Canadian Criminal Court Jurisdiction Relative to Unceded Indian Territory

1. Abstract The Indian part of the Royal Proclamation of 1763 (Revised Statutes Canada 1985, Appendix II, No. 1) consolidates previously established British North American common law. For constitutional law purposes, the proclamation recognizes and affirms two territorial jurisdictions, pursuant to the British Crown’s claim of continental sovereignty. First, is the continuity of the territorial jurisdiction of the “several Nations or Tribes.” Under the proclamation, all land presumptively is occupied and claimed by them. Correspondingly, the proclamation “reserved” all land for them. Second, is the territorial jurisdiction of non-native governments. It is derivative; that is, it comes into existence relative to any land that is “ceded to, or purchased by” non-native governments by international treaty, whereby the Indian Nations or Tribes surrender their previously established jurisdiction, in exchange for contractual undertakings by the non-native governments. Whereas civil court jurisdiction relative to boundary disputes between aboriginal and newcomer governments exists in the nature of consensual arbitration; criminal court jurisdiction does not exist until the Indian national or tribal jurisdiction has been surrendered by treaty. The burden of proving such a treaty is upon the Crown Prosecution Service of the non-native government contemplating the prosecution of an Indian, for commission of a non-native crime upon unsurrendered territory.

Contents                                                     Paragraphs

A: Basic Facts and Law ………………………….   2-14
B: The Attempt at Genocide……………………   15-27
C: Duty to Consult……………………………….   28-38
D: Section 88……………………………………..    39-43
E: Fur Trade in Indian Territory……………..   44-47
F: Conclusion……………………………………..   48-53
G: Documentary Evidence

A: Basic Facts and Law

2. The relevant excerpted portions of the 1st, 3rd and 5th paragraphs of the said Indian part of the proclamation follow:

1st paragraph

And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, 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; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; … or 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.

3rd paragraph

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.

5th paragraph

And We do further expressly enjoin and require all Officers whatever, as well Military as those employed in the Management and Direction of Indian Affairs within the Territories reserved as aforesaid for the Use of the said Indians, to seize and apprehend all Persons whatever, who, standing charged with Treasons, Misprisions of Treason, Murders, or other Felonies or Misdemeanours, shall fly from Justice, and take Refuge in the said Territory, and to send them under a proper Guard to the Colony where the Crime was committed of which they stand accused, in order to take their Tryal for the same.

3. The aforesaid 5th paragraph by necessary implication enacts that an Indian who ostensibly commits a non-native crime within the Indian territory is not subject to the jurisdiction of any non-native court. In the 1st place, a non-native court would be trespassing were it to presume to sit in judgment of any person, within the Indian territory. In the second place, the only persons subject to arrest and trial are persons who commit a crime upon surrendered territory and flee to the Indian territory to escape justice. They can be apprehended within the Indian territory and taken out so as to stand trial in the surrendered territory where the crime was committed.

4. The proclamation was issued by the King pursuant to the royal prerogative to legislate for discovered overseas dominions and still has the force and effect of a constitutional statute of the United Kingdom, the same as the Constitution Act, 1867.

Constitution Act, 1982, s. 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;

St. Catherine’s Milling and Lumber Company v. R., (1887), 13 S.C.R. 577, 601, 628, 635. (Per Ritchie, CJ) [601] … under the British North America Act [i.e., Constitution Act, 1867], the Province of Ontario has a clear title to all unpatented lands within its boundaries as part of the Provincial public property, subject only to the Indian right of occupancy, and absolute when the Indian right of occupancy is extinguished. (Per Strong, J.) [628] It [the said proclamation] is a legislative act, applying directly to the lands now in question, assuring to the Indians the right and title to possess and enjoy these lands until they thought fit of their own free will to cede or surrender them to the crown, and declaring that, until surrender, the lands should be reserved to them as their hunting grounds, and being still in full force and vigour when the British North America Act was passed, it operated at that time as an express legislative appropriation of the land now in dispute for the use and benefit of the Indians by the designation of “lands reserved to the Indians.” [635] …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.

5. Before the Canada Act 1982, “an act emanating from some competent legislative authority” would have to have been a statute of the United Kingdom. Since 1982, such an act would have to be a constitutional amendment repealing the Royal Proclamation of 1763 pursuant to the amendment formula expressed in the Constitution Act, 1982, which itself was brought into being as a schedule to the Canada Act. Correspondingly, the domestic statute the Indian Act is not competent to repeal the said proclamation by being inconsistent with it. Neither could a subsequent proclamation repeal it.

Mitchel v. U.S., 34 U.S. (9 pet.) 711, 749 (1835). This brings into practical operation another principle of law settled and declared in the case of Campbell v. Hall that the proclamation of 1763, which was the law of the provinces ceded by the treaty of 1763, was binding on the King himself, and that a right or exemption, once granted by one proclamation, could not be annulled by a subsequent. Cowp. 213.

6. Section 109 of the Constitution Act, 1867, enacts:

All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for 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.

7. There are two authoritative precedents that are definitive both to the proclamation and section 109:

St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 AC 46, 52-53, 54, 55, 58, 59, 60 (JCPC). [52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates 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.

[54] 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.

[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, 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 must now belong to Ontario in terms of that clause,…

[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

[60] By 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, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever….

The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

AG Canada v. AG Ontario: (Re Indian Claims), [1897] AC 199, 205, 206, 210-11 (JCPC). [205] The effect of the 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,…

[206] The beneficial interest in the territories ceded by the Indians under the treaties of 1850 became vested, by virtue of s. 109, in the Province of Ontario.

[210-11] On the other hand, “an interest 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.

8. The Crown is in a fiduciary relationship with the Indian Nations or Tribes or bands.

Dominion of Canada v. Province of Ontario, [1910] AC 637, 646 (PC). The Dominion Government were indeed, on behalf of the Crown, guardians of the Indian interest and empowered to take a surrender of it and to give equivalents in return, but in so doing they were not under any special duty to the province.

Guerin v. The Queen, [1984] 2 SCR 335, 376. The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.

An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the Band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognized in the surrender provisions of the Indian Act. The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians….

9. The burden of proof is always on the Crown from the outset, to prove the land has been “ceded to, or purchased by Us,” in the absence of which proof the land irrebuttably is presumed still to be “reserved for them, or any of them,” without regard to which Nation or Tribe comes forward to claim standing to sue and, in the result, the land constitutionally can not be granted and occupied failing discharge of that burden of proof. That is, the crown cannot evade the reserved status of the land, so as to dispose of and occupy reserved land as if there had been a cession or purchase, if it can not prove the cession or purchase.

10. In 1874 British Columbia enacted a Crown Lands Act that regarded all crown land as if it were public land available for disposition, even though the land is part of the continental reserve for the Nations or Tribes of Indians, not being “ceded to, or purchased by Us.” In a report to the Canadian Privy Council, Attorney General Télésphore Fournier recommended disallowance (document “1”) under section 90 of the Constitution Act, 1867, on the ground of conflict with the proclamation and section 109. The report was approved in a Minute in Council dated 23rd January 1875 and endorsed by the Governor General.

Section 90. The following Provisions of this Act respecting the Parliament of Canada, namely, — the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada. [Emphasis added]

11. British Columbia then made a proposal to Canada to resolve the Indian problem by establishing a commission to investigate and “set apart” provincial Crown lands as “reserves” for Indian use. This led directly to the Indian Act, 1876. The Acting Minister of Interior Affairs in a report dated 5th November 1875 recommended approval of the provincial plan, which was done by the Canadian Privy Council pursuant to Minute in Council dated 10th November 1875 (document “2”). This entailed leaving the originally disallowed Crown Lands Act to its operation, i.e., reviving it. Attorney General Fournier was elevated to the Supreme Court and was replaced in office by Attorney General Edward Blake. Blake reported under letter dated 6th May 1876 to the Governor General (document “3”) explaining that “Great inconvenience and confusion might result from its disallowance.” As recommended, on second thought the Governor General did leave the statute to its operation. Treaties were not made thereafter in mainland British Columbia. There was no need, since all Crown land was thereafter unconstitutionally prima facie regarded as public land available for disposition. It was as if the common law, the Royal Proclamation of 1763 and the proviso in section 109 duly had been repealed, or had never existed.

12. This evasion of the common law, the proclamation and section 109 is the reason for the absence of Indian treaties in mainland British Columbia and, from all that appears, accounts for the same absence in New Brunswick, Nova Scotia, Quebec and the Ottawa River drainage basin in Ontario.

13. The fact that some Indian territories have been invaded and occupied prematurely, because Canada reneged upon its fiduciary obligation of “Protection” within the meaning of the 1st paragraph of the proclamation, by neglecting to persist with the federal jurisdiction under section 90 of the Constitution Act, 1867, to disallow the offending provincial lands legislation, is not the equivalent of a legal repeal of the proclamation.

14. But it has significant political and psychological consequences. The political consequence is that the yet unceded, and unpurchased Indian territories have a substantial population of settlers squatting on Indian land, contrary to the express and explicit injunction against that practice under the 3rd paragraph of the proclamation. A population of that size needs a court system in place.

B: The Attempt at Genocide

15. Furthermore, the judiciary by now is used to adjudicating in the Indian territories. The judges do not, psychologically, welcome the constitutional argument that they, albeit inadvertently, by their unconstitutional exercise of jurisdiction, such as over the Indian school children of the residential school century, or, more recently, the 60s scoop of Indian children put up for adoption, have aided and abetted Canada’s attempted genocide of the “several Nations or Tribes of Indians.” Lawyers who point out the arguable judicial complicity in genocide run the risk of citation for contempt of court and disbarment, and hence it has not, with one rare exception been pointed out, and I have in fact been convicted of criminal contempt of court and disbarred for trying to point it out.

16. The Six Nations Indians by the 1880s had had experience in Canada’s domestic court system, and apparently felt there was scant prospect of independent and impartial justice. Therefore, they applied for direct access to the Judicial Committee of the Privy Council as 3rd party adjudicator in the first instance, as successfully had been done by the Mohegans in the leading 18th century case of Mohegan Indians v. Connecticut, which began in 1704 and ended in 1773. See, Joseph H. Smith, Appeals to the Privy Council from the American Plantations, Columbia University Press, 1950. The Six Nations’ application came before Sir John A. Macdonald, the first Prime Minister of Canada, 1867–1873, and again 1878–1891. He sent a Memorandum to the Privy Council of Canada (document “4”), which defeated the Six Nations’ request. See, 60 Victoria, Sessional Papers Volume 16 (No. 20B) Page 37, 3rd January 1887. Macdonald reported:

1. It is extremely inexpedient to deal with the Indian bands in the Dominion (except those inhabiting the territories acquired from the Hudson’s Bay Company) as being in any way separate nations. They are governed by Canadian statutes, and for any wrongs or grievances have the right of recourse to the legal tribunals of the country as fully and readily as their white fellow subjects, which right they do not hesitate to exercise.

2. As Indians are inveterate grumblers, if it were once known that this application had been granted there would be no end of similar demands by other bands, a refusal of which would cause much discontent. It would be difficult, if not impossible to make another tribe understand why it should not receive the same consideration as the Six Nations, and great consequent jealousies and heart-burnings ensue.

5. The introduction of a new practice of submitting Indian claims in the first instance to the Judicial Committee would operate as a complete change in the manner in which the races have hitherto been dealt with, and would establish a distinction between them and the other inhabitants of Canada. This is very objectionable, as 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 for the change. [Emphasis added.]

17. In point of constitutional law as confirmed by the Royal Proclamation of 1763, Macdonald is wrong that the Indians are not conceded the status of “Nations or Tribes,” the two being synonymous with separate states;1 whose independence, far from being “governed by Canadian statutes,” is epitomized by the whole beneficial interest in possession and self government, pending treaty of cession thereof. In other words, the “great aim” of the Indian Act, and Canadian legislation in general, at all material times, has been to renege on the Crown’s fiduciary undertaking of “Protection.” Genocide is the reasonably foreseeable and probable consequence. Genocide has been the Canadian solution to its Indian problem.

18. A person equitably is estopped from benefitting from his own wrongdoing. Having taken and taking advantage of the federal government’s evasion of the Royal Proclamation of 1763 by enacting laws in the Indian Act that diminished the tribal system, the Crown can not rely upon any weakness in the tribal system attributable to the “cultural genocide” that caused it. See, Sean Fine, The Globe and Mail, Friday, May 29, 2015, “Chief Justice says Canada attempted ‘cultural genocide’ on aboriginals.” (This report upon the speech is referenced in part “E: Documentary Evidence” as document number “5”.)

19. The original and authoritative common law precedent for Canada is Connolly v. Woolrich, (1867), 11 LCJ 197, 205, 207 (SC Quebec). In it Monk, J., held:

[205]…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated—that they ceased to exist when these two European nations 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 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:…

[207] 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 the 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 never coerced a surrender of them. He also purchased their alliance and dependence 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 principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt. [Emphasis added]

Connolly v. Woolrich, [1869] 1 rl(os) 253, 357 (ca Quebec) (per Badgely, ja). Even the United States are careful to acquire the Indian title, either by purchase or by other conventional means, before occupancy can be allowed, or public grants made….It was held in the case of Brook vs. Brook above referred to, that the forms entering into the contract of marriage are regulated by the lex loci contractus, and applying the rule to this case, the form of the marriage of William Connolly [a non-native] and Suzanne [a native] would therefore be the [native] customs and usages of the Cree country in 1803.

20. The “maintenance of the laws of the Aborigines” in the constitutional common law signifies the continuity of the laws and by implication the legal standing to object to the assumption of court jurisdiction. For a full statement of the North American constitutional common law see APPENDIX OF 18TH AND 19TH CENTURY AMERICAN CASES.

21. The common law constitutional law became codified in a legislated constitution for British North America, which still subsists as such for Canada, in the form of the Indian part of the Royal Proclamation of 1763.

22. When Canada was created as a federation with two tiers of government, a set of checks and balances was constituted as between the federal and provincial levels. The common law provisions of Connolly v. Woolrich and the legislated provisions of the proclamation were carried forward in the Constitution Act, 1867.

23. In the allotment of powers, the jurisdiction and duty of “Protection” within the meaning of the 1st paragraph of the Indian part of the proclamation was assigned to the federal government, as was the capacity to contract by treaty with the Indian Nations or Tribes for the Indians’ constitutional right not to be “molested or disturbed” in the “Possession.” This was achieved by section 91(24) of the Constitution Act, 1867. It assigned jurisdiction to the federal government relative to “Indians, and Lands reserved for the Indians.”

24. In the light of the proclamation’s constitutional duty of “Protection,” section 91(24) legislatively was intended to act as a shield not a sword, the better to safeguard the Nations’ or Tribes’ right not to be “molested or disturbed,” within the meaning of the 1st paragraph of the Indian part of the proclamation:

And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, 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; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also, that no Governor or Commander in Chief in any of Our other Colonies or Plantations in America, do presume, for the present, and until Our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North-West, or 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. [Emphasis added]

25. When a treaty is contracted by the federal level of government, the Indians’ beneficial interest in possession and local government jurisdiction flows through to the provincial level of government, in virtue of section 109. It enacts:

s. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for 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]

26. Once the provincial government is equipped with the beneficial interest in possession and the right of jurisdiction over the land ceded, or sold by treaty, the federal government constitutionally can and does purchase land from the province to create smaller Indian Act reservations, for bands, out of the surrendered territory, by order-in-council. Or the Indian Act reservations may be contracted for in the treaty itself, and confirmed by order-in-council.

27. Section 25(a) of the Constitution Act, 1982, recognizes the continuing force and effect of the proclamation and its terms:

s. 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;…

C: Duty to Consult

28. There is recently invented case law that is per incuriam but which, standing alone, appears to establish that the only interest of the Indians in unceded, or unpurchased land reserved under the proclamation, is the “right to be consulted” about the proposed use of the land by the province, or in some instances by its 3rd party grantees.

29. John Burke, Osborn’s Concise Law Dictionary, 6th edition, Sweet and Maxwell, London, 1976, defines per incuriam, stare decisis, precedent and ratio decidendi as follows:

per incuriam [Through want of care.] A decision of the court which is mistaken. A decision of the court is not a binding precedent if given per incuriam; i.e., without the court’s attention having been drawn to the relevant authorities, or statutes.

stare decisis The “sacred principal” of English law by which precedents are authoritative and binding, and must be followed.

precedent A judgement or decision of a court of law cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principal embodied in its decision. The common law has developed by broadening from precedent to precedent.
A case is only an authority for what it actually decides….
An original precedent is one which creates and applies a new rule;… An authoritative precedent is one which is binding and must be followed….

ratio decidendi [The reason (or ground) of a judicial decision.] It is the ratio decidendi of a case which makes the decision a precedent for the future.

30. Since the right to be consulted conflicts with the beneficial interest in possession and jurisdiction held under the authoritative precedents, the doctrine of stare decisis dictates that the law settled prior to the invention of the duty to consult governs, rather than the other way around.

31. The two cases (St. Catherine’s 1888 and Re Indian Claims 1897) cited and quoted above are the authoritative precedents. The ratio decidendi of each is the legal consequence of an Indian treaty; and therefor the character of the Indian interest being surrendered, and the priority of it in relation to the interest of the province, pending treaty of cession or purchase. They were decided in the Judicial Committee of the Privy Council, on appeal from the Supreme Court of Canada.

32. Their ratio decidendi cannot be overturned in the absence of a constitutional amendment repealing the Indian part of the Royal Proclamation of 1763; the proviso to section 109 of the Constitution Act, 1867; section 25(a) and the adjective “existing” in section 35(1) of the Constitution Act, 1982.

33. The “duty to consult” was the ratio decidendi in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. It was held, at paragraph 25, that it is a constitutional duty under section 35(1) of the Constitution Act, 1982. Yet it was never mentioned in the constitutional common law or in the Royal Proclamation or in either of the definitive precedents, St. Catherine’s 1888 and Re Indian Claims 1897, dealing with section 109 of the Constitution Act, 1867. Neither was it mentioned in Connolly v. Woolrich 1867 nor in the many common law cases in America dealing with the doctrine of discovery and the proclamation.

34. Section 35(1) of the Constitution Act, 1982, enacts: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” [Emphasis added]

35. The “duty to consult” did not “exist” until 2004 when Haida Nation made it the reason for the Court’s decision. Therefore, it is it not justifiable as an “existing” aboriginal right under section 35(1), dated 1982.

36. The law other than Haida Nation identified above in paragraph 32 authentically did exist as at 1982, and so genuinely is constitutional under section 35(1).

37. The duty to consult, and the injunction against settlement in the 3rd paragraph of the Indian part of the proclamation, can not both be valid. It is too profound a conflict for reconciliation. The duty to consult in effect implicitly condones the unconstitutional breach of the proclamation’s 3rd paragraph:

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.

38. The first call upon the honour, and fiduciary duty, of the crown is allegiance to the proclamation and section 109.

D: Section 88

39. Section 88 of the Indian Act has no application to territory that “has not been ceded to, or purchased by Us” within the meaning of the 1st paragraph of the proclamation. If it were to be applied “the several Nations or Tribes of Indians” would be “molested or disturbed in the Possession.” That would be unconstitutional by reason of conflict with the constitutional common law, paragraphs 1, 3 and 5 of the Royal Proclamation of 1763, the proviso in section 109 of the Constitution Act, 1867, and sections 25(a) and 35(1) of the Constitution Act, 1982.

Indian Act, section 88. Subject to the terms of any treaty and any other Act of Parliament, 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 to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

40. Section 88 of the Indian Act uses that statute as sword rather than a shield. This is contrary to the proclamation’s constitutional declaration that the Nations or Tribes are under the “Protection” of the Crown.

41. No part of the Indian part of the proclamation has been repealed, as witness the conjunction of sections 25(a) and 35(1) of the Constitution Act, 1982.

a. Section 25(a). 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 any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;…

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

42. Ostensibly, the Indians’ right under the proclamation not to be “molested or disturbed in the Possession” (i.e., their beneficial interest of possession and self government) was repealed by section 88. But it is only ostensibly: for the Indian Act is a domestic law statute, while the Indians’ “Protection” under the proclamation and the “subject to” proviso in section 109 is constitutional.

43. In the absence of a constitutional amendment directly repealing the Indian part of the proclamation and deleting section 109’s proviso, there is no option to using section 91(24) as a shield, not a sword, to make the “Protection” real. The Indian “Interest” still consists in being what it was when section 109 was enacted in 1867: the said beneficial right of possession of, and jurisdiction over the land. For if the Indian Act as a sword were given effect, the proviso in section 109 would refer to an “Interest” in nothing whatsoever, rather than an interest in provincial “Lands” as that section states.

E: Fur Trade in Indian Territory

44. The 5th paragraph of the Indian part of the proclamation permitted non-native law enforcement in the established colonies to pursue fugitives from the colonies into the Indian territory, to arrest them, and to transport them back to the colony where the crime was committed to stand trial there.

45. By 1821 the competition in the fur trade between the Hudson’s Bay Company and the North West Company of Montreal had resulted in a lawless frontier, damaging to the trade but also causing “great injury to the native Indians.”

46. As remedy for this mischief generally, and in the interest of protecting the Indians, section 5 of 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 (U.K.) (1821) was enacted. It extended the jurisdiction of the courts of Lower and Upper Canada into the Hudson’s Bay Company’s chartered region, for the apprehension and trial of non-natives who committed crimes in the Indian territories therein, whereas previously non-native crimes there had no remedy.

47. Being a statute of the United Kingdom, this had constitutional force so as to amend of the 5th paragraph of the Indian part of the proclamation by extending court jurisdiction into the Indian territories for crimes by non-natives.

F: Conclusion

48. Under the constitutional common law and the Indian part of the Royal Proclamation of 1763 the Indians retain two things from the pre-contact epoch. These are their possession of, and their self government on their land. These preclude non-native court jurisdiction upon unceded Indian territory.

49. The Crown claimed no more than the bare title to the same land “subject to” the said Indian “Interest.” In return, the Indians received “Protection” based upon the Crown’s undertaking of a fiduciary obligation.

50. The Crown, represented by the federal government, reneged upon this obligation, first with regard to the possession. In 1875 that government declined to exercise its power of disallowance of the premature provincial occupation and disposition of the land before it has been acquired by treaty. It declined because “Great inconvenience and confusion might result” from disallowance of the provincial legislation designed to occupy and dispose of all land within the provincial boundaries.

51. Secondly, in 1951 the revised Indian Act by section 87 (currently section 88) reneged upon the Indians’ right of self government on unceded or unpurchased land. That statute enacted that provincial laws of general application, which is to say all the laws that apply to non-natives, shall apply to Indians on such land.

52. Canada should perform disallowance under section 90 of the Constitution Act, 1867, relative to provincial crown lands legislation, for the “Protection” of the Indians; so as to restore the Indians to their possession and self government, which is to say their beneficial “Interest” in possession and jurisdiction within the meaning of section 109 of the Constitution Act, 1867.

53. Pending a constitutional amendment, the courts should restore the supremacy of the constitution upon which Canada is premised as a constitutional democracy under the rule of law, by declining to assume criminal jurisdiction over Indians in the unceded Indian territories.

G: Documentary Evidence

1. Minute in Council dated 23rd January 1875, approving a report of the Minster of Justice and Attorney General Télésphore Fournier, dated 19th January 1875, recommending disallowance of a British Columbia Crown Lands Act, on the ground of a conflict with the Royal Proclamation of 1763 and section 109 of the Constitution Act, 1867. Endorsed by the Governor General. Re paragraph 10 of the Article.

2. Minute in Council dated 10th November 1875, approving a report of the Acting Minster of the Interior, dated 5th November 1875, concurring with British Columbia’s plan to establish a commission to recommend reserves to be set apart out of Crown lands in British Columbia. Endorsed by the Governor General. Re paragraph 11 of the Article.

3. Report of Attorney General Edward Blake to the Governor General concerning the aforesaid British Columbia Crown Lands Act not being disallowed but rather “left to its operation.” Dated 6th May 1876. “Great inconvenience and confusion might result from its disallowance.” Re paragraph 11 of the Article.

4. Memorandum to the Privy Council of Canada. 3rd January 1887. Sir John A. Macdonald. “…the great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects…” Re paragraph 16 of the Article.

5. Report regarding a speech of the Chief Justice of Canada. 29th May 2015. The Globe & Mail, under the headline “Chief Justice says Canada attempted ‘cultural genocide’ on aboriginals.” Re paragraph 18 of the Article.

  1. Worcester v. Georgia, 31 US (6 Pet.) 515, 581, 583 (1832) (M’Lean, J). [581] What is a treaty? The answer is it is a compact formed between two nations or communities having the right of self-government.

    Is it essential that each party shall possess the same attributes of sovereignty, to give force to the treaty? This will not be pretended, for, on this ground, very few valid treaties could be formed. The only requisite is that each of the contracting parties shall possess the right of self-government and the power to perform the stipulations of the treaty….

    It must be admitted that the Indians sustain a peculiar relation to the United States. They do not constitute, as was decided at the last term, a foreign State so as to claim the right to sue in the Supreme Court of the United States; and yet, having the right of self-government, they, in some sense, form a State. In the management of their internal concerns, they are dependent on no power. They punish offences under their own laws, and, in doing so, they are responsible to no earthly tribunal. They make war and form treaties of peace. The exercise of these and other powers gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they may not be admitted to possess the right of soil.

    [583] In the executive, legislative, and judicial branches of our government, we have admitted, by the most solemn sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a State, or separate community—not a foreign, but a domestic community—not as belonging to the Confederacy, but as existing within it, and, of necessity, bearing to it a peculiar relation…. Except by compact we have not even claimed a right of way through the Indian lands. []

Bruce Clark, Ph.D. in jurisprudence, is an Indigenous rights activist and author of Native Liberty, Crown Sovereignty and Justice in Paradise. He can be reached at: mightisnotright@gmail.com. Read other articles by Bruce.