Aboriginal Rights, the Rule of Law, and Justice

Each Forsaken

The first principle of the rule of law in a constitutional democracy is constitutional supremacy: when in conflict with federal or provincial legislation constitutional legislation is paramount and the other legislation is void.

Most determinatively section 109 of the Constitution Act, 1867, enacts that provincial Crown land remains subject to the Indian interest in such land as remains unceded by the Indians to the Crown, by nation-to-nation treaty.

The Royal Proclamation of 1763 is constitutional legislation. It enacts that the Indian Nations live under our “Protection” and may not be “molested or disturbed” in the possession of any land whatsoever that has not been ceded by them to their trustee—now the federal government.

Crown Patents of unceded land made upon any “Pretence” expressly are forbidden.

This paramountcy of the Indians’ unceded interest over provincial land statutes is confirmed by the two leading aboriginal rights law precedents: St. Catherines Milling and Lumber Company Ltd. v. The Queen in 1888 in the Judicial Committee of the Privy Council; and secondly, AG Ontario v. AG Canada: In re Indian Claims in 1897 also in the Judicial Committee.

At the time the Judicial Committee was the highest court of appeal in the British Empire, over and above the Supreme Court of Canada.

The problem is that the Canadian courts arbitrarily reject every case which is based upon the paramountcy of the proclamation’s constitutional force over provincial land patents.

The statutory test for granting leave to appeal to the Supreme Court is whether the question of law is of public importance. No constitutional question can be as critical as the competition between provincial land granting statutes, and the constitutional Royal Proclamation of 1763 and section 109.

In sum, the lower courts ignore the constitutional question and the Supreme Court consistently and repeatedly denies leave to appeal.

By this modus operandi federal and provincial land granting statutes gain paramountcy over the unceded Indian interest.

The Supreme Court itself is situated upon unceded Indian land.

The first principle of the rule of law, constitutional supremacy, knowingly has been negated by the courts acting in concert.

Ralph Waldo Emerson in his “Essay on Character” wrote, “Truth is the summit of being: justice is the application of it to affairs.”

The legal truth is that the settled constitutional aboriginal right is the power of veto over provincial development of crown land, based upon the Royal Proclamation of 1763, section 109 of the Constitution Act, 1867, and the leading precedents St. Catherines Milling, 1888 and In re Indian Claims, 1897.

The lie, recently invented by the Supreme Court of Canada in willful blindness, is that the aboriginal right is no more than “the right to be consulted:” Haida Nation v. British Columbia in 2004; R. v Van der Peet in 1996; Delgamuukw v British Columbia in 1997; and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) in 2005. Each of these was in the Supreme Court of Canada. The Court did not address section 109 and Indian national sovereignty. In so far as legal justice consists in the application of truth to affairs, justice, like the rule of law also has been forsaken.

The history leading to the unconstitutional political power in effect to repeal the constitution began in 1874. Then, British Columbia enacted a Crown Lands Act that regarded all crown land, including land not yet “ceded to or purchased by” the crown from the Indians, as being free and clear of any Indian “interest” within the meaning of section 109 of Constitution Act, 1867. In other words the British Columbia statute proclaimed a tacit repeal of the Proclamation of 1763 as well as section 109.

In response, upon the recommendation of Canada’s attorney General Telesphore Fournier, the Canadian Privy Council enacted an Order-in-Council in 1875 disallowing the British Columbia statute, which the Governor General duly did, later in that year.

Then Fournier was appointed to the Supreme Court and replaced as attorney general by Edward Blake. British Columbia enacted a fresh Crown Lands Act, still in 1875, which new act repeated the ignoring of the constitutionally paramount Indian interest. Blake persuaded the cabinet not to disallow this new act. He explained to the Governor General the reason was “Great inconvenience and confusion might result from its disallowance.” The Governor General went along with this ascendancy of political expediency over constitutional supremacy, and neglected to disallow the fresh land act.

Upon this basis A-G Blake engineered the enactment of the first Indian Act in 1876, inventing municipal Indian governments subject to federal and provincial laws of general application even on unceded Indian land, thereby in intent and effect abolishing the sovereign “several Nations or Tribes.” This was accompanied by a century of Indian Residential Schools that kidnapped the Indian children from age 4 to age 16 and all but destroyed the Indian culture, political organization, languages and economies. In every generation more and more molestations and disturbances under federal and provincial law were heaped upon the native culture in an unrelenting unconstitutional genocidal ethnic cleansing.

That was the simple plan. From then, until now. Now is the time to right that wrong.

Bruce Clark, Ph.D. in jurisprudence, is an Indigenous rights activist and author of Native Liberty, Crown Sovereignty and Justice in Paradise. Read other articles by Bruce, or visit Bruce's website.