quote:

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Three B.C. justices have resurrected a dissident Nisga'a First Nation chief's attempt to have the province's first modern treaty declared unconstitutional after a six-year procedural rumble.

In a unanimous decision, the Court of Appeal panel said serious constitutional issues that affect all Canadians are at stake and the controversial case should not be derailed by a technical wrangle.

It was a surprising victory for a most unlikely constitutional warrior -- James Robinson, a self-described run-of-the-mill carpenter also known by his inherited Nisga'a title, Sga-inisim Simaugit: Chief Mountain.

Dressed in their tribe's traditional regalia of red-and-black button blankets, Robinson and fellow Nisga'a Mercy Thomas spoke to the appeal judges directly at the hearing, their lawyers staying in the wings. ...

The key question in their suit is whether the Nisga'a treaty violates the constitution by creating a third order of government -- and the justices said that's an important national issue.

So did Premier Gordon Campbell in his days as opposition leader, when he was a strident critic of the Nisga'a treaty.

And this decision resurrects a ghost that may come to haunt.

The 1999 deal saw Canada and B.C. cede to the Nisga'a 2,000 square kilometres of land, pay them $253 million in cash and grant them some self-governing powers.

As opposition leader, Campbell launched his challenge to the treaty in 1998 before it was even signed, complaining it gave the Nisga'a powers superseding those of the provincial and federal governments -- the two levels that supposedly share all existing power under Canada's primary law.

In a companion action filed in March 2000, Robinson and other Nisga'a dissidents also alleged that the pact created an illegal third order of government that stripped them of rights held sacred by other Canadians. ...

But after Campbell was elected in 2001, he dropped the case like a hot potato and he has since portrayed himself as a champion of such treaties.

In the meantime, the Nisga'a Lisims government has portrayed Robinson as a stalking horse for ultra-conservative ideologues with little support or credibility. ...

Lawyer John Weston, the federal Conservative candidate of record for West Vancouver-Sunshine Coast-Sea-to-Sky, who has been handling the litigation for the dissidents, said the decision is "a turning point." ...

Still, with increasing commitments because of the imminent election, Weston is passing the case to Calgary-based lawyer John Carpay.

Formerly with the Canadian Taxpayers Foundation, he's now executive director of the Alberta-based Canadian Constitution Foundation, the non-profit group supporting individual freedoms and limited government that has helped fund this case. ...

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Vancouver Sun (subscription needed)

A "stalking horse for ultra-conservative ideologues?" Why, wherever could they have got that idea?

On the other hand, it might not be an entirely bad thing if this case was revived, so that the question can be dealt with. How could aboriginal rights not include a right to self-government? And yet the courts have been reluctant to recognize such a right.

[ 21 September 2006: Message edited by: Yossarian ]

I don't think that the guy suing is doing it because of too Little Aboriginal control over the territory, Two Ponies. Did hear some others who were some unhappy about it because their small band's claims weren't considered, and is some valid concern Re on-Reserve taxation IMO but they did add clause to guarantee that their common land can't be alienated from them from debt, and I think some 90% of the Nisgaa ended up voting for it. It seems to be mostly based on a bogus issue over a "third level of government" being institued -with apparently All parties forgetting that we already have Four levels of government in Canada, including interurban authorities like the GVRD.

Since I spent so much time looking for it I'll post these two to give a bit more idea what's behind some of this.

More background on our 'one man' crusade....

http://www.canadianchristianity.com/cgi-bin/na.cgi?nationalupdates/040303canadian

And the Fraser Institute on an earlier attempt:

http://www.fraserinstitute.ca/shared/readmore.asp?sNav=ev&id=114

[ 26 September 2006: Message edited by: EriKtheHalfaRed ]

This is not the case with the Nisga'a Lisims government...they are not a municipality, they are not a province, and they are not the federal government. They are something slightly different.

quote:

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Originally posted by Yiwah:
...they are not a municipality, they are not a province, and they are not the federal government. They are something slightly different.

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It can be argued that self-government is an aboriginal right, stemming from the self-government preceeding European settlement, but it can ALSO be argued that in order to protect federalism in Canada, this right to self-government should be limited to the quasi-municipal state it currently exists in. There is a real issue here about forming a 'third level' of government...a concept that will be heavily resisted by constitutional law and conventions, simply because the founders of the Dominion never envisioned anything like it. Judges are wary about breaking new ground on something this important, so we aren't going to see radical change unless a Constituional amendment can actually be made to work...something rather unlikely considering how Meech Lake and Charlottetown went.

The best chance aboriginal groups have is to settle their specific and general land claims, gaining definitive control over their land base, and then from that advantage, negotiating self-government with the hope that once structured, a constitutional challenge will be basically ineffective in destroying that structure. Luckily, this current challenge is going to take a minimum of four years to make it to the courts...and could be drawn out for many years after that. In the meantime, the Nisga'a Lisim has time to establish itself.

This is important, because in the Delgamuukw decision, Justice Lamer states that in order to assert title, land use must be compatible with the nature of attachment to the land. For example, an area that was traditionally used for hunting and that was subsequently paved over would endanger the claim to that particular area, since it would no longer be compatible with the nature of the attachment. Whether an outside group or the FN themselves did the paving would be irrelevant.

In Kitkatla, this means that the area logged may actually be rendered incompatible with their attachment, because of the removal of the culturally modified trees. In this underhanded way, ongoing development during negotiations might actually cause FNs to lose land they might otherwise have successfully asserted title over.

quote:

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Originally posted by Yiwah:
[QUOTE=VanLuke]A First Nation who has constitutionally guaranteed rights they have never voluntarily given up?

And what have you actually said with this?

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Exactly what is on screen and nothing more.

I haven't said that the rights are clearly defined, nor that they can be in a vacuum.

The first Nisga Land Committee was formed 117 years ago, i.e. eons before our latest Constitution and Delgamuukw.

quote:

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The best chance aboriginal groups have is to settle their specific and general land claims, gaining definitive control over their land base,

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Isn't that what the Nisga Treaty amounts to?

quote:

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a constitutional challenge

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Do you see anybody in Canada (other than possibly Quebec nationalists) in a hurry to rewrite the Constitution, i.e. the only possible way to abolish Section 35? Even when there is another attempt to rewrite the Constitution this will be next to mpossible to IMO.

In the meantime self-government will have to be definded the only way it can be defined: Nation by nation because it does not mean the same for a Haudenausonee than for some Salish people, for instance.

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Rights won by aboriginal peoples will be very difficult...if not impossible to revoke because of s.35, but this kind of challenge COULD impede other nations from negotiating the same kind of agreement.

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Isn't there a contradiction?

[ 14 October 2006: Message edited by: VanLuke ]

It’s not enough to say we were here first. It’s not enough to say our societies existed pre-Constitution. We need to ensure that anti-aboriginal lobby-groups don’t end up shaping our futures.

There is no way the Constitution is going to be amended to abolish s.35, but that is not what I was referring to. A constitutional challenge on the concept of a ‘third level of government’, if successful, would be enough to limit aboriginal sovereignty to municipal power at best, and that isn’t any sort of sovereignty at all, not when a simple statute can abolish it. The concept of aboriginal sovereignty is not yet entrenched in the Constitution (and understand, the Constitution is much, much more than the Canada Act 1867 and the Canada Act 1982), and because of this, we are still on shaky ground.

There is no contradiction here. Each and every Treaty will be negotiated according to the wishes of each nation. For those already living under Treaty, there is no guarantee of renegotiation to include self-government…that is entirely up to the Federal government to agree to or not. Section 35 does not ensure that what one nation wins, will be given to all aboriginal people, because the nature of aboriginal rights is recognised as being determined by various different factors. Consider the Métis, for example. We have a significant land base in Alberta, but that land base does not in any way guarantee other Métis throughout Canada a single square foot of land. Not to mention the many non-status Indians who have no land base either, and whose ‘aboriginal rights’ are imperfectly understood in relation to the Constitution, considering their lack of official Federal status.

I do not think that a court challenge such as you mention could limit Section 35 in any way. Take its very history and subsequent court decisions. The hypocritical federal government - after having been forced by native protests to inlude Section 35 in the patriated Constitution - took the position that it was an empty box to be (or by implication, not to be) filled by the government. Not so said the Supreme Court, IIRC, it is a box containig certain rights many of which had yet to be clarified and defined. There were a number of judgments where the court did just that. Trudeau, at some point, commented by saying 'you have more rights than I thought'.

I found Delgamuukw insulting and got very angry when I read it. I hope it will ultimately be appealed to the Supreme Court (as sick as it makes me that people have to spend hugh amounts of money in the courts to get their rights) and I hope the SCC will find that there are a lot more rights than the judge found in Delgamuukw.

ETA

I think the Nisga Treaty has constitutional protection and cannot be undone by a simple court challenge. It's part of the Costitution now I believe.

[ 16 October 2006: Message edited by: VanLuke ]

* The Nisga’a Treaty will be constitutionally protected by s.35.
* The Nisga’a Treaty will be found to be unconstitutional because of the principle of federalism, which creates two levels of government, not three. (again, municipalities are given their mandate from the Province) If Nisga’a is found to be unconstitutional, any statute forming the Nisga’a Lisims government could be declared of no force or effect. I see this as the least likely outcome.

The Nisga’a treaty itself would not be a part of the Constitution, either way. It would be constitutionally protected…but it would not guarantee that any other nation would be able to negotiate the same kind of treaty. The Treaty would not be legal precedent.

However, even assuming that s.35 will protect that particular treaty, this does NOT mean that aboriginal rights will be completely defined. The only way the courts can continue to define rights is through challenges like this, and that isn’t necessarily a desired outcome, especially considering the adversarial nature of the Canadian judicial system.

Delgamuukw gave us some major binding precedents. Aboriginal title is sui generis. This title can only be extinguished by the Crown, and not by the provinces. In order to extinguish aboriginal title, a clear intention to do so must be communicated…but there are also many ways to undermine aboriginal title based on the concept of traditional relationship to land (i.e. altering the land so as to destroy that relationship, either intentionally or not). There is a duty to consult, and a fiduciary duty to deal fairly.

But it was not us who had a hand in this interpretation of our rights, and that is the biggest problem. We may have made some gains, but there have been many, many losses as well…all of which have also become precedents. I am glad that you are positive about the evolution of aboriginal rights under the Constitution, but I am more sceptical. Lamer’s decision has in essence frozen us in time, basing our rights on a time before, or directly after contact. No culture is static, and yet we risk losing our rights if we change, or if we have been shown to be changed. Underlying radical Crown title to all the land within the boundaries of Canada has not been questioned. Canadian sovereignty over aboriginal peoples has not been questioned. The whole purpose of making treaty is to extinguish rights in return for certain guarantees...so we can have all the protection of s.35 but every time we take treaty, we are actually giving up our aboriginal rights. We also give up the right for future claims. The Nisga’a agreement contains the following clause:

“This agreement constitutes the full and final settlement in respect of the Aboriginal rights, including Aboriginal title, in Canada, of the Nisga'a Nation... The Nisga'a Nation releases Canada, British Columbia and all other persons from all claims, demands, actions and proceedings, of whatever kind, and whether known or unknown, that the Nisga'a Nation ever had, now has or may have in the future, relating to or arising from any act, or omission, before the effective date that may have affected or infringed any Aboriginal rights, including Aboriginal title...”

quote:

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I am glad that you are positive about the evolution of aboriginal rights under the Constitution, but I am more sceptical.

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Hopeful would be a better word as I agree basically with you (impressions to the contrary notwithstanding). My comments were meant to be an elaboration, not a rejection, of what you have written.

quote:

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Canadian sovereignty over aboriginal peoples has not been questioned.

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Not in that decision but IIRC The Aboriginal Justice Inquiry of Manitoba did precisely that and I would be surprised if the Royal Commission hasn't. (I haven't read all their reports) They have of course no legal weight.

quote:

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The whole purpose of making treaty is to extinguish rights in return for certain guarantees...so we can have all the protection of s.35 but every time we take treaty, we are actually giving up our aboriginal rights. We also give up the right for future claims.

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That is true. But perhaps that's the idea of making a treaty?

quote:

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People within the Nisga’a nation question this extinguishment, and rightly so.

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So do I.

quote:

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Originally posted by VanLuke:
I am not a lawyer so please take my words with extreme caution. ...

I found Delgamuukw insulting and got very angry when I read it. I hope it will ultimately be appealed to the Supreme Court (as sick as it makes me that people have to spend hugh amounts of money in the courts to get their rights) and I hope the SCC will find that there are a lot more rights than the judge found in Delgamuukw.

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The SCC's 1997 judgement still contains some troublesome precedents, particularly the one Yiwah mentions of aboriginal rights being largely "frozen in time" (although the SCC has insisted that this is not the case).

Actually, I might've misunderstood what you were referring to -- I see you were responding to Yiwah's statement that "if the Delgamuukw decision survives this challenge, it will be a victory." The Delgamuukw decision isn't itself under appeal. I understood Yiwah to be saying that the current case involving the Nisga'a treaty may end up providing some interpretation of the principles set out in Delgamuukw.

(There are also a few cases working their way through the courts that will apply Delgamuukw as far as aboriginal title is concerned. Delgamuukw dealt with both rights in general and title in particular, but the framework it set out re title has yet to be applied to a specific set of facts, so it's not yet entirely clear how aboriginal title will be interpreted by the courts.)

quote:

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Delgamuukw gave us some major binding precedents. ... We may have made some gains, but there have been many, many losses as well…all of which have also become precedents. ... Lamer’s decision has in essence frozen us in time, basing our rights on a time before, or directly after contact. No culture is static, and yet we risk losing our rights if we change, or if we have been shown to be changed.

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[ 16 October 2006: Message edited by: Yossarian ]

quote:

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VanLuke -- as Yiwah alluded to, the 1990 trial decision in the Delgamuukw case was eventually appealed to the Supreme Court of Canada. The SCC basically referred the case back to trial, and I think the Delgamuukw case has been more or less dormant since then.

The SCC's 1997 judgement still contains some troublesome precedents, particularly the one Yiwah mentions of aboriginal rights being largely "frozen in time" (although the SCC has insisted that this is not the case).

Actually, I might've misunderstood what you were referring to -- I see you were responding to Yiwah's statement that "if the Delgamuukw decision survives this challenge, it will be a victory." The Delgamuukw decision isn't itself under appeal. I understood Yiwah to be saying that the current case involving the Nisga'a treaty may end up providing some interpretation of the principles set out in Delgamuukw.

(There are also a few cases working their way through the courts that will apply Delgamuukw as far as aboriginal title is concerned. Delgamuukw dealt with both rights in general and title in particular,

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I was thinking of a similar case making it to the SCC. Referring the case back to the BC Court of Appeals [it was that one, wasn't it?] isn't quite the same for me because of the reactionary and racist nature (in my view) of the original judgment.

quote:

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but the framework it set out re title has yet to be applied to a specific set of facts, so it's not yet entirely clear how aboriginal title will be interpreted by the courts.

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The Canadian Constitution is limited to the concepts, ideas and beliefs of the Canadian nation. Anything granted through the authorities of the Canadian Constitution must be consistent with its powers. However, there are many Indigenous concepts which are paradoxical to the manner in which the Constitution permits its social systems to function. For example, no matter how Indigenous people view it, the Earth cannot hold legal standing within this Constitutional framework. Whereas, in some Indigenous traditions, the Earth likely would have legal standing. When it comes to recognizing Indigenous traditions, it is like fitting a round peg into a square hole.

quote:

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Originally posted by sknguy:
Aboriginal Rights are an entitlement that’s valid only within the Canadian Constitutional framework.

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These distinguished judges would disagree with you it seems to me.

http://www.ajic.mb.ca/volumel/chapter5.html#7

Scroll down to:

The Roots of Aboriginal Rights in International Law

The following sections are relevant too

[ 16 October 2006: Message edited by: VanLuke ]

Of course our connection to our lands, our right to self-governance, our right to maintain our traditions...all of these things exist outside of the Canadian system, and yet these things can only be recognised WITHIN that system. The Canadian state will never willingly recognise our sovereignty, because that would, in effect, be unconstitutional, going against the founding principles of Canada itself.

Internationally, there may be theoretical recognition of aboriginal sovereignty, but that isn't going to translate into actual sovereignty outside of the Canadian system.

Nor is it necessarily something we want. Believe it or not, those of us bound by treaties continue to respect those treaties, despite the manner in which they have been deliberately misused. Aboriginal peoples here welcomed the Europeans...we were not conquered, we acted in cooperation. We are still looking for a fair compromise...we are still looking for treaty. We can even accept the philosophical notion of underlying radical Crown title if in practice we are given the terms we ask for.

quote:

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Originally posted by Yiwah:

Delgamuukw gave us some major binding precedents. Aboriginal title is sui generis. This title can only be extinguished by the Crown, and not by the provinces. In order to extinguish aboriginal title, a clear intention to do so must be communicated…but there are also many ways to undermine aboriginal title based on the concept of traditional relationship to land (i.e. altering the land so as to destroy that relationship, either intentionally or not). There is a duty to consult, and a fiduciary duty to deal fairly.

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I agree with almost eveything you say with one quibble. Existing aboriginal rights cannot be extinguished by the federal government except on consent or through a constitutional amendment. It is extinguishment prior to 1982 that requires evidence of clear intention.

quote:

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Originally posted by Yiwah:
..general or specific claims that were not settled pre-1982 can be interpreted as not 'existing' in the s.35 sense.

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As I said, I'm not a lawyer but I have difficulty believing your statement.

quote:

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

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quote:

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... examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land (cf. aboriginal title) and the right to enforcement of treaties.

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“examples of the rights that section 35 has been found to protect are fishing, logging, hunting, the right to land (cf. aboriginal title) and the right to enforcement of treaties.”

I’ll deal with that last one first…enforcement of treaties. The biggest issue in terms of the treaties is the fact that standard forms were used for the numbered treaties. Oral promises were made, conditions were demanded by the aboriginal people in negotiations with the Crown, but those promises were often not included in the written text of the treaties. Treaty negotiators were extremely reluctant to mess with the standard form…one of the few examples where they did, is in Treaty Six, where the provision for a ‘medicine chest’ was included. If you look at the treaties, you’ll see how remarkably similar they are to one another, despite the great variation in needs of the peoples entering into these agreements.

So how do you enforce unwritten promises? The courts, for a great many years, absolutely refused to entertain the notion at all. The Charter did not change this…what has started to change this are subsequent decisions. Delgamuukw in particular reinforced the notion of oral history as evidence in land claims. However, there have been decisions ruling against oral promises, and decisions in favour…s.35 makes no guarantees about what the courts are going to decide, each situation is different, each situation has a different fact pattern, each situation has different levels of evidence. The ‘right to enforcement of treaties’ has often come down to something fundamental…money…the gov’t has agreed to pay for the bulk of these claims, whereas the onus was previously on aboriginal groups themselves…and in fact raising money for such purposes was illegal for many, many years.

Fishing, logging and hunting rights are by no means uniform across Canada. The most fundamental disagreement in these regards is the idea of harvesting for sustenance, and harvesting for commercial purposes. Some groups have one right, but not the other...Supreme Court tests give us some guidance on this…the practice must have been central to the particular society/culture of the aboriginal group in question. Also, there are federal environmental provisions that limit aboriginal rights, and are not contrary to s.35 because they predate 1982. Aboriginal rights do not mean all aboriginal people have the right to hunt, fish, log etc…just look at the events that lead to the Powley decision…Métis and non-status rights are very much up in the air, despite the Charter. The government is going to be VERY careful about what rights they decide we have, because once a right is granted, it is difficult to undermine.

But there are STILL ways to do that. I’ve mentioned it a couple of times…but one of the most underhanded ways to undermine aboriginal rights is to convert land that is in dispute. Say there is a general land claim for a certain territory…that land claim, according to the ratio of Delgamuukw is based on traditional relationships to the land. If that relationship is undermined, (the example always given is paving over hunting grounds), then title is also undermined to that land. So what has happened, and continues to happen is that disputed lands are sold to private interests (who have no duty to consult) and converted. Sometimes an injunction is granted to prevent just that…but these land claims can go on for decades, and it is rare that a judge would freeze development in the interim. So territories included in the general land claims can be whittled down in this fashion, because title has not yet been proven, no rights are actually guaranteed yet, etc.

[ 17 October 2006: Message edited by: Yiwah ]

Yiwah: I agree that treaties are a part of Canada’s constitutional framework. I would also think that a constitutional challenge to the Nisga'a treaty should be beyond the scope of s35. Simply because this treaty would be dealing with matters beyond what s35 was ever capable of dealing with. Or anything else in the Constitutional framework. Namely, the implementation of self-determination. S35 only deals with one area of Canadian jurisdiction. It deals with what Aboriginal people do in Canadian jurisdictions. The Nisga'a treaty creates a new area of jurisdiction.

The people who are making Canadian constitutional challenges to these treaties should be making their challenges from within the treaty’s area of jurisdiction. That’s the point of nation building really. And ultimately their own constitutions have to reflect the needs of their communities. I think the supreme court should be more considerate of that. I should read the Nisga'a treaty, but isn’t it rhetorical to claim that a person’s Aboriginal rights have been extinguished? At least they shouldn’t be extinguished within those areas of Canadian jurisdiction.

[ 19 October 2006: Message edited by: sknguy ]

[ 19 October 2006: Message edited by: sknguy ]

quote:

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Originally posted by sknguy:
[QB]VanLuke: It’s a common misconception of western societies that all other societies subscribe to the principles of rights.

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I never said anything like this. What I did say was that some distinguished legal experts (2 out of the three highest judges in Manitoba) wrote of the role of international law.

I wish:

1) People discussing this actually read and considered what Judges Hamilton and Sinclair wrote (link above). Or other authors.

2) That posters actually presented some links to recognised authorities in the field to validate their own legal opinions.

So far they have been presented as only their own opinions without any support in the form of writings by legal scholars. There may well be but I'd like to see some references.

As stated twice above, I am not a lawyer but I have read reports and opinions by legal experts who - it seems to me - do not agree with some of the contentions expressed above.

Moreover, (even though I have not mentioned anything about this) I am of the opinion that every society "subscribe[s] to the principles of rights", not necessarily the same as the rights as seen in the West. But it's the essence of all human societies that people create laws, hence rights (and obligations).

If you read a bit more by legal experts on the subject you'd find that the rape of North American (and other) traditional societies was very much against the western notion of rights. That's why the BS of Terra Nulla -among other things - was used to defend the dispossession of natives.

Not to mention the Royal Proclamation and other western laws.

[ 19 October 2006: Message edited by: VanLuke ]

If you want to understand the law, read the decisions, not the articles about the decisions.

Do a search on hunting and fishing cases, and you will see that aboriginal rights are by no means uniform, that aboriginal rights are hard won, and that constitutional protection is reactive, not proactive...few of us can afford to take our case all the way up to the Supreme Court.

quote:

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aboriginal rights are by no means uniform,

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I have never said otherwise.

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that aboriginal rights are hard won

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I have never said otherwise.

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and that constitutional protection is reactive, not proactive

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That's a meaningless statement to me. Care to explain?

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few of us can afford to take our case all the way up to the Supreme Court.

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I said something to that extent above but this statement does nothing to support your assertions above.

If you are such a constitutional expert as you implicitly assert why not cite some legal scholars - instead of particular judgements - to support your assertions, some of which seem way off to me? I'm willing to be convinced in the customary way, i.e. by citing sources supporting your statements or by proving your points above by citing laws and legal doctrine?

[ 20 October 2006: Message edited by: VanLuke ]

You seem as though you genuinely want to understand the issues, and that is why I keep pointing you at the cases. I think I assumed a more basic understanding of law from you, and I do not mean that in any derogatory way...I'm used to discussing cases with people in law, and that tends to make you jump straight into things without background. I tell you truly, that if you were to ask any legal scholar worth his or her weight, to understand the law, you go to the cases and the statutes first. Scholarly work comes second, to bridge cases together when you don't have the time to read them all.

Delgamuukw, by all accounts, in constitutional law, aboriginal and property law, is THE authority to this point, regardless of the fact that it was referred back. The decisions are binding, and extremely important. If you pick up any book or article published on aboriginal rights since that decision, you will see it referenced.

Now, because you seem to really want an overview that refers to cases, without perhaps having the read the cases, I'll point you to some very excellent sources. Before I do, I will reiterate the points that I am making.

1) s.35 only guarantees gained rights pre-1982, and rights gained post-1982.

a) s.35 does not guarantee that rights won by one aboriginal nation, will be granted to all.
b) s.35 is largely meaningless to those who had little or no rights pre 1982 (namely non-status Indians, or aboriginals with no landbase, including Metis), unless new rights are actually won post 1982.
c) the Federal government is going to be extremely careful about allowing new rights, because they will be almost impossible to reverse due to s.35.
d) DESPITE all of this, aboriginal rights largely exist at commonlaw, pre-1982, and so are defined by cases. The various tests for determining aboriginal rights are laid out in R. v. Van der Peet, R. v. Sparrow (and similar cases) as well as Deglamuukw.

2) Aboriginal people assert, and the Williamson decision (and subsequent decisions) concurs, that aboriginal rights and title are not the Canadian gov't (or the Queen's) right to give.

a) s.91 and s.92 of the Constitution set out the division of powers for provincial and federal governments. It has been decided a number of times that this did not include a right over aboriginal title and rights.
b) Nonetheless, Canada continues to work to extinguish aboriginal rights (with full sanction by s.35), and assert authority over aboriginal rights and title. There has not been a clear challenge of that authority.

SOURCES

(Purich Publishing Ltd. has an excellent aboriginal issues series...and the following books are from that series)

"Advancing Aboriginal Claims: Visions, Strategies, Directions"

Articles to read from this volume:

"Continuity of Aboriginal Rights", Kent McNeil
"Aboriginal Resource Rights After Delgamuukw and Marshall", Gordon Christie

Next title:
"An Overview of Aboriginal and Treaty Rights and Compensation for their Breach" by Robert Mainville, LL.L.,LL.M.

I'll find you some online resources in a moment, but I also want to highly recommend that you read (or at least skim) the Royal Commission on Aboriginal Peoples. The findings of the Commission are important, and very clearly lay out the relationship that aboriginal peoples have had with Canada, and the way that has played out in theory, in fact, in the courts, and in legislation.

Be aware, that s.35 allows for infringement of aboriginal rights where there is a compelling and substantial legislative objective, when the government can show that it has fully discharged its fiduciary responsibilities. Reflect on how open those case-law restrictions can be, and how broadly intepretated.

What I am interested to know it what exactly, you are unclear on in what I've said...I've mentioned many things, fisheries, hunting, land claims (settled or not), Treaties etc. I can give you different sources for each of those topics to help you gain an understanding of these complex issues. The Constituional side of it is just one facet. You might think that Delgamuukw does not deal with these things, but it does. It cites cases that deal with each of these topics in order to give legitimacy to the decisions made and expressed by Chief Justice Lamer. That is what case law does, it builds on itself. Those references are not idle, they are a recognition of the decisions and precedents set in those cases.

Oh yes, I almost forgot...you asked what I meant by the Constituional protections being reactive, not proactive...what I mean is that the Constitution does not stop abuses from happening...in fact, many abuses generally need to happen before there is enough pressure for the Supreme Court to give leave to hear a case. Especially where certain rights have not been well defined, it is an uphill, extremely expensive, and very laborious process to ensure Constitutional protection. Alright...on to those online resources!

[ 20 October 2006: Message edited by: Yiwah ]

[ 20 October 2006: Message edited by: Yiwah ]

Some more information on specific and unproven rights, analysis stemming from Delgamuukw:
http://www.fns.bc.ca/pdf/GaertnerSection35.pdf

Ah, here is a good one, a basic overview of some very important aboriginal cases, including the Williamson one I mentioned:

www.amachi.biz/divers-files/en/pub/faSh/ePubFaShLeadAboTreaty.pdf

Professor John Borrows (U Vic) has some excellent journal articles on aboriginal rights and their relationship to the Constitution. Other scholars you might like include Paul Chartrand (former commissioner of the RCAP), Bruce Ziff (mostly property law issues, U of A prof) and Elder Maria Campbell.

[ 20 October 2006: Message edited by: Yiwah ]

[ 20 October 2006: Message edited by: Yiwah ]

E'kosi.

[ 20 October 2006: Message edited by: Yiwah ]

Whatever you mean by talking about this the "usual way" keep in mind we don't all aspire to become lawyers and commentaries of legal scholars are a valid way of learning about these matters. They don't invent their arguments but base them on relevant judgements.

Nevertheless, I read the ruling (excluding footnotes) and fail to see any support for the sweeping generalisations you made.

What did I miss? Please tell me by referring to Delgamuuk v British Columbia on what exactly in the judgment you base your constitutional arguments and that this is the definitive and final decision in the matter. It can't really be since there's always the possibility of a similar case being heard by the SCC but that's what you seemed to insist on.

The Supreme Court ruled:

quote:

---

The collective claims were simply not in issue at trial and to frame the case on appeal in a different manner would retroactively deny the respondents the opportunity to know the appellants’ case. A new trial is necessary. First, the defect in the pleadings prevented the Court from considering the merits of this appeal. The parties at a new trial would decide whether any amendment was necessary to make the pleadings conform with the other evidence. Then, too, appellate courts, absent a palpable and overriding error, should not substitute their own findings of fact even when the trial judge misapprehended the law which was applied to those facts. Appellate intervention is warranted, however, when the trial court fails to appreciate the evidentiary difficulties inherent in adjudicating aboriginal claims when applying the rules of evidence and interpreting the evidence before it. ... The appellants sought a declaration of “aboriginal title” but attempted, in essence, to prove that they had complete control over the territory. It follows that what the appellants sought by way of declaration and what they set out to prove by way of the evidence were two different matters. A new trial should be ordered.

---

http://scc.lexum.umontreal.ca/en/1997/1997rcs3-1010/1997rcs3-1010.pdf

BC Court of Appeals:

quote:

---

Aboriginal title at common law was recognized well before 1982 and is accordingly protected in its full form by s. 35(1). The constitutionalization of common law aboriginal rights, however, does not mean that those rights exhaust the content of s. 35(1). The existence of an aboriginal right at common law is sufficient, but not necessary, for the recognition and affirmation of that right by s. 35(1). ....

Aboriginal title is a right to the land itself. ....

The errors of fact made by the trial judge, and the resultant need for a new trial, made it impossible for this Court to determine whether the claim to self-government had been made out. ....

---

Here is my problem with the general objections you've raised so far...I'm not sure what you're actually challenging. I can go through a point by point analysis of everything I've said, backing it up with cases and the writings of legal scholars...but I'm loathe to do so if there are only a few points you want clarification on.

So I pose a question to you, in order to get some clarification...What specifically about what I've said are you challenging?

You can not continue to quote passages from scholarly work, and from cases, and not make it clear what position you are taking. To narrow down the points I have been making, I summed them up for you about two posts back...please take a look at that again...I did in fact provide sources, but it seems that you want me to quote the passage for you, which is fine...but again, please let me know if it is ALL of what I've said, or a part of it that you are not in agreement with.

Essentially, I’m saying, let’s start over…because I don’t know what you know, how versed you are on Constitutional law etc…I don’t want to patronize you by explaining things you already have a background on, but neither do I want to talk ‘above you’ and leave you with the impression that I'm pulling things out of thin air.

And I also ask that you back up YOUR disagreement with sources, and a description of how that source supports the position you're taking. I'll do the same once I know what you're wanting. Agreed?

[ 24 October 2006: Message edited by: Yiwah ]

(a brief overview of that case: http://www.gitxsan.com/html/delga2.htm)

And one more point...it seems to me that you believe because Lamer sent the case back to the courts, that his findings are not binding. This is untrue. Decisions of the higher courts are always binding on the lower ones...but not only that...decision of the Supreme Court, when they involve interpretation of statutes or the Constitution, become PART of the statute or Constitution.

The case was sent back, but the parties turned to negotiation instead of litigation. The Supreme Court is unlikely to reverse itself on Lamer's decision, the core of which lay out a more structured and defined defintion of aboriginal rights. To reverse the decision could actually be unconstitutional. THAT is why it is authoritative...it is a Supreme Court decision, and anything done by the lower court after that would be based upon that decision.

[ 24 October 2006: Message edited by: Yiwah ]

I don't intend to become a lawyer; I'm much too old for that.

So forget about me reading case after case with boring legal mumbo jumbo, e.g. the aboriginal title at time of first contact (when the court admits not even knowing when that was etc), or what aboriginals are allowed (sic!) to do with their land.

Laws change. Once upon a time judges and legal experts expended much effort to "prove" the property rights some had in human beings (slavery) or the legal dependence women had on their fathers or husbands. Put your statement that Delgamuuk is the definitve ruling (not your exact words) into some historical context. When Trudeau heard about Sparrow (I believe it was that case) he said "you" (aboriginals) have more rights than I thought you had. (Check out Dancing Around The Table on video; it's still of interest. IIRC he is on record there with this statement.)

I also don't want to start our conversation all over again. Look at your posts above -if you want to know what I'm referring to - about this being the latest and the case (in spite of the many other cases that have an impact on this.

My disagreement? None really.

My objective in this increasingly counterproductive conversation was simply to find out if what I considered to be my (admittedly highly imperfect) understanding of the issues was wrong.

One of the things you ignored is that Hamilton and Sinclair are not simply "legal scholars" commenting on the law but also judges with a lot more experience in this part of jurisprudence than you are likely to have. Your dismissal of international law when others more learned legal experts than you insist on its relevance going all the way back to Las Casas, the doctrine of Terra Nulla, the Royal Proclamation or the famous Marshall case in the USA, to name but a few leaves me scratching my head.

So I'll leave it at that alas without having been convinced by your arguments. (Of course this does not mean that they are incorrect.) It wasn't my intention to "win an argument", I wanted to find out where my understanding was incorrect, if that is the case.

Thanks for all your efforts.

ETA

P.S.

quote:

---

it seems to me that you believe because Lamer sent the case back to the courts, that his findings are not binding.

---

You are wrong. I only read the summary and it seems to me he (they) didn't make much of a decision in terms of what we're talking about, i.e. collective rights.

[ 24 October 2006: Message edited by: VanLuke ]

One way of dealing with it is to work within the Canadian system and flesh out aboriginal title and aboriginal rights (as is being done...Delgamuukw is the definitive case to date, but there is never a last word...however, reversing Delgamuukw would likely be unconstituional, so it's pretty much here to stay, hence the vagueness of the guidelines so as to not restrict any party too much).

Another way to deal with this is reject underlying Crown sovereignty and work outside the system to gain recognition of radical aboriginal title. You can use international law, or you can reject that as well and work from the basis of indigenous laws themselves.

The focus of Delgamuukw is on communal, aboriginal title. However, since there is basically a continuum, with aboriginal rights on one end, and aboriginal title on the other (according to the courts), with all sorts of combinations in the middle, all the rulings on title have enormous impact on aboriginal collective rights. I provided you with online resources that examine those impacts, so if you're not seeing it in the case, you need to look again.

What I've objected to the most in what you've been saying, is the underlying belief that our rights are more protected than they actually are. I've been trying to understand why you seem to have this perception, when the political and legal reality is much less 'friendly'. Section 35 only protects certain interests, and not uniformly. Until the courts more clearly define and interpret aboriginal rights, there will be many avenues left open to attack those rights.

[ 24 October 2006: Message edited by: Yiwah ]

quote:

---

Originally posted by Yiwah:
..general or specific claims that were not settled pre-1982 can be interpreted as not 'existing' in the s.35 sense.

---

quote:

---

Originally posted by VanLuke:As I said, I'm not a lawyer but I have difficulty believing your statement.

---

The Tlicho had been negotiating their land claims and self government for decades. However, the Tlicho are part of Treaty 11. Section 35 affirms their rights under that Treaty. Nothing in the Constituion says that the Tlicho are entitled to renegotiation. They are free to make claims...but that is meaningless. We are ALL free to make whatever claims we like, and the courts are just as free to ignore us.

Despite that, the negotiations moved forward, and Bill C-14, the Tlicho Land Claims and Self-Government Act was passed in 2005.

http://parl11.parl.gc.ca/common/bills_ls.asp?lang=E&ls=c14&source=library_prb&Parl= 38&Ses=1

Now, the Tlicho have rights that were not in existence pre-1982,(Constitutionally) and were not protected by s.35 pre-2005. Those rights are now not subject to reversal, because of s.35.

Consider most aboriginal rights to be similar. Some were protected and affirmed pre-1982, some have been affirmed since then, and all of those fall under s.35. Any claims not settled before s.35 came into force have NO CONSTITUTIONAL PROTECTION because they did not exist. Their common law status left them extremely vulnerable, hence the many, many claims being brought forth. Section 35 is not yet an assertation as to what rights actually are Constituionally considered to be in existence prior to 1982.

And I apologise in advance if you're done with the subject and this seems like a goad to keep going...it's not really, but I can't help it...for me it's one of the most important political topics, so I tend to dog it.

[ 24 October 2006: Message edited by: Yiwah ]

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

So, your statement above is not correct, or is stated too broadly. Of course, the land claims must be SETTLED, but it IS possible for them to be recognized under section 35 even if they post-date 1982.

I agree, though, with most of your other points, especially that Delgamuukw is the current binding authority with respect to content and proof of aboriginal title. Van Luke is simply wrong that the decision does not address "collective rights". One need only go to paragraph 109 and start reading:

quote:

---

109 The parties disagree over whether the appellants have established aboriginal title to the disputed area. However, since those factual issues require a new trial, we cannot resolve that dispute in this appeal. But factual issues aside, the parties also have a more fundamental disagreement over the content of aboriginal title itself, and its reception into the Constitution by s. 35(1). In order to give guidance to the judge at the new trial, it is to this issue that I will now turn....

---

..and then read the next HUNDRED or so paragraphs.

quote:

---

Originally posted by pookie:
But, Yiwah, section 35(3) states:

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

So, your statement above is not correct, or is stated too broadly. Of course, the land claims must be SETTLED, but it IS possible for them to be recognized under section 35 even if they post-date 1982.

---

Section 35 means that any recognition of aboriginal rights needs to be done carefully, because once recognised, they can not be reversed. That's why this issue is so contentious...clearly we want the 'box of rights' to be full of as much as possible, and other want it to be as empty as possible. The Courts are VERY reluctant to 'put more rights in the box'.

[ 24 October 2006: Message edited by: Yiwah ]

[ 24 October 2006: Message edited by: Yiwah ]

quote:

---

Originally posted by Yiwah:
There are only two levels of government, Federal and Provincial. Municipalities are granted authority via the Provincial Legislatures, but the Province retains the authority to recind that power at any time.

This is not the case with the Nisga'a Lisims government...they are not a municipality, they are not a province, and they are not the federal government. They are something slightly different.

The Canadian Taxpayer's Association, from whence this Calgary-based support group draws it's leadership is firm in its stance that there ought to be only two levels of government. They firmly reject the concept of aboriginal sovereignty, or semi-sovereignty under any guise, and they have found just the people to do what they've wanted to do since the Delgamuukw decision...challenge the concept of aboriginal sovereignty itself.

---

Oh man. The Canadian taxpayers association do Not represent all "taxpayers", first of all, they mostly represent rich rightwingers who think they can have their cake and eat it too. Which they often can. More importantly, Mark Milke and his spawnlings do NOT represent the interests of most Native Canadians.

As far as the idea that there's only Two levels of government recognized, that's a steaming load of crap on the face of it, and we can only hope That little point is clearly and consisently made by the Aboriginal's lawyers, just sos the Supreme Court of Canada can Again reject this incredibly short sighted and purely mean spirited attempt to deny Native Canadians what's long past due. (BC being the Only Province that does Not have Mutually agreed upon treaties with its First inhabitants)

Just in case these rightwing nits haven't actually Noticed yet, we already have Four levels of government operating in this country and yet for some strange reason only Native bands gets picked on -wonder why THat is? Indian reserves OC comprise yet another, Always Have -a very Particular limited kind, true, but then in the good old days white bureacrats could dictate All the terms, so of course it was never much of an issue THen with the political right. But never mind. From a rational humanistic viewpoint it's not much of legal argument for denying Aboriginal Canadians their long neglected recognition again. Pretty feeble actually, even if some rightwing judge in BC thinks it's worth another time wasting go-around. (BCNDp really should really retire some of these doddering reactionaries when they get in again)

The little legal Catch-22 that's been set up Here (they have no 'rights' Except what they Already have....) is just another abstracted smoke screen for denying them those rights in Perpetuity, democratically elected majorities be damned. The right that is to Pursue landclaims -Pursue, get it? Not guaranteed Results TO, no. The Right TO Pursue. But that too Goes Both ways. No Guaranteed results Either way, Beforehand, Yiwah is right about that -except he seems to want Guaranteed results that he won't Oc talk about openly here. Luckily neither side has to Agree to anything Beforehand they cannot tolerate, just compromise some. Afterwords tho, ya, it'll be Permanent -kinda.

Shocking thought for rightists I know, Indians having federally recognised rights too as (semi)independent people. Not that unlike when Canada or the States were first "recognized" as a Sovereign nations really, or when our territories first became Provinces, that too was Permanent -NAFTA aside -and I hope that's how it stays. Hate to think our collective sovereignty is based on the momentary benelevance of the friggin Taxpayers association. One big difference is that these 'rights' are still limited under broader Canadian laws, like Other levels of government, another is that the Only Canucks who'll be directly Under this "third" level of Government will be the Aboriginals themselves, who by a ninety percent margin voted to Support it. But hey, can't allow Democracy to extend to indians, that's downright Un-Canadian.

The Key issue here I think is that most anti-native activists like to pretend this 'legal process' was fair in the first place, therefore we must leave it as is, if not quite set-in-stone Old Testament style. (something like dear old McEachern first tried to establish, using amazing nineteenth century reasoning about 'Natives' just being 'part of the land' like a bird or a tree) Up until the Supreme Court of Canada finally decided that no, they Weren't. Nineteenth century Bigotry that we supposedly nolonger recognise played a part too, the "Indian" was Not treated as equals under "the law" back then. Therefore the process was and Should be Open to re-negotiation under more equitable Conditions.

I only hope Our Supreme court recognises this Again, even for still despised minorities like our many Aboriginal peoples. (First Nations is just another White myth BTW, moderately better than 'Indian or Native or Aboriginal', as they All had long independent histories that in most cases go back to before the English were even in England, but that's another subject)

Just need to remember the Law itself aint set-in-stone OT style, and it's a purely Human invention too, albiet one we should respect -least to the degree it Serves us humans equally well. Rooted in the past too, yes, but the main branches have to keep growing to accurately reflect the hopefully evolving times. Its main authority is whether We give it to them freely. Up to recently the "Indian" didn't have that choice - another frightening democratic concept.

[ 29 October 2006: Message edited by: EriKtheHalfaRed ]

But as for there being four levels of government...I just don't agree. Band Councils are subject to Federal AND Provincial power (despite the fact that only Federal powers are supposed to apply, if provincial legislation is not, in pith and substance only in relation to Indians, then it can pass). Municipalities derive their power from the Provinces. The only two levels of government that have areas of inalienable power are the Provincial and Federal governments...all other levels derive their power from one of these heads of government.

Hence the big problem with self-government...because it's power, though declared in an 'Act', does not derive from the Crown, but rather from another source...one not fully articulated in the courts.

quote:

---

Originally posted by Yiwah:
[QB]There is no need to comment on Hamilton or Sinclair, as neither have contradicted what I've been saying.

---

They haven't.

You contradicted several things they said. (Don't ask for details. I read the enitre 900 pages ten years ago and I'm not going through that again. Read the report; I linked to it above. Besides, I mentioned some in my previous post.)

quote:

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What I've objected to the most in what you've been saying, is the underlying belief that our rights are more protected than they actually are.

---

I have done no such thing. Nuances, my friend, nuances.

[ 25 October 2006: Message edited by: VanLuke ]

quote:

---

Originally posted by Yiwah:
...for me it's one of the most important political topics,

---

quote:

---

Originally posted by pookie:
Van Luke is simply wrong that the decision does not address "collective rights".

---

Where did I say that?

quote:

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Originally posted by VanLuke:

Where did I say that?

Nowhere because I know it does. ("usufructury rights" or something like that and more)

---

I was responding to this:

quote:

---

I only read the summary and it seems to me he (they) didn't make much of a decision in terms of what we're talking about, i.e. collective rights.

---

Usufruct is not a "collective right" but a limited personal right with respect to property. The Court takes care to distinguish it from aboriginal title:

quote:

---

112 The starting point of the Canadian jurisprudence on aboriginal title is the Privy Council’s decision in St. Catherine’s Milling ...which described aboriginal title as a “personal and usufructuary right” (at p. 54). The subsequent jurisprudence has attempted to grapple with this definition, and has in the process demonstrated that the Privy Council’s choice of terminology is not particularly helpful to explain the various dimensions of aboriginal title. What the Privy Council sought to capture is that aboriginal title is a sui generis interest in land. Aboriginal title has been described as sui generis in order to distinguish it from “normal” proprietary interests, such as fee simple. However, as I will now develop, it is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems. As with other aboriginal rights, it must be understood by reference to both common law and aboriginal perspectives.

113 The idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. One dimension is its inalienability. Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is inalienable to third parties. This Court has taken pains to clarify that aboriginal title is only “personal” in this sense, and does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests: see Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654, at p. 677.

---

quote:

---

Originally posted by VanLuke:

I have done no such thing. Nuances, my friend, nuances.

[ 25 October 2006: Message edited by: VanLuke ]

---

All I can say is I should have been more careful how I phrased the point I was trying to make.

You are correct in your interpretation. I was wrong in terms of how I expressed myself.

As to this being an individual right vs collective right: Couldn't one see it either way?

To repeat: I am not a lawyer just somebody who has been interested in this for almost two decades, i.e. since the big choppers were flying over my house during the summer of 1990 on their way to the "command post" on Mount Royal.

[ 25 October 2006: Message edited by: VanLuke ]

quote:

---

Originally posted by Yiwah:
Yiwah, being a she doesn't actually want her aboriginal rights defined definitively...that's a very dangerous proposition. In fact, I'd be much happier if we could manage to reject Crown title altogether.

But as for there being four levels of government...I just don't agree. Band Councils are subject to Federal AND Provincial power (despite the fact that only Federal powers are supposed to apply, if provincial legislation is not, in pith and substance only in relation to Indians, then it can pass). Municipalities derive their power from the Provinces. The only two levels of government that have areas of inalienable power are the Provincial and Federal governments...all other levels derive their power from one of these heads of government.

Hence the big problem with self-government...because it's power, though declared in an 'Act', does not derive from the Crown, but rather from another source...one not fully articulated in the courts.

Booyeah, Candadian Taxpayer's Association...stick that in your pipe...

---

Yes, I understand your point Yihwa, however, the Canadian Taxpayer's association is no friend of Aboriginal peoples, that's what I was trying to get at. Glad you take what they say with a grain of salt too. Sorry, I didn't realise you were Metis, but you have to watch these bastards all the time, they never give in.

Re whether we have traditionally allotted ultimate authority outside Ottawa and the provinces is something that the Delgamuukw decision opens the possibility of changing. Like I said, we do not have to be bound by the past when the past was so clearly wrong. The rest is up to the Supreme court to decide, then back to the political process. Even Gordon Campbell has come around to accepting their right -at least in theory- so the Nisgaa treaty still stands, as ninety percent of their members decided.

Guys like Mark Milke or Gordon Gibson would be quite content if Native Canadians remained wards of the state forever -not exactly a position of equal opportunity either- and that's what this is all about underneath the high sounding rhetoric. Native poverty to rightwingers like that is always seen as a matter of personal failure, not systematic and cultural discrimination. It's an ideological necessity to them.

Their solution, in case you didn't know, is to simply reduce reserves to 'municipal status' (while making it Look like a step up) which can, as youve noted, be summarily overridden by federal Or provincial governments for any reason, even on issues that have no real impact on non-native Canadians. The other big dangers to only granting municipal authority to native reserves is that it gives them no powers over local taxation, no powers to defend or support their aboriginal culture, and no power to limit who becomes a member within their community. It would nolonger be based on ones Aboriginal heritage, but only on who happens to move onto the reserve -something they would lose all control over, no doubt becoming completely swamped by the uncaring majority.

If you think I'm just making this up as I go along, this is the kind of thinking behind it and who it's appealing to:

http://www.westcan.org/westcan/WSP/March02.htm

ETA: And BC, the frontlines of the latest turf war, never recognised the same nation-to-nation treaty rights that others did under the Crown -the Mohawks and others were our onetime allies (unless you're from Quebec that is.... ) and when they made their original agreements with our government of the time that was understood. British Columbia simply refused to recognise this and unilaterally imposed terms on our Aboriginal peoples, up to and including making it illegal for them to take part and compete in our fisheries. (we wanted cheap cannery workers instead) Milke and his fellow neo-cons just want to make an end run around these historical facts, as if they have no relevance to where we are now, something the Supreme Court of Canada better realise.

[ 29 October 2006: Message edited by: EriKtheHalfaRed ]

...he was still a baby when his father presented him to a gathering of elders meeting to discuss already historic Nisga'a land claims.

Pessimistically, some chiefs called the claims "the immovable mountain." But not Chief Na-qua-oon. He held infant Frank above his head and proclaimed: "This boy is going to learn the language and the laws of the K'umsiiwa [the white people].

And when he comes home he's going to move the mountain." Prophetic words. Frank Calder went on to become a pioneer of First Nations land claims, a cabinet minister and a member of the Order of Canada and the Order of B.C. He bears the title Chief Lisims "Chief of Chiefs" of the Nisga'a Nation.

quote:

---

He ran successfully as a CCF candidate in the Atlin riding in 1949. He remained in the white man's "meeting house" for the next 30 years fighting for his people.

In February 1950, he delivered his maiden speech to the B.C. legislature.

He ended the day with a motion calling for the establishment of a B.C. Bill of Rights. It was the opening salvo of his Nisga'a land claims campaign, a campaign that took another 50 years to finish.

In 1955, the Nisga'a Land Committee, formed in 1909 but long moribund, was re-established, renamed the Nisga'a Tribal Council. It elected Frank Calder president.

In 1968, backed by the council, Calder sued the government and forced the land-claims debate into the courts and public spotlight. Seven Supreme Court judges agreed natives had once held title to the land in question but were divided on whether title still existed. Three said yes, three said no -- it was lost on a technicality.

But the Calder case had begun to move the "immovable mountain." In 1972, Dave Barrett's NDP defeated W.A.C. Bennett's Social Credit party and Frank Calder became the first native to achieve cabinet status. ...

It was not until April 13, 2000, that the Nisga'a Treaty was proclaimed law and the mountain was finally removed.

---

One is the conflict between the Nisga'a Lisims government (which I assume would have previously been the band council elected under the Indian Act system) and the people bringing the challenge to the treaty, who are described as "hereditary chiefs."

The plaintiffs' status as hereditary chiefs doesn't necessarily make theirs a legitimate claim -- I don't know how much support they have from within the Nisga'a. The Nisga'a Lisims government is the elected government, and they presumably must also have obtained popular support for the treaty. (I don't know what the required majority would've been -- 50% + 1, or higher?) You could see this as a case of the Canadian Constitution Foundation using political rivalries within the Nisga'a to divide them in an effort to take away what they've gained.

So what's in it for the plaintiffs? Do they think they could regain their role in the Nisga'a government by virtue of being hereditary chiefs, or are they just in it for a matter of principle?

The other way this case is interesting has to do with aboriginal self-government:

quote:

---

The key question in their suit is whether the Nisga'a treaty violates the constitution by creating a third order of government -- and the justices said that's an important national issue.

So did Premier Gordon Campbell in his days as opposition leader, when he was a strident critic of the Nisga'a treaty. ...

...Campbell launched his challenge to the treaty in 1998 before it was even signed, complaining it gave the Nisga'a powers superseding those of the provincial and federal governments -- the two levels that supposedly share all existing power under Canada's primary law.

In a companion action filed in March 2000, Robinson and other Nisga'a dissidents also alleged that the pact created an illegal third order of government that stripped them of rights held sacred by other Canadians. ...

---

The constitution recognizes and affirms aboriginal rights and title. You would assume that would include a right to self-government -- after all, where else would rights and title derive from, if not from a pre-existing system of government? And yet the Supreme Court has been reluctant so far to recognize such a right, rejecting a claim of self-government in a case involving the regulation of on-reserve gambling (it wasn't the best possible set of facts for such a claim).

So the modern treaties exist in a sort of legal grey area. Which isn't necessarily a bad thing, if that legal murkiness provides some room for greater de facto sovereignty.

And I guess that's the Canadian Constitution Foundation's motive for promoting this case. They think that if faced with the question head-on, the courts will have no choice but to deny that the constitution leaves no room for a third order of government. I'm not so sure the courts would do that, and risk invalidating the treaties that BC and the federal government have signed so far. But either way, the decision would probably end up being something that would allow the Tories to exploit knee-jerk racist sentiments for political gain.