated-municipal | forms. Under the delegated-municipal form on offer, the aboriginal . peoples’ governments would exercise enumerated local government powers much like municipal corporations in society at large.

Underlying this inherent-traditional versus delegated-municipal , : question of form is a parallel question of substance — namely, the tension between native and non-native cultural values. The delegated-

| municipal form of government on offer is in pith and substance a non-native model. To make it function, the natives who run it would

| 148 Native Liberty, Crown Sovereignty be expected to adapt to a technology of modern government in Canada; this technology would bring with it a way of thinking ~ a way of organ-

izing, relating to, and communicating about data and values that is not “traditional.” For example, simple majority politics could end up

replacing the more traditional “consensus” and family interest group | politics, with far-reaching cultural consequences. The delegated-municipal model of self-government will appear to

some to be at a half-way point, between the greater autonomy of

| the existing inherent-traditional model and the lesser autonomy of outright assimilation. Its proponents can argue that the delegatedmunicipal form promises significant cost-benefit efficiency because it theoretically makes possible a high level of integrated planning and co-ordination with the bureaucratic apparatus of the “senior” (federalprovincial) levels of government. If this entails a necessary compromise

of the cultural uniqueness otherwise promised under the inherenttraditional model, well (their answer may be) that is only a realistic

and perhaps inevitable consequence of articulating efficiently with 7 society at large. In other words, the technology and the language , , of government will have to be non-native. The non-natives are not likely to learn how to speak or to think “Indian.”! Hence if material

progress is to be advanced at least in part by exercise of the right of self-government, then that right may have to be in a form to which non-native governments can relate and communicate. This may mean that increased assimilation is necessary, and — if so — perhaps best

faced squarely. , | Against this argument, I submit that people succeed best when they

are allowed to be themselves. The strength of the inherent-traditional , model is that it begins by accepting natives as they are, and by moving

forward into the future from that basis. It alone stands a chance of | succeeding, because its foundation is an existing culture. It builds upon what is, without necessarily overhauling it. One major problem of the recent past is that law reform and the | negotiation process have been bedeviled by the political need to pay lip service to the ideal of self-government, but without spending more money on natives. It is important to know where non-native government

stands, and then to fund self-government adequately so that it has 'See Philips, The Invisible Culture. Aboriginal culture in part consists in unique non-verbal as well as verbal communication patterns which are well established before children are old enough to attend school. In the course of identifying teaching techniques to accommodate this, Philips provides excellent insights

into pragmatic aspects of “Indianness” generally, and its implications for —

communication in law, business, and politics. oe

149 Law Reform and the Negotiation Process

a realistic chance of succeeding in practice under modern conditions. But as the system has been operating, the non-native policy of assim-

ilation has been hidden and self-government programs have been chronically underfinanced. The pretence has had publicly to be maintained that the goal of non-native governments was faithfully pluralistic, which meant enhancing, not systematically circumscribing,

the cultural uniqueness of the aboriginal peoples. Similarly, it would , have been awkward publicly to recognize money as the major issue. The pretence has had also to be popularly maintained that cultural preservation was the goal, not that the non-native negotiators were

arguing about dollars. There has thus been a general failure to be forthright, and to resolve major differences openly before embarking on programs. And always, the money issue has been left lurking in

|. the background.

Furthermore, the imperial legislation and common law of the constitution confirming the existing aboriginal right of self-government

in Canada has been overlooked by legal analysts. Hence the legal ; basis upon which law reform and the negotiation process have been conducted has been wrong. The reason for the oversight is not entirely

= clear, although one reasonable conjecture may be that it is because , the approach of litigators has in Canada tended to be provincial in

perspective. In the attempt to be relevant to the particular situation __ , in a given province, litigators have shown a tendency to restrict their , perspective of legal history to the particular circumstances of that | province. I submit that this tendency has had the effect of precluding an imperial and trans-national perspective. That wider perspective is nevertheless essential in order to identify the imperial legislation and

the colonial law constitutional cases. —

The major consequence of the failure to identify the imperial legislation

and the common law of the constitution has been the erroneous assumption that the aboriginal right could have been — and in fact has been — legally “superseded” by federal or provincial legislation. The idea of the right’s being “superseded” might have been appropriate

if the aboriginal’ right of self-government had been constituted at

domestic common law, instead of being confirmed by imperial legislation and the constitutional common law of empire. All that the domestic common law could have done would have been to declare

, principles in the absence of legislation and constitutional case law | | to settle the point. Once the federal and provincial legislatures had spoken to the same point, the domestic common law could then be , understood to have been superseded. In Canada, where the aboriginal right of self-government was never constituted at domestic common law, the use of the term “superseded” in federal government policy

150 Native Liberty, Crown Sovereignty

statements has been misleading. The aboriginal right in Canada, being constituted under imperial legislation and precedents, could have been

extinguished only by the repeal of the constituting legislation and the overruling of the precedents. It could not have been superseded - in the absence of such a repeal and overruling. Since the constituting

| or confirming imperial legislation has never been repealed and the imperial precedents never overruled, the federal government’s suggestion that the aboriginal right has been superseded is impossible.

Nevertheless, that suggestion has been the basis for law reform and

| the negotiation process in Canada since at least 1973. oo | The one thing that does seem straightforward is that some renegotiated form of self-government is a foregone conclusion. The prime . minister of Canada at a constitutional conference held 2-3 April 1985

said in his opening statement, “[Slelfgovernment is not something , I fear. It is not an end in itself, but rather a means to reach common

goals ... It is through self-government that a people can maintain the | sense of pride and self-worth which is necessary for productive, happy | lives... this [economic advancement] cannot be achieved at the expense

of cultural identity ... There is no need to sever one’s roots.”

_ by Pope Paul, said: - | Similarly the report of a recent pastoral visit on 20 September 1987,

Standing beneath a giant white teepee amid a natural cathedral of blue skies, evergreens and running waters, the Pontiff proclaimed: “Once again | affirm

, your right to a just and equitable measure of self-government with a land base and adequate resources for the development of a viable economy for

present and future generations.” ,

As he made his proclamation, leaders from the United, Anglican, Lutheran and Mennonite churches, as well as representatives of the Canadian Council

- of Churches and Project North, an ecumenical interchurch coalition supporting ,

Native Rights looked on. , “We are here as allies of the northern peoples as they struggle for spiritual and political recognition and the building of a nation,” said Rev. William Phipps, executive secretary of the Alberta and Northwest Conference of the

: United Church of Canada.°

*Canada, Proceedings and Filings at a Constitutional Conference (emphasis added). See also, Canada, Report on Indian Self-Government (the Penner Report), 141:

“The Committee recommends ... recognition of Indian self-government”; Canada, Report of the Task Force To Review Comprehensive Claims Policy, 1985 (Coulican Report)

iv: “[The federal government must] be prepared to give up jurisdiction [by

vesting it in the Indians].” , a

1G TeBBe “John Paul’s ‘Handshake of Faith,’” United Church Observer, November

event. | - 151 Law Reform and the Negotiation Process

| Although the main speaker was the Pope, this was an ecumenical The debate over self-government and its appropriate forms can be

expected to continue in Canada. At the beginning of April 1988,

the justice minister wrote to the leaders of four prominent native groups, inviting them to Ottawa once again to begin the process of negotiating control over Indians’ affairs.“ On 6 February 1990 the Globe (© Mail reported that the Conservative federal “government also

promised to renew financing for the natives’ constitutional efforts

after a three-year halt in such money, but the amount had to be worked out.”” On 12 February 1990 the Globe & Mail reported that the five candidates for leadership of the Liberal party, constituting the parliamentary official Opposition, unanimously “spoke out in favour

of self-government and a new federal emphasis on resolving native concerns.” The trend suggests that the issue is not whether there will be self-

| government, but rather what form it will take. Will the inherenttraditional form, presently existing under imperially made constitutional law, become politically acceptable? Will the alternative delegated-

municipal form, presently existing under the Indian Act and on further offer under federal policy, prevail? Or will some entirely new form materialize?

The federal government has recently embarked upon a renewed , initiative, designed more aggressively to foster the delegated-municipal

form. Current federal policy is to have Indian bands (or collectives of Indian bands known as tribal councils) provide the kinds of local government services that municipal corporations carry out for society at large. In the past, Indian band administrations carried out such functions, but they reported to the federal Ministry of Indian Affairs. The various programs for local services were therefore either initiated or approved from above and from outside the Indian communities them*"Talks To Resume on Recognition of Aboriginal Autonomy,” London Free Press, 8 April 1988, a8. But see, “Indian Leader Criticizes Ottawa,” London Free Press, 31 May, 1988, a6, in which the national chief of the Assembly of First Nations

alleged that the federal government is “more or less playing games with us,”

and is “clearly determined over a period of time to put us totally under the | control of the provinces.” Municipal government in Canada is a provincial government area of jurisdiction. The Indians discern in the federal government’s

intent to foster municipal government a long-range intent to divest itself of _ responsibility for Indian government. , | °S. Delacourt, “Ottawa Makes Promise to Natives on ‘New’ Accord,” Globe &

Mail, 6 February 1990, a4. ,

°S. Delacourt, “Chretien Disappoints Some Native Leaders on Aboriginal Issues,”

Globe (* Mail, 12 February, 1990, a3.

152. Native Liberty, Crown Sovereignty

selves. The new aspect of the current policy is its plan to shift a measure | of the federal governments’ own former supervisory function to the Indian electorates within the several Indian communities. Those Indian —

electorates would, pursuant to their new-found responsibility, then , be “self-governing” in the sense that the administration of local - government would be reported to them instead of to the department. Since the federal government will continue, in the immediate future , at least, to provide the money to fund the bulk of local government _ services, to ensure fiscal accountability to the federal treasury, substantial

outside controls nevertheless remain essential under this new federal policy. Even so, this policy also is designed to reduce the long-range Indian dependency upon federal transfer payments by creating a local taxation base upon which the Indian communities can themselves —

raise the funds to pay for the local government services. We begin the detailed analysis with the documents explaining the

historical genesis of the current federal policy. Prime Minister Sir oe John A. Macdonald, in a memorandum dated 3 January 1887, indicated _

that “the great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with —

, the other inhabitants of the Dominion, as speedily as they are fit _

| forSirthe change.” | , Wilfrid Laurier, leader of the Opposition and later (in 1896) | prime minister of Canada, argued in 1890: ,

The question is whether these Indians shall have the right to pass by-laws _which the [Indian Act] statute gives them the power to pass, untrammelled by the Superintendent General of Indian Affairs. The law provides that certain. powers shall be exercised by the councils of the Indians. Is there any reason ™Montgomery, “The Six Nations Indians and the Macdonald Franchise,” 1, citing

in authority a Return to an Order of the House of Commons, dated 2 May 1887 (20b) at 37. The point being developed by Montgomery was that the extension of the federal franchise to Indians under the Macdonald administra-

, tion was in furtherance of this general policy of assimilation. See also, Smith, , , Sacred Feathers, 238: “in 1856, John A. Macdonald, then the attorney general for Upper Canada (Canada West), introduced and defended the Gradual Civilization Act [sic]. Once passed by the Assembly of the Canadas, it became. an integral part of Canadian Indian policy for over a century ... Canadian Indian policy sought the elimination of the Indians — their assimilation into the larger society. Group rights would not be recognized.” The reference here was to An Act To Encourage the Gradual Civilization of the Indian Tribes in this Province,

and to Amend the Laws Respecting Indians, s Prov. c 1857, c. 26. The laws

! of the colonial government thus began to reflect an attitude and policy at

variance with the paramount imperial laws and _ policy. ,

| 153. Law Reform and the Negotiation Process why they should not have the power of any municipal council, and that their by-laws should not become valid by the mere fact that they have been passed by the council: Any other council can pass by-laws which cannot be affected one way or the other by the interference of the Government. The argument

which is used is that if these men are allowed to vote in national affairs, a fortiori they should have the right to vote on their own local affairs. Certainly, if they have the right to pass judgment as to who shall be the Superintendent General of Indian Affairs [by voting for the government which appoints him],

_ they should have the power to decide who shall be the toll-keeper on their own reserve. If they can vote as to who shall be the Prime Minister, they

, should have the power to appoint a constable. It seems to me if they have the greater power, they should have the lesser power also.®

As Laurier conceived the situation, the Indians should have more autonomy in relation to their “municipal” powers, and not be kept

so much under the control of the superintendent who had a veto over all they enacted pursuant to their Indian Act powers. When later

in a position, as prime minister, to pursue his point, he did not do so. Yet his comment helped frame the debate, which was as between greater or lesser municipal powers, but delegated powers nonetheless.

Such powers were part of a larger plan of eventual assimilation. The Indians, on the other hand, conceived the ideal condition as reflecting independent and inherent powers, and not mere delegated municipal powers at all. Thus the 1909 Annual Report of the Department

of Indian Affairs commented: It seems strange and can not be without significance, and with what rare exceptions, Indian communities have refused to avail themselves of the pro-

visions of the advancement part of the Indian Act, designed as a stepping stone to municipal government. It is not that the Indians lack the spirit of independence nor the desire to conduct their own affairs, but that they fail to recognize the benefits likely to accrue from the adoption of the white man’s methods. This without question, largely results from the limitation of interests and ambitions imposed by the segregation of existence upon reserves, and as a natural consequence the somewhat ill-defined craving of the Indians for progress, rather seeks scope in the direction of an effort to return to the independence of the old tribal form of government, a desire which keeps cropping up afresh

amongst communities possessed of life and character, and which is often

, ‘Canada, Sessional Papers 2738 (emphasis added). See Johnson, Helping Indians

to Help Themselves, 10. ,

, 154 Native Liberty, Crown Sovereignty too hastily assumed to be the mark of a retrogression on their part. How

to solve.° | |

this misdirected energy is to be guided into proper channels, how the reserve-

imposed limitation of interest is to be broken down, seems a hard problem

Thus, at the turn of the twentieth century when government policy _ was to encourage Indian “advancement” by means of fostering the municipal form of local government, the Indian response tended to _ frustrate the policy because of the Indian proclivity to return to the greater independence of “the old tribal form of government.” The

| municipal form of self-government on offer was not the kind of self-' government the aboriginal peoples wanted. In 1909 this seemed “a _ hard problem to solve.” To the federal government, which conceived

of the federal and provincial governments as on a higher level than | the aboriginal governments, as the senior to the junior level, the analogy | of aboriginal self-government with “municipal government” seemed entirely appropriate. To the natives, or at least to some natives, the relationship should be as between equal levels of government — the First Nations conceived their status as analogous to allies rather than —

, as dependants. It was a “hard problem to solve” for that reason — the goals were fundamentally different, even though ostensibly there

was consensus that self-government was a common objective. The “municipal” form was not an invention of Sir Wilfrid Laurier’s,

however well he represented it. Provision had first been made for a system of Indian band government by the Indian Act, 1876, a subject

upon which the previous Indian Act, 1868 had been silent.’ This earlier act had applied to all lands reserved for Indians, including

°Canada, Annual Report of the Department of Indian Affairs, 20 (emphasis added).

See Johnson, supra note 8, at 12-13. See also Montgomery, supra note 7, at 15, in which it was observed that the Six Nations Indians at a meeting held 17 April, 1885 “had decided against availing themselves of the Municipal Advancement Act [sic] which encouraged Indians living on reserves to adopt municipal

institutions.” See, Canada, House of Commons, Debates 1885, 1489. And see, The Indian Advancement Act, 1884, sc 1884, c. 28 (discussed in the text below, following note number 15) which appears to be the “Municipal Advancement

Act” referred to by Montgomery. | !

~ !An Act to Amend and Consolidate the Laws Respecting Indians, sc 1876, c. 18, ss 3(1), 3(3), 6, and 61-3. No official short title was, provided for this

act, although it has become conventional to refer to it as the Indian Act, 1876. The earlier act, An Act Providing for the Organization of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordnance Lands, sc 1868, c. 42 was not provided with an official short title either, although it has become conventional to refer to it as the Indian Act, 1868.

155 Law Reform and the Negotiation Process

both Indian territory in the Royal Proclamation sense as well as Indian —

reserves subsequently established for particular bands.'' In 1876 the a federal government's new Indian Act dealt only with Indian reserves established “for particular bands,” and to Indians and bands in relation

: to those reserves.” It did not apply to the Indian territory recognized. as reserved for Indians at large. Regarding this restricted focus, the |

: viz.: |

act then inaugurated rules that constituted Indian band governments _

with delegated enumerated powers of local government."* For example,

section 63 provided:

! The chief or chiefs of any band in council may frame, subject to confirmation , by the Governor in Council, rules and regulations for the following subjects, —

(1) The case of the public health; ,

(2) The observance of order and decorum at assemblies of the Indians

in general council, or on other occasions; | (3) The repression of intemperance and _ profligacy;

(4) The prevention of trespass by cattle; |

(5) The maintenance of roads, bridges, ditches and fences; , (6) The construction and repair of school houses, council houses and

other Indian public buildings; |

Indian Act, 1868, s. 6. The pre-confederation legislation had similarly been silent regarding the form of Indian government. See An Ordinance to Prevent

the Selling of Strong Liquors to the Indians in the Province of Quebec, as

also to Deter Persons from Buying Their Arms or Clothing, and for Other Purposes Relative to the Trade and Intercourse with the Said Indians, 1777, 17 Geo. m1, c. 7 (Que.); An Act the Better to Protect the Mississauga Tribes Living on the Indian Reserve of the River Credit, in Their Exclusive Right of Fishing and Hunting Therein, suc 1829, c. 3; An Act for the Protection of the Lands of the Crown in this Province from Trespass and Injury, s Prov. vu | Cc 1839, c. 15, amended by s Prov. c 1849, c. 9; An Act for the Better Protection

of the Lands and Property of the Indians in Lower Canada, s Prov. c 1850, c. 42; An Act for the Protection of the Indians in Upper Canada from Imposition,

and the Property Occupied or Enjoyed by Them from Trespass and Injury, s Prov. c 1850, c. 74; An Act to Authorize the Setting Apart of Lands for the , Use of Certain Indian Tribes of Lower Canada, s Prov. c 1851, c. 106; An Act to Encourage the Gradual Civilization of the Indian Tribes in this Province, and to Amend the Laws Respecting Indians, s Prov. c 1857, c. 26; An Act Respecting

the Civilization and Enfranchisement of Certain Indians, csc 1859, c. 9; An , Act to Prevent Trespasses on Public and Indian Lands, csuc 1859, c. 81; An Act Respecting Indians and Indian Lands, s Prov. c 1860, c. 2; An Act Respecting

the Management of the Indian Lands and Property, s Prov. c 1860, c. 151.

Indian Act, 1876, supra note 10, ss 3(1) and 3(3). , ,

— -*‘BYbid., at ss 61-3.

| 156 Native Liberty, Crown Sovereignty , (7) The establishment of pounds and the appointment of pound-keepers; | (8) The locating of the land in their reserves, and the establishment of

a register of such locations. , i

Furthermore, each Indian act (or regulations made pursuant thereto) , since 1876 has made similar provision.'* In 1880 the act deprived _ hereditary chiefs of power whenever an elected chief existed.’ The

, Indian Advancement Act, 1884, sc 1884, c. 28, provided in section 10(11) for a system of municipal government taxation powers, whereby

bands could raise tax revenue from residents in relation to reserve , lands to help pay for local government services. The full title of this act was indicative of the intent: An Act for Conferring Certain Privileges

on the More Advanced Bands of the Indians of Canada, with the View of Training Them for the Exercise of Municipal Powers. In 1906 it was provided that penalties under band by-laws could be enforced

| pursuant to federal regulations.’® In 1951 a means was introduced , whereby bands could control the management of Indian reserve lands _and monies held in trust by the federal government for the band:!” Section 60(1) The Governor in Council may at the request of a band grant to the band the right to exercise such control and management over lands

in the reserve occupied by that band as the Governor considers desirable. , (2) The Governor in Council may at any time withdraw from a band : a right conferred upon the band under subsection one. Section 68(1) The Governor in Council may by order permit a band to control, manage and expend in whole or in part its revenue moneys and may amend

or revoke any such order. , 7 (2) The Governor in Council may make regulations to give effect to subsection one and may declare therein the extent to which this Act and The Consolidated

Revenue and Audit Act, 1931, shall not apply to a band to which an order

made under subsection one applies.

, “Indian Act, sc 1880, c. 28, ss 72—4; Indian Act, rsc 1886, c. 43, ss 75-6, 127-8; — Indian Act, rsc 1906, c. 81, ss 93-8, 166—8; Indian Act, rsc 1927, c. 98, ss 96-101,

| 157-8; Indian Act, rsc 1952, c. 149, ss 60, 68, 73~85, 111-12; Indian Act, RSC 1970, c. 1-6, ss 60, 69, and 74-86. See also Indian Band Council Procedure Regulations,

481 (scc). , |

crc 1978, c. 950; Indian Band Election Regulations, crc 1978, c. 952; and Indian

Referendum Regulations, crc 1978, c. 957. | | Indian Act, sc 1880, c. 28, s. 72. And see, Davey v. Isaac (1977), 77 DLR (3d) ,

Indian Act, rsc 1906, c. 81, ss 98(2) and 98(4). . _ !’The Indian Act, sc 1951, c. 29, consolidated and re-enacted by the Indian Act,

rsc 1952, c. 149, with the same section numbers and contents.

157 Law Reform and the Negotiation Process

In the 1970 revision of the act, section 60 remained, although section

revision.”

68 became section 69.'° To the list of enumerated local government

powers in 1951 was added the power to make by-laws regarding “the observance of law and order,”!? which was also repeated in the 1970

One of the most instructive provisions in this series was enacted in 1920, when An Act to Amend the Indian Act?! provided that by — , majority vote the band council of an Indian band could enfranchise the whole band. This was coupled in 1933 with a supplemental amendment allowing commissioners to enfranchise even non-applying

Indians.** And in 1951 the act further provided: — Section 111 (1) When the Minister reports that a band has applied for enfranchisement, and has submitted a plan for the disposal or division of the funds of the band and the lands in the reserve, and in his opinion the band is capable of managing its own affairs as a municipality or part of a munic-

ipality, the Governor in Council may by order approve the plan, declare that

all the members of the band are enfranchised, either as of the date of the order or such later date as may be fixed in the order, and may make regulations

for carrying the plan and the provisions of the section into effect. (3) The Governor in Council may, for the purpose of giving effect to this section, authorize the Minister to enter into an agreement with a province , or a municipality, or both, upon such terms as may be agreed upon by the Minister and the province or municipality, or both.23

In spite of this legislation, the impasse remarked upon in the 1909 Annual Report - between federal policy favouring the municipal form and some Indians’ preference for “the old tribal form of government” — remained until 1969. Prime Minister Pierre Trudeau then caused to be published a reiteration of the federal government’s viewpoint. In a 1969 white paper** the government said, “The essential feature 8Indian Act, rsc 1970, c. 1-6.

Indian Act, rsc 1952, c. 149, s. 80(c).

Indian Act, rsc 1970, c. 1-6, s. 80(c).

added).

isc 1919-20, c. 50, s. 109. 22An Act to Amend the Indian Act, sc 1932-33, c. 42, s. 7. *3Indian Act, sc 1951, c. 29, s. 111; Indian Act, rsc 1952, c. 149, s. 111 (emphasis “Canada, Statement of the Government of Canada on Indian Policy (herein referred to as “the 1969 white paper”). It was presented to the first session of the twenty-

eighth Parliament of Canada by Jean Chrétien, minister of indian affairs and northern development. Nevertheless, it is conventional to associate it with Prime Minister Trudeau. The immediate genesis of the 1969 white paper can

158 Native Liberty, Crown Sovereignty |

of the Government’s proposed new policy for Indians is that it , [acknowledges and recognizes] ... the central role of the Indian people

in solving their own problems.” The 1969 white paper spoke also , in terms of the inherent wrong of segregation: “But to be an Indian today is to be someone different ... It is to be someone apart — apart , in law, apart in the provision of government services and, too often, apart in social contacts ... the Indian people’s role of dependence

, [should] be replaced by a role of equal status ... Canada cannot seek the just society and keep discriminatory legislation on its statute books. The Government believes this to be self-evident.” The government’s

| commitment in principle, both to self-government and to ending the segregation of natives for legal purposes, effectively prepared the way , for a revitalized thrust toward fostering the delegated-municipal form

of local government. But that end was not expressly identified in 1969. Rather, the 1969 white paper simply indicated that “negotiations would be carried on with the provincial bodies, regional groups and

| theThebands themselves.” | Indian reaction was negative. A presentation by the chiefs of Alberta to the prime minister, entitled “Citizens Plus,” said that in their view the 1969 white paper “offers despair instead of hope.”” The natives apparently discerned a threat in the portion of the white paper that promised an end to segregation for legal purposes. From their perspective, the unsegregated municipal form of government was a step toward the eventual termination of their special racial status.

The perceived threat of the municipal form of government arises from the risk that aboriginal self-government could become just another racially undifferentiated municipal government, and that therefore the existing special privileges attributable to race would eventually disappear. They saw not so much an end to segregation

| as an end to liberty. | |

Undeterred, the federal government continued in its track, and

on 8 August 1973 issued the Indian Affairs Policy Statement, confirming

be discerned in Canada, The Indian in Transition, at 10, where the minister , states, “the fundamental aim of the government’s policy towards Indians is the

| gradual integration of our country’s fastest growing ethnic group into the Canadian community (emphasis added)”; and in Canada, Annual Report, 1966-67, at 63, where the mandate of the Policy and Planning Directorate was said to include “ensuring the active participation of Indians in determining their own future”; and in Canada, Choosing a Path, at 3, where “equality” is taken to mean “the right to choose a way of life which recognizes Indian values and also the right to enter the mainstream of Canadian life.” See, Olsen, “Comparative Changes

in the Status of Indians,” 59, 77.

Indian Chiefs of Alberta, “Citizens Plus.”

159 Law Reform and the Negotiation Process that “we are determined to find the most effective ways of giving the native peoples control over their own affairs.”*° At this juncture, however, the federal government’s policy on selfgovernment had to accommodate the nascent litigation-oriented land : claims movement. The case of Calder v. AG for Bc,”’ decided by the , Supreme Court of Canada in 1973, had raised the spectre of a repetition

of the American Indian claims experience, which was beginning to result in court confirmation of the inherent and full right of aboriginal

self-government in the twentieth century context in the United States. : To steer away from the American experience meant rendering delegated-municipal self-government more attainable; but also, it meant rendering the alternative, inherent-traditional form less attainable. Both | objectives were advanced by the federal government’s official Statement on Claims, also issued 8 August 1973.* In this document it was anticipated

that land claim settlements in future would include some form of self-government as part of the setthkement packages made with each native group. To ensure that its form would be delegated-municipal,

the first priority was to keep the issue out of the courts. Thus the statement resolved that “these claims must be settled and the most promising avenue to settlement is through negotiation.” By preferring the negotiation process to litigation, the federal government minimized the possibility of a court decision recognizing the inherent-traditional — form of self-government. The negotiation forum did not risk relinquishing to the discretion of an “independent” third party any decisionmaking power relative to the character of the right of self-government.*!

The federal government’s trump card in such considerations of strategy, inevitably, lay in its purse. By funding negotiations, the government opened for the natives a path of least resistance. By and large, the tactic was successful — negotiations have flourished, while

court cases dealing openly with the fundamental self-government issues have been non-existent. _ This trend was strongly reinforced by the introduction, in this 1973 federal policy statement on claims, of the concept of supersession.

The document said: “In essence, these claims relate to the loss of

*Canada, Indian Affairs Policy Statement, 54. | *7 Calder v. AG for Bc, [1973] scr 313.

*Tbid., at 4. ,

*8See the discussion in chapter I under the heading “Domestic Common Law”.

: Canada, Statement on Claims (herein referred to as “the statement”).

*!Some might argue that the courts cannot be “independent” in any event, being

, non-native institutions. That is beside the point here, however, since the point here is only to consider federal strategy.

160 Native Liberty, Crown Sovereignty traditional use and occupancy of lands in certain parts of Canada | where Indian title was never extinguished or superseded by law. The verb “extinguished” was a familiar one — it was well understood , to refer to the treaty process whereby Indian title to lands was extinguished by means of a land surrender. However, the phrase “super_ seded by law” was new. It was crucial. And it unwittingly misrepresented the legal possibilities.

When analysing this phrase “superseded by law,” it is assumed in this study that the reader is aware that the federal government has» been acting in a legally recognized fiduciary capacity;*’ and that it is given that a trustee cannot induce a beneficiary to act against his

interest in favour of the trustee’s interest by communicating a misrepresentation, whether innocently or intentionally,* this being a general rule, not peculiar to aboriginal rights law, but an axiom

that runs through all areas of the law. :

It is necessary to deal carefully with the definition of the phrase

“superseded by law,” because it is not a term of legal art. It does , not have a specific and ascertained meaning, as possessed, for example,

by the term “repeal.” To give a practical example: in the natives’ situation, the right of self-government has been confirmed under

, legislation of the imperial government, and if that right were to be terminated the necessary means would have to include the repeal of | that legislation. That legislation has never been repealed; furthermore,

because it is legislation enacted by the Parliament of the United Kingdom, only an act of that Parliament could have repealed it. No | such act exists. Therefore, it would have been patently inaccurate _ for the federal government to have used the verb “repealed” in relation

| to the aboriginal right confirmed under the imperial legislation. © Furthermore, since that legislation defined the powers of the federal and the provincial governments, literally constituting them in them-

Supra note 29, at 3. ,

See, for example, Guerin v. r., [1984] scr 335. For a catalogue of some of the previous Canadian cases and instruments identifying the fiduciary relation, see also Clark, Indian Title in Canada, 17-24. *4In the United States, it has been considered relevant whether the federal govern-

ment has acted in good faith though wrongly, in which case the innocence has materially affected the quantum of damages awarded for an improper taking of Indian land. See, us. v. Sioux Nation, 448 us. 371, 408~9, 413, 424 (1980); Oneida Indian Nation v. County of Oneida, 414 us. 661 (1974), 434 F Supp. 527 (1977). In Canada, the position appears to have been that the courts are more interested in stressing the fiduciary relationship, and then in applying the normal

high standard of care attributable to that relationship. The award should be : commensurate with the loss sustained, and not with the morality of the fiduciary,

from this perspective. See, Guerin v. R., supra.

161 Law Reform and the Negotiation Process :

, selves as well as in relation to the natives’ rights, it is clear that any | attempt by the federal or provincial governments to exceed their constitutional authority would be ultra vires. In short, the imperial

government did not repeal the law constituting the aboriginal right, : and the federal and provincial governments could not do so. The federal misconception in relation to the supersession idea was eminently compatible with federal policy in relation to fostering the delegated-municipal form of self-government. Had the imperial legislation been identified, the basis for law reform and the negotiation | process would have had to accommodate the fact that the natives already held a legal right to the more embracing inherent-traditional form of self-government. In the long-range interest of both the natives and society at large, such an acknowledgment of the existing inherent-

traditional right might have been for the best. The self-government

debate could then have entered a phase of enquiry as to why the inherent-traditional form had apparently not worked in practice. The | result of such an enquiry might then have led to co-operative adaptation

of the inherent-traditional form to modern realities; in that case, a variation of the delegated-municipal form might have emerged as a compromise position. The psychology of events, however, would have been significantly different. That is, the proceedings would have been conducted in an atmosphere that respected, as the basis for working toward a viable modern system, the aboriginal peoples’ basic contention

that their right to govern themselves was never taken away and so logically must continue to exist. Instead, the position has been maintained

by the federal government that something (the delegated-municipal form) was being offered in place of nothing. Positions have therefore

tended to remain polarized rather than complementary. Although , the natives may not have been able to put a finger on what was false about the federal position, they have intuitively and legitimately been suspicious of it.

It was doubly unfortunate therefore that in 1984 the erroneous federal policy on supersession received court endorsement, because

the courts were made to appear to natives as parties to political expediency rather than as genuinely independent guardians of the rule of law. Responding to federal and provincial submissions, Steele Jj. in AG Ont. v. Bear Island Foundation thus held: “I conclude that a

valid provincial law of general application and administrative acts thereunder, both independently and as a function of s. 88 of the Indian Act, operate de facto to limit, restrict, exclude or abrogate the exercise of aboriginal rights.” The reference in that passage to °aG Ont. v. Bear Island Foundation (1984), 49 or 353, 475.

| 162 Native Liberty, Crown Sovereignty “administrative acts” having the “de facto” power to nullify aboriginal

rights is instructive. Steele J. on this basis concluded that the province could issue land patents under public lands legislation relative to previously

unceded Indian territory, and that, “The inevitable effect of alienation would, of course, be to extinguish aboriginal interest in the patented land.” When the “aboriginal interest” was by this administrative expedient

supposedly extinguished, the right of aboriginal self-government was by necessary implication also supposedly terminated. The land patented was from the date of patent considered by Steele J. to be land owned — outright by the patentee, free of any alleged aboriginal jurisdiction |

toThegovern it. | decision of Steele J. in the Bear Island case has therefore loaned

an aura of credibility to the federal position in the verbal give-andtake of the negotiation process. The fact that federal and provincial governments have been habitually ignoring the existing aboriginal right of self-government in practice can be represented as proof that the right has no present legal existence: that even if the right once existed, upon the basis of the idea of supersession the alleged right supposedly would have been superseded by such federal and provincial

actions ignoring it in practice. For that reason — as has in fact been the case — it can erroneously be assumed appropriate to conduct the law reform and the negotiation process as if the objective were to create something in the place of nothing. To the aboriginal peoples

it now may seem that there is no way to break free of this net of political expediency, regardless of how false the position may be. The spuriousness of the argument that aboriginal rights could be “superseded by law” in the absence of a repeal of the constitutional legislation recognizing or affirming those rights was demonstrated | by Mr Justice Strong of the Supreme Court of Canada in 1887. After

he had held, in the case of St Catherine’s Milling and Lumber Co. v. | R., that the Royal Proclamation of 1763 was not repealed by the Quebec Act, 1774, he added, “and that it could otherwise have become legally _ obsolete was impossible, since if Campbell v. Hall [98 E.R. 848] is to

be considered sound law, it was a legislative ordinance of equivalent force with a statute, and consequently could only have been repealed by an act emanating from some competent legislative authority; but no such act can be referred to.”*’ Strong J. at that juncture was in

*Ibid., at 472

7 St Catherine’s Milling and Lumber Co. v. R. (1887), 13 scr 577, 634 (emphasis a, added). Strong J. was affirmed on this obsolescence or supersession point by Lord Watson, on appeal in the Privy Council, where the Royal Proclamation was held to be in force: (1888), 14 ac 46, 54.

163 Law Reform and the Negotiation Process

the course of overruling Chancellor Boyd who, when delivering the judgment in the case at the trial level, had said, “he proclamation, no doubt, remained operative as a declaration of sound principles which then and thereafter guided the Executive in disposing of Indian

claims, but as indicating for this century the scope of the Indian reservations, or the intent with which they have been created under

} provincial rule, it must be regarded as obsolete.”°® |

The federal government’s 1973 idea that Indian rights could be | superseded even though the imperial legislation constituting those rights was unrepealed simply restated Chancellor Boyd’s 1885 concept

of obsolescence. ,

: Even though the idea of obsolescence or supersession has no proper place in Canadian law, its appeal is manifest — it allows some judges and administrators to ignore what they personally and for sentimental reasons may deem to be antiquated legislation. Lord Watson himself, although in a peerage case having nothing to do with aboriginal rights,

approved this approach when used in some domestic (but not

constitutional) law contexts: : In my humble opinion, what your lordships have to ascertain for the purposes

of this case is not what law ought to have been enforced in the colony in 1772, but what law was de facto recognized and administered at that time. It would, in my opinion, be a monstrous proceeding to bastardize a whole generation of colonists whose parents had married in reliance on the law as then administered, because the authorities to whom its administration was | committed had misinterpreted, or failed to give effect to, the provisions of

an ancient statute.*® | ,

Thus, although Lord Watson did not subscribe to the idea of obsolescence

or supersession in relation to the constitutional status of aboriginal rights (since he affirmed Strong J. on that point in the St Catherine’s case) ,* he did at least seem open to it in some domestic law circumstances.

In that connection it may be of interest to recall that Lord Watson had been a Scottish lawyer,*! and that the law of Scotland is more — 8 St Catherine’s Milling and Lumber Co. v. R. (1885), 10 or 196 (Ch. p), 227 (emphasis

added).

, Williamson, Gleanings from the Wisdom of Lord Watson, 2, quoting under the topic heading “Reliance on Law” from The Lauderdale Peerage (1885), 10 ac 752.

“Supra note 37. “Death of Lord Watson,” The Times, 15 September 1899, 6; “Law Report,

Nov. 8,” The Times, 9 November 1899; L. Stephen and S. Lee, eds., The Dictionary of National Biography, vol. xxii supplement (London: Oxford University Press,

, 1921-22). William Watson, born 1827 in Scotland, was called to the bar there

. 164 Native Liberty, Crown Sovereignty sympathetic to the doctrine of obsolescence.* As for Canada, the general principle appears to be as propounded by Mr Justice Strong rather than as conceived by Chancellor Boyd and the federal government.

Dreidger’s Construction of Statutes, for example, states, “Where no time is limited for the operation of a statute it is deemed to continue

in force until repealed.”* It is important not to loose sight of the fact that the aboriginal right of self-government is confirmed under , constitutional statutes of the imperial Parliament,** as well as under _ the Royal Proclamation of 1763, which, though having the force of a statute, is an order in council of the imperial government enacted

, under the prerogative jurisdiction to legislate relative to overseas dominions.* Citing the English cases White v. Boot,*© The India,’ and Grand Trunk v. Robertson,*® upon a point of law shared by Canada,

Dreidger added, “A statute is not repealed by non-user or obsoles- : cence.”49 Maxwell on the Interpretation of Statutes summarized conventional

wisdom (and unless there is a special rule of vulnerability for legislation

respecting aboriginal rights in particular, conventional norms of statutory construction presumably hold sway) as follows: “A law is not

repealed by becoming obsolete: there is no doctrine of desuetude in English law [though there is in Scottish law].””° Perhaps prophetically anticipating the resurrection of his concept of obsolence or desuetude by the federal government in 1973,

in 1851 and appointed solicitor general for Scotland in 1874. In 1880 he was granted a life peerage and made Lord of Appeal in Ordinary. As the son of a Scottish minister of the church, Lord Watson undoubtedly had personal experience of the usufruct concept, in the context of ecclesiastical leases or glebes where the clergy are usufructuarii or usuarii. The usufruct is a feature

of Roman law and was copied from there into Scots law, which is based upon Roman law ~—a fact that may help explain Lord Watson’s famous analogy classifying =

Indian title as “usufructuary” in the St Catherine’s case, supra note 37. | “Langan, Maxwell on the Interpretation of Statutes, 16, note 78: “For the doctrine of desuetude whereby Acts of the Scottish Parliament passed before the Act

| of Union may become obsolete and repealed by usage to the contrary, see | Craies on Statute Law, 6th ed., p. 7. Cf. Earl of Antrim’s Petition, [1967] ac. 691,

per Lord Reid and Lord Wilberforce.”

*® At 172, citing in authority rk. v. Ruddick (1928), 49 ccc 323, 328 (emphasis added).

“See the discussion in chapter 3 under the heading, “Positive Re-enactment: The Indian Territories Statutes.” * See the discussion in chapter 2 under the heading, “Royal Commissions, Instructions,

and the Proclamation of 1763.” , . (1728), 212 TRLrns 274, 316. 100 ER | *7(1865), | 149.

811909] ac 325. : “Supra note 43, at 173.

»°Maxwell, supra note 42.

165 Law Reform and the Negotiation Process

had been:

~ Chancellor Boyd in 1885 also employed the verb “superseded” to achieve

the same effect as if a repeal had been enacted when none in fact | This provisional arrangement [made by the royal proclamation] for the government of the country was superseded by the Quebec Act ... inasmuch

, as the governmental arrangements made for Quebec by the proclamation were declared inapplicable to its [Quebec’s] state and circumstances, all its [the proclamation’s] provisions, so far as related to that Province, were revoked, annulled and made void ... The proclamation ... must be regarded as obsolete.”!

: The similarity between Boyd c. and Steele J. in relation to supersession , or obsolescence is that they both endeavoured to put forward an imperial statute — namely, the Quebec Act’* — as a vehicle to carry _ the concept forward. Once that was rejected by Justice Strong on appeal in the Supreme Court of Canada, affirmed on that point in the Privy Council, no other statute of the imperial government could conceivably serve the purpose. All the imperial legislation has uniformly : reiterated the proclamation’s approach, and reinforced rather than repealed it.°* For this reason, it was not open to the federal government

to have contended that the aboriginal right was ever “repealed.” The pretence has been that provincial (or federal) laws or administrative practices have implicitly and effectively repealed the imperial law

constituting the Indian right. This is the perverse promise contained , | in the phrase “superseded by law” — that colonial, federal, or provincial government legislation and even bureaucratic practices can nullify the imperial legislation constituting the very powers of those bodies politic. As Steele J. in Bear Island had put it, “administrative acts” could “de facto” extinguish aboriginal rights, even in the absence of a repeal

of the previously established imperial law confirming such rights. The Statutes Law Revision Act, 1868—69°* of Ontario illustrated the legitimate employment of the word “superseded.” Schedule B pursuant

to section 7(2) provided a classification code for indicating the status of prior legislation, which included the classifications “repealed and | superseded” and “repealed as obsolete.” In other words, the ideas _ of being “superseded” or of being “obsolete” are without legal signif*'Supra note 38 (emphasis added). Compare 4c Ont. v. Bear Island Foundation, supra note 35, at 376. See also the discussion in chapter 3 under the heading “Non-Repeal of the Prerogative Legislation,” at note 8.

Supra note 44. ,7 *4rso 1970, appendix. 5214 Geo. mw, c. 83. (1774).

166 Native Liberty, Crown Sovereignty

icance for status-of-legislation purposes, except when used in conjunction with the operative verb “repealed.” They explain the repeal, but they cannot in themselves be substituted as alternatives for a proper

repeal. Furthermore, since 17 April 1982 when the Constitution Act, 1982

came in force, no federal or provincial enactment or administrative practice can repeal the imperial statutes constituting the aboriginal

right of self-government, except by following the procedures specified , by part v of that act. Before the Constitution Act, 1982 came into

force, there was no way in which Canadian provincial or federal | governments could alter their own powers in relation to aboriginal rights constituted or confirmed under imperial legislation, except by asking the Parliament of the United Kingdom to enact the desired change. The Constitution Act, 1982 was an enactment of the imperial government relinquishing in favour of the federal and provincial governments the constitutional power in the future to repeal previous imperial enactments constituting or confirming the aboriginal right. Chancellor Boyd, the 1973 federal policy statements, and Mr Justice Steele, would, were their positions tenable, have pre-empted the Constitution Act, 1982 and rendered it quite unnecessary in point

of constitutional law.

The 1973 policy statements have continued to confuse land claims ,

negotiations and law reform relative to self-government. Their pretence

has been perpetuated — that the aboriginal peoples have not had the right of self-government — because even if they once had it (which _ is not admitted by the government) it has been “superseded by law” in the regions of Canada where it has in practice been ignored, which

is to say everywhere. ,

Actually, the natives have had the right of self-government all along, | under the previously established imperial legislation and constitutional — common law precedents, and this is what the word “existing” should

be taken to signify in the Constitution Act, 1982, which enacted in section 35 (1), “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” This “existing”

aboriginal right of self-government is, however, inherent and full, in that its essence is that the natives should not be molested or disturbed

upon any pretext. The federal government is not now — nor since _ the time of Sir John A. MacDonald has it been — in favour of any form of self-government .except where it is of the delegated-municipal type. This is what has made the subject of law reform and the nego-

tiation process a very tortuous issue in Canada. , The continuity of the federal position favouring the delegated-

| 167 Law Reform and the Negotiation Process municipal form of selfgovernment, and the related notion that the more embracing inherent self-government right may be “superseded by law,” can now be traced to the present. The 1973 policy statements” were reiterated in 1977 in the position paper Comprehensive Native

Claims in Canada, which said, “On August 8, 1973, the Federal Government announced its policy on claims of Indian and Innuit people. The Federal Government recognizes that a native interest might exist in those areas of Canada where it has not been extinguished by treaty or superseded by law.”° In 1981 the 1973 position was again advanced, when the publication ironically entitled In All Fairness laid

down the claims policy that, “Since 1973, the federal government has operated under a policy... current practices in relation to determining

the validity of claims will continue to be used.”°’ : In 1975 the Cree Indians of the portion of northern Quebec that had been Rupert’s Land agreed to surrender their existing aboriginal rights under previously established imperial law in exchange for specific

municipal government powers. At least, they implicitly did this. The imperial law was not identified and defined, nor could anything in the agreement possibly have repealed that law. However, the aboriginal

peoples here gave a blanket undertaking, surrendering their previously | established undefined aboriginal rights in view of the newly defined. rights in contemplation. The agreementwas incorporated into reciprocal

legislation of the federal government and the Quebec government, of which the James Bay and Northern Quebec Native Claims Settlement Act and the Cree-Naskapi (of Quebec) Act of 1977 and 1984, enacted by the federal government, are representative. By this means the Cree, Naskapi, and Innuit of northern Quebec relinquished*® the inherent-

oe Supra notes 26 and 29. | °Canada, Comprehensive Native Land Claims in Canada, 1 (emphasis added). | ‘’Canada, In All Fairness, 8 and 27. See also Canada, Outstanding Business, 7. ‘8James Bay and Northern Quebec Native Claims Settlement Act, sc 1977, c. 32 provides in section 3(2): “Upon the extinguishment of the native claims, rights, , title and interest referred to in subsection (3), the beneficiaries under the agreement shall have the rights, privileges and benefits set out in the Agreement.” And in section 3(3): “All native claims, rights, title and interest, whatever they may

be, in and to the Territory, of all Indians and all Inuit, wherever they may be, are hereby extinguished.” The act thus reiterates the agreement itself (documentnumber 301-5/180 c of 13 July 1976, incorporated by reference in section 2 of the act), which provides in section 2.1: “In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and Inuit

of Quebec, the James Bay Crees and Inuit of Quebec hereby cede, release, , surrender and convey all their Native claims, rights, titles and interests, whatever

they may be, in and to land in the Territory and in Quebec, and Quebec -. and Canada accept such surrender.” Nevertheless, it is moot whether this

: 168 Native Liberty, Crown Sovereignty | traditional right of self-government in favour of the delegated- , municipal option. This relinquishment may be contrasted with the Sechelt Indian Band Self-Government Act, discussed below, wherein

the inherent right was expressly saved when the municipal form was , accepted for present purposes relative to a portion of British Columbia. _ In the 1982 discussion paper Strengthening of Indian Band Government in Canada,” the federal government indicated that the Indian response to the 1969 white paper had “rejected integration,” and that accordingly the government’s new policy was based “on acceptance of the notion _

of special identity for the Indians as long as they desired it, and on _ the desirability of strengthening Band governments on reserves.” The paper also observed, however, that the “challenge is to accommodate Band governments which desire and require increased powers of government in a way which is compatible with the democratic principles.

' and values which prevail throughout Canada.” It was not made clear how the general long-range value of integration, so long pursued as a policy by the federal government, was to be reconciled with the — idea of continuing the segregated legal status of Indians countenanced | in the same paper, although a possible reconciliation would be that — continuing the segregated status was meant as a short-term expedient,

| much as Indian band government had been conceived as a stepping , , stone to assimilation under the administration of Sir John A. Macdonald.

A second discussion paper in 1982 paved the way for individual | municipal acts, as it were, for the several Indian bands who might be receptive. The essential idea presented was that immature bands could remain under the Indian Act, but that advanced bands could negotiate their own governmental status to be incorporated into specific legislation. This plan eventually came to fruition in showcase legislation: relinquishment is binding. The natives may not have been fully informed that

they were giving up their existing aboriginal right of self-government, particularly

, since government practice has been to create the erroneous and misleading

impression that no such right existed. If the natives were indeed misled as to what they had, it is at least arguable that their contractual intent could not have been to surrender the right. Furthermore, since the aboriginal right , of self-government is constituted under imperial legislation which is constitu- | tionally binding in Canada, the federal act in question could not unilaterally , have extinguished the aboriginal right. For this reason, if the relinquishment was not made on an informed basis then the aboriginal rights of the James _ Bay Crees and Inuit of Quebec arguably still exist, including the inherent and full aboriginal right of self-government. However that may be, the starting presumption based upon the wording of both the agreement and the. act is that all aboriginal rights at least superficially appear to have been relinquished. —

Canada, Strengthening of Indian Band Government in Canada, 1, 8. | | : Canada, The Alternative of Optional Indian Band Government Legislation. ,

169 Law Reform and the Negotiation Process

the Sechelt Indian Band Self-Government Act, sc 1986, c. 27. In 1984 an abortive attempt was made to establish an omnibus selfgovernment act, pursuant to which Indians might establish municipal

government powers over and above those contemplated under the Indian Act. Federal Bill c-52 was entitled An Act Relating to SelfGovernment for Indian Nations and provided the short-title, Indian Self-Government Act. Its sections 40 and 41 allowed for an Indian jurisdiction to make laws that would pre-empt federal and provincial laws upon the same subject; and its sections 16 through 21 established

the relevant subjects as being such local government powers as are customarily exercised by municipalities. In virtue of section 6, the

Indian laws would have been subject to the Canadian Charter of Rights and Freedoms, and to international law provisions to which Canada subscribed in the human rights field. Section 42 would have established a panel to decide upon which Indian tribal governments would be fit to be constituted; and sections 28 through 32 provided a system for establishing the rule of law, meaning that the Indian laws would have to be written and made public in advance of enforcement.

This last feature may well have been in conflict with the nature of “traditional” Indian government, whereby “any act which disrupted the community would be dealt with on an ad hoc basis.”°! However that may be, the bill was not well received. It received first reading on 27 June 1984, but never received second reading. The Liberal federal government was succeeded by a Conservative government, and

| neither the Indian lobby nor the Opposition nor the new government sought to revive the bill. Had the act passed, it would have established, metaphorically speaking, federal enclaves in domestic law, paralleling the imperial enclaves of Indian jurisdiction known to constitutional law.

| As for bands remaining under the Indian Act, a new “alternative funding arrangements” scheme was inaugurated in 1986. It was designed

to use more fully the existing sections of the Indian Act to encourage the municipal form of Indian band government in relation to Indian Act reserves (as distinct from unceded lands reserved under the Royal Proclamation of 1763). 'The procedure envisaged was that Indian bands

would apply to the federal government in order to assume greater control over the management of their lands and monies under existing sections of the Indian Act. At that time the minister’s function would

be “ensuring that Indian Councils entering this arrangement have the capability to manage resources, have an appropriate system of accountability to their membership, make provision for expanded audit , 61 Carswell, “Social Controls Among the Native Peoples,” at 307. ,

! 170 Native Liberty, Crown Sovereignty | reports for the expenditure of funds, and complete a process for remedial action if this becomes necessary.” Thus the minister was) not supposed to enter “alternative funding arrangements” unless the band had first demonstrated capacity to govern, political accountability

to the Indian electorate, and fiscal responsibility toward the federal —

public treasury.

The idea of “making Indian leaders more responsible to their membership” was the genuinely new element of the program. As the guide said, “This will result in a new relationship between the Minister

and Indian People.” Pursuant to the old practice under the Indian

Act, there had been provision for lessening the control of local | government by the minister, but there was no corresponding sub, stitution of control over Indian leadership by the Indian electorate. In other words, there was a theoretical risk that Indian councils would be accountable to no one but themselves. The new policy seems to have been designed in part to address this issue by proposing to increase the political accountability of Indian leadership to the Indian electorate.

Indeed, this may be considered the centrepiece of the scheme. It , may also be its downfall. It is difficult to envisage how it would be possible for the minister to alter the character of the relationship between the Indian electorate and the Indian leadership today any more than in 1909 when it was a “hard problem to solve.” One can

| readily see how the minister might alter the relationship between the crown and the Indian leadership, because he acts for the crown.

, Between the Indians and their leaders, however, the minister is an outsider. To change the character of that relationship, unless of course.

the dynamic for change becomes an Indian objective, seems in sociopolitical terms to be unlikely. It is not that the minister’s goal is

unattainable, but that it is impracticable so long as it is not taken , over by the Indians themselves and made their own. That, however,

has been the frustration of federal administrators throughout this century — the inability to persuade the Indians to adopt the attitudes necessary for effective municipal-style government. The bands opting

to try the new arrangement are under no financial incentive, for the guide also states, “Bands operating under Alternative Funding Arrangements do not receive more funds than they would if they

remained outside the initiative.”® |

The guide also indicated that the alternative funding arrangements

“the guide”).

| 6 Canada, Alternative Funding Arrangements: A Guide, 6-7 (referred to herein as

“Ibid., at 9. See also, Canada, Indian Government Financial Arrangements, 1 . “[g]overnment policy does not provide for increased levels of program funding

resulting from the introduction of Indian self-government.” : —

171. Law Reform and the Negotiation Process

| might be a stepping stone toward greater self-government powers: “Many Bands may wish to make the change to Indian self-government in two phases; the Alternative Funding Arrangements being the first, and Indian self-government legislation being the second.” Yet Indian

leaders may in future feel that the municipal form of government, if accepted, may pre-empt more embracing forms. The tension between

Indians seeking recognition for inherent and full powers and the department offering delegated municipal powers is perhaps too familiar

to permit the illusion that the lesser will lead to the greater. In fact, | the scheme seems designed for the non-native market — it may make

good sense to the Canadian public and to the United Nations Human , Rights Committee, but it will not necessarily appeal to the aboriginal , peoples; and if it does not do that, it will probably fail just as have past plans to advance municipal-style self-government.

The Sechelt Indian Band Self-Government Act® represents what the federal government had in mind, presumably, when the guide

referred to “Indian self-government legislation being the. second” of , a two-stage progress toward self-government, with alternative funding © _ being the first. However, the very uniqueness of the Sechelt situation may simply demonstrate how unrealistic this model for self-government

is likely to prove to be for most Indian bands. The Sechelt Indian band is a conglomeration of a number of bands in the coastal area of British Columbia, north of Vancouver. Indian unemployment here is much lower than elsewhere; the people are progressive in orientation | and apparently were ready, willing, and able to make the delegated-

municipal form work without feeling compromised. Their economic | horizon, because of their unique physical location and their ability to capitalize upon opportunities, is exceptionally favourable. For what may be reasons sufficiently unusual to render substantial duplication elsewhere in the country much less feasible, the Sechelt Indians not only accepted but apparently pursued the delegated-municipal form: “The form of government proposed is generally local in nature, related

to economic development through the control and management of Sechelt lands, zoning and land use planning, local taxation, education, and the health and social well-being of Band members on Sechelt

lands.”®” ,

appendix. |

‘Supra note 62, at 5. sc 1986, c. 27. See also supra note 59. Canada, “Legislation Introduced for Indian Self-Government for Sechelt,” S’Ibid., at 2. And see, Sechelt Indian Band Self-Government Act, sc 1986, c. 27, | s. 3, which provides “For greater certainty, nothing in this Act shall be construed

so as to abrogate or derogate from any existing aboriginal or treaty rights of

172 Native Liberty, Crown Sovereignty

The reference in that passage to “local taxation” may account for

a large part of the attractiveness of the delegated-municipal form, , in Sechelt, at this time. Because of the geography of the area, it is theoretically in a position to attract a substantial taxation base of nonnative as well as native recreation-related industry, and, potentially,

| manufacturing and residential housing industry as well. Rather than wait for full powers, which may never materialize, the Sechelt band evidently determined that the prudent course would be to capitalize upon present opportunities, without necessarily precluding future extension of their power. In theory that might be supposed to apply universally, but other less favourably situated bands may feel it unlikely that they will be allowed to progress beyond municipal-style government,

especially if progression entails first demonstrating mastery of the delegated-municipal form. This means that many bands may never by non-native standards prove themselves so efficient in the running of the non-native model municipal form of government as to “earn” their way to a more embracing form of power. To them, the psychology

| of being tribal “nations” with inherent-traditional powers instead of municipalities may be of critical importance. The feeling of being absolutely their own master, without the need first to become assimilated in the process of running a non-native-style government is at

| the heart of the matter. The municipal form may make economic sense from the federal government’s perspective, butit does notnecessarily

serve the spiritual feelings that contribute so much to the impetus

behind the aboriginal peoples’ desire for self-government. , On 19 March 1986, the minister of Indian affairs made another statement, highlighting the intention to integrate the government’s established lands claims policy with its developing initiatives on the

self-government front: “We must ensure that any new policy on : comprehensive claims is integrated with other government process and the move to self-government.” There would be little profit in - negotiating comprehensive land claims as if full self-government were on offer, when all that was in fact available was municipal government.

| ~The political. art of dissembling in such a situation would seem to lie in persuading the natives that municipal self-government is their own invention. The Honourable David Crombie, minister of Indian affairs, on 15 April 1986, in the course of commenting upon the Sechelt precedent, thus stated, “We could have put off change by

the Sechelt Indian Band, or any other aboriginal peoples of Canada, under

section 35 of the Constitution Act, 1982.” , 8Canada, “Statement of the Minister of Indian Affairs.”

173 Law Reform and the Negotiation Process

__ waiting for some magic formula, such as an instant constitutional accord, that would suit all Indian communities. Instead, we are working directly with Indian people to start building self-government now — the forms of self-government they have identified to fit their needs ... each group

works out its own form of self-government.” Delivering a general policy statement that same day, the minister added: An important part of the practical reality is that self-government is a local event with different meanings to different communities. Since the federal government believes that local communities, not central governments, are best able to make the important decisions affecting people’s daily lives, discussions ,

| that exist today.” and negotiations to advance self-government will be community-based; conducted

_ atapractical level and ata measured pace; and, tailored to specific circumstances

Thus the formulation of the particular features of each municipal- , style government was to be carried out as closely as possible to the level of each local band constituency: “By embarking on a process of community-based self-government we will: ensure consultation ... at the grassroots level ... expedite practical measures to increase self-

| management and self-reliance ... and provide background information . and a practical context for development of a constitutional definition of self-government.””! Here one senses that the delegated-municipal form of government being fostered could, by providing the “practical

context for development of a constitutional definition of self-govern- , ment,” end by becoming the pragmatic ceiling for the right of self- , government. The policy statement thus concluded, perhaps ominously to those not in favour of the delegated-municipal form, “We are assisting

the Indian people to reposition themselves within Confederation.”” The 1986-87 Canada, Annual Report of Indian and Northern Affairs was appropriately, in the light of these developments, subtitled 1986-87

A Time of Transition. Ironically, the impression it gave was that of a society changing direction: from one of no self-government for aboriginal peoples to one in which they would have virtually a free hand: to write their own charters, albeit within the limits imposed by their own capacities and goals, and the fiscal realities. There was

no intimation that the natives already had an inherent and full , Canada, “Notes for Remarks by The Honourable David Crombie.” Canada, “Policy Statement on Self-Government by The Honourable David

"Ibid., at 4. , Crombie,” at 2. “Ibid., at 3.

| 174 Native Liberty, Crown Sovereignty aboriginal right to govern themselves under existing constitutional law. The “transition” paradoxically was assumed to be from no powers to some powers, rather than from greater to lesser powers.

| A new comprehensive land claims policy” was published in 1987, which raised the possibility that some of the pretence of the past | was going to be jettisoned. It was not. “The basis” is “self-evident,” it said, “for any comprehensive land claims policy” — namely, that

when aboriginal title has not been ceded by a prior treaty or else

“superseded by law” a treaty should be made in order to advance | “the fulfillment of the treaty process.” The document did not admit that natives had existing aboriginal rights that had to be extinguished before the land could be dealt with. The reason for making treaties

- was assumed to be that the procedure had been established in the _ past, and was now simply continued as a matter of convention. This

awkward approach was necessitated because of the cornerstone “superseded by law” idea. Because of the need to maintain the

impression that aboriginal rights had been superseded, it was correspondingly necessary to represent that treaties were therefore made as a matter of mere convention rather than because the natives

still had existing rights at law. © | This revised land claims policy was stated to be inaugurated to deal with concerns, “particularly on aboriginal self-government.” It is apparent

that the objective was to entrench more deeply the municipal-style | ‘selfgovernment policy and further to undermine the natives’ legal position under existing constitutional law, rather than to effect any substantive change in direction. Thus the 1987 policy statement held, “Where no changes have been made in the policy and procedures, the provisions of the previous policy will remain in effect.””

| Ironically, the major new contribution of this 1987 policy statement : to the self-government issue was an implicit federal recognition of the national character of native bodies politic. It stated that the federal government would negotiate with such groups their claims to offshore regions of Canada “in accordance with the same principles as those which apply to terrestrial areas.””° If the natives had been entitled to claim only “terrestrial areas,” the argument might have been that the basis for the claim was the demonstration of simple possession

“]bid. , — *bid., at 13. | of land. Such a basis would not necessarily involve an implied recognition

of anything more than that native individuals used the land. In the

®Canada, Comprehensive Land Claims Policy, 6. | *Ybid., at 7.

| 175 Law Reform and the Negotiation Process case of offshore regions, however, such literal possession may be

impossible to demonstrate. As to the offshore, the essence of native claims is the national claim of each tribal entity as a body politic to hegemony, or notional dominion, over an area not susceptible to literal possession. By recognizing offshore claims, the government. therefore appears effectively to have confirmed the national identity

of tribal nations. It is doubtful that this was the primary purpose of the position taken relative to the offshore. The more probable _ purpose was simply to ensure that all conceivable claims were addressed

and with finality disposed of. Nevertheless, the tacit recognition of | national tribal identity remains an implicit consequence of the 1987 policy statement.

The general continuity of the federal position was further dem-

onstrated in 1987 by Canada’s publication “Aboriginal Self- : Government: What It Means,” which provided, under the sub-heading

“Commitment to Negotiate,” “The federal government remains committed to negotiation rather than litigation to settle claims in those areas of Canada where aboriginal title has not been dealt with

or superseded by law.”’’ Under the sub-heading “Self-Government” it | said, “In recognition of the fact that the settlement of claims and questions of authority and control over aboriginal lands are related, the new policy allows for negotiation of a much broader range of self-government matters. These negotiations must, of course, be consistent with the government’s policy on aboriginal communitybased self-government, respect existing constitutional principles and — government practice.””

: It is perhaps unfortunate that the phrase “respect existing consti- | tutional principles and government practice” should have been used, | since those principles and that practice are so at variance because

of the federal policy on supersession. |

Nevertheless there are persuasive: political realities with which the federal government must contend — namely, the interests of third parties who have innocently become settled, by virtue of crown patents, in yet unceded Indian territories. If the imperial legislation confirming _ or constituting the aboriginal right of self-government and appurtenant

exclusive occupancy rights had been observed by previous federal and provincial governments, no such third-party interests could have arisen.

By ignoring the previously enacted imperial laws constituting their own powers, the federal and provincial governments exceeded their powers. Aside from the legally untenable pretence that this breach "Canada, “Aboriginal Self-Government: What It Means,” 9 (emphasis added). ®Ibid., at 10 (emphasis added).

_ 176 Native Liberty, Crown Sovereignty

means the imperial laws were “superseded,” there is no legitimate basis for third parties being in situ within unceded Indian territories. There can be no “legitimate” third-party interests; yet, in keeping with its supersession theory, under the heading “Aboriginal and Non-

Aboriginal Interests,” this paper added “The current mandate of all federal. negotiators explicitly requires that the legitimate interests of third parties, who have utilized settlement areas, and the public, be

respected.””? In short, the federal and provincial governments have : breached the constitutional law by introducing settlers (including, for example, oil and gas resource industries) upon unceded Indian ~ territories, contrary to the imperial legislation constituting their powers, | , and have rationalized these activities by pretending the imperial law was not there. In these circumstances, when federal negotiators have “explicitly” been instructed that third parties have “legitimate” interests, the genuine legitimacy of the aboriginal peoples’ position has been

pre-empted by the negotiating terms of reference.

If the natives are bent upon enforcing their inherent-traditional form of self-government, and if the federal government will seriously

entertain only the delegated-municipal alternative, one might wonder , why the natives do not just go to court. Why not simply ask the courts

to affirm the imperial legislation and the constitutional common law © precedents as binding upon federal and provincial governments? An

obvious answer might be, on the one hand, that the natives have not been fully aware of the identity and the significance of the imperial

enactments and precedents. Even the federal government appears to have assumed (erroneously) that the basis for the right was domestic common law rather than imperial legislation, since the federal policy

doctrine. , supersession is credible only relative to the domestic common law source. The federal government has induced the aboriginal peoples

to share in this misapprehension by proselytizing the supersession _ |

On the other hand, it would be wrong to assume that court cases are likely to result from the mere revelation of a basis for them. More important reasons militate against court proceedings than the absence

of awareness of the existence of a cause of action. Lack of faith in

, the impartiality of the courts, as non-native institutions, can never be altogether ignored as a factor. But even if natives were convinced , that courts could be unbiased, one cannot assume that the natives would necessarily wish to see the imperial legislation and precedents vindicated. Money figures prominently into the appropriate strategy. Ibid. (emphasis added).

177 Law Reform and the Negotiation Process

Not all natives may necessarily want the existing inherent-traditional form of self-government to be applied in practice, because there is no money attached to that form. Under the imperial legislation, which had its genesis in the eighteenth century, the aboriginal peoples were

, not supposed to be molested or disturbed in the possession of unceded | land. But neither were they to be recipients of monetary transfer payments. The political reality today, however, is that for self-govern- | ment to function effectively in the modern twentieth century context,

| transfer payments are important. “Transfer payments” here means the delivery of financial resources from the federal government to | native governments with which to maintain and administer an ongoing structure of government and to pay for the government services supplied to the native electorate.

The only alternative to such transfer payments would be for the : natives to raise the necessary money themselves. In that connection the significant federal document, entitled Proposed Amendments to the Indian Act Concerning Conditionally Surrendered Land and Band Taxation

Powers, was issued in 1987.°° Its essence was the proposal to confer upon Indian bands increased municipal taxation powers. These powers would extend over non-natives, which is what made it seem innovative, and perhaps even radical. As for taxing Indians, _

as the paper observed: “It is worth mentioning that band councils : have had the power to tax the property interests of band members since 1951. However, without the clear authority to tax non-Indian interests, this existing power has been of little practical use.”*' In other

words, the Indians did not respond to the earlier power under the Indian Act to tax themselves.** The assumption implicit in the new

proposal was that greater interest would be shown in the delegated- | municipal form of government, once it was apparent that the municipal

tax-roll would include assessments on non-natives. The wording of the proposal, it must be stressed, made clear that the anticipated | taxation powers were an adjunct of the delegated-municipal form of government only. First, suggested the 1987 Proposed Amendments paper, See also An Act To Amend the Indian Act and Another Act in Consequence _ Thereof, Bill c-115, 2d sess., 33d Parl. (Can.), 35-6~-7 Eliz. 1, 1986-87—88, first

reading 9 March 1988, s. 10, repealing and amending in part s. 83 of the Indian Act, rsc 1970, c. 1-6. For comparative purposes, see Smith, “The Tribal Tax Status Act and the Tax Reform Act of 1986. See also Webb, “Indian Oil and Gas.” Rhetoric aside, the technical reality is that, in both Canada and the United States, aboriginal self-government in the areas of taxation and economically

crucial resources is strictly controlled. ,

“Canada, Proposed Amendments to the Indian Act, 4. 82Indian Act, sc 1951, c. 29, s. 82.

, 178 Native Liberty, Crown Sovereignty , “band taxation powers are an inevitable part of the growth of Indian - government ... non-Indians on Indian land would be subject to band taxation.”®° Second, there was a structure to be imposed, the municipal

, style, according to which “bands are like all local governments in Canada which rely on a combination of grants, taxes, licences, fees, investments and other revenue sources for their funding needs.”™ Third, the government made clear its intention to control the taxation

! process. After noting that non-natives would be taxable, the proposal observed that this would take place “without [the non-natives] having

| the ability to vote in band elections. Confidence that band taxation would involve appropriate procedures to ensure fairness would be a

very important.”® |

The importance of this tax proposal lay in the fact that it was a way of gaining Indian acceptance of the delegated-municipal form of self-government. The incentive to go to court to press for recognition

of the alternative inherent-traditional form of self-government was further eroded by the monetary premium®® now appended to the

alternative municipal government style. | |

Yet this in itself is another illusion that depends upon the supersession | doctrine. That is, the false impression generated has been that the delegated-municipal form is the only means to taxation of non-natives by natives. That impression depends upon the supersession doctrine

in that it presumes that the alternative inherent-traditional form is | no longer legal, and hence’“is not itself available as a taxing vehicle.

In fact, once it is acknowledged that the inherent-traditional form | is an existing aboriginal right, it can credibly be shown that the right to tax non-natives upon tribal territory is an implicit attribute of that

, more ancient self-government right. |

In that connection the reasoning of the Supreme Court of the United

States in the leading case Merrion v. ficarilla Apache Tribe,®’ decided |

*“Tbid., at 3. : Supra note 81, at 1. ,

Tbid., at 1.

In contrast, see Canada, Indian Government Financial Arrangements, 1: “[g]overnment

policy does not provide for increased levels of program funding resulting from the introduction of Indian self-government.” The impression that creates, of no financial incentive, is misleading, however. Although the federal government says that it does not itself propose to increase transfer payments, it is moving to equip Indian bands with taxation powers of their own. By effectively freezing federal funding, it makes quite clear the financial incentive: if Indian bands wish to provide better services for their people, they can accept the delegatedacculturated municipal form of government and then raise their own tax revenue to supplement federal transfer payments. 87455 U.S. 130 (1982).

179 Law Reform and the Negotiation Process , in 1982, is to the point. There the tribe had made a contract with a business allowing the removal of oil. Later the tribe imposed a severance tax on the removal, which de facto operated as a unilateral surcharge on the contract price. ‘The taxpayer objected, unsuccessfully,

on the grounds, inter alia, that this is a breach of contract, and that it is a breach of fundamental justice to be taxed by a government

from which one is excluded — the idea of “no taxation without _ representation.” The court reasoned that the tax was an instance of the rightful exercise of the inherent tribal right of self-government at domestic common law in the United States.°® Given that in Canada the constitutional common law and the imperial legislation are bases

_ for an aboriginal right of self-government no less inherent and full than at domestic common law in the United States, this reasoning of the American Supreme Court can be applied mutatis mutandis

, in the. Canadian context.

By proposing delegated-municipal taxation powers, the federal ' government has effectively moved to forestall a duplication of the American experience in Canada. That is, by expressly conferring the right to tax non-natives, the government has reduced the incentive for the natives to seek to exercise inherent taxation powers by resorting

to litigation. The federal proposal also indicated that the skills and | experience of the federal government in levying and collecting taxes will be available to the Indians, provided that the delegated-municipal form of self-government has been established. Potential taxpayers are less likely to resist paying taxes levied under the federal auspices.

| In spite of this tax-collecting advantage, a general principle — that of federal control of Indian internal politics — is at stake, and can be anticipated to arise in areas other than taxation. For example, in another American case, Santa Clara Pueblo v. Martinez,®® in 1978, the Supreme Court of the United States held that an allegation by a female Indian of sexual discrimination under tribal law, when that

law denied her children tribal membership because she married a non-tribal member though it would not have done so had she been male, was beyond the court’s jurisdiction to consider, because of the

tribe’s sovereign immunity from suit. Sovereign immunity was considered to be an attribute of the inherent aboriginal right of self-

8Ibid., at 1377.

436 us. 49 (1978). In Canada this American case would now appear unlikely because of the principle of sexual equality enacted by the Constitution Amendment

Proclamation, 1983, section 2, which amended section 35 of the Constitution Act, 1982 by adding subsection (4) guaranteeing aboriginal rights “equally to

male and female persons.” ,

, 180 Native Liberty, Crown Sovereignty , government, which presumably would be absent in the delegated-

, government in Canada. | |

municipal form .of self-government being propounded by the federal The Santa Clara Pueblo case also serves to shift the emphasis from

money to the cultural issue. It highlights the problem of conflicts between the cultural values of a given tribe and society at large. Because of its acceptance of the delegated-municipal form of selfgovernment, it seems clear that one of the controls exercised by the | federal government includes insistence upon conformity with the major cultural values of society at large. For example, section 2 of the Constitution Act, 1982 enacts that everyone has certain fundamental freedoms, among which are enumerated freedom of religion, freedom

of expression, and freedom of association. Suppose a given Indian | tribe were to enact a law that prevented its members from meeting

to discuss and proselytize religious beliefs the tribe considered destructive to tribal culture, upon pain of being excluded from tribal

: membership and exiled from tribal lands. Under the delegated-municipal form of self-government, the enactment would likely be struck down. — Section 52 of the Constitution Act, 1982 enacts that any law, including

laws of federal and provincial governments, in breach of the act is. “of no force or effect.” A fortiori laws enacted by an Indian body politic qua municipality, being merely subordinate legislation under

of no force or effect. , , , the delegated authority of federal law, would if in breach be similarly

In an analogous situation, the ninth Circuit Court of Appeals in

Colliflower v. Garland, in 1965, held that an Indian tribal court, although

sovereign, was in some sense also an agent of the American federal

government, and thus was subject to habeas corpus proceedings brought in the federal court system to review its process upon an , allegation of breach of fundamental justice. The tribe had prosecuted an Indian woman for cattle trespass. She had been convicted in tribal — court, and she alleged that she had been denied a fair hearing. Unable to pay her fine, she was imprisoned, and review of her incarceration

, was sought by habeas corpus. Dunway, J. held that “an Indian tribe has the power ... to enact its own law for the government of its people, | and to establish courts to enforce them ... adoption by a tribe of the law and order code makes that code tribal law not federal law.” Nevertheless, said Dunway J., one cannot deny that,

9349 2d376. 369 .(9th cir., 1965). , Tbid.,¢ at

181 Law Reform and the Negotiation Process [i]n spite of the theory that for some purposes an Indian tribe is an independent

sovereignty, we think that, in light of their history, it is pure fiction to say that Indian courts functioning in the Fort Belkapp Indian community are not in part, at least, arms of the federal government ... to this day the federal government still maintains a partial control over them ... we think that these courts function in part as a federal agency and in part as a tribal agency, and that consequently it is competent for a federal court in a habeas corpus

proceeding to enquire into the legality of the detention.” The point here is not by any means that Canadian courts would necessarily follow the American precedent, nor that the American

| precedent necessarily represents settled law in the United States. Indeed, in the United States the law is in a general state of flux over . the issue whether Indian self-government exists because expressly con-

stituted under federal auspices or else because of an independent sovereignty entirely, which federal law has not pre-empted; and the Colliflower case is only one of many cases impinging upon this contentious issue. For present purposes the case nevertheless illustrates how

the Indians’ independence for cultural purposes can be affected by the legal controls that go along with the delegated-municipal form of government. That form makes the Indian decision-making process | more reviewable by the non-native legal system. And that in turn sug-

gests a greater probability of subjecting Indian political and legal SS processes to the values considered paramount in society at large. By contrast, under the inherent-traditional form of self-government the pressure to conform to social values prevalent in non-native society would be less. Section 25 of the Constitution Act, 1982 enacted that section 2 freedoms “shall not be construed so as to abrogate or derogate

from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms

that have been recognized by the Royal Proclamation of October 7,

1763.” The proclamation enacted that the natives “should not be molested or disturbed,” and it would seem manifest that dictating cultural and political values could do precisely that. Therefore, by insisting upon the inherent-traditional form of self-government, in

“Ibid., at 378-9. The point that an Indian community is “an arm of the federal government” has also been made in Canada. See Canatonquin v. Gabriel,[1980] 9 rc 792 (ca) affg [1978] 1 rc 124 (rp); Rider v. Ear (1979), 103 pir (3d) 168 (Alta. sc); King v. Gull Bay Indian Band (1983), 38 cecl (Ont. pc); and Pratt v. Sproxton (1977), 6 cpc 121 (Sask. Qs).

182 Native Liberty, Crown Sovereignty

courts, the natives conceivably could secure a measure of cultural and political autonomy not otherwise available to them under the delegated-municipal form. The federal government, however, has once again taken an initiative whose effect will be to undermine the natives’ confidence; it has carried out a study entitled Lands, Revenues, and Trusts Review (herein referred to as “the LRT Review” process). Although ambitious in its scope and

daunting in the volume of paper it has produced, the study was fun-

damentally flawed from the outset. In 1986 the auditor general of Canada had recommended “clarification of the extent of the [Indian] | department’s legislative responsibilities, especially in the area of

devolution of authority to Indian bands.” Ignoring that broad recommendation (which if followed could have led the department to recognize the natives’ constitutional and existing aboriginal right of self-government and the department’s corresponding responsibil- _

, ity to respect that right), the department structured the enquiry so as to preclude the crucial constitutional component. Thus the goals of the LRT Review process as. finalized were to change the Indian Act and to develop corresponding new policies and practices. These goals were designed to create a new legal regime without risking any analyses _ or recognition of the natives’ existing constitutional rights under the

old regime. , Although any recognition of the existing aboriginal right of self-

government was thus forestalled, the guiding principle of the LRT Review process nevertheless proclaimed, “The overriding direction of the Lands, Revenues and Trusts Review will be supportive of self-

government. All initiatives will focus on this.” | The z~RT Review process made clear, however, that the existing constitutional aboriginal right of self-government was, in terms of the : Review’s frame of reference, squeezed out of the picture. It said, “Under. the Constitutional Act of 1982, there is a division of legislative powers between the federal and provincial governments. How Indian by-laws fit into this framework has not been plainly established.”® The Review

thus laid as its cornerstone the (wrong and untenable) assumption

that the constitution recognized only the federal and provincial governments. In this unfortunate fashion the Review pre-empted the case for the existing aboriginal right of self-government as already

vested in the several nations or tribes of Indians under section 35 _

“Tbid., %Tbid., atat34.5.: | :

*%Canada, Lands, Revenues, and Trusts Review, “Phase 1 Report,” at 2. ,

“*Tbid., at 3.

! 183 Law Reform and the Negotiation Process of the Constitution Act, 1982. The Review achieved this by having | first precluded any assessment of the legislation confirming or consti-

, tuting the aboriginal right of self-government for constitutional purposes. The Review then added “These weaknesses in the Indian Act are made worse by a lack of information on jurisdictional issues

(i.e., federal versus provincial responsibility) .”*” ,

The whole Lrr Review process from that point on was tainted by this fundamental flaw. For example, in a paper entitled “Questions and Answers,” it appears that the enquiry in the by-law process under the Indian Act “is now being described as First Nations Law, encompassing the full range of government powers that is necessary to govern effectively at the community level.” The paper added, “The overriding objective of the Lands, Revenues and Trusts Review will be supportive

of self-government.”” Then it said, “Minister Cadieux has expressed the government’s intent to pursue discussions which may lead to constitutional recognition of aboriginal rights.”!°° Here the Review’s premise

was clearly put — that the aboriginal peoples do not already have

“constitutional recognition of aboriginal rights,” but through the , benevolence of the minister may hope to acquire them. Having thus _ finessed the point about existing aboriginal rights for constitutional purposes, the paper in the next paragraph blithely added, “There is no mandate within this review to deal with the constitutional issues.”!”!

In keeping with this flawed frame of reference, the Review’s 1989 paper “Phase 11 Final Report — First Nation Law” correspondingly pretended that the natives’ self-government hope was the band bylaw process. “Wrong as the term by-law may be and despite discouraging

limitations on its use, valid band by-laws will displace provincial law from having power on band land. A valid by-law will also supersede most federal law that deals with the same subject matter but which is less specific than a band by-law.”'* By ignoring the constitutional dimension, that paper left the unmistakable impression that the natives’ jurisdiction to make and enforce “First Nations Law” depended upon

the band by-law powers delegated under the Indian Act. The real basis for the natives’ jurisdiction to make and enforce such law —

the constitution ~— was ignored. |

This was too bad. The natives’ sentiment was expressed clearly,

“Tbid., at 35. , Canada, LrT Review, “Questions and Answers,” at 2. :

| “Ybid., at 5. Tpid., at 6. : bid.

at 7 (emphasis added). :

— 1@Canada, tar Review, “Phase u Final Report — First Nations Law,” chapter 1,

184 Native Liberty, Crown Sovereignty

correctly, and perceptively: “We do not want to make junior laws —

that is what by-laws are.”’”’ Instead of responding to that sentiment , and acknowledging the constitutional legislation that confirms the

identifiable. :

natives’ power to create “senior laws,” the paper patronized the natives | and promoted by-laws as the only vehicle for First Nations Law currently

The paper even raised the notion that the crown’s fiduciary

relationship restricted rather than enhanced the natives’ jurisdiction to govern themselves. “The existing fiduciary and trust responsibilities —

of the Federal Government,” according to this paper, “unavoidably : limit the autonomy of Indian bands.” In truth, when properly addressed the fiduciary relationship strengthens the natives’ existing aboriginal | right of self-government by imposing upon the federal government a unique obligation to protect against unlawful encroachments upon

the natives’ constitutional jurisdiction.

Discussing the process of law reform, that same paper catalogued

ways to increase society’s obligation to respect the self-government | right. It listed several options including amending the Indian Act, developing a new Indian Act, developing several new acts, enacting , a new Indian government act, enacting new separate first nations acts, _ and even changing the constitution.’ But it omitted any reference to the application of existing constitutional law, and thus it perpetuated

the illusion that there is not already an existing aboriginal right of

self-government for constitutional law purposes. | In another paper,’’® an equally disturbing gaffe appeared. Under the heading “A Defined Body of Law Is Not Available to Deal with Indian Lands,” the paper cited section 88 and one inconsequential case dealing with the section and then said, “This leaves open the | question what laws apply to Indian lands. We believe that a body of law applies that is likely to be a combination of federal statute applying to Indian Lands, common law and possibly Indian tradition. But, in our opinion, it is difficult to determine or ascertain what _

law exactly does apply. Little case law is available because disputes , between Indians themselves have not reached the litigation stage. , Consequently a void exists. Department of Justice officials interviewed

Ibid, |

by us tend to agree with this analysis.”!°’ Not one of the cases I have

MTbid. at 19. | ‘Ibid. chapter Iv, at 4-5. , 16 Canada, LRT Review, Phase 1 Final Report.” The case referred to was Palm

Dairies Limited v. R, [1979] 1 Fc 531 (TD). |

‘rrT Review, supra, at 28.

| , 185 Law Reform and the Negotiation Process

identified in this study was addressed. | Yet another report in the LRT Review consists of a legal opinion _ given by a prominent and respected law firm’® dealing with “Indian justice system” options. The paper began, “The absence of a consti-

| tutionally recognized aboriginal right to establish and maintain a separate Indian court system implies that its creation depends upon federal and/or provincial executive and legislative authority,” but no authority was cited for this sweeping opening premise. The opinion

simply took it as a given that the natives do not already have an

existing aboriginal right of self-government capable of operating a justice system. Had it made an analysis of the legislation and precedents, the law firm might have seen that a basis for the Indian justice system already exists. For once the aboriginal right to govern is identified, | a dispute resolution process is a natural consequence, if the natives

should choose to formalize their traditional mechanisms. | | Regrettably, like the other reports in the LRT Review process, that paper on Indian justice system options substituted cant for analysis. Stopping short of any examination into the law concerning the most obvious and promising option for Indian justice systems — the natives’

existing aboriginal right of self-government — the paper concluded by purporting to catalogue the available options. It nodded briefly toward the crucial direction but then passed it by, saying only, “The

third option is the possibility that an Indian court could be created _ under s. 35 of the Constitution Act, 1982. As there has not beena judicial determination of the nature and scope of the rights contained in the section, we have refrained from pursuing the option in great detail.”'! The paper then added, with some saving grace, “While the Supreme Court has yet to examine the nature and scope of the rights

in Section 35, it is conceivable that the section includes the right of aboriginal peoples to self-government. If it can be established that aboriginal peoples have a right to self-government, it may be possible

penny drops. |

for aboriginal peoples to establish their own court system.”''' The

That same law firm later misapprehended the significance to self |

government of section 35. In the LrT Review paper subtitled “By-Laws/ Enforcement: Legal Opinions/ Possible Options,” the firm opined: “The fifth exception to the general rule that provincial laws apply to Indians | Canada, Lar Review, Appendix B — Phase 11 Report ~ By-Laws/Enforcement:

Indian Justice System Option.” , oo Ybid., at 1. , NYbid., at 20.

Ybid., at 42-3. ,

, 186 Native Liberty, Crown Sovereignty , and lands reserved for the Indians is the aboriginal and treaty rights which since 1982 are protected by section 35 of the Constitution Act, |

| 1982. Before 1982, aboriginal rights, other than treaty rights, were vulnerable to provincial (and federal) laws.’'* In the first place, that

- opinion is awkward because it appears to suggest that aboriginal , rights have constitutional protection after, but not before, the 1982 _ enactment of section 35. Yet section 35 itself makes an equation between

the rights in the two time periods. Section 35 recognizes and affirms

“existing” aboriginal rights and by doing so relates post-1982 rights

| back to the status quo ante.

More important, the opinion assumed that “before 1982, aboriginal — rights, other than treaty rights, were vulnerable to provincial and federal laws.” No authority was cited for this crucial assumption. The authors

of the opinion did not claim to have undertaken an examination of the legislation and precedents relevant to the constitutional status

| of aboriginal rights before 1982. They merely assumed that before 1982 aboriginal rights had no constitutional protection against encroachments by provincial and federal laws. The law firm would have been prudent to have refrained from voicing an opinion regarding

a legal status it did not purport to have researched. Unfortunately, the popular underestimation of the natives’ constitutional position affects lawyers in Canada no less than lay persons. A further paper in the LRT Review process concerning “band moneys”

commented upon “the lack of a legislative base for the authority and responsibility that bands want.”!!’ Like the other papers in the series,

that one presupposed a lack of a legislative base for the inherent and full aboriginal right of self-government without having first con- — ducted any enquiry into the relevant imperial legislation and precedents. Yet another paper, regarding “Indian estates,” suggested under the heading “Policy” that “the overriding direction for the LRT Review as

a whole is self-government, and all initiatives should focus on this , as a central principle.”''* But when considering the options it suggested,

| “One option is therefore to repeal the estate provisions of the Indian Act and to rely on the existing body of provincial legislation.”!”° It is difficult to see how that option, or indeed any of the other options identified in the paper, contributes anything to the ostensible “overriding” , Canada, LRT Review, “Appendix p — Phase 11 Report — By-Laws/Enforcement:

Legal Opinions/Possible Options Related to By-Laws and Enforcement.” ‘Canada, trT Review, Phase u Final Report — Band Moneys,” at 9.

, Canada, LRT Review, Phase 1 Final Report — Indian Estates,” at 38. 'STbid., at 55.

187 Law Reform and the Negotiation Process

concern for self-government. Instead of recommending that the natives exercise their own self-governmental powers in relation to Indian estates (perhaps incorporating by reference provincial or federal laws upon the subject), the paper would have the natives vacate their independent jurisdiction and would instead directly apply provincial or federal laws. . That is the antithesis of the ostensible goal of self-government identified

in the paper. | Another LRT Review paper, concerning “band management,” also

began by observing that “the overriding direction of the Lands, Revenues and Trusts Review will be supportive of self-government. All initiatives

will focus on this.”'’® Two pages later the paper said, “The report does not address constitutional issues, treaty rights issues or land claims

as these are beyond the terms of reference of the study. Only those. self-government issues that are identical to land management are

addressed.”!!” Thus again the entire land management dimension of , the existing aboriginal right of selfgovernment for constitutional purposes was pre-empted in a paper that paradoxically promoted itself

as fostering the self-government cause. : _ The paper in the LrT Review dealing specifically with powers of bands > ~ and band councils began by claiming that “the report aims at providing a legal backdrop against which approaches put forward in other LRT projects can be studied, considered and discussed. The study does not, however, address in any detail the more far-reaching implications of self-government.”''® Having thus warned himself off the deeper aspects of the self-government questions, the author of this paper,

an accomplished lawyer in a leading law firm, then proceeded to prejudge the entire self-government issue for constitutional purposes _ on the basis of assumptions. He said, first, “Another constitutional consideration is that federal legislation conferrng power upon Indian | bands must be consistent with existing aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982.”!"° But he failed to observe that by the same token federal legislation

taking away power (no less than federal legislation conferring power)

was bound to respect existing aboriginal rights. , From that inauspicious beginning, this author then said that “band customary law ... today is superseded by provincial laws of general

at 1. :

Canada, LRT Review, “Phase u Final Report — Land Management,” at xii.

Tbid., at 1.

'8Canada, LRT Review, Phase 1 Final Report — Powers of Bands and Band Councils,”

‘Ibid., at iii (emphasis added). /

188 Native Liberty, Crown Sovereignty -

application except to the extent that it finds expression, whether by , reference or otherwise, in a band by-law.”!”° Thus, he uncriticallyaccepted the federal government’s spurious supersession doctrine and was put _

off the scent of the imperial legislation and precedents that expose the fallacy of the supersession hypothesis. On the basis of that assumption, |

he erroneously concluded that under existing law the only vehicle for band customary law was the municipal and delegated form. He

never directly addressed the true vehicle for band customary law — | namely, the existing aboriginal right of self-government. Instead, he indirectly pre-empted it by identifying the by-law form as the only possible vehicle.

In what must surely rank as one of the great oversights in legal , research, that same paper, under the heading “The Constitutional Framework for the Exercise of Band powers,” went on to say, “To the extent that the powers of bands and band councils are based on statute, the source of the power is likely to be federal.”!*' The , entire regime of constitutional law represented by the imperial statutes and the constitutional common law went unidentified and unremarked. The paper added, “Absent section 91 (24), the provinces within which —

Indians reside would have constitutional jurisdiction to accord local , government powers to Indian communities, whether by setting up

, separate structures or by integrating Indian government within the ! general framework for local government existing within each prov- _ | ince.”!*? The author thus set up section 91(24) as constituting a basis | for federal enclaves of Indian jurisdiction in the delegated and subordinate form of band by-laws. Then he suggested that in the absence of section 91(24) there would be nothing to prevent provincial laws from applying, and that accordingly band governments could become © ordinary municipalities exercising powers delegated under provincial law. Either way, in his view, the only basis for the Indian jurisdiction was

the delegated form subordinate to either federal or provincial law,

thereby ignoring all the imperial law that confirms the natives’ ,

, independent jurisdiction to govern themselves. ,

The Lat Review process has been a disappointment. Perhaps what

- it best demonstrates is that, by determining the terms of reference, — 'Tbid., at xv (emphasis added). See also, the Indian leaders’ position which _ correctly would have native law “supersede” federal and provincial laws, at 5. Although the paper identifies the natives’ position, it does not conduct any

, enqiry into the legal basis for it, preferring instead to operate upon the basis

——-2Tbid., 8. |,| : '22Tbid., atat 9. of the assumption accepting the federal supersession hypothesis.

_ 189 Law Reform and the Negotiation Process the Indian Affairs department is able to call the tune in return for its consulting dollars. The Review is an unabashed promotion of the

federal position favouring both the municipal form of self-government and the untenable supersession doctrine. As a perspective on the existing

aboriginal right of self-government for constitutional purposes, the LRT Review is a hypocritical sham. It declared self-government as its goal, and then employed unsubstantiated and untenable assumptions _ indirectly to undermine the existing aboriginal right of self-government _

for constitutional purposes. — | : The choice faced by the aboriginal peoples of Canada regarding how best to deal with law reform and the negotiation process is not easy. On the one hand, litigation offers the possibility of an affirmation of the cultural and political independence identified with the inherent-

traditional form of self-government. Raising money to operate that | form of government, however, would be problematic if not impossible,

and could involve ongoing litigation. On the other hand, although the negotiation process offers only the delegated-municipal form of self-government, since that is all the federal government will seriously

| consider, it at least promises immediate financial compensation, as |

well as ongoing support.

| The choices facing members of the Canadian Parliament are no less difficult. The impetus for cultural pluralism is an entrenched | principle under section 27 of the Constitution Act, 1982, which enacted,

“This Charter shall be interpreted in a manner consistent with the , preservation and enhancement of the multicultural heritage of Canadians.” And section 35 singled out the aboriginal peoples for

a measure of protection over and above that pluralistic norm. Yet | federal policy has long been committed to assimilation through a process of encouraging by stages a delegated-municipal form of selfgovernment. The imperial law pulls in one direction, while federal

policy pulls in the other. Either approach would take far more money than is presently budgeted. Even so, it seems fair to suggest that ever since confederation federal policy has been trying to crush the natives’ aspirations for their own inherent-traditional model. The federal policy has not been particularly successful. Perhaps it is time for the inherenttraditional model to be allowed to function in Canada, and accordingly for the government to respect the imperial law. Given a chance, this

could work. It could hardly do worse than the existing federal policy | of frustrating the natives’ natural inclinations to govern themselves _

heritage. | |

in the manner most consistent with the uniqueness of their cultural The logical direction that law reform should take would be to involve

the native nations in the federal-provincial tax-sharing program as

190 Native Liberty, Crown Sovereignty , , a constitutional partner. The existing tax-sharing program takesaccount _

of only two of the senior levels of government constituted by the imperial government in British North America. That is, in the eighteenth century the imperial government confirmed and constituted — separate jurisdictions in favour of the native nations on the one hand _ and the colonial governments of the European colonists on the other. In the nineteenth century the imperial government split the colonial government jurisdiction into its federal and provincial components, thus recognizing three jurisdictional entities constituted directly under the imperial mantle — native, federal, and provincial — the three governments in capite, that is, holding their respective powers directly

from the imperial crown. | In the twentieth century the introduction of the income tax concept

led to a disproportionate ascendency of the financial clout of the federal relative to the other two constitutional partners. This balance was redressed, between the federal and provincial components, by

| the ensuing federal-provincial tax-sharing scheme. The co-operative federalism represented by the tax-sharing scheme should nowbe redressed

to include the third of the constitutional triumvirate.

Furthermore, it is time for Canada to recognize that the native | nations, as a constitutional level of government, have every political and moral right to be an equal partner in the constitutional change process. Any agreement, the Meech Lake accord for example, that involves only two of the three constitutional governments is unseemly. Whenever the constitutional balance of power is being debated and

| potentially altered, all three of the governmental jurisdictions constituted by the imperial government should be involved.

Conclusion

The aboriginal right of self-government exists in Canada. It always has. It existed before the European invasion of North America. It

survived the claim of British sovereignty made by the imperial government. It was confirmed by the constitutional common law. It was confirmed by constitutional legislation enacted by the imperial government. This situation can be contrasted with the situation in the United States. The basis for the aboriginal right of self-government in Canada

, is the constitution. By “constitution,” in the Canadian context, this study means the constitutional common law precedents and the several

| enactments legislated by the imperial government, which together determine the powers of the federal, provincial, and aboriginal governments in the country. In the United States, in contrast, the constitution is silent regarding the right. (“Constitution,” in the American context, means the 1789 United States Constitution as _ amended.) The American constitution says, regarding Indians, only that, in effect, they are a matter of federal jurisdiction, as provided in article 1: “Congress shall have the power ... to regulate commerce with foreign nations, and among the several States, and with the Indian

Tribes.” It is this clause — referred to as the “Indian commerce clause” : — (and to some extent the federal jurisdiction to make treaties and to conduct war) that is the source of federal power over aboriginal _ peoples. As to the substance of native rights, however, the American constitution is neutral. In the United States the only basis confirming the aboriginal right of self-government is, therefore, the domestic case law, and to a lesser degree domestic federal (as opposed to the higher

form of constitutional) statutes.! , ‘See chapter 1. See also Newton, “Status of Native American Tribal Indians under United States Law,” 52-7.

192 Native Liberty, Crown Sovereignty

As a constitutional right, the right in Canada enjoys constitutional immunity, and not merely federal immunity, from encroachment.

Paradoxically, although Canadian courts refused to constitute a uniquely domestic common law right, the courts of the imperial government created precedents that confirmed the right for constitutional purposes. In Canada therefore the legislated constitution and : the constitutional common law precedents are not merely alternative bases for the right — they are the only bases.* That the constitution exclusively defines the right should in no way be taken as a weakness, _ however. This fact places the aboriginal right of self-government in Canada in a distinctly more independent® light than in the United States: being constitutionally vested in Canada, the right cannot be abrogated except by constitutional amendment. In terms of attributes

— that is, what the aboriginal peoples can actually do in pursuance of the right — the right is equally inherent and full in the two countries.

| Thus, the Canadian right is superior in terms of its constitutional status, and equal in terms of its attributes. There are three historical stages that can be identified in the evolution

of the aboriginal right of self-government in Canada. In the first of these — the colonial era, especially the mid-eighteenth century when the right crystallized — the norm was segregation. The constitution

then deemed that the natives should not be molested or disturbed

in the possession of territory that had not yet been purchased from them by the crown. By doing this, the constitution created a racially

segregated political system within the North American colonies. On the one hand were lands reserved for the natives, the “Indian territories,”

upon which that race was to be left to its own devices. On the other , hand were those areas purchased by the crown, over which the non-

, | native governments. of the colonists exercised their imperially constituted political powers. The racial line was not easily crossed. |

To vote in the non-native political system, for example, an Indian | had to cease being Indian for legal purposes, by becoming formally | enfranchised, and even this did not become a possibility until the

nineteenth century.’ |

*For example, St Catherine’s Milling & Lumber Co. v. R. (1888), 14 ac 46 (rc), 54. ° AG Canv. AG Ont., [1897] ac 199 (pc), 210-11, per Lord Watson, confirming that the Indians, under the Constitution Act, 1867, have “some right or interest ... independ-

of chapters 1 and 4. ,

ent of and capable of being vindicated in competition with the beneficial interest of ,

the old province [emphasis added].” And see the discussions in the second sections

*An Act to Encourage the Gradual Civilization of the Indian Tribes in This Province, and to Amend the laws Respecting Indians, s Prov. c 1857, c. 26. |

| 193 Conclusion For the moment leaving aside the second stage, it is noteworthy _ that by the time of the third of the three historical stages—the twentieth , century ~— an ideology of integration challenged the dominance of

segregation. The highest court in this period declared that there were no federal “enclaves” where laws of general application made by the non-natives would not run.’ The idea that the aboriginal peoples had a right of self-government under imperial constitutional law was not

contemplated. The idea was not rejected in any overt manner. Rather, | it was not even debated, so apparently self-evident was the proposition | that “enclaves” did not exist. Yet enclaves, or at least pockets of native

jurisdiction, are precisely what the imperial law of the colonial era had created, when the constitution and precedents recognized that the natives should not be molested or disturbed upon lands that had not yet been purchased. Thus the Canadian court was right that there were no federal enclaves of Indian jurisdiction in domestic law. There

are however, at least metaphorically speaking, imperial enclaves of Indian jurisdiction in constitutional law. The legislation and precedents confirming or constituting this have not yet been addressed by Canadian

courts. The legislation and precedents nevertheless exist, and they —_

are binding for constitutional purposes. |

, One is left to conjecture the reason for this overlooking of the imperially made constitutional law. The suggestion has been that liti- — gators and legal analysts have tended to adopt a regional rather than

an imperial perspective, which has precluded identification of the uniformity of the imperial scheme. The further surmise offered here is that the integration ethic has so dominated the psychology of recent

| _ jurists that the existence of enclaves, resting upon the ancient segregation ideology, was mentally excluded from consideration. The overall scheme of the imperial legislation, incorporating the segregation

ideology by confirming or constituting separate governments for the natives and colonizing races, was simply not addressed. It remained out of sight and out of mind. The paradox is that not only has the twentieth century liberal democratic ethos fostered this integration ethic which has pre-empted a ready recognition of the existing aboriginal

right of self-government, but this same liberal democratic ethos has also fostered the self-determination ethic, which now demands for — | * Cardinal v. AG of Alta, [1974] scr 695, 703, aff'd Four B Manufacturing Ltd. v. United Government Workers of America (1979), 30 NR 421 (scc), appl’d ac Ont. v. Bear Island

Foundation (1984), 49 or (2d) 353, (Hc), 475. But see the second section of chapter 4. Federal government policy also took a distinctly integrationist turn. See Canada, Statement of the Government of Canada on Indian Policy, herein referred to as

the 1969 white paper. And see the discussion in chapter 5.

194 Native Liberty, Crown Sovereignty

its satisfaction the establishment of the right as if it were a new idea. The contrast described between the first-stage, colonial era and the third-stage, modern era, though stark when those epochs are viewed

in isolation, can be blurred by the intervening transitional second stage — namely, the era of the acquisition of responsible government

of the nineteenth century. In fact this era was quite neutral. During : it the previously established imperial law remained binding upon

| colonial governments, as it continues today to remain binding upon - federal and provincial governments.® Unfortunately this can be overlooked as one becomes enmeshed in the question of the distribution

of legislative powers that has dominated traditional legal analysis of

, the era of the acquisition of responsible government. In one recent leading case’ a judge of the Supreme Court of Canada erroneously assumed that the pre-confederation colonists’ government in British Columbia had been granted, by the imperial government, vice-regal , sovereign power sufficient to extinguish aboriginal rights relative to territory the crown had not purchased. In fact the legislative record is clear that no such delegation of power to any colonial government ever took place in Canada. Even the federal government’s power conceded

it at confederation, relative to “Indians, and Lands reserved for the Indians,” was not a sovereign power, but rather one to be exercised

in conformity with established constitutional conditions. Thus it was not the growth of responsible government in the nine-

teenth century that challenged the aboriginal peoples’ inherent autonomy, but rather the growth in importance of integration ideology.

This ideology in Canada prevented the courts from developing a domestic common law right of selfgovernment because the judges were not prepared to admit (as they had in the United States) that | the indigenous race was segregated for political purposes.’ This perhaps

laudable integrationist atittude led to the anti-enclave doctrine of the twentieth century. The nineteenth century integrationist attitude was

, manifested in the domestic legislation of the colonial governments. But, and this is the crucial point, it was not similarly manifested in the imperial legislation and precedents. These continued and perpetuated

the racial dichotomy established for constitutional purposes. Thus the domestic law of the colonists came to be at variance with the constitutional

law established by the imperial authority. For example, the Province of Canada enacted An Act to Encourage

°See the second section of chapter 3. , ,

dation, supra note 5. , |

’ Calder v. AG for Bc, [1973] scr 313, per Judson J. See also Ac Ont. v. Bear Island Foun-

’See Chapter 1.

195 Conclusion , the Gradual Civilization of the Indian Tribes in This Province, and to Amend the Laws Respecting Indians’ in 1857. This was an offer by the colonists’ government to admit natives into their political system.

Individual natives could apply for and become, for legal purposes, “white people,” in the sense that as a condition of becoming enfranchised their differentiated legal status as Indians would disappear. As the title of this act suggests, integration at the time meant outright assimilation. The objective was the ultimate “civilization” of the tribes.

Indians were equated with the savage or barbarous condition.” The alternative, civilization, was a literal alternative: when they stopped being “savages” they stopped being Indians, because then by definition they were “civilized” and ready to participate in civilized political life

as non-Indians. :

The historical fact is that the indigenous race did not disappear

for legal purposesasa result of the enfranchisement process. Nevertheless,

the race continued to become “civilized” in the sociological sense meant in this legislation — namely, Christianized, literate, and lawabiding. The original nineteenth century idea that the Indians would __. be phased out, as it were, as they became more civilized was thereafter

supplanted by a different type of integration ideology. Instead of integration meaning outright assimilation, the objective remained integration but in a pluralistic context. Even though the natives were seen as civilized and therefore as universally entitled to vote in the election of federal and provincial governments,"' they were not understood

| thereby necessarily to stop being Indian or necessarily to stop having their own aboriginal governments. But Indian band governments under the domestic Indian acts increasingly came to be viewed by colonial governments as being the only kind of indigenous peoples’ govern-

ments, and as being analogous to municipal corporations.” °s Prov. C1857, c. 26. See also Hodgetts, Pioneer Public Service, 207 and 211, where the

emphasis upon assimilation was seen to occur after 1830 when the civil administration assumed responsibility for Indian affairs from the military establishment, a process accentuated in 1860 when day-to-day control of the administrative proc- , esses was again shifted, from imperial to colonial government civil administrators.

See also Tobias, “Protection, Civilization, Assimilation.” | “For example, St Catherine’s Milling Lumber Co. v. R., (1885), 10 oR 196 (Ch. D), 206,

per Chancellor Boyd. "Constitution Act, 1982, s. 3, “Every citizen of Canada has the right to vote in an election of members of the House of Commons [federal] or ofa legislative assembly _ , [provincial] and to be qualified for membership therein.” This merely confirmed what had been the situation throughout Canada even before this act was passed. See Montgomery, “The Six Nations Indians and the Macdonald Franchise”; and Olsen,

, See chapter 5. , , Comparative Changes in the Status of Indians in Canada and the United States, 56. And

| see Canada Elections Act, sc 1960, c. 7, ss. 1(1) and (2).

| 196 Native Liberty, Crown Sovereignty | | Although the federal and provincial governments promoted Indian bands as racially defined municipalities, this did not affect the more ancient status of Indian nations in constitutional law. The imperial legislation had recognized the “Nations or Tribes” and had enacted

that colonial governments should not “molest or disturb” them.'° Nevertheless it is unnecessary to the present point to prefer the municipal model to the quasi-national model of self-government or vice versa, since upon either view aboriginal self-government continued.

| Upon neither view were the natives understood to have been assimilated for political purposes even though they could vote in federal and provincial elections. The nineteenth century process of assimilation : ostensibly was therefore stalled. It has at least temporarily been replaced

by a system under which the Indians have been integrated into the 7 political mainstream, without ceasing to be segregated for the purpose | of exercising an independent franchise in relation to their own native governments. Part of the current fear of the Indians is that if they

a accept municipal status, in the future the racial basis will be forgotten, , and their communities will be treated as if they were just ordinary municipalities’* — they will have lost their special racial status. The aboriginal people wish to maintain the element of racial segregation

segregation. ' |

that makes them “citizens plus.”’’ They see this as liberty, not as

The difficulty is that being “citizens plus” for jurisdictional purposes does not necessarily lead to economic superiority. The existing abo-

riginal right of self-government under the constitution meansno more than that the federal and provincial governments may not exercise

| their non-native legislative jurisdiction so as to encroach on the | corresponding jurisdiction of the natives to govern their own affairs. The right thus denotes a negative obligation on the part of federal and provincial governments to refrain from interfering, but it does not connote any positive obligation to provide support. Since financial

support is needed by the aboriginal governments for those governments to function in the modern context, the existing constitutional right of self-government is no panacea. Those governments must secure | '’Royal Proclamation of 1763, rsc 1970, app. 0, no. 1, at 127. See the second section

of chapter 2; chapter 3; and supra note 3. | | :

'4"Indian leader criticizes Ottawa,” London Free Press, 31 May 1988, a6: “In a speech

, opening the assembly’s [Assembly of First Nations] annual meeting in Edmonton, Erasmus [the national chief] accused the federal government of trying to transfer responsibility for native peoples to the provinces.” Provincial municipalities do not

have racially defined constituencies. — ,

_ —Indian Chiefs of Alberta, “Citizens Plus.”

197 Conclusion : | the means to their own survival, whether by suing non-native governments, corporations, and private persons who use Indians lands or

by negotiating a political accommodation in principle with them. The major obstacle to concluding such an accommodation in principle has been the federal government's theory about the supersession

| of aboriginal rights.'® In this study I have suggested that the federal _ | government is labouring under the erroneous assumption that the aboriginal right of self-government in Canada was based, if upon any-—

thing, upon domestic common law rather than upon constitutionally binding imperial legislation and constitutional common law precedents.

This was an inference taken from federal actions, since the federal

' view as to the basis for the aboriginal right has not been expressly , | defined, in words, by that government. Had the right in fact been based upon domestic common law, then it might have been credible

for the federal government to maintain that the right has been “superseded” by actions of federal and provincial governments inconsistent with that right. In that case the principle that the domestic

common law purported to represent would simply have been refuted : by events, and in this sense arguably “superseded.” Since the aboriginal | right of self-government in Canada is based upon imperial legislation and constitutional common law precedents, the doctrine of supersession

cannot be relevant to the legal definition of the right. Imperial constitutional law confirming or constituting the powers of Canadian governments could not possibly have been superseded by the excesses of those governments. The imperial legislation was never repealed and the constitutional common law precedents were never overruled, and that is the only way their effect could legally have been nullified. For this reason I submit that a reassessment of federal government

policy is due in Canada. Then the task of clearing away the legal

'©See chapter 5. A major obstacle to pulling the federal government up short on the spurious assumption of supersession has been a general unfamiliarity in Canada on the part of social scientists of the legal principles that refute the assumption. See,

| for example, Olsen, supra note 11, at 1: “In Canada, where Indians were not regarded as having any special legal rights, Indian policy revolved around the problem of assimilating a minority group which historically had been dealt with as a distinct entity”; and at 103,” [I]n Canada Indian special status has remained entirely dependent on the goodwill of the crown”; and at 105, “There is absolutely no legal impediment to Parliament or Congress sweeping Indian rights aside.” That view represents conventional academic wisdom in Canada. It is true relative to the United States, where aboriginal rights rest upon domestic common law only. It is false relative to Canada where such rights have rested upon the written constitution and constitutional common law precedents since at least 1763.

198 Native Liberty, Crown Sovereignty

and political debris occasioned by past misconceptions can begin, and the process of law reform placed upon its genuine foundation. That foundation is the recognition that the aboriginal right of selfgovernment is an existing constitutional right, and that it is inherent

and full. | oe

Alternatively, if the non-native governments are only biding time

as part of a long-range plan of assimilation by fostering municipalstyle self-government as feared by some aboriginal peoples, then the

plan should be openly avowed. Ultimate integration of the races is : not such an inherent evil that its proponents need mask their intent, any more than is the contending desire of the native people to perpetuate

in the name of liberty a racially segregated political identity. If this is the plan, then clearly it is at variance with the existing constitution. In that case the constitution should be amended to conform with

the practice. :

The recommendation therefore is that the gap between principle

and practice be closed. If the existing constitutional law is to remain, it should be honoured, and applied in practice. Alternatively, a constitutional amendment deleting'’ existing aboriginal rights would make the constitutional principle conform to the existing practice of ignoring that existing right. Either the practice should be changed or the law should be changed, since the gap between them compromises

the opening premise of the Constitution Act, 1982, that “Canada is

founded upon principles that recognize ... the rule of law.” The constitution as it stands incorporates by reference to “existing” aboriginal rights the aboriginal right of self-government. Yet the governmental practice is to assume that this right does not exist, thus creating an inconsistency between word (as represented by the law) and deed (as represented by the practice). This inconsistency between

word and deed is as between the rule of law and the rule of men. The constitutional vindication of the paramountcy of the rule of law

thus requires that the law either be changed or else applied. The difficulty, unfortunately, is that the existing tension between

a word and deed is symptomatic of a larger tension which precludes facile solutions. The Canadian liberal democratic ethos has spawned both an integration ethic and a self-determination ethic; these two 7 “Deleting” would entail the repeal of sections 25 and 35 of the Constitution Act,

1982, pursuant to part v, but without any corresponding reinstatement of section 7(1) of the Statute of Westminster, 1931 which was repealed by the schedule, item 17. Section 7(1) had saved the previously established imperial law regarding the constitutionally independent status of the aboriginal right of selfgovernment, until its repeal in the schedule and its replacement by sections 25 and 35.

199 Conclusion , ethics ultimately may prove impossible. to reconcile. The ostensible reconciliation ~ “separate but equal” ~ may be a flawed concept. By

, creating “voluntary” racial enclaves, for legal and political purposes, one may promote with the carrot what involuntary segregation achieves

| with the stick by compulsory apartheid laws. Yet we have in Canada

of tyranny.'®

_ de facto separateness of Indian communities, and to deny them their

de jure right to manipulate their own destinies may be little short = The courts will naturally have the last word upon the application

of the law. Regardless of the definition of the existing law or whatever

solution the legislators of Canada in future adopt, the current trend in aboriginal rights is for the courts to presume to have unlimited discretionary powers. The point is critical: the judges in this particular

field of law have tended quite recently to be guided by their own views of what is “reasonable” in preference to following the law as laid down by the imperial government. The seriousness of this tendency

for the existing aboriginal right of self-government (or any future : variation thereof) cannot be overestimated. The threat of this trend is that when eventually the courts are presented with the consti- , tutionally binding imperial legislation and precedents, they will

“unreasonable.” |

hesitate to apply it if for sentimental reasons its application appears

'8Despite these general comments it is clear that this study has not dealt with many interesting but narrower consequential questions. It has claimed, for example, that

tribes retain the right to civil self-government. But the study has not explored the , related and important question whether that right extends to disputes between tribal members and non-members, nor has it explored to any appreciable degree the general issue of inter-racial dispute resolution. Neither has the study grappled directly with the issue of the advisability of constitutionally rehabilitating the

, natives’ pre-Columbian jurisdiction in relation to crimes and offences, either between themselves or on an inter-racial basis. It has not explored all the possible

consequences of the claim of constitutional immunity that, it asserts, clothes the aboriginal right. For example, if the claim of constitutional immunity is well . founded then many provincial laws currently applied to natives under the authority of section 88 of the Indian Act, rsc 1970, c. I-6, are being improperly so applied. Constitutional immunity clearly involves complex questions: Indian attornment to some provincial laws but not others, the effect of acquiescence, the importance of informed consent, and so on. In short, many consequential issues have been left

unaddressed. It is advisedly so. Given the present juncture in the evolution of Canadian law in relation to the aboriginal right of self-government, such hypothetical questions could not possibly have been answered without engaging in speculation. There are neither precedents nor legislation yet available authoritatively to resolve such questions. Indeed, it is the generic nature of the existing constitutive sources that dictates the very existence of such unresolved, specific questions. This

| manuscript purports to portray the existing law. And the existing law is uncertain beyond the margins defined by the ascertainable constitutional parameters.

| 200 Native Liberty, Crown Sovereignty Two cases may serve to illustrate this trend. In rk. v. Agawa'® in 1989,

the Ontario Court of Appeal held that section 35 of the Constitution

, Act, 1982 was subject to a reasonableness test in relation to treaty rights. In R. v. Dick,*° also in 1989, the British Columbia Provincial

Court held that the constitutional guarantee of aboriginal rights was similarly subject to a reasonableness test. In both instances the reasonableness issue was centred upon conservation measures, the idea being that non-native domestic legislation regulating hunting, — fishing, or the environment could override the constitutional guarantee of “existing aboriginal and treaty rights,” provided that the non-native

the circumstances. | |

| domestic law was “reasonable” for the purposes of conservation in The insidious thing about this reasonableness test is that it seems ~ so ~ reasonable. Why, rhetorically speaking, shouldn’t the courts be _reasonable? Should they be, rather, unreasonable? However, reasonableness is not the issue. The issue is whether the courts will apply the constitution’s intent, regardless of whether that intent is, in the judges’ opinions, reasonable. The imperial Parliament enacted the Constitution Act, 1982, at Canada’s

request. Part 1 of that act is called the Canadian Charter of Rights and Freedoms. This charter is expressly made subject to a reasonableness test, since within it section 1 enacted: “The Canadian Charter of Rights

and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This reasonableness test is by the charter made applicable only to federal and provincial legislation,

since within the charter section 32(1) enacted: “This Charter applies

(a) to the Parliament and government of Canada in respect to all | matters within the authority of Parliament including all matters relating

to the Yukon Territory and Northwest Territories; and (b) to the | legislature and government of each province in respect of all matters

within the authority of the legislature of each province.” : The first point therefore is that the Constitution Act, 1982 explicitly | adopted a reasonableness test regarding the construction of federal and provincial legislation in relation to the enumerated rights and freedoms identified by the charter. These rights and freedoms do

in another part. , — | not include aboriginal and treaty rights, which are dealt with separately

The adoption of this reasonableness test was a major constitutional

event. Constitutions are supposed to settle the founding principles

19 (1989), or(Bc (2d) 505 : 7971989] 1 cNLR65 132 Prov. Ct).(ca) :||

|,

, | 201 Conclusion | , that constitute the terms for legal purposes upon which the society is premised. Expressly to invoke a reasonableness test is to confer upon the courts a significant power not otherwise present. Without that express delegation of power the courts would be charged only with the duty of determining legislative intent regardless of reasonableness. This would have been nothing more than a recognition of the undiluted principle of the supremacy of Parliament. But the explicit

| interjection of the reasonableness test changed that. By the inclusion _ of this test, the Constitution Act, 1982 expressly and explicitly charged _

the courts with an additional duty, and by.so doing has materially qualified the doctrine of the supremacy of Parliament. The courts by this means have acquired a quasi-legislative capacity. No longer must they simply apply the intent of Parliament. Rather, they must ask themselves the supplementary question, whether that intent is

reasonable in the circumstances. ,

In view of the importance of the reasonableness test, it is not a duty the courts would have taken upon themselves without express constitutional authorization. The duty was thrust upon the courts by section 1, but only in relation to the charter issues identified in part I.

Aboriginal rights are outside of the charter. They are not in part 1. They are in part 1. Unlike part 1, part 1 of the Constitution , Act, 1982 contains no reasonableness test. Parts I and lI are discrete parts. The heading prefacing part Il is “Rights of the Aboriginal Peoples

of Canada.” Within this part, section 35(1) enacts: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are

hereby recognized and affirmed.” | When enacting the Constitution Act, 1982, the imperial Parliament | could have included a reasonableness test in relation to part II just as had been done in relation to part I. That is, aboriginal rights could | have been rendered subject to the same power in the courts to assess the reasonableness of those constitutional rights when in conflict with domestic legislation. But part Il was not drafted that way. On the face

of the Constitution Act, 1982, the duty upon the courts in relation

to existing aboriginal rights is unambiguous. The duty is solely to , apply the declared intent of the imperial Parliament, not to take the supplementary step of asking whether that intent is in the courts’ view reasonable in particular circumstances. — The imperial Parliament has declared its unqualified intent to be

that existing aboriginal and treaty rights enjoy constitutional paramountcy. Therefore, when in conflict with merely domestic legislation _ the outcome should be beyond cavil. Constitutional legislation dom-

, inates over domestic legislation when two legislative intents conflict.

| 202 Native Liberty, Crown Sovereignty The constitutional intent declared by section 35 is that aboriginal rights are paramount when in conflict-with a contrary intent expressed a legislatively by a domestic enactment. This may well result in perfectly unreasonable consequences, at least from a non-native perspective. If so, since there is no reasonableness test qualifying section 35, then —

the remedy must be a negotiated setthkement or a constitutional amendment rather than a judicial reading-down of the section. _ ~ Cases like Agawa and Dick are contrary to constitutional integrity.

They indicate that it does not matter that the imperial Parliament omitted any reasonableness qualification test in relation to aboriginal

oe and treaty rights. These cases simply adopt one anyway. It is unusual | | enough to have any reasonableness test. A fortiori it is beyond the pale to imply one in a legislative instrument that has indicated that

| if such a test is desired Parliament has been express. , , To criticize the approach represented by Agawa and Dick is not merely to argue legalistic niceties. The imperial Parliament presumably knew what it was doing when it omitted the reasonableness test from

part il. It was doing the same thing as had been done two centuries earlier by the Royal Proclamation of 1763. It was declaring its intent that aboriginal rights for constitutional purposes were beyond the

reach of colonial institutions to compromise. One need ask only | _ whether it would have made sense for the Royal Proclamation to have , proclaimed in one breath (as it did) that the indigenous nations should not be molested or disturbed, and in the next breath that the colonists’ courts could disregard this injunction if they felt it was unreasonable.

, Without doubt, actually applying the rule of law will cause some. social and economic adjustment problems. The fact that the aboriginal

right of self-government has existed continuously raises an interesting spectre, for practical purposes. The treaties since the early 1800s were made by colonials. To drive hard bargains the colonials led the natives to believe that they did not already have any strictly legal rights. The — natives were induced to enter these treaties in order to acquire some

legal rights, at least to small portions of the Indian territory, which small portions would be called their reserves. In terms of public versus

private law, the natives were induced to believe that they had no

| public law rights, and that if they wanted legal protection it would

by the treaty. ,

have to be acquired in virtue of the private law — the contract made

Typically the natives have, therefore, been induced to enter into , treaties on the basis of misrepresentations made by the other

contracting party, the colonial government representatives of the crown. | This occurred when the crown was acting as trustee. It is basic that —~ a trustee, being bound by the law of fiduciary relationships, is under

203 Conclusion

: an obligation to make full disclosure to the beneficiary, rather than , lead the beneficiary into underestimating the strength of the

beneficiary's bargaining position.

The spectre this raises is that huge swaths of Canada still belong to the aboriginal peoples, even though treaties ostensibly extinguished the aboriginal rights relative to those swaths. As contracts, each treaty

conveyed or released only what the conveying or releasing parties, the natives, intended. And as a matter of law it is difficult to argue that the natives intended to relinquish something that their trustee’s representatives tricked them into believing they did not have. Admittedly, the colonial government representatives conducting the | treaty negotiations were not in the habit of reporting to their imperial

masters in England that they had induced treaties in this fashion. The colonial office was never disabused of the natural assumption that the previously established imperial public law was faithfully being followed. It was just that in the field the colonial government agents

- omitted any mention of that imperial public law to the natives, and _ they never mentioned this omission to the colonial office. The natives were allowed to believe that the purpose of the treaties was to create

rights ~ new lamps for old. And the colonial office was allowed to | believe that the natives wished to take this step on the road to civilization.

Furthermore, this pattern of dissembling established in the colonial era continued right up to the present, and dominates modern land claim agreements and constitutional negotiations. The consequence, in terms of the aboriginal right of self-government,

is not only that the right exists, but that it exists in relation not only | to territory where as yet there have been no treaties, but also to areas

where treaties have already been made. It exists throughout Canada | geographically speaking. The colonial governments may have been

too clever by half, when they drove their hard bargains. For law reform purposes the ongoing negotiations between the aboriginal peoples of Canada and the federal and provincial governments should take cognizance of this situation. Such negotiations should, I submit, spend less time trying to invent a new right in some watered-

down form and more time finding the will and the money*! to make _

the existing inherent and full right work in practice. *!Recently, the federal government in Canada entered a phase demonstrating less rather than more willingness to work with and pay for native self-government. See

R. Platiel, “Native Groups Stunned as Ottawa Kills Grants,” Globe and Mail 24 February 1990, a8: “Shocked officials at Canada’s Assembly of First Nations in _ Ottawa said they learned late yesterday that their organization and other native groups are going to be completely cut off from operating grants from the Secretary of State.” The reason for this currently antagonistic attitude of the federal govern-

204 Native Liberty, Crown Sovereignty

I make this recommendation, not upon the basis of sentiment or out of a sense of social justice, but because the due observance of _ the rule of law requires it. Legal justice requires that rights usurped

be restored, and that reasonable compensation be made for past transgressions. Territory should be restored where it has illegally been

taken away. And the existing aboriginal right to govern upon that territory should be respected. I think that social justice would be a possible consequence of the fulfilment of legal justice. But even if

| it were not, the paramountcy of the rule of law requires that the

law be respected until it has been changed. :

It would be unthinkable for the courts on the basis of some : reasonableness test to purport to move a jurisdiction conceded the federal government under section 91 of the Constitution Act, 1867 to the provincial governments under section 92, or vice versa. By the same token, it should be equally unthinkable for the courts to move a jurisdiction conceded the native nations under the Royal Proclamation of 1763 and confirmed under section 35 of the Constitution |

Act, 1982 to either the federal or provincial governments. | The imperial government is gone now. The Privy Council no longer sits in final judgment. The imperial Parliament no longer stands prepared to intervene. Still, they have left a permanent legacy ~ the Canadian constitution: the constitutional common law precedents and the imperial legislation. Unless the Canadian courts will in future refrain from re-writing the imperial intent, the constitutional guarantee _

of aboriginal and treaty rights was written on the wind.

, ment was not made clear in the article. The Assembly of First Nations in recent years has promoted the inherent-traditional model of self-government in preference to

the federal government's delegated-municipal model. — | ,

| | APPENDIX Oo Constitutional Milestones

The constitutional milestones are, strictly speaking, constitutional , common law precedents and legislative instruments enacted by the imperial government that together have both constituted and balanced | the powers of the non-native and the native governments in Canada. Besides listing these, this appendix also lists some important domestic law cases, legislation, and policy statements that bear upon the actual application, or rather non-application, of the constitutional milestones in practice, since there is an important gap between the constitutional

law and actual government practice in Canada. 1670 Royal Instructions established the policy of the imperial government to centralize control of native relations in itself, and correspondingly to require the several governments in British North America to respect and protect aboriginal rights. 1696 An Act for Preventing Frauds, and Regulating Abuses in the

, Plantation Trade, 7 & 8 Wm. m, c. 22, settled that laws enacted _ by colonial governments were void if repugnant to any law made

, by the imperial government, whether such imperial law was by statute or legislation pursuant to the king’s prerogative power. 1763 The Royal Proclamation of 1763, rsc 1970, app. u, no. 1 (herein referred to as “the proclamation”), under the Great Seal of Great

, Britain, as prerogative legislation in the form of an order in council, affirmed that the power of colonial governments to : enact laws for the peace, order, and good government of the

colonists could not be exercised anywhere in British North ,

America so as to molest or disturb the nations or tribes in the

possession of any land the crown had not yet purchased

, by means of a treaty of cession. The aboriginal right of selfgovernment was confirmed as an inherent and full jurisdiction,

rather than as a delimited set of enumerated powers. |

206 Native Liberty, Crown Soverignty

1763 Royal Instructions to Governor Murray, as the first regulations issued under the signet and sign-manual of the king for the newly created civil colonial government of Quebec in central British North America, reminded the civil colonial government

to respect the rights constituted and made binding under the proclamation. 1766 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. ul, c. 12, confirmed that laws enacted by colonial governments were void for want of jurisdiction if not explicitly authorized under the imperial prerogative instruments

, constituting the powers of these subordinate governments; they _

| were also void if substantively repugnant to a statute enacted by the imperial government. 1768 Royal Instructions, serialized to the several colonial governments

, under authority of the signet and sign-manual of the king, reminded them that the proclamation constituted the Indian territory for the purpose of prohibiting civil colonial governments

unceded lands. |

from interfering with the aboriginal peoples’ autonomy on yet | 1768 Royal Instructions to the commander in chief of His Majesty’s Forces in North America were issued under authority of the signet and sign-manual of the king, and reminded the military | establishment also to respect aboriginal rights in those portions

of the continent left without civil colonial government. 1773 Mohegan Indians v. Connecticut. The Privy Council confirmed that

, the nations or tribes juristically speaking were quasi-sovereign, | for legal purposes equivalent to civil colonial governments. 1774 The Quebec Act, 1774, 14 Geo. I, c. 83, saved pre-existing rights, : including those constituted under the earlier prerogative legislation

in favour of aboriginal peoples when the boundary of the old

| province was extended and the civil government and admini, stration of justice for the colony was reorganized. 1774 Campbell v. Hall. Lord Mansfield settled that rights constituted under prerogative legislation — the proclamation in this case

— were binding upon the king in council thereafter. Once constituted, such rights could be taken away only by statute of

the imperial parliament. Oo

1777 An Ordinance to Prevent the Selling of Strong Liquors to the Indians in the Province of Quebec, etc., 17 Geo. m, c. 7 (Que.), domestically recognized the continued existence of the proclamation’s Indian territory concept.

207 Appendix

1791 The Constitutional Act, 1791, 31 Geo. mi, c. 31, like its prede-

cessor the Quebec Act, 1774, reorganized the civil colonial , government of central British North America, subject to an

explicit saving for pre-existing rights. |

1803 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 Adjoining to the Said Provinces,

| 43 Geo. I, c. 138, extended the colonial governments’ laws respecting crimes and offences to non-natives within the Indian

, territory. See also the 1821 imperial act further extending such |

_ lamation. : laws to Indians. For civil law purposes, it also recognized the

| -._ Indian territory and thereby gave statutory force to the proc1817 The Royal Proclamation of 1817, Quebec Gazette, 18 May, as

subordinate legislation under the act of the imperial Parliament 14 Geo. mI, c. 138 (1803) recognized and affirmed the continuity of the Indian territory constituted under the Royal Proclamation of 1763. Because of section 3 of the Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63, the 1763 proclamation

now more clearly renders any repugnant act of a colonial government void. | 1820 The Military Proclamation of Sir Peregrine Maitland, commander in chief in North America, recognized the imperial legal concept

extension. }

of the Indian territory as being continental in geographical 1821 An Act for Regulating the Fur Trade, and Establishing a Criminal ,

and Civil Jurisdiction within Certain Parts of North America, , 1 & 2 Geo. IW, c. 66, extended the colonial governments’ laws respecting crimes and offences to natives everywhere in British

North America. It was without prejudice to the natives’ civil

right of self-government. See also the 1951 Indian Act

section 87 — section 88 of the 1970 consolidation. The 1821 act also confirmed that for civil purposes the Indian territory meant all yet unceded land in British North America, inclusive

of the Hudson’s Bay Company lands and the Pacific coast region. 1835 Cameron v. Kyte. This case showed that laws enacted by a colonial government are void unless the imperial government has expressly and explicitly delegated legislative jurisdiction to the subordinate

colonial government in relation to the subject matter affected by the domestic legislation. Imperial acquiescence cannot validate -

| a colonial enactment promulgated without such legislative |

208 Native Liberty, Crown Soverignty

| sovereign. | | |

jurisdiction. Colonial governments in North America are not ,

1840 The Union Act, 1840, 3 & 4 Vict., c. 35, like its predecessor the Constitutional Act, 1791, reorganized the civil colonial gov-

ernment of central British North America, subject to an explicit | saving for pre-existing rights. It also gave the colonial government the power to grantand realize revenue from crown lands, provided

that the Indian title was first extinguished pursuant to previously |

, _ established imperial constitutional law — that is, by a treaty conforming to the Royal Proclamation of 1763. — 1852 Sheldon v. Ramsay. The Ontario Court of Queen’s Bench implied ,

that the aboriginal right of Indian self-government was not

AG Can. v. Canard. ,

| constituted at common law. See also 1921 Sero v. Gault and 1976

, 1858 An Act to Provide for the Government of British Columbia, 91 & 22 Vict., c. 99, reconfirmed that the west coast of British

North America was subject to the imperial Indian territories | concept constituted by the Royal Proclamation of 1763. 1858 Royal Instructions to Governor Douglas of British Columbia, 7 being the first for the newly created colonial government, like the Royal Instructions to the first governor of Quebec in 1763, reminded the colonial government to respect aboriginal rights. 1859 An Act to Make Further Provision for the Regulation of Trade with the Indians, and for Administration of Justice in the North_ Western Territories of America, 22 & 23 Vict., c. 26, referred

to British Columbia as “Indian territories.” |

1860 An Act Respecting the Management of the Indian Lands and Property, s Prov. c 1860, c. 151, domestically demonstrated that the colonial government was assuming an increasingly prominent

| role in the day-to-day administration of native affairs, as evidenced | by its assumption of the prerogative of appointing the super- | intendent of Indian Affairs, formerly an imperial government appointee, who continued thereafter nonetheless bound by

, previously established imperial law regarding Indians and land

reserved for Indians. _ , , 1863 An Act to Define the Boundaries of the Colony of British — . Columbia; and to Continue an Act to Provide for the Government of the said Colony, 26 8 27 Vict., c. 83, extended the provincial —

boundary without changing the balance of powers between the | colonial government and the aboriginal peoples. | 1864 The Royal Commission to Governor Seymour of British Columbia, a binding order in council of the imperial government bearing

209 Appendix the great seal of Great Britain, reminded and required the colonial

| government not to act arbitrarily but rather to be solicitous

regarding aboriginal rights. |

1865 The Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63, settled that laws enacted by colonial governments were void if repugnant

to an act of the imperial Parliament or to subordinate legislation

under such an act. It also settled that laws enacted by colonial | governments were void if they exceeded their constitutional powers

_as explicitly constituted by orders in council bearing the great

seal of Great Britain (such as royal commissions and royal. proclamations). This act remained binding until it was replaced

| by the Statute of Westminster, 1931, which continued its effect. 1867 The Constitution Act, 1867(BNA Act), section 91(24) recognized

the continued existence of the Indian territory concept for legal : purposes, and assigned to the newly constituted federal government a legislative jurisdiction in relation to natives, subject to previously established imperial law in virtue of section 129. Section 109 recognized that the three confederating colonial —

, governments would continue as the provincial governments of Ontario, Quebec, New Brunswick, and Nova Scotia, the legislative

power of which would also be subject to the aboriginal rights

previously established in relation to the Indian territory. Section 146 authorized enactment in future of orders in council

to bring the'rest of British North America into confederation . upon “terms and conditions” to be identified in schedules to such orders in council. Future instruments, in virtue of this constitutional authority, placed the rest of Canada on the same

| footing as the original confederating colonies, and the terms and conditions therein recognized and affirmed the continuity __ of the aboriginal rights. , | 1868 In the Indian Act, 1868, the federal government, by sc 1868, . c. 42, implicitly reiterated previously established imperial law

relative to both Indian territory under the proclamation and Indian reserves created subsequently in favour of particular bands. It neither added nor subtracted anything from aboriginal

rights, but merely recognized their continued existence. Subsequently this act was repealed relative to Indian reserves,

although it. remains in force relative to the Indian territory. See also the 1876 Indian Act. _ 1870 In the Order of Her Majesty in Council Admitting Rupert’s

Land and the North-Western Territory into the Union, incor- , porating “terms and conditions” in an Address to Her Majesty

210 Native Liberty, Crown Soverignty .

the Queen from the Senate and House of Commons of the | Dominion of Canada, 1867 and in an Address to Her Majesty _

| the Queen from the Senate and House of Commons of the Dominion of Canada, 1869, Canada agreed to be bound by

| previously established imperial law regarding Indians and lands reserved for the Indians. As one of the “terms and conditions,” this remains constitutionally binding under section 146 of the

Constitution Act, 1867 in virtue of section 7(1) of the Statute | of Westminster, 1931, and in virtue of section 35(1) of the Constitution Act, 1982. It binds the federal government, and

all provincial and territorial governments of what was once | Rupert’s Land and the North-Western Territory: to wit, Manitoba,

, Saskatchewan, Alberta, and the Northwest Territories. The federal acts subsequently constituting each provincial government

from the region acquired under this order in council are constitutionally binding upon federal and provincial governments, pursuant to the Constitution Act, 1871. Each such federal act equates the new provinces with the old provinces in relation to aboriginal rights, and those rights remain binding upon all

provinces. © ,

1870 The Manitoba Act, 1870, 33 Vict., c. 3 (Canada), recognized

“Indian title.” This domestic act acquired constitutionally binding effect as if it were an act of the imperial government binding upon federal and provincial governments, in virtue of the retroactive effect of the Constitution Act, 1871, section 5. Furthermore, such binding effect has continued, in virtue of | section 7(1) of the Statute of Westminster, 1931, and in virtue

, of section 35(1) of the Constitution Act, 1982.

1871 In the Order of Her Majesty in Council Admitting British Columbia into the Union, incorporating “terms and conditions”

, in an Address of the Senate of Canada, 1871, an Address of | © , the Commons of Canada, 1871, and an Address of the Legislative Council of British Columbia, 1870, the federal government of , Canada and the provincial government of British Columbia agreed with the imperial government to be bound for consti-

, tutional purposes by the previously established imperial law regarding Indians and lands reserved for the Indians. Furthermore, it was explicitly recognized that the former colony had not had “responsible government,” but had been subordinate to and constitutionally bound by the official imperial policy regarding Indians and lands reserved for the Indians. This order |

in council and these terms and conditions took effect as

} 211 Appendix | constitutionally binding imperial legislation pursuant to section

146 of the Constitution Act, 1867, and remained so pursuant to section 7(1) of the Statute of Westminster, 1931, until the Constitution Act, 1982 repealed section 7(1) and substituted its own section 35(1). 1871 The Constitution Act, 1871, 34 & 35 Vict., c. 28, enacted that statutes of the federal government constituting new provinces from what had been Rupert’s Land and the North-Western oe Territory (Manitoba, Saskatchewan, and Alberta) take effect as if they were enactments of the imperial government, and that _ they are therefore constitutionally binding upon federal and provincial governments. Furthermore, this actitselfremains binding

pursuant to section 7(1) of the Statute of Westminster, 1931, }

| and section 35(1) of the Constitution Act, 1982. 1873 The Order of Her Majesty in Council Admitting Prince Edward Island into the Union, pursuant to section 146 of the Constitution Act, 1867, deemed that the Island joined upon the same basis as the other provinces. The federal government held crown title

subject to the Indian interest, as it did in Manitoba, not as in the original provinces where the provincial government held , _crown title under section 109 of the Constitution Act, 1867 subject to the Indian interest.

1876 In the Indian Act, 1876, the federal government, by sc , 1876, c. 18, provided for a fledgling municipal style of local self-government in relation to Indian reserves. The inherent and full aboriginal right of self-government relative to unceded Indian

territory under the imperial constitutional legislation was not , affected by this. Federal policy hereafter steadfastly will foster a municipal style of government as the only encouraged and

supported form of self-government. This 1876 act left intact the , 1868 Indian Act which had applied both to Indian reserves and the Indian territory; that earlier act had done nothing more than continue without affecting previously established imperial

law. The 1876 act thus began an era of fostering municipal self-government relative to Indian reserves, albeit without legal

prejudice to the inherent and full aboriginal right relative to. | Indian territory. 1880 By the Order of Her Majesty in Council Admitting All British

Possessions and Territories in North America and Islands

Adjacent Thereto into the Union, the residuum of Canada except

for Newfoundland was added to the union. No substantive change |

| was effected to the previously established imperial law, which

212 Native Liberty, Crown Soverignty | continued to apply as part of the law of the dominion. This addition was effected pursuant to section 146 of the Constitution | Act, 1867, and therefore took effect for constitutional purposes

as if it were a statute enacted by the imperial government. Section 7(1) of the Statute of Westminster, 1931 applied to this |

order, so that. it remains binding as continued under , section 35(1) of the Constitution Act, 1982. From. this region

was created the Yukon Territory. ,

1888 St Catherine’s Milling ©& Lumber Co. v. R.. The Privy Council deter-

mined that the provincial governments held title to crown lands “subject to” the unceded right of the natives in such lands, because

| the aboriginal right was an “Interest other than that of the Province” within the meaning of section 109 of the Constitution Act, 1867.

This was a logical application of the general principle recognized by the Royal Proclamation of 1763, which had | | | recognized that the crown itself held crown title subject to the

| yet unceded Indian interest. The identity of the partic-

ular government administering crown title did not affect that |

| general principle of previously established imperial law.

1891 An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario Respecting Indian Lands, sc 1891, c.5;so 1891, c. 3, reciprocal domestic legislation, provided

Ontario with a power of veto over future treaties negotiated

by the federal government with the Indians in Ontario. The constitutional validity of this compromise of the federal government’s mandate of exclusive power under section 91(24)

of the Constitution Act, 1867 is questionable. Nevertheless, the enactment of the legislation implicitly recognized the existence of aboriginal rights under the previously established imperial law, rights that it was the object of future treaties to extinguish. _ This legislation never acquired constitutional force as if it were

legislation of the imperial government, unlike the orders in council and the federal acts under the constitution acts of 1867

and 1871. It could be changed by the federal and provincial 7 governments acting independently of the imperial government. , 1897 AG Can. v. ac Ont. The Privy Council determined that aboriginal | rights in yet unceded land had priority over the provincial title to crown land upon a proper construction of section 109 of _ the Constitution Act, 1867. The aboriginal rights were held to

be “independent” for constitutional purposes. This confirmed

the constitutional existence of imperial enclaves or at least territorial pockets of Indian jurisdiction. See also 1974 |

Cardinal v. AG Alta. 7 ,

, 213. Appendix | 1898 The Yukon Territory Act, 1898, 61 Vict., c. 6 (Canada) constituted the Yukon Territory as a subordinate government with delegated __ powers, by the federal government. Previously established imperial

law was saved. ,

1905 The Alberta Act, 1905, 4 & 5 Edw. vu, c. 3 (Canada)was enacted

pursuant to the Constitution Act, 1871 and took effect for constitutional purposes as if it were a statute of the imperial government. Previously established imperial law regarding natives , was saved. The province was placed on the same footing as all provinces regarding Indians and lands reserved for Indians, and

, in the same position as Manitoba and Prince Edward Island in that crown title to unceded lands remained in the federal

government. , 1905. , |

1905 The Saskatchewan Act, 1905, 4 & 5 Edw. vu, c. 42 (Canada) was : similarly enacted and with the same results as the Alberta Act, 1912 The boundaries extension acts (Ontario and Quebec) were enacted,

by which the federal government transferred portions of the _ former Rupert’s Land to these provinces, on conditions that

recognized the continuity of Indian title. | 1921 Sero v. Gault. The High Court of Ontario confirmed that the : aboriginal right of self-government was not constituted at — domestic common law. See also 1852 Sheldon v. Ramsayand 1976 |

AG Can. v. Canard. |

1924 An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario, sc 1924, c. 48 was an agreement between the federal and provincial governments that

the provincial government would hold crown title to Indian territory whereas the federal government would hold crown title — to Indian reserves. Both hold crown title subject to the priority

, imperial law. a conceded the aboriginal rights under previously established

1930 The Constitution Act, 1930 assigned to the prairie provinces, Manitoba, Alberta, and Saskatchewan, crown title to unceded Indian territory, transferring it from the federal government,

on conditions that recognized and affirmed the continuity of the aboriginal rights under previously established imperial law.

| These conditions remain constitutionally binding. Further; more, the 1803 and 1821 imperial acts rendering natives liable to colonial government laws respecting “offences” was effectively confirmed as being applicable to provincial game and fish laws.

See also the 1951 Indian Act, section 87. ,

| , 214 Native Liberty, Crown Soverignty | 1931 The Statute of Westminster, 1931, 22 Geo. v, c. 4, enacted that | laws of federal and provincial governments would no longer be deemed void if repugnant to a law of the imperial government,

provided that the colonial law was itself enacted pursuant to a legislative jurisdiction explicitly vested in that particular colonial

government, and further provided that it did not conflict with

| the British North America acts of 1867-1930. Since provincial | governments have no such explicit legislative jurisdiction relative to aboriginal peoples and their lands, the constitutional incapacity

of such governments to impair the aboriginal right of selfgovernment continued. Since the federal government was bound by the British North America acts of 1867-1930 to apply previously established imperial law constituting the aboriginal

right, the constitutional incapacity of the federal government

| to impair the said right also continued. This constitutional inhibition was removed by the repeal of section 7(1) in the schedule to the Constitution Act, 1982, but was effectively replaced

by section 35(1) of the Constitution Act, 1982. 1949 The Newfoundland Act brought the province into the union on the same basis as the existing provinces.

1951 The Indian Act, 1951, domestic legislation of the federal government, enacted section 87 (section 88 in the 1970

, , consolidation) which effectively confirmed the 1803 and 1821] , imperial statutes extending colonial government laws respecting offences to Indians, by enacting that provincial laws of general application apply to Indians. See also the Constitution Act, 1930. 1960 The Canada Elections Act removed the racial bar from the federal

franchise by domestic legislation. | ,

| 1969 Canada, Statement of the Government of Canada on Indian Policy (the “1969 white paper”), a federal government policy paper, confirmed the transition from segregation to ultimate integration

| as the long-range objective of domestic governments. It directed that the Indian communities are to become municipalities | integrated into the larger constellation of municipalities in society at large, rather than being racially segregated enclaves as before,

as defined by imperial precedents and legislation. |

1970 The presentation “Citizens Plus” by the Indian chiefs of Alberta to Prime Minister Trudeau reacted against the 1969 white paper’s

position that implicitly suggested an end to racial segregation

for political purposes. ,

1973 Calder v. AG for Bc. The Supreme Court of Canada stalemated

over whether the Indian right had been extinguished by laws |

! | 215 Appendix of the colonial government thought to be implicitly inconsistent

| with the right. The constitutional milestones in the form of the binding constitutional common law precedents and the imperial statutes were not addressed by the court. The possibility

of viewing the Indian right as a right constituted by common law, but it was not established. | 1973 Canada, Indian Affairs Policy Statement and Canada, Statement on

Claims, two federal government position papers, adopted as the |

| cornerstone of federal policy the concept that if aboriginal rights | have been ignored in practice this means that such rights have been “superseded by law.” Since the self-government right has been generally ignored in practice by federal and provincial governments, if this policy were true, the practice of ignoring constitutional rights is tantamount to a repeal of constitutional

law. This policy ignores the unrepealed imperial legislation confirming or constituting the powers of federal and provincial governments. That legislation renders the supersession policy a legal impossibility. This policy continues to dominate law reform

and the negotiation process. | , |

1974 Cardinal v. A.c. Alta. The Supreme Court of Canada held that there were no federal enclaves in domestic law that precluded provincial laws of general application from being applied to

| Indians. The imperial legislation effectively creating imperial enclaves, or at least areas subject to the natives’ jurisdiction, ,

v. AG Ont. |

in constitutional law was not addressed. See also 1897 AG Can.

1975 In the James Bay and Northern Quebec Agreement, specific municipal government powers were delegated to and accepted by the Cree Indians of Northern Quebec. This agreement was incorporated into reciprocal legislation enacted by the federal

government of Canada and the provincial government of Quebec. In 1978 the Naskapi Indians of Northeast Quebec agreed

to the Northeast Quebec Agreement, and five other complementary agreements have been signed from 1978 to 1980 on the same topic. The aboriginal right of self-government as an _ inherentand fullrightwas arguably surrendered by these aboriginal

people, in pursuance of these instruments and the corresponding legislation, not because the imperial constitutional law

was repealed, but because the natives waived their ability to rely upon it. This waiver may be contrasted with the 1986 Sechelt _

, Indian Band Self-Government Act wherein the Sechelt Indians of British Columbia expressly reserved and saved their ability

216 Native Liberty, Crown Soverignty torely upon previously established aboriginal rights when accepting

municipal self-government for present purposes. > , 1976 AG Can. v. Canard. The Supreme Court of Canada confirmed that the basis of Indian rights in the domestically made law

, of Canada was the racial classification recognized by the Constitution Act, 1867. The court rejected the American courts’ _

domestic law position that the basis was not a racial but was rather a political classification. Thus the Canadian court confirmed

, the absence of a common law aboriginal right of self-government , constituted at domestic common law. See also 1852 Sheldon v.

, Ramsay and 1921 Sero v. Gault. | 1978 Kruger v. R. The Supreme Court of Canada confirmed that Indians were bound by federal and provincial laws regulating crimes and offences. This was consistent with the imperial government statutes of 1803, 1821, and 1930, and with the federal Indian Act section 88. The point is without prejudice to the Indians’

legislation. _ | | civil right of self-government under imperial precedents and

1978 Santa Clara Pueblo v. Martinez. This American case decided that —

| one incident of the inherent and full aboriginal right of self- _ | government relative to Indian territory was the right not to be | bound by the constitutional freedom of sexual equality existing in society at large, when the particular Indian ‘tribe chose not

| - to acknowledge that value. See also 1897 AG Can. v. AG Ont., and the concept of being constitutionally “independent”; and see the Constitution Amendment Proclamation, 1983. 1982 R. v. Secretary of State for Foreign &° Commonwealth Affairs. Lord. Denning mR in the Court of Appeal held that the Royal Proclamation

of 1763 was binding upon federal and provincial governments | in Canada under the Constitution Act, 1867. He also confirmed | the continuing binding effect of the proclamation under the Constitution Act, 1982.

| 1982 Manuel v. AG. Megarry vc in the Chancery Division recognized the possibility of an argument that aboriginal rights were

| entrenched under the Statute of Westminster prior to the

, Constitution Act, 1982; however, the point was not pursued since he held that it was not necessary to the decision of that case. | 1982 The Constitution Act, 1982 extinguished the binding effect of

, previously established imperial law under section 7(1) of the | Statute of Westminster, 1931, but by sections 25 and 35 substituted

its own incorporation of that law as a continuing term and , condition of the constitution, still binding upon federal and

provincial governments hereafter in virtue of section 52. |

| 217 Appendix 1982 Merrion v. ficarilla Appache Tribe. This American case decided

, that one incident of the inherent and full aboriginal right of self-government relative to Indian territory was the right to tax

non-Indians. See also 1897 AG Can. v. AG Ont.

1982 Canada, Strengthening of Indian Band Government in Canada and |

| Canada, The Alternative of Optional Indian Band Government Leg-

| islation, federal government papers, heralded a new policy of dismembering the Indian Act in favour of individual municipal acts applicable to the several Indian bands in Canada, as they

became receptive and capable. _ 1983 The Constitution Amendment Proclamation, 1983, decreed that existing aboriginal and treaty rights are deemed to exist without

, sexual bias, “guaranteed equally to male and female persons,” and that conferences are to be held to discuss aboriginal rights.

| (The several conferences held in due course failed to produce | any constitutional change relative to the existing aboriginal right

of self-government.)

1984 Bill C-52: The Indian Self-Government Act, draft federal gov-

ernment legislation, which received first but never second | reading, would have established an omnibus approach to municipal

| self-government, pursuant to which bands could acquire chartered | governments under federal auspices, which thereafter would exercise independent jurisdiction as federal enclaves. 1984 The Cree-Naskapi (of Quebec) Act, a federal act, further imple-

! mented the installation of the right of municipal-style self- government, in keeping with the 1975 James Bay and Northern

Quebec Agreement, and the subsequent instruments on the

same subject. |

1986 The Alternative Funding Arrangements scheme of the federal

: government fostered greater control of band spending by the Indian electorates relative to Indian reserves under the domestic

Indian Act. The inherent and full aboriginal right of selfgovernment under the constitutional imperial legislation was.

not similarly supported. | ,

1986 The Sechelt Indian Band Self-Government Act, sc 1986, c. 27, provided model legislation for the local municipal style of selfgovernment, differing from earlier band government in the degree

| of control and influence exercised by the Indian electorate relative to local government functions. This was expressed to be without

prejudice to constitutional rights. ,

| 1988 Bill C-115: An Act to Amend the Indian Act and Another Act

in Consequence Thereof, federal government legislation, _ recognized the municipal power of taxation over both non- — _

218 Native Liberty, Crown Soverignty , Indians and Indians situated in Indian reserves under the Indian

Act. The inherent and full aboriginal right of self-government

, under the constitution was not similarly supported by the federal

tax-collecting capacity. oo

1989 AG Ont. v. Bear Island. The Ontario Court of Appeal (erroneously)

held the 1984 High Court decision that the federal government is “sovereign,” thereby implicitly concluding that there is no existing aboriginal right of self-government. The constitutional

, common law precedents and imperial legislation confirming the aboriginal right were not addressed. The American domestic common law asserting absolute federal power was applied. An’

appeal to the Supreme Court of Canada is pending. 1989 Wewayakum v. Canada. The Supreme Court of Canada held that

aboriginal title existed as a matter, inter alia, of “federal common

, — law.” Furthermore, aboriginal title has been in existence

: continuously since before the inception of British sovereignty. ,

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Blank Page

Index Aboriginal peoples, goals, irrelevance of, 48-50. See American revolution, 36-7, |

154, 157, 158, 169, 172, also Implied colonial 45, 66 , oe 7 - 183-4, 188n120, 196; government jurisdiction Appeals to Privy Council, See also Citizens plus; Ad hoc dispute resolution, political issues, 39-42 Cultural consequences; native tradition of, 169. — Articles of the capitulation

Integration; Money See also Cultural of Canada, 1760, 45~7 issue; Segregation consequences of Aspect doctrine, 128-9

“Aboriginal peoples,” the municipal government Assimilation policy, 19, 29,

term, 5-7, 83, 106n49, model : 106n49, 148, 149, 152,

111, 167. See also Half- Administrative jurisdiction 153~4, 156-8, 168, 169,

breed; Indian race; of colonial governments, 172, 180, 189, 193-9. . ~ * Innuit; Membership. not to be mistaken for See also Integration

Aboriginal peoples’ | sovereign power, 134, , a

| jurisdiction (self _ —138n45, 147, 194-5. See Badgley, Mr Justice, 17, 18 government power). See also Sovereign power Balanced powers, imperial , Jurisdiction - Aboriginal Alberta, 117-20, 121, 122, policy respecting, 3, 59,

peoples’ — 128. See also Regional 68, 82, 85, 87, 98, 147, —

Aboriginal self-government differences; Regional — 166, 188—90, 192, 193,

right, attributes of uniformity equation 194, 200-4. See also Great

existing. See Inherent Alternative funding Britain: | and full _— (federal policy) paper, Baldwin, Mr Justice, 75n47 OO . Aborigines, protection of, 1986, 169 . “Band,” the term. See 1837 report, 68, 131. See American domestic “Particular bands” also Conflicts of interest common law: not Band elections, 156 Accommodation of pre- binding on Congress, Band government, (federal European invasion status 57; relevance in Canada position) paper, 1982,

quo ante, 3~4, 8, 37, because of shared 168, 217 , 104-23. See also Balanced normative basis, 36-7, _— Bands, legal status as arms |

powers; Pre-emption 55, 179, 181; substance of federal government, |

right of, 12-37, 55~7, 98, 147, 181

-Acquiescence, by imperial 159, 178-81, 191-2, 194, Bases in law for self-

government in ultra 197n16. Seealso government right. See

- vires colonial govern- Canadian self-govern- - - Accommodation of pre-

ment practices, ment right; Ideologies European invasion status ,

250 Index : , quo ante; Historic — 179-80, 189, 200-4 _ policy and practice, in , occupation and Canadian self-government conflict with imperial

| possession; Sources for right, superior to U.S. government policy and | self-government counterpart, because of law, 4-5, 9, 33, 34, 44,

| jurisdiction © constitutional entrench- 61, 145, 160-6, 174, 175, | Beetz, Mr Justice, 23 ment, 26n48, 37,45, 194, 198, 203-4. See also Bias, apprehension of, 56-7, 82, 97-8, 106-23, Balanced powers; Great

in court system, 98, 147, 179, 191-2, 197n16 Britain; Rule of law |

159n31, 161, 176, 200-4 Capacity to govern, federal Colonial government =~ BNA Act (under Constitution policy consideration, structure, described, Act, 1867), xii, 209. See 28-9, 37, 169-70, 172, 59-60, 68, 80-1, 106 — | | also Section 91(24); 173. See also Money issue; Colonial governments’

— Section 109; Section Cultural consequences jurisdictions. See a 129; Section 146 Carleton, Sir Guy, Lord Jurisdiction — Colonial | , Board of Trade, 39-40, 42, Dorchester, 39, 77, 78, government’s 63, 66, 67, 78, 80, 81 80, 93 Common law: basis of selfBodies politic, recognition Ceded versus unceded government, 4, 7, 8, 9, , , of aboriginal peoples as, _ territory, 3, 7-8, 9, 37-8, 10, 12, 36-7, 147-50; 37, 56, 174, 196. See also 41, 50, 59, 75, '78, 80,83, constitutional common

| Molest or disturb 99, 110, 111, 112, 125, law, 11-12, 27-32, Bouget, Colonel, 81 134, 142 37-57, 84, 137, 145, 147, Boundaries, changes in Charter of Rights and 149, 166, 176, 188,

colonial, not relevant to Freedoms, 169, 179-80, 191-3, 197, 200-4;

- aboriginal peoples’ 189, 200-4 domestic common law , jurisdiction, 84-123 Charters, colonial, effect and constitutional law Boyd, chancellor, 29-30, of, 14-15, 40, 44-5 | distinguished, 9-11, 12,

163-6 , Child welfare jurisdiction, 27, 36~7, 54n137, 56,

Brant, Joseph, 19, 22 18-19 | 147, 149, 159, 176,

British Columbia, 65, 72-3, Chrétien, minister of 192—4, 197; domestic

75, 82, 101—5, 109-10, Indian affairs, 157 common law unavailing 114-16, 120, 121, 122, Citizenship and voting in Canada, 12~36;

128, 131~3, 168, 171, rights, 19-20, 22, 23, federal common law, the |

| 194, 207. See also 146, 153, 157, 192, 195, concept, 30, 31, 52,

Regional differences; _ 196 | , 53-57, 136n38, 146;

Regional uniformity “Citizens plus,” the term, _ paramountcy of oe

equation 93, 158, 168, 196, 199, domestic legislation over

British North American 214. See also Integration; domestic common law, : Act. See BNA Act Racial class; Segregation 33; potential of common :

, Burden on crown title, Civil list. See St Catherine’s law to recognize new

| Indian title as, 139 case law, 30-1 | Burns, Mr Justice, 19 Cohen, Felix, 24 Common law of the usa. See By-laws, 155-6, 183-4, 188. Colonial constitutional law, American domestic

See also Municipal summation, 49~50, 70, common law , government model 74, 107, 109, 110,135, | Community-based self-

, 147, 149, 205-18 government policy of

Cadieux, minister of Colonial constitutions, federal government,

Indian affairs, 183 forms of, 70 172-3, 183 tary, 61, 82 legislation, forms of, wrongs, 4, 10, 160, |

Caldwell, colonial secre- Colonial government Compensation: for past _

Canadian Charter of Rights 70-1, 74 202-4; for territory

and Freedoms, 169, Colonial government | taken, 112—3, 118, 119, ,

a 251 Index , 160, 202—4 121-3, 133, 197n16. See Rule of law

Comprehensive claims also Paramountcy of Cree Indians, 167—8 | (federal position) paper: aboriginal peoples’ Crimes and offences, 8-9,

1977, 167; 1986, 172; jurisdiction; Repug- 13, 15~16, 19-23, 33-4, .

1987, 174 ~ nancy; Repeal of 50, 100-2, 104, 124-30, , “Confirmation” of pre- constitutive legislation 197n16, 199n18, 200-4

, existing rights versus Constitutional common Crombie, minister of | “constitution” of new law, the concept of Indian affairs, 172 rights, 3, 8, 37. See also colonial, as settled by Crown title: burden on,

Accommodation of pre- imperial policy and Indian title as, 78,139; European invasion status precedents, 11-12, general, 78, 109-10, 111,

: quo ante; Existing; 27-32, 37-57, 84, 137, 115, 116, 117, 118, 119, Historic occupation and 145, 147, 149, 166, 176, 120-1, 134, 137, 138-46,

possession | 188, 191-3, 197, 200-4 156, 192; holder’s

Conflicts of interest, Constitutional immunity, identity irrelevant to jurisdictional and moral, the concept, 191-4. substance of aboriginal __ - 68, 78, 98. See also Trust Contrast with Federal title, 119, 120—1; section

relationship — immunity. See also 109 Constitution Act,

Conflicts of laws rules, 6-7, “Enclaves”; Crimes and 1867, affirms constitu-

23, 33-4, 71, 121-3, offences tional paramountcy of 130n15, 136-7, 142, 169, Constitutional jurisdiction Indian title burden on,

, 201 — powers, assumption that 50-2,109-10,111, | ‘Conquest, effect of, 17, 40, all are divided between 115-21, 134, 139n48,

47, 62 , federal and provincial 143, 144, 145. See also

“Consensus” versus “simple = governments, 33, 35, Personal and usufructu-

majority” politics, 148. 182, 193, 194, 197n16, ary right; Present ,

See also Cultural 200-4 proprietary estate;

consequences Constitutional legislation, Public lands; St

Conservation needs, 70-123 Catherine’s case; :

129-30, 200-4. See also Constitutional self- Territorial revenues; }

Crimes and offences government v. Indian Vindicated in competi-.

Consistency, the law’s. See Act self-government, tion | , Continuity of 18th - 7-8, 35-7, 51, 57, 147 Cultural consequences of century liberty; Uniform- Continental uniformity, 3, the municipal govern-

ity of British Policy; 109, 149, 191, 193, 207. ment model, 130, 147-8, Repeal of constitutive See also Territorial extent 149, 150, 152, 153,

legislation Continuity of 18th century 156-8, 169, 170, 172, “Constitution,” the term, liberty, 3-4, 7, 12-13, 15, 180-2, 189 56, 58, 59, 70, 191, 194, 26-7, 38, 47-58, 82, Custody of children,

200, 204 84-100, 105-24, 134-6, jurisdiction, 18-19

Constitution Act, 1982, 147, 149, 151, 158, :

effective date, 5, 32, 160—1, 166—7, 177, 189, Delegation of powers, |

34—5, 56, 166 191, 194, 198, 200-18. principle of, 3, 8, 11-12, |

Constitutional amend- But see Crimes and 37—9, 49, 50, 52, 58-71,

ment, necessity for, to offences 194 ) take away existing self- Convention, distinguished Denning, Lord, 84, 107-8,

government right, 54, from law, 54, 76, 80, 91, 110, 122 57, 107-8, 122, 166, 190, 94, 97, 99, 105, 145, 165, “Dependent,” key term, |

| 192, 198, 200-4 174, 194, 198, 205. See 143—4, 154, 158, 197n16. | Constitutional capacity also Practice versus law; See also Independent | issue, 71, 81, 83, 106-8, Privilege versus right; —S— Detroit, Fort, 87

, 252 Index , Dickson, chief justice, 28, territorial regions, for — 52, 55, 181n92 |

831, 129 legal purposes, 70,'75-6, Federal government ,

| Discovery, effect at law, | 108-23. See also Regional jurisdiction, 3, 9, 11, 17,

| 14-15, 62 differences — 20, 21, 24, 26n48, 33-5, | Discrimination, arguments Erasmus, George, 196n14 58-9, 69, 97, 105-24, ,

. concerning, 20-2, 158 “Existing,” historical | 133, 136, 137, 141-6, | Division of powers assump- constitutional law | , 160-1, 191-204. See also

| tion, 33, 35, 145, 182, context, 3-5, 7~8, 25, Jurisdiction — Colonial

, , 192n16, 193, 194, 200-4 32-5, 37, 51, 52, 56-8, governments an , Domestic common law, US. 84-8, 94, 100-23, 147-9, Federal government policy; =

| See American domestic 151, 158, 166, 173-5, conflict with imperial | common law 177, 182-204. See also government policy and Domestic dependent 7 Accommodation of pre- law, 4, 152n7, 166, 194,

| nations, the concept, | European invasion status 174-6, 189, 197; general,

16, 19 ! quo ante; Confirmation 147-90, 193-9; litigation

Dominion and proprietor- of pre-existing rights; versus negotiation —

ship integrated, 14, 25, Continuity of 18th _ options, 159-60. See also 37, 43, 44, 78, 109-10, century liberty; Historic Assimilation policy; | 174-5. See also Sover- ~ occupation and Cultural consequences;

eignty possession; Indian — _ Integration; Law reform; |

Dorchester, Lord, 39, 77, : territory; Quebec Act; Negotiation process;

, 78, 80, 93 Repeal of constitutive Segregation; Super- Douglas, Governor, 64, 77 legislation; Saving session Oo -

provisions Federal government policy Eighteenth century, Extinguishment, not statements: white paper, Oo genesis of liberty unilateral, 7-8, 37—8, 1969, 157-8, 214; Indian

concept, 3 44-5, 57, 64-5, 72, 75, affairs policy statement,

Elections, band, 156 78, 79, 80, 81, 88, 99, 1973, 158-9; 166, 167, “Enclaves,” key term: 103-23, esp. 107, 119, | 215; statementon | federal (Indian), 17, 195n4, 133n24, 134, claims, 1973, 159-60,

| , 23-6, 54, 124, 135~46, 138-46, 149-50, 160-6, 166, 167, 215; compre- / ,

_ 169, 188, 191-3; French, 168n58, 175-6, 192, hensive claims position | 87, 95. See also Federal 194-204. See also paper, 1977, 167; immunity; Constitu- Balanced powers; Great specific claims policy ,

tional immunity _ Britain; Purchase; paper, 1981, 167; band Encroachments, on native Supersession; Tribal government paper, - , jurisdiction. See Colonial consent; Treaties 1982, 168, 217; optional — , government policy and Extinguishment, unilateral, (non-Indian Act) band

practice 90, 97, 132-3, 145, government legislation ,

| Enfranchisement. See 160-1, 167, 194. See also paper, 1982, 168-9, 217; | | Citizenship and voting Supersession. But see alternative funding

, rights; Racial class Extinguishment, not paper, 1986, 169,217; Environmental protection unilateral | | comprehensive claims

jurisdiction, 200. See also position paper, 1986, Conservation needs; Federal board, commission 172; comprehensive

- Crimes and offences or tribunal, Indian claims position paper, Equation, between regions bands as, 181] 1987, 174; aboriginal | of Canada, 108-23. See “Federal common law,” key self-government paper,

also Regional differences phrase, 31, 52, 53-7, 1987, 175; taxation |

Equivalence between 136n38, 146 powers paper, 1987, oe different provincial and Federal Court jurisdiction, 177-8 Oe

— 253 Index 7 Federalimmunity, the 37, 42, 48, 59, 60-5, 67, Inalienability. See Personal : concept, 128-30, 133, 70—1, 73-6, 79, 94, 101 and usufructuary right 135, 137, 191-2. Contrast Gwynne, Mr Justice, 141 “Independent,” key term, Oo

with Constitutional 6—7, 13, 17, 18, 19, 26-9,

immunity. See also Haldimand, Governor, 79 38, 41, 43-5, 51, 56, 79, , , Enclaves, federal “Half-breed,” the term, 111 93,97-8, 107,110,119, _ Ferguson, Mr Justice, Hall, Mr Justice, 27, 65, 124, 128-30, 137, 142-5,

141n54 | 75n47, 81n62, 89, 153-4, 180-1, 187-9, 192

Fiduciary relationship. See ~ 115n71, 131-3, 139n49 “Indian,” the term, 6, 83,

‘Trust relationship Hereditary chiefs, 156 106n49, 111, 132, 136, | Financial considerations. Hillsborough, Lord, 78 137, 167, 192. See also -

See Money issue Historical stages: colonial Aboriginal peoples; | Fishing charges. See Crimes era, 192, 194, 904: — “Particular bands”;

and offences responsible government Reserves | oe

Form, necessity for era, 193, 1945, 204; Indian Act, a delegated . | observance of. See Great modern era, 193-204 and limited jurisdiction.

seal “Historic occupation and See Municipal governForms of self-government, possession,” source of, — ment model

alternatives. See Inherent or basis for, the Indian Act legislation,

| and full; Municipal jurisdiction, 31, 38, 50, territorial application to government model 51, 53, 55—6, 111, 191. “reserves.” See Reserves Founding nations, Indians See also Sovereignty; Sui Indian affairs policy

as, 23, 174—5, 190 generis statement, 1973, 158-9,

French influence, 81~—2 Horsemanden, Commis- 166, 167, 215.

, sioner, 42,45 | “Indian country,” the term,

Gage, Major General, 81, Hudson’s Bay Company, 94,99, 105. See also — ,

125 , 102, 103, 110, 112, 126, Indian territory

| Geographical application 207 “Indian grounds,” the

of self-government right. Human Rights. See Natural term, 99. See also Indian

See Territorial extent _ justice; Charter of Rights territory — | Global solutions, 8, 108-9, and Freedoms; Interna- “Indian hunting ground,” ;

129, 149, 193 tional law, of human the term, 99. See also

Good faith, necessity for, ‘rights Indian territory

78, 80, 81, 82, 123 : Hunting charges. See Indian money, control of,

Governors’ powers, 48-50, Crimes and offences 156, 169, 186. | |

, 60, 61,65, 67, 68, 70, 73, “Hunting grounds,” the | “Indian race,” the term, 3, 93, 94, 117, 191 term, 7—8, 37-8, 75, 99, 83, 111, 192. See also

Grand River, 23 135. See also Indian Racial class; Segregation

Grants of unceded territory Indian reserves, the oe territory, prohibited, . , concept. SeeReserves __ 18, 125, 134, 141, 145, Ideologies, Canada and usa Indian territory, the region

161-2, 175-6. See also | distinguished, 12, 19, 21, reserved and made | | Extinguishment, not 194. See also Racial class subject to the aboriginal

unilateral _ Imperial government’s peoples’ existing , Great Britain, policy and jurisdiction. See constitutional jurisdic-

law of, 3, 23, 36-8, 44, Jurisdiction ~ Imperial tion, 3, 7-9, 17, 20-4, 30, 7 61, 66-9, 75-6, 78, 80-2, government — 31, 37-57, 59, 65, 72-3,

, 87, 98, 99, 112,115,121, Implied colonial govern- 75—6, 78, 80-87, 92, 93,

134, 152, 190, 191, 193, ment jurisdiction, — 98-123, 130, 134-46, |

900-4 impossibility of, 48-50. 169, 177, 192, 202. See Great seal, significance of, See also Acquiescence also Ceded versus

| 254 Index unceded territory; Johnson, Sir William, 79, = management; Sources _

Historic occupation and 80, 81 for self-government |

possession; Hunting Johnson, William Samuel, jurisdiction; Sovereignty, .

grounds; Reserved. 28 tribal; Sui generis; }

: Contrast with Reserves. Judicial review of tribal Taxation powers;

See also Royal Proclama- decisions, 25, 178-81. Territorial extent of , tion, territory reserved; See also Charter of Rights constitutional selfTerritorial extent of and Freedoms; Cultural government jurisdiction constitutional self- consequences; Federal — Colonial governments’, 3,

government jurisdiction - Court jurisdiction; 8, 11-12, 17, 37-57, , Indian title, the concept, a Sexual bias 58-9, 62, 67, 69, 71-2, burden on crown title, Judson, Mr Justice, 62, _ 73, 75-6, 78, 80-1, 82, .

| 139 64-5, 71-3, 75n47, 83, 87, 93, 100, 103, 104,

| Individual rights v. 115n71, 131-3, 139n49, 121, 131-3, 137, 138-46, ~ collective rights, 6-7, 142-3, 144, 145 147; 160-1, 191-4. See , 13-14, 22, 37, 115n68, Jurisdiction — Aboriginal ~ also Accommodation of

121, 125, 152n7 peoples’, 3, 6, 9, 11, -_-pre-European invasion _ ‘Inherent and full,” nature 13-16, 17, 25~7, 37-57, status; Administrative

of existing constitutional 67, 80-1, 87, 98, 107, _ jurisdiction of colonial |

. self-government power, 110, 124, 125, 129-30, governments; Acquies13-19, 22, 24-7, 30, 31, 136, 137-46, 147, 160-1, cence; Constitutional 36-7, 53, 55—7, 121-3, 177~82, 191-204. See also - jurisdiction powers; 147, 153~4, 159, 166, | Accommodation of pre- Balanced powers; 168-80, 186, 188—9, 192, European invasion Charters, colonial;

194, 198, 203 status; Balanced powers; Colonial constitutional

| “‘Innuit,” the term, 6, 167 Bodies politic; Bounda- law; Colonial governIn pari materia reading, of — ries; Confirmation of ment policy and , | - constitutional legisla- pre-existing rights v. practice; Colonial

tion, necessity for, constitution of new government structure;

109-10 rights; Constitutional Crimes and offences; |

Integration, 168, 189, common law; Constitu- Extinguishment, not 193-9. See also Assimila- tional legislation; unilateral; Federal tion policy; Cultural Existing; Historic occu- government jurisdiction;

consequences , pation and possession; Implied colonial Interfering with aboriginal Independent character _ government jurisdiction; peoples’ jurisdiction, of right under constitu- Provincial government’s

colonial governments’ tional law; Indian jurisdiction; Responsible prohibited from, See territory; Inherent and government, colonial;

Molest or disturb full; Judicial review of | Subordinate govern- | ,

International law of human tribal decisions; __ | ments.

rights, relevance, 5, Marriage, custody, and — Imperial government’s, 3, 13-15, 36, 169, 171 child adoption jurisdic- 8, 17, 21, 37, 62, 67, 69,

International law status of tion; Molest or disturb; 100, 105-23, 136, 147, aboriginal peoples. See Municipal government 160, 191-204. See also —

Domestic dependent model; Non-natives; Delegation of powers

- nations Paramountcy of ~ Military, 60, 77, 104, aboriginal peoples’ 195n9 :

James Bay agreement, jurisdiction; Proprietor- —_ Jurisdiction, Federal Court

- 167-8 _ ship and dominion of, 52, 55, 181n92 Johnson, Guy, 125 integrated; Self- Jurisdiction powers, ]

_ Johnson, Mr Justice, 76n49 administration and | constitutional. See

255 = Index | Constitutional jurisdic- powers Municipal government tion powers Locus standi, 16 model, 9, 24, 145, 147-8, Justice, legal versus social, Lytton, E.B., secretary of 151, 152-89, 195, 196,

10, 204 state, 64 198. Contrast with and full | Inherent

Kerr, Lord Justice, 122 Macdonald, Sir John A., Murray, attorney general,

| 152, 166, 168 63, 65

| Land claims movement, McFadden, chief justice,97 Murray, Governor, 77, 93,

influence of, 159-60 Manitoba, 111-20, 121, 206

Laurier, Sir Wilfrid, 152, 122, 128. See also |

153, 154 Regional differences; Naskapi, 167 | Law-making, adopting non- equation 17, 36-7, 61, 112 |

Law, as scapegoat, 4-5, 123 Regional uniformity Natural justice, 3, 4, 11-16, native laws, 25 | Mansfield, Lord, 46, 47, 65, Negotiation process, 4, 32,

_ Law reform, 5, 9, 147, 206 57, 150, 151, 158,

149-50, 161-2, 166, 184, Marriage, custody, and 159-60, 161-2, 166, 173, |

, 189-90, 197-8, 203-4. - child adoption jurisdic- 175-6, 189-90, 197, Legislative intent, imperial tion, 18-19 203-4 government’s sovereign, Marshall, John, U.S. chief New Brunswick, 75n47,

influences upon: , justice, 13, 15, 24, 36, 56 — 109-10, 121. See also , : economics, 81, 82; ~ Meech Lake Accord, 190 Regional differences; _ French military threat, Membership, jurisdiction Regional uniformity

81-2; military considera- to determine their own, equation a tions, 3, 60, 67, 77—8, 81, 6, 25. See also Inherent Newfoundland, 121, 122.

, 90; numerous and and full See also Regional —

warlike tribes; 3, 14, 23, Meredith, Mr Justice, 5n4 differences; Regional |

a 99, 61, 67, 76n48, 80-2, Military jurisdiction, uniformity equation , : 90, 162; protection, 3, territory temporarily left | New France, cession of, 41, 62, 68, 80, 90, 93, 99, subject to. See Jurisdic- effect, 18, 46-7

— 105, 108, 112-13, 121, tion ~— Military Nishga tribe, 132 134, 135, 189; security, Mississauga Indians, 23,90 Non-natives, subject to

colonial, 3, 14, 29, 40-1, | Mohawks, 22 aboriginal peoples’ — 61, 78, 80-2, 111. See also Mohegans, 28-9, 37~45 jurisdiction, 25, 26-7,

Balanced powers; Molest or disturb, the 152, 156, 171-2, 177-9,

7 _ Natural justice; Real- several nations or tribes, 189-90 , politik; Sentiment; 3,9, 15-16, 37n80, 38, — ~Northey, attorney general, | Social compact 45, 46—7, 50, 59, 65, 4] | Liberal democratic 67-8, 75-7, 79, 81, 83, North West Company, 102,

ideology, influence of, 85-6, 93, 110, 122-3, 126 193-4, 198-9 | 125, 130, 135, 145, 147, North-Western Territory,

Liberty, definition, 3-4, 38, 166, 177, 181, 192, 196, 112, 117, 121. See also

158, 196, 198. See also — 202-4 Regional differences;

: Citizens plus; Continuity Money issue, 3-4, 148-9, Regional uniformity ,

of 18th century liberty 150, 151, 152, 159, 169, equation |

Litigation versus negotia- 170, 172, 173, 176-80, Northwest Territories,

| tion options, 4, 159-60, 189-90, 196-7, 203 75n47, 118, 119, 121. | 175, 176-8, 189, 197 Monk, Mr Justice, 13 See alsoRegional Lloyd, solicitor general,63 “Moose before Indians,” differences; Regional

Local government powers. | key phrase, 129 uniformity equation OO | See Municipal govern- Moral and philosophical Nova Scotia, 75n47,

ment model; Taxation issues, LO | 109-10, 121. See also

256 Index , Regional differences; _ phrase, 120, 132, 135, Proprietorship and , |

| Regional uniformity 136n37, 155. See also dominion integrated, , |

equation Reserves , 14, 25, 31, 37, 43, 44,53, Patterson, justice of appeal, 78, 109-10, 174-5. See “Obsolete,” key term, 300 also Sovereignty, tribal ,

163-6. See alsoSuperses- _— Personal law, 18-19, 22,24. Protection objective, 3, 41, _

| sion; Repeal of constitu- See also Marriage, | 62, 68, 93, 99, 105, 108, |

| tive legislation _ custody, and child — -112~13, 121, 134, 189. | Occupancy, historic, basis adoption jurisdiction See also Good faith; Trust

_ for selfgovernment, 31, “Personal and usufructuary relationship | 38, 50, 51, 53, 55-6, 111, right,” key phrase, = ~—~Provincial government’s |

| 191. See also Sources for 139n49, 143, 164n4]1 jurisdiction, 3, 9, 11, 17, |

self-government Pope Paul, 150-1 | 23-4, 26n48, 33-5, 54, _

Offshore territory, 174—5, Possession, historic, basis 58-9, 69, 81, 97, 108, |

192. See also Indian _ for self-government. See 115, 121-4, 127, 133, -

territory : Historic occupation and 137, 141-6, 160-1,

~ Ontario, 75n47, 109-10, possession; Sources for 191-204. See also

, 118, 120, 121, 122, self-government Jurisdiction — Colonial _ 132—4, 137-8. See also Practice versus law. See governments’

| Regional differences; Colonial government Public lands available for

Regional uniformity policy and practice disposition, the concept,

equation Pre-emption right, of - 103. See also ExtinguishOptional (non-Indian Act) : European states and ment, not unilateral; band government colonial governments, Purchase, as extinguish-

| legislation paper, 1982, 14-15, 40, 44-5, 80, 112, ment; Treaties | | ,

168-9, 217 — | 139n49 Purchase, as extinguishoo Prerogative legislation, the ment, 7-8, 15, 18, 37,

Paramountcy of aboriginal concept, 37-57, 58, 44-5, 75, 78, 80, 88, 99,

| peoples’ jurisdiction, 3, 62-3, 70. See also Rule of 103, 139, 192, 205. :

| 7-9, 17, 34, 51, 54, 56, law , See also Crown title; |

69, 71, 72, 76, 78, 80-1, “Present proprietary , Extinguishment, not | 7 97-8, 107, 109-10, 111, estate,” key phrase, unilateral; Grant; Pre- | | 119, 120-—3, 129, 136-46, 139n48, 142-3 emption right; Treaties

, 192, 197n16, 198, 200-4. Presumption against , , | See also. Acquiescence; discontinuity, 8, 12-13, Quebec, 75n47, 86-98,

Constitutional capacity —=—85, 87, 164 - 109-10, 118, 121, 122, _ _ issue; Continuity of 18th Prince Edward Island, 116, 138, 167-8, 206. See also

, century liberty; Existing, 117, 121. See also Regional differences;

: constitutional law Regional differences; Regional uniformity = context; Extinguish- Regional uniformity | equation ment, not unilateral; equation : Quebec Act, 1774: Royal - | , Implied colonial Privilege versus right, 51, Proclamation’s Indian

government jurisdiction; 80, 84, 90, 91, 94, 97, 99, part unaffected by, 88-9, Repugnancy issue; Royal 105, 118, 145, 165. See 162-3; enclaves and

Proclamation, binding» also Convention versus rights of French, 86-7, — effect under s. 3, law; Practice versuslaw; ——«- 91, 94-5, 125; legislative

binding effect under Rule of law intent of, 87, 94-5;

, s. 4. But see Crimes Privy Council, appeals to, repeal of ordinances

and offences 39-42 neutral to aboriginal |

Parke, Baron, 48 Proclamation, See Royal rights, 90-97, 98; result

“Particular bands,” key Proclamation of, 87, 98, 162~3, 165;

257 Index saving provision in, tion, binding effect _ Act, 74-5, 121; continu-

| 87-8, 94, 162-3; pattern, under s. 3, binding ing effect, 84, 85-98, 86, 95,97; territorial = — effect under s. 4 121, 162,164,181, application, 86—7,.95 “Reserved,” the term, 7, 206-18; rationale , 37-8, 51, 75, 87, 99, 118, behind, using prerogaRacial class, special 141n50. See also Indian tive legislation, 75-6; treatment, 3—4, 6-8, 9, territory, the region territory reserved under,

| 12, 14, 19-277, 30, 82, 83, reserved; Reserves v. under Indian Act, 7-8, 153, 158, 168, 192,193, — Reserves, for domestic law 120, 132, 135-6, 137,

194, 196, 198; Canadian Indian Act purposes, 154—5, 169, 192, 202. See approach, like us., 30; 7-8, 83, 120, 132, 135-6, also Royal instructions _ USA distinguished, 12-27. 137, 154~-5, 156, 168, Rule of Law, 10, 59, 61,

See also Ideologies 169, 202. See also 75-6, 82, 98, 105, 161-2, | Rank and precedency, “Particular bands”; 165, 169, 174, 176, 197, rules for, 60, 62 Contrast with Indian — 198, 200-4. See also Raymond, Sir Robert, 67 territory, the region Convention, distinRealpolitik, relevance of, reserved. See also Re- guished from law;

3-4, 14, 40-1, 67, 80-2, _ served; Royal Proclama- Practice versus law; |

171, 175, 177-9 tion, territory reserved; Privilege, not right;

“Reasonableness” test, in Indian Act legislation; Supersession; Repeal of

constitutional law, Territorial extent of constitutive legislation, .

199-204 constitutional self- absence of

Recognition, whether government jurisdiction Rupert’s Land, 110-14, necessary, 5n4, 28n51, Resource allocation issues. 117, 118, 121. See also

55~6 See Conservation needs Regional differences;

Regional differences, Resource rights, tribal . Regional uniformity

ephemeral nature of, jurisdiction, 25, 200-4 equation 111, 114n67, 115-6, 117, Responsible government, ,

119, 120, 149, 193. See colonial, effect of, 115, St Catherine’s case ratio

also Regional uniformity 124, 131~46, 193, 194—5 decidendi, 134—5,

equation ~ Riddell, Mr Justice, 22, 23, 138-45, 162-3

Regional uniformity 29 Saskatchewan, 117-20, 121,

equation, 70, 75~6, “Right,” defined, 5, 7, 51 122, 128. See also , 108-23. See alsoRegional Robinson, John Beverly, Regional differences;

differences — 22, 29 , Regional uniformity

“Repeal,” the term, 160-6 Royal commissions and equation

Repeal of constitutive instructions, function of, Saving provisions, constitulegislation, absence of 59-60, 69, 70, 72, 74, 99 tional legislation:

any, 4, 39, 48, 50, 54,58, Royal instructions, Quebec Act, 1774, 87-8,

59, 69, 80, 84-98, 99, distinguished from royal 94, 103, 105; Constitu- , ~100, 105-8, 122, 138n45, commissions, 70, 74, tional Act, 1791, 100, 143—4, 158, 160-6, 167, _ 76-7, '79; reminders in, 103, 105; Union Act,

197, 206 of proclamation’s law, 1840, 103, 105;

| : Representation by Lord 61-2, 77, 79, 93, 94 Constitution Act, 1867, Dorchester to the Indian Royal Proclamation: 105-8; Adjacent

Nations, 1791, 80 binding effect under s. 3 Territories Order, 1880, Repugnancy issue, 71-7, of Colonial Laws Validity 117; Alberta Act, 1905, | 83, 101, 106—8, 121-3, Act and Royal Proclama- 117.

197n16. See also tion, 72-3, 100-1, 121; © Sechelt, 168, 169, 171-2

Constitutional capacity binding effect under s.4 Section 88 Indian Act

issue; Royal Proclama- of Colonial Laws Validity encroachments, 17, |

. 258 Index , , 26-7, 35-6, 108, 124, | 61-2, 77 162, 164, 165 :

—-- 127, 129, 133, 136, 161, Signet and sign manual, Subjects and citizens, 7 — 184, 199n18, 207 70, 73, 76, 77, 78, 93, 94, Indians as, 19—20, 22, 23, |

Section 91 (24) BNA Act, 99 146, 153.

- Jurisdictional signifi- Simcoe, Governor, 23 Subordinate governments, cance, 105-23, 137, 188 Six Nations Indians, 19, 22, the concept, 58, 62, 63,

Section 109 ana Act, 23, 152, 153 66, 67, 69, 71, 103,

jurisdictional signifi- Social compact, 3, 204 — - 115-16, 144, 206, 208 cance, 50-2, 109-11, Sources for self-govern- Ss “Sui generis,” key phrase,

| 115, 116, 118-21, 134, ment jurisdiction, 55-6. See also Historic 139n48, 143-5. See also common law and occupation

St Catherine’s case; legislative, 4-5, 7, 9, Superintendent of Indian Vindicated in competi- 11-12, 24-8, 32, 33, affairs, the office, 66-7,

tion 36-7, 53, 55, 58, 62, — 138n45, 152, 153

Section 129 na Act, 191-2. See also Historic Supersession, doctrine of,

| Jurisdictional signifi- occupation and 9, 11, 33, 61, 149, cance, 106-8 possession; Sovereignty, 159--67, 174, 175, 176, ,

Section 146 pna Act, and tribal 178, 187-9, 197. See also continental uniformity, Sovereign immunity of Repeal of constitutive | 108—23 tribes (u.s.), 25, 56, 179 legislation

Segregation, 3-4, 6, 9, 87, Sovereign power, vested Supremacy of Parliament, |

153, 158, 168, 192-9 exclusively in imperial principle of, 200-4 a

Self-administration and government, 3, 37n80, , management, distin- 38, 40, 44~7, 49, 50, Taschereau, Mr Justice, 88

guished from self- 53-5, 59-62, 67, 82, Taxation powers, 26-7, government jurisdiction, 106-23, 131, 133, 134, 152, 156, 171-2, 177-9,

6, 152 136, 137, 143, 147, 160, 189-90; (federal |

Self-determination ethic, 166, 190, 191, 194, | position) paper, 1987, ,

Oe 193-4, 198-9 | 200-4. See also Adminis- 177-8

Self-government: denial of, trative jurisdiction of “Terms and Conditions” of

| 4,19, 22-3, 28-9, 35, 71, colonial governments union, the phrase,

90, 107n51, 145, 161, Sovereignty, tribal, from 108-123 : a 183-9, 197n16, 208 reservation of tribal Territorial application of ,

~— Under Indian Act and territory, 7,9, 24-5, 30, Indian Act. See Reserves

other domestic legisla- 31, 37, 41, 53, 85, 110, Territorial extent of a

, tion delegating powers. 123, 192. See also Historic — constitutional self- Oo See Municipal govern- — occupation and government jurisdiction,

- ment model possession; Indian 3, 7-9, 12-13, 19, 75-6,

- Under Royal Proclama- | territory, the region 78, 87, 99-105, 114, 118, a tion, Constitution Act, reserved; Molest or ~— 163, 203. See also Indian

| 1982, and other imperial disturb | territory; Offshore | legislation and constitu- Specific claims policy territory | tional common law paper, 1981, 167 | Territorial revenues,

precedents. SeeInherent Statement on claims, 1973, provincial, after natives © ,

and full; Constitutional 159-60, 166,167,215 cede land to crown, 103,

. common law Steele, Mr Justice, 89, 93, 138, 141n53 | Sentiment, relevance of, 3, 133, 137, 142, 144,145, | Third-party interests,

10, 33, 61, 64, 80, 163, 161-2, 165, 166 175-6, 197, 202-3 | 199, 204 Story, Mr Justice, 15, 30 _ Trade, licences, 99, 102,

Sexual bias, 106n49, 179 Strong, Mr Justice, 127

Seymour, Governor, 12, 36, 39, 80-1, 88, Treaties, 3, 7-8, 12-13, 22,

259 Index : 25, 29, 30, 37, 41, 45,47, Trudeau, Prime Minister, Canadian self-govern-

51-2, 59, 62, 78, 80, 88, 157 ment right; Ideologies

| 90, 93, 94, 99, 103, 105, Trust relationship, 29, 41, Usufructuary. See Personal 118-21, 129n12, 134-46, 44, 68, 84, 110, 118, 134, and usufructuary right

160, 166, 167, 174-5, 160, 168n58, 182, 184, , 192, 202, 203, 205, 208; 202-3. See alsoConflicts | “Vindicated in competi-

legal consequence of, of interest tion,” key phrase, 51,

134—46, 167-8; 110, 119, 146, 192, 198

extinguish only — Uniformity of British Vote, the right to. See . identified aboriginal policy, 3, 14-15, 23n26, Citizenship and voting

rights, 129n12, 167 75, 78, 82, 108, 112-3, rights Treaty of Paris, 1763, 46, 86 123, 193. See also Great

Trespass on Indian Britain; Section 146. Watson, Lord, 51, 121, 134, territory, prohibited, Constitution Act, 1867 138-45, 162, 163, 164,

125, 176 Uniqueness of constitu- 199 | |

Tribal consent, necessity tional status of aborigi- White paper, 1969, 157-8,

| for, in purchases by nal peoples, 6, 31, 40. See 168, 214 treaties, 26, 37,78, 80, | _—_— also Sui generis _ Williams Treaty, 90 ;

88, 89, 97. See also United States of America, Wilson; Madame Justice, 31

Treaties; Extinguish- common law of, ment, not unilateral respecting self-govern- Yukon Territory, 117, 121, Tribal courts, 25, 42, ment right, 12-21, 24-7, 122. See also Regional

180-1, 185. See also 32; contrast with differences; Regional

Judicial review Canada’s, 12, 27. See also uniformity equation |

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