[SISIS note: even though this document is very long, we felt it was important to post it, as it is an excellent summary of Bruce Clark's book "Native Liberty, Crown Sovereignty" and clearly outlines the historical development of the legal/political conspiracy to usurp native jurisdiction in lands beyond the treaty frontier.]
[
plain bolding indicate underlining in the original.
Italics, Brackets [ ], parentheses ( ), capitalization, and ellipses
(...) are as in the original.
Note that Appendices "A", "B" and
"C" referred to in para. 301-3 are not attached to this post.]
I, WEL-LAW-PSH, of no fixed address residing and working as a lawyer in the Indian country MAKE OATH AND SAY:
1. Under the title and name Dr Bruce Clark LL.B., M.A., Ph.D. (Law) I am a barrister and solicitor called to practice, within the treaty frontier, in the royal courts constituted there by Her Majesty the Queen. Beyond the treaty frontier, I am also called to practice by some native Nations in some of their native courts in some of their unceded Indian territories there. I have practiced or taught law since 1971 in the aboriginal rights field in particular. In addition to the customary university and practical training required generally to practice law, I have in addition obtained a masters of arts degree in the Canadian constitutional history regarding aboriginal rights, and a doctor of philosophy degree in the Canadian constitutional law regarding aboriginal rights. For 8 years I have lived with my family upon Indian reservations upon crown land both within and beyond the treaty frontier. For the past 19 years, I have concentrated upon trying to understand native law and the means of reconciling it with the non-native law that surrounds it. By birth, I am a Canadian citizen according to the Queen's law applying within the treaty frontier. By naturalization through formal adult adoption, I am Lil'Wat citizen according to the Lil'Wat native Nation's law applying beyond the treaty frontier. As such I have knowledge of the matters to which deposition is made herein.
2. Treason occurs when non-native governments and courts in Canada purport to govern and adjudicate civil disputes beyond the treaty frontier.
3. At first the crime existed in the common law defining the constitutional powers of royal governments and courts in North America.
4. Subsequently it was confirmed by the Royal Proclamation of 1763, by section 129 of the Constitution Act, 1867, by section 46(1)(b) of the Criminal Code and by section 35(1) of the Constitution Act, 1982.
5. Thus, Mr Justice Strong of the Supreme Court of Canada in St Catherines Milling & Lumber Co., v. R. (1887) SCR 577, 621, observed the proclamation "gives legislative expression to what I have heretofore treated as depending on a regulation of policy, or at most on rules of unwritten law and official practice, namely the right of the Indians to enjoy, by virtue of a recognized title, their lands not surrendered or ceded to the crown." Mr Justice Hall, also of the Supreme Court of Canada, reiterated this conclusion of law in Calder v. AG for BC, [1973] SCR 313, contra Mr Justice Judson.
6. By "a regulation of policy" and "official practice" Strong J had in mind the very structure of colonial government. Jurisdictional power was constituted by the express terms of the governors' royal commissions. It was in the nature of colonial constitutional law that no governor was ever given jurisdiction to extinguish aboriginal rights except by treaty with the native Nation whose aboriginal rights were being exchanged for the contractual rights defined by the treaty.
7. Both this general rule and its customary application to the westernmost British colonies Vancouver Island and British Columbia was confirmed by Hall J in Calder, 406: "[Governor] Douglas' powers were clearly set out in his commission. A Governor had no power to legislate other than those given in the commission."
8. The great Shuswap-Okanagan native Nation of the southcentral Interior of British Columbia in its oral history records Governor Douglas' refusal to accept a bribe from a rancher to convey Indian territory prior to treaty, on the ground he would be cast in irons and put away or killed for treason if he did. Yet Douglas' successor, Governor Seymour, in 1864 sent a dispatch saying:
I may find myself compelled to follow in the footsteps of the Governor of Colorado...and invite every white man to shoot every Indian he may meet.
9. Governor Seymour occupied this treasonable position even in the face of the royal commission which earlier that year constituted him in office and stipulated the fundamental condition of colonial government:
Article xxvi.
And it is Our further will and pleasure...that you do especially take care to protect them in their persons and in the Free Enjoyment of their Possessions, and that you do by all lawful means prevent and restrain all Violence and Injustice which may in any manner be practiced against them.
10. That Hall J and Governor Douglas were perfectly and absolutely correct in point of colonial constitutional law does not admit of the vestige of a doubt. What is truly remarkable is that this point ever could have been disregarded by Governor Seymour, and by Judson J in the Calder case, or, for that matter, by Chief Justice McEachern in the more recently decided British Columbia case of Delgamuukx v. AG for BC, [1991] 3 WWR 97.
11. The rudiments of colonial constitutional law bearing upon the ambiguously restricted jurisdiction of all colonial governments are set out with particularity in my book Native Liberty, Crown Sovereignty: The existing aboriginal right of self-government in Canada (Montreal and Kingston: McGill-Queen's University Press, 1990) at pages 1-83.
12. These rudiments are so basic that the overlooking of them can not be satisfactorily accounted for except upon the basis of the "Pretence" (of which more is said later) identified by the Royal Proclamation of 1763 as being presumptively fraudulent and treasonable.
13. For, as the Privy Council previously had recognized in Cameron v. Kyte (1835), 12 ER 679, 684, a law enacted in a colony that was ultra vires (that is, "beyond the power" of the colony to enact) when enacted was not subsequently "rendered valid" by the acquiescence of the imperial government in its implementation. Having thus ruled out the doctrine of validity through imperial acquiescence, the Privy Council then held:
Then the question is reduced to this single point, whether or not such an authority can be implied. It is not pretended by the appellant, that the Governor had by his commission or instructions any authority of this nature expressly communicated to him...If a Governor had, by virtue of that appointment, the whole sovereignty of the Colony delegated to him as a Viceroy, and represented the King in the government of that Colony, there would be good reason to contend that an act of sovereignty done by him would be valid and obligatory upon the subject living within his government, provided that the act would be valid if done by the Sovereign himself, though the such act might not be in conformity with the instructions which the Governor had received for the regulation of his own conduct...
14. The crucial point to be born in mind when reading this passage is that no governor anywhere in North America was ever expressly given the jurisdiction to extinguish aboriginal rights, except by treaty.
15. The Privy Council in Cameron v. Kyte continued:
But if the Governor be an officer, merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the authority so given to him, would be purely void, and the Courts of the Colony over which he presided could not give it any legal effect. We think that the office of Governor is of the latter description, for no authority or dictum has been cited before us to show that a Governor can be considered as having the delegation of the whole Royal power, in any colony, as between him and the subject, when it is not expressly given by his commission. And we are not aware that any commission to Colonial Governors conveys such an extensive authority.
16. An additional reason the Indian country was considered to be outside the territorial ambit of any colony's jurisdiction was because it was considered outside the ambit of the jurisdiction of the Sovereign King himself.
17. In 1535 the Papal Bull Sublimus Deus had settled a crucial point of natural law: since natives were conceded to be human they therefore had souls, and since they had souls their lands could not unilaterally be seized by Christian Sovereigns as if the natives were animals.
18. Subsequently, this point of natural law was regarded as binding upon the crown of Great Britain as part of the law of nations, and from thence it was incorporated into the constitutional law of all of the British North American colonies.
19. It applied throughout the unsurrendered Indian country, as was recognized by the royal courts of Quebec in Connolly v. Woolrich (1867), 11 LCJ 197, 205-7.
20. This case held that a marriage in the Indian country under native law between a whiteman from Quebec and an Indian woman was valid and binding in the courts of Quebec even though invalid under the non-native law of Quebec, and that property within Quebec of the deceased husband devolved upon the native wife rather than upon a subsequent non- native wife married in Quebec.
21. Mr Justice Monk of the Supreme Court of Quebec held:
[W]ill it be contended that the territorial rights, political organization such as it was, or the laws and 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 left in full force, and were not even modified in the slightest degree in regard to the civil rights of the natives.
22. In support of this conclusion of confirming the presumptive continuity of native jurisdiction Monk J implemented the international law analysis of Chief Justice Marshall in Worcester v. Georgia 6 Peters 515, from which he quoted:
America, separated from Europe by a wide ocean, was inhabited by a distinct people divided into separate nations, independent from each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws....The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time.
23. By "the great powers of Europe" Marshall CJ meant the Atlantic and Pacific fleets of Great Britain, France, Holland, Spain, Portugal and Russia.
24. Continuing, Marshall CJ added,
The object was too immense for any of them to grasp the whole; and the claimants were too powerful to submit to the exclusive and unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which should decide their respective rights as between themselves.
25. The reference here to avoiding "bloody conflicts" was not only as between the European nations but also as between each of them and the "several Nation or Tribes of Indians." The Royal Proclamation of 1763 had confirmed not only the fundamental justice aspect of the Papal Bull of 1535, but also the military reality posed by the natives' zealous defence of their own third party jurisdiction. Thus, the proclamation's declaration of legislative intent was:
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.
26. The means in natural and international and hence constitutional law whereby territory "reserved to" the native Nations was "ceded to or purchased by" the Sovereign King was by "treaty."
27. The legal point of treaty is that it relinquishes the native Nation's claim to sovereignty over the vast tract constituting the Nation's country, in return for contractual rights over tinier tracts carved out of that country and named "reserves."
28. A "treaty" under natural, international and constitutional law must be contrasted with the "surrender" process created after 1876 in the domestic Indian Act legislation. A surrender relinquishes some or all of an Indian band's remaining contractual rights that were secured, under the original treaty, in relation to that tinier tract called the reserve.
29. Thus, the concept of a treaty with a native Nation must carefully be distinguished in one's mind from the concept of a surrender made with an Indian band.
30. The two concepts, treaty and surrender, are regulated by different laws; they concern two fundamentally different political entities; and they apply to two different constitutional categories of land.
31. Politically, a treaty exists in relation to a native Nation, whereas a surrender exists in relation to an Indian band.
32. Geographically, a treaty exist in relation to Indian territory, being land reserved to the native Nation, whereas a surrender exists in relation to land set apart as an Indian reserve for a particular Indian band.
33. Legislatively, these distinctions arose as follows. A treaty was made with the Nation in the course of which several defined tracts were reserved for the "particular Indian bands" comprising the Nation participating in the treaty.
34. In virtue of section 91(24) of the Constitution Act, 1867, the Parliament of the United Kingdom transferred to the newly created federal Parliament of the Dominion of Canada jurisdiction over "Indians, and Lands reserved for the Indians."
35. By this enactment the imperial government transferred to the federal government of Canada jurisdiction over the reserves that had been set apart for the particular bands.
36. In natural law as defined by the Papal Bull of 1535, in the convention of international law remarked by Marshall CJ and Monk J, in the constitutional common law remarked by Strong and Hall JJ, and in the legislated constitutional law confirmed by the Royal Proclamation of 1763, all of North America was deemed reserved to the several Nations or Tribes of Indians or any of them.
37. Territory still reserved to the Nations or any of them by definition is situate beyond treaty frontier. This must be contrasted with the situation of reserves, which by definition are situated within the treaty frontier as surveyed tracts set apart for "particular bands," as distinguished from unsurveyed territories reserved to "the several Nations...or any of them."
38. Since 1876 the federal government has exercised its section 91(24) jurisdiction in respect of lands reserved for the Indians by the medium of the federal Indian Act. In it, the term "reserve" is expressly defined in section 2(1) as land set apart for a particular band. The term "band" is defined as a beneficiary group for which the federal government holds title in a "reserve" in that specific Indian Act sense.
39. Unless this distinction between unsurveyed territory reserved to the native "Nation" and surveyed land reserved for the Indian "band" is kept constantly in mind, fraud and treason can seem to be legitimate.
40. Specifically, the fraud and treason occurs when the Indian Act is implemented beyond the treaty frontier for the "band" in respect of territory still reserved to the "Nation."
41. When this happens, it constitutes a fraud whereby the legitimate territorial jurisdiction of the Nation is usurped by the "band."
42. Since the band for all practical purposes is an agent of the federal government, this fraud is the specific means whereby the federal government effectively usurps the jurisdiction of the Nation.
43. This fraudulent usurpation constitutes treason.
44. Though criminal, this specific form of fraud and treason is basic to modern Canadian policy and practice beyond the treaty frontier, and has been ever since the federal and provincial governments unconstitutionally began applying the Indian Act, 1876 beyond the treaty frontier in British Columbia.
45. The only existing legal alternative to the creation by treaty of reserves for particular bands occurs when land that is already within the treaty frontier, and hence previously freed of aboriginal rights, is set apart as a reserve for a particular band by reciprocal Orders-in- Council.
46. For example, take it as given that territory formerly reserved to the Nations at constitutional common law has been "ceded to or purchased by" the crown by treaty. According to the Privy Council in St Catherines Milling & Lumber Co. v. R. (1888), 14 AC 46, 52, 54, 58 and 60, the "legal consequence" of the treaty is that "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." Now suppose that many years later the crown decides to "set apart" a particular tract of the ceded land as a "reserve" for a "particular band," within the meaning of those phrases in the Indian Act. The crown achieves this "reserve" legal status for the particular tract in virtue of reciprocal Orders-in-Council promulgated by the federal and provincial governments.
47. The reason reciprocal Orders-in-Council are legally necessary is that when the original treaty was made ceding the territory to the crown that territory, according to St Catherines, fell within the jurisdiction of the provincial government under sections 92(13) and 109 of the Constitution Act, 1867. The St Catherines case settled that particular point of law when Lord Watson at 58 said:
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 now must belong to Ontario in terms of that clause.
48. Since in consequence of the treaty made between the native Nation and the federal government the beneficial interest in the land passed from the Nation to the Province, therefore if subsequently a tract of the ceded land is to be dedicated a "reserve" administered by the federal government pursuant to section 91(24) and the Indian Act, the Province must transfer its beneficial interest in that tract to the federal government. That accounts for the first Order-in-Council.
49. Once the beneficial interest of the previously ceded land has by this first Order-in-Council passed from the Province to the Dominion, then the Dominion can enact its Order-in-Council, thereby undertaking to hold and to administer that particular beneficial interest in that particular tract in trust for the particular Indian band, under the terms of the Indian Act.
50. In recent years it has been in vogue for Indian "bands" to style themselves "Nations." This seemingly harmless bit of cosmetic hyperbole is a dangerous legal misnomer: it causes confusion, and furthers the fraud and treason beyond the treaty frontier by creating the misleading impression that "bands" have jurisdiction as "Nations."
51. They do not. Bands are creatures of federal statute law, and agents of the federal government. As such, they can only exercise delegated jurisdiction over reserves within the meaning of section 2(1) of the Indian Act - surveyed tracts reserved for particular bands after a treaty has been made by the Nation ceding the land.
52. For the very reason that section 91(24) of the Constitution Act, 1867 and hence the Indian Act itself do not address the unsurveyed Indian territories, by definition bands do not have and can not possibly have any jurisdiction beyond the treaty frontier.
53. In contrast, Nations enjoy inherent jurisdiction over unsurveyed territory reserved to the indigenous Nations generally, not under federal statute law, but rather under the paramount natural, international and constitutional law that both predates and pursuant to sections 109 and 129 of the Constitution Act, 1867 supersedes federal statute law.
54. Unlike bands, which are illegal beyond the treaty frontier because the Indian Act is ultra vires there, the native Nations beyond the treaty frontier constitute the only legitimate government situate beyond the treaty frontier.
55. The obverse is also true. As confirmed by the Supreme Court of Canada in Davey v. Isaac (1977), 77 DLR (3d) 481, within the treaty frontier the band government has exclusive jurisdiction as against the native Nation which is no longer legally recognized, having been supplanted by the band in consequence of the treaty.
56. Care must be taken at this juncture not to be misled by the fraudulent and treasonable practice followed beyond the treaty frontier in British Columbia. In this region, following confederation the federal government faced the option of disallowing the provincial lands legislation as deemed legally requisite according to the 1875 federal Minute-in-Council, or else becoming an accomplice to the province's fraudulent and treasonable usurpation of jurisdiction prior to treaty of the Indian territory.
57. Although existing law required disallowance, existing politics required treason.
58. For practical political purposes, getting and keeping British Columbia in the Union meant placating the local whites who were stealing unceded Indian lands, instead of insisting upon the law ordained by an imperial government that was divesting itself of its North American empire in any event.
59. The only way to have obeyed the rule of law, without in consequence necessarily dispossessing the premature grantees, would have been to ask the imperial government to amend the constitution, so as to concede to the province jurisdiction over the Indian territory prior to treaty. Then, provincial legislation legally could have expropriated the Indian territory, and the premature fraudulent and treasonable conveyances could retroactively have been confirmed, and thus legitimized. Alternatively, treaties could have been made. Neither legal course was taken.
60. Treaties were not made because the local whites in power would not have tolerated it. They would have nothing to do with regarding the natives as human beings with rights. They, in effect, regarded the Pacific North West as terra nullius, that is bereft of civilized societies capable of exercising legal rights.
61. The constitution was not amended because the Aborigines Protection Society in Great Britain represented a potent lobby within internal British politics. For this reason all of the constitutional legislation enacted by the imperial government took pains never to derogate from the constitutional "Protection" undertaking given by the crown to the native Nations in respect of their unceded Indian territories. It was one thing for the imperial government to turn a blind eye while the local governments committed fraud and treason, but another thing entirely for the imperial government to turn a blind eye while the local governments committed fraud and treason, but another thing entirely for the imperial government itself to be seen to renege upon its express undertaking.
62. Having elected to mask the fraud and treason as the politically expedient course, the federal government embarked upon a program of genocide systematically to wipe out the aboriginal governments of the native Nations. Euphemistically termed "assimilation," in practice the policy was to convert those who could be converted and destroy those who could not.
63. Bands, as political entities, historically were fostered by the federal and provincial governments as fifth columns to accomplish this end. Although legal within the treaty frontier, bands were illegal beyond the treaty frontier. Nevertheless, they were fostered there as well. They were then used as federal agents to destroy the traditional governments of the native Nations, and thus to preclude insistence upon the exclusive jurisdictional integrity of those Nations.
64. In order to foster band governments beyond the treaty frontier in British Columbia, it was necessary to engage in the fraudulent and treasonable "Pretence" that the federal Indian Act could be applied there. Legally, the application of the federal Indian Act was every bit as ultra vires the federal government as was the application of the public lands legislation ultra vires the provincial government, and for exactly the same reason: section 129 of the Constitution Act, 1867 binds both, and hence limits the jurisdiction of both to lands brought within the treaty frontier by treaty with the native Nations.
65. As I have noted at 152 in the book Native Liberty, Prime Minister Sir John A. Macdonald in 1887 acknowledged "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."
66. The federal legislation to this end, to which the Prime Minister was referring, consisted in the post confederation Indian Act legislation, starting with that creating the "band" and its corresponding "reserve" concept in 1876.
67. By 1876 the native Nations of the northeastern woodlands had already been reduced to a pitiable condition by the fur trade. As observed by Ontario's Chancellor Boyd in St Catherines Milling & Lumber Co. v. R. (1885), 10 OR 196, 227, "when the treaty [of 1873] was made, the land which it deals with formed the traditional hunting and fishing grounds of scattered bands of Ojibbeways, most of them presenting a more than usually degraded Indian type." Their condition made it convenient for the federal government to gain experience in the implementation of its Indian Act band government structure.
68. The more highly developed legal systems of the Iroquoian speakers of the southern Great Lakes and the native Nations of the Pacific North West proved harder nuts to crack. Thus, the 1909 Annual Report of the Department of Indian Affairs as observed in Native Liberty at 153 commented:
It seems strange and can not be without significance, and with what rare exceptions, Indian communities have refused to avail themselves of the provisions of the advancement part of the Indian Act, designed as a stepping stone to municipal government. It is not that the Indians lack the spirit of independence nor the desire to conduct their own affairs, but that they fail to recognize the benefits likely to accrue from the adoption of the white man's methods. This, without question, largely results from the limitation of interests and ambitions imposed by the segregation of existence upon reserves, and as a natural consequence of the somewhat ill-defined craving of the Indians for progress, rather seeks scope in the direction of an effort to return to the independence in the old tribal form of government, a desire which keeps cropping up afresh amongst communities possessed of life and character, and which is often too hastily assumed to be the mark of a retrogression on their part.
How this misdirected energy is to be guided into proper channels, how the reserve-imposed limitation of interest is to be broken down, seems a hard problem to solve.
69. The persistence of "the old tribal form of government" was perplexing to the authors of this 1909 report because their own cultural bias devalued the native Nations' competing legal systems.
70. As the 1909 report acknowledged, it is among those native communities that are "possessed of life and character" that the "craving of the Indians for progress rather seeks scope in the direction of an effort to return to the old tribal form of government."
71. These formerly healthy communities have all but been supplanted, between 1876 and the present, by means of the federal policy avowedly aimed at their eradication through the substitution of band politics based upon the Indian Act model.
72. In the result, an appreciable majority of the native population has been reduced to a condition more nearly approximating that observed by Chancellor Boyd than that contemplated by the 1909 report.
73. The means to this debasement has been the cultivating of those native individuals who mirror the cultural attributes and values of the federal officials that control the system of governmental financial rewards and punishments, a system that is legal within the treaty frontier but illegal beyond the treaty frontier.
74. Since under section 91(24) of the Constitution Act, 1867 and section 2(1) of the Indian Act federal jurisdiction is restricted to "reserves" within the treaty frontier (those being the only legal Indian Act reserves) therefore the federal government has no right to interfere in the internal politics of the native Nations beyond the treaty frontier. Federal jurisdiction, in the sense of interfering in the internal politics of the native Nations, stops at the treaty frontier.
75. As Chief Justice Marshall stated in Worcester v. Georgia in 1832 as applied by Mr Justice Monk in Connolly v. Woolrich in 1867:
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with internal affairs of the Indians, further than to keep out the agents of foreign powers, who as traders or otherwise, might seduce them into foreign affairs. The King purchased their lands when they were willing to sell, at a price they were willing to take; but he never coerced a surrender of them. He also purchased their alliance and dependence by subsidies, but he never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.
76. All that changed in Canada with the advent of the policy unconstitutionally to apply the Indian Act, 1876 beyond the treaty frontier in British Columbia. Since then, even though federal jurisdiction under section 91(24) of the Constitution Act, 1867, and section 2(1) of the Indian Act stops at the treaty frontier, the policy and practice has been for the provincial government of British Columbia to enact unconstitutional Orders-in-Council purporting to transfer the province's nonexistent beneficial interest in tracts of unceded Indian land to the federal government, and for the federal government to enact unconstitutional Orders- in-Council setting these tracts apart ostensibly as Indian Act reserves.
77. That whole process is a scam because according to the St Catherines Milling case the provincial government has no beneficial interest to convey until after the land has been ceded to or purchased by the crown from the native Nation. It is in virtue of the treaty that the province acquires a beneficial interest. No treaty equals no provincial beneficial interest capable of being transferred to the federal government. Correspondingly, the absence of a conveyed beneficial interest leaves the federal government with nothing to set apart.
78. Having fraudulently accepted a transfer of a beneficial interest that the province had no right to convey, the federal government then enacts an Order-in-Council it has no jurisdiction to enact, setting apart the land conveyed to it as an Indian "reserve" within the meaning of the Indian Act. Given the 1875 federal Minute-in Council, it would be dissembling to pretend that the federal government did not know that the province had no jurisdiction to make the transfer to it of the beneficial interest, or to assume that the federal government innocently misapprehended the constitutionally imposed territorial limits of the Indian Act.
79. The reason the scam succeeds in practice is that native politics is now dominated by the fifth column band governments, as federal agents. Subsequent to 1880 by incremental stages the federal government financed, fostered and flattered the elected Indian Act chiefs into thinking they were elite. These federal agents ever since have fraudulently been represented to the public as the spokespersons of the native Nations that it has been their historic function to destroy.
80. The supplanting of traditional government occurred by measured steps. First, section 72 of the Indian Act, 1880 was introduced expressly to deprive hereditary chiefs of power whenever a native community chose to elect a chief according to the electoral provisions specified by the Indian Act.
81. The people by fraud, duress and undue influence were induced to elect Indian Act chiefs in order to survive. Their land was being taken anyway. They were being reduced through disease, enforced starvation and criminal persecution. They hoped they could elect Indian Act chiefs to get the program dollars, while for internal purposes retaining their traditional governments.
82. The Potlatch as the native Nations' institution of law, government, religion, property and social relationships that defined the hereditary governments, was made a zealously enforced criminal offence, and whole generations of natives were rewarded for becoming collaborating informers in the resulting pogrom against other natives who carried on the old ways.
83. Native songs and dances, which served as records of law and culture, were made criminal, and their practicers hunted down and imprisoned.
84. Meetings of natives to discuss civil rights were made criminal, and gatherings of more than three were physically broken up.
85. Raising money to hire a lawyer to fight the injustice was made criminal.
86. Keeping native children out of residential schools run by missionary societies was made criminal. And in those schools generations of native children were tortured for speaking their native languages, upon the theory that to break the languages would break the continuity of native culture.
87. Hunting and fishing year round was made criminal, and in this fashion the natives were forced to become dependent against the threat of starvation upon white philanthropy.
88. The taking back into the communities of native children who were removed by white social workers and given to white families was made criminal.
89. Native protests that impeded white companies from clearcutting the forests and polluting the waters that fed the native people were made criminal.
90. The imprisonment of natives skyrocketed, as did native suicide, alcoholism and deaths from exposure and ill health, the incidents of the despair resulting from the oppression of starvation, bribery, manipulation, intimidation, harassment, beatings and imprisonment.
91. Today, constitutional negotiations and treaty negotiations are proceeding with respect to native affairs, due to the urgent need to address this continuing socio- economic tragedy. But the only native participants invited to these constitutional talks are the native collaborators in the travesty.
92. With respect to the treaty negotiations, it is important to realize that this is an incomplete chapter in British Columbian history, rather than a chapter the writing of which never began. Governor Douglas concluded treaties with the native Nations on Vancouver Island, and commenced negotiations which progressed to the marking out of huge reserves in the interior of the mainland. It is just that the process was discontinued by his racist successors.
93. What constitutes the present treaty negotiations, as well as the related constitutional negotiations fraud and treason, is the fact that they are being carried out between the bands as fifth column federal agents rather than with the independent native Nations that legally have the jurisdiction beyond the treaty frontier.
94. A professional class of native performers has thus been cast, as the modern day proponent of native self government, having auditioned for the role by successfully functioning as band and tribal council government chiefs, councillors, executives and advisers.
95. Except to the extent of paying it lip service, these performers are indifferent or willfully blind to the treaty frontier, since they personally are interested in the federal cash the payment of which constitutes the money sustaining the fraud and treason.
96. Not only are the performers collaborators in the debasement of their own people, as collaborators they are accomplices to the same treason as has been and continues to be perpetrated by the non-native legal and political establishment.
97. Those other natives who, being "possessed of life and character," remain devoted to the old tribal form of government unconscionably have been pre-empted from the inter-racial aboriginal rights debate and the treaty making process.
98. The majority of non-native persons committing the treason have either just followed orders, or else turned a blind eye to the treason.
99. It is therefore the topmost leaders of the legal and political establishment who are ultimately accountable: the Prime Minister, the Premiers and the Chief Justices.
100. These topmost leaders are therefore the persons that as an officer of the law and as a loyal Canadian citizen I am duty bound to indict for treason.
101. The native Nations can deal with their own traitors, under native law, if ever the existing law regarding their native jurisdiction is addressed, and respected, and they are so disposed.
102. Returning again to the decision of Marshall CJ in Worcester v. Georgia as relied upon by Monk J in Connolly v. Woolrich, the American Chief Justice went on more precisely to define the principle of international and common law by which the nations of Europe agreed to be bound:
This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlement on it. It was an exclusive principle which shut out the right of competition of those who had agreed to it; not one which annulled the previous right of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase but did not found that right on a denial of the right of the possessor to sell....The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightly convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim;...
103. The last word, "claim," in the passage just quoted is the single most revealing word in all aboriginal rights law. As Marshall CJ indicated, a universal principle of natural law ripened into the common law of the European nations governing the acquisition of crown rights in North America. That principle of law precluded any "claim" by the crown of Great Britain to territory situate beyond the treaty frontier. And yet we in Canada today fraudulently have tricked the native Nations beyond the treaty frontier into filing "land claims," a complete reversal of the legal burden of proof.
104. Since the crown of Great Britain itself was precluded from asserting a claim to Indian territory prior to treaty, a fortiori every colonial government constituted by the crown was precluded as a matter of common law from asserting a claim prior to treaty.
105. The Royal Proclamation of 1763 codified the common law. This is what Strong J observed in the St Catherines case as noted above. But the proclamation did more than just codify previously established law. It made clear that a breach of that law, by any colonial constitutional government, was deemed fraudulent and a breach of the King's peace with his military allies, the native Nations - that is, treason.
106. The three key words in the proclamation embodying this legislative intent are "Pretence," "Protection" and "Pleasure."
107. "Pretence" in its eighteenth century legal sense, as authoritatively defined by the Oxford English Dictionary, signifies "1. An assertion of a right or title; the putting forth of a claim; a claim. Now rare."
108. "Protection" in its now obsolete eighteenth century legal sense is defined as "A writing or document that guarantees protection, exemption or immunity to the person specified in it."
109. "Pleasure" means "2. With possessive pronoun, or sb. in possessive relation: How one is pleased or wills in reference to any action contemplated;..."
110. The exact formula of words in virtue of which the common law preclusion of a "claim" by royal governments to unceded or unpurchased Indian territory came legislatively to be deemed treason (with emphasis added) appear in the proclamation as follows:
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 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 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 Atlantic 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.
111. In a nutshell, the proclamation is a document formally proclaiming the king's protection for the native Nations beyond the treaty frontier by strictly prohibiting land grants by royal constitutional governments upon any pretence whatever, on pain of incurring the king's displeasure. To incur the king's displeasure upon the basis of the expressly prohibited pretence of asserting a claim to unceded or unpurchased Indian land, that is to land situate beyond the treaty frontier, in circumstances where the king has stipulated that the prohibition is "essential to our Interest and the Security of our Colonies," is treason.
112. Treason was committed by the colonial governments of British Columbia when, just before confederation, they began making land grants beyond the treaty frontier.
113. Although the common law crime of treason has been superseded by section 46 of the Canadian Criminal Code, the treason as constituted by the Royal Proclamation of 1763 has not similarly been superseded. Section 129 of the Constitution Act, 1867, saves previously established constitutional law, including by necessary implication the proclamation, and thus the federal government's jurisdiction over Indians under section 91(24) and over the criminal law under section 91(27) must be read subject to the proclamation.
114. In the alternative, section 46(1)(b) of the Canadian Criminal Code deems it treason where a person "levies war against Canada or does any act in preparation thereto." Canada remains legally pledged in alliance with "the several Nations or Tribes of Indians" who occupy lands beyond the treaty frontier, as in British Columbia. To send armed police, as is the custom today, against the native Nations who attempt to defend their civil rights is to make war upon the crown's allies, contrary to the crown's constitutionally undertaken "Protection" obligation towards those allies. To grant the native Nations' lands prior to treaty is a constitutionally prohibited "Pretence." It molests and disturbs the native Nations. To molest and disturb them in this fashion and then to enforce the pretence by means of force of arms is to levy war upon them, a crime contrary to section 46(1)(b) of the Criminal Code as well as contrary to the constitution.
115. In point of fact, the molesting and disturbing of the native Nations beyond the treaty frontier, through the land grant system, has systematically been carried out in practice by illegal force of arms. That is, the non-native grantees typically have resorted to the non-native courts for injunctive relief to prevent the natives physically from enforcing existing law.
116. The non-native courts literally have refused to address the law that constitutes as treason their own exercise of jurisdiction beyond the treaty frontier. Having willfully blinded themselves to the law, the courts having ordered the police to levy war, contained but technically war nonetheless, upon the native Nations, contrary to the constitution or alternatively to section 46(1)(b) of the Criminal Code. Fortunately, so far, the native Nations in the modern era are not reciprocating the violence.
117. Furthermore, in terms of section 46(2)(c) of the Canadian Criminal Code the individual judges have conspired with each other to perpetuate the treason by shielding each other.
118. This conspiracy contrary to section 46(2)(c) is providing the legal basis for the constitutional and treaty negotiations. If the present course of them is maintained they will retroactively legitimize past transgressions - in effect, an implicit constitutional amnesty for the criminals: the topmost leaders of the legal and political establishment.
119. More significantly, they will retroactively legitimize the application of the Indian Act beyond the treaty frontier, and correspondingly the delegated jurisdiction of the Indian bands beyond the treaty frontier. By this means the negotiations are leading to the final chapter in the historic genocidal plans to eliminate the inherent jurisdiction of the native Nations, by the systematic destruction of that targeted group within native society that would oppose the plan.
120. The pretence that the non-native judges beyond the treaty frontier are not committing treason by implementing this plan in practice is being maintained upon the basis that the Royal Proclamation of 1763 constituting their crime does not apply beyond the treaty frontier in British Columbia. This pretence is not merely wrong but irrelevant, for even if the proclamation did not apply, the constitutional common law reiterated by the proclamation results in the same legal status quo.
121. Upon the basis of an exhaustive historical analysis, Chief Justice McEachern in Delgamuukx v. AG for BC in 1991 held that the proclamation never applied to British Columbia. In so saying, McEachern CJ simply adopted the assumption made by Judson J but exposed by Hall J in the 1973 Supreme Court of Canada Calder case. It is as if the legal scholarship had been frozen in time: as if the 18 intervening years had not produced an academic resolution of this jurisprudential controversy based upon the precedents and legislative instruments that unambiguously vindicate the position occupied by Hall J, and expose as an untenable assumption the position occupied by Judson J.
122. Rather than look to the law to define what should have happened, as Judson J before him McEachern CJ turned to history and defined what actually did happen. Historically speaking the provincial government after confederation, like the colonial government before confederation, has habitually and illegally granted lands prior to treaty. Judge McEachern simply took this historical evidence of the law's contravention as proof of the law's substance.
123. But law must, of course, be ascertained independently of the history concerning the respect paid to it by particular administrators of the royal government. The fact that the treason has been carried on over the course of several administrations can not possibly amend the law constituting the crime.
124. Yet that is precisely the result when a judge purports to deduce law from historical practice.
125. When the law is addressed, it is patent that, its history aside, British Columbia was a colony like any other colony. The royal commissions to the governors of this particular colony have always been the same as those used everywhere else in British North America.
126. Furthermore, the constitutional legislation defining British Columbia at the successive stages in its evolution consistently refers to Pacific North West as "Indian territory," the concept referring to those lands situate beyond the treaty frontier and deemed both at common law and under the proclamation to be within the sphere of the crown's "Protection" obligation towards the native Nations: An Act for Extending the Jurisdiction of the Courts of Justice in the Provinces of Lower and Upper Canada to the Trial and Punishment of Persons Guilty of Crimes and Offences within Certain Parts of North America, 43 Geo. III, c. 138 (1803), preamble and s. 1; the Royal Proclamation of 1817, Quebec Gazette, 18 May 1820; the Colonial Laws Validity Act, 28 & 29 Vict., c.63, s.3; the Proclamation of the Commander-in-Chief of 1820, Documents Relating to the Constitutional History of Canada, 35-36; An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. III, c. 66 (1821), preamble and ss. 4, 5; An Act to Provide for the Government of British Columbia, 21 & 22 Vict., c. 99 (1858), s. 4; An Act to Make Further Provision for the Regulation of the Trade with the Indians, and for the Administration of Justice in the North-Western Territories of America, 22 & 23 Vict., c. 26 (1859); An Act to Define the Boundaries of the Colony of British Columbia; and to Continue an Act to Provide for the Government of the Said Colony, 26 & 27 Vict, c. 83 (1863); letter from Colonial Secretary Cardwell to Governor Seymour dated 1 December 1864, PAC mf reel 390.
127. By this legislation the crown confirmed, both to the natives and to the crown's own colonial administrations in British Columbia, that the law was constant in its protection as against the criminal coveting prior to treaty of the native Nations' lands by the crown's colonial governments.
128. Any breach of the prohibition against the "Pretence" of claiming native lands prior to treaty remained criminal, absolutely. No governor or commander in chief or the governments or courts or police or troops under their auspices could feign ignorance of this essential starting point in the bifurcated legal system ordained by the crown for North America. The law was so public and notorious as to render out of the question mens rea defences in relation to its breach.
129. In 1776 this same constitutional law was too much for thirteen of the colonial administrations to abide. They revolted, and by this means established their independence from the strictures of the crown's law zoning the unceded Indian territories out of bounds to their legislative and juridical reach.
130. As for the rest of British North America, the prohibition of "Pretence" and the corresponding right of crown "Protection" continued. Any assertion of a claim to land beyond the treaty frontier evidenced by crown grant remains contrary to the crown's "Pleasure," and hence treasonable.
131. All of the colonial administrations of British North America were based upon the same imperial blueprint. As Mr Justice Baldwin of the Supreme Court of the United States held in Mitchel v. United States, 9 Peters 711, 756 (1835) "This proclamation was also the law of all the North American colonies in relation to crown lands."
132. The constitutive instrument of each and every royal government took as its model those of its predecessors. Not one of them was ever constituted a "sovereign" government. Not one of them had graduated to that status prior to confederation - least of all British Columbia which province as at the time of its union, unlike the maturer colonies of the east, according to article 14 of the British Columbia Terms of Union in 1871, had not yet even achieved "responsible government," let alone sovereignty.
133. So far as court jurisdiction is concerned, in each and every colony court jurisdiction was enjoyed and exercised "as near as may be agreeable to the Laws of England, and under such Regulations and restrictions as used in other Colonies:" paragraph 1 of part II of the Royal Proclamation of 1763.
134. The imperial government was exceedingly and consistently jealous of its sovereignty, as witness An Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade, 7 & 8 Wm. III, c. 22 (1696), s. 12; An Act for the Better Securing the Dependency of His Majesty's Dominions in "America" upon the Crown and Parliament of "Great Britain,", 6 Geo. III, c. 12 (1766), ss. 1, 2; the Colonial Laws Validity Act, 1865, ss. 3, 4; the Statute of Westminster, 1931, s. 7(1); and the Constitution Act, 1982, s. 52.
135. Thus, in the pre confederation colonial era North American crown governments were constituted under the terms and conditions expressed in the royal commissions to the governors. The key principles were subordination and delegation, meaning that colonial governments never had inherent sovereign powers. Rather, they had powers expressly conceded or delegated to them, as subordinate institutions of government, by the sovereign imperial government.
136. I have fully explained the constitutional principles of subordination and delegation in chapter 2 entitled "The Prerogative Legislation" under the section heading "Subordination and Delegation Principles" in the book Native Liberty at 58-69. Furthermore, the pre confederation legislative instruments are addressed with precision in the section headed "Royal Commissions, Instructions, and the Proclamation of 1763" at 70-83. The post confederation legislative instruments are addressed with precision in Chapter 3 entitled "Continuity" under the section headings "Non-Repeal of the Prerogative Legislation" and "Positive Re-enactment: The Indian Territories Legislation" at 84-123. At 122-3 all the relevant legislative instruments which must be read together are catalogued.
137. The legal point unambiguously substantiated by the legislative instruments identified above and in chapters 2 and 3 is that that portion of the Pacific North West including what is now called British Columbia which is beyond the treaty frontier at all material times has been, and remains, "Indian territory," for constitutional law purposes, and as such beyond the legislative reach of the federal and provincial governments and correspondingly beyond the juridical reach of their non-native courts.
138. The strictly binding Privy Council case of Mohegan Indians v. Connecticut in 1773 (cited and analyzed in Native Liberty at 37-45) settled that the several Nations or Tribes of Indians are juristically sovereign bodies politic for constitutional law purposes.
139. The strictly binding Privy Council case of Campbell v. Hall (1774), 98 ER 848 (cited and analyzed in Native Liberty at 45-8) settled that the king himself was bound by the undertaking of "Protection" against the "Pretence" of pre treaty land grants made by the Royal Proclamation of 1763, and by necessary implication so also are bound the colonial governments constituted by the king under the royal prerogative.
140. The strictly binding Privy Council case of Cameron v. Kyte (1835), 12 ER 679 (cited and analyzed in Native Liberty at 48-50) settled that colonial governments, by definition, are not "sovereign." Furthermore, as subordinate bodies politic constituted pursuant to royal commissions promulgated in the form of imperial orders-in-council, colonial governments cannot possibly exercise jurisdiction or constitute courts exercising jurisdiction beyond the treaty frontier unless an express grant of such jurisdiction appears on the face of the royal commission constituting the colonial government as a government, which never happened, anywhere.
141. Thus, for example, section 109 of the Constitution Act, 1867, which confirmed that provincial title was held "subject to" the unceded Indian "Interest" in land was expressly deemed by article 10 of the British Columbia Terms of Union of 1871 equally to be applicable to British Columbia.
142. Similarly, section 129, which preserved the previously established constitutional law respecting the aboriginal rights of the native Nations beyond the treaty frontier, applies universally, as was confirmed by article 13's reference to the continuity of "a policy as liberal as that hitherto pursued."
143. In a nutshell the law is as follows. In natural law as epitomized by the Papal Bull Sublimus Deus of 1535 the native Nations are of account, and the integrity of their countries must not be disregarded by Christian states upon the pretext natives are either animals without souls or heathens without rights. In the law of nations the convention regulating the acquisition of territorial jurisdiction in North America is that discovery gives rise to a right of pre-emption as against competing European nations, provided that the European nation enjoying this pre-emptive right is bound to respect the independence of the native Nations to the extent of making treaties before purporting to exercise jurisdiction over lands in Indian occupation. In constitutional law the natural law and the international law receive common law confirmation and legislative ratification.
144. Upon the basis of an exhaustive review over the course of the past nineteen years, including the obtaining an MA in Canadian constitutional aboriginal rights history and a PhD in Canadian constitutional aboriginal rights law, I can without equivocation swear under oath that the precise wording of the legislative instruments pursuant to which constitutional jurisdiction is parceled out across Canada admits of no other possible legal conclusion. This is not a moot point. It is the rock of law upon which Canada is founded.
145. Tragically, it is also the rock of law upon which Canada is foundering. What is truly demoralizing today is that the non-native judges as a class have become used to engaging in the treason of exercising jurisdiction beyond the treaty frontier meaning, primarily, British Columbia. This treason is a juridical evil that is destroying the soul of Canada as a nation founded, according to the Constitution Act, 1982, upon respect for "the rule of law."
146. In terms of comparative law, the judges of the High Court of Australia on June 3, 1992 in the yet unreported case of Mabo v. Queensland acknowledged a conflict between precedents handed down by previous Australian judges based on the patently racist concept of terra nullius and the revised national law of Australia precluding racism.
147. In keeping with the dictates of the rule of law, these Australian judges held the offending precedents were overruled by the paramount national law. But they nevertheless maintained the untenable pretence that that national law emanated from a sovereign source, rather than from a source subject to natural, international and constitutional restrictions.
148. Thus, the Full Court by its Order did:
(1) declare that the land in the Murray Islands is not Crown land within the meaning of that term in s. 5 of the Land Act 1962 (Q.); (2) putting to one side the Islands of Dauer and Waier and the parcel of land leased to the Australian Board of Missions and those parcels of land (if any) which have validly been appropriated for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title, declare that the Meriam people are entitled as against the whole world to the possession, occupation, use and enjoyment of the lands of the Murray Islands; (3) declare that the title of the Miriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided that any exercise of those powers is not inconsistent with the laws of the Commonwealth.
149. In the Delgamuukx case of 1991 Chief Justice McEachern of British Columbia declared that in point of historical fact the Parliament of British Columbia and the Governor in Council of British Columbia had done precisely what paragraph (3) purported to condone. McEachern CJ declared that by virtue of some 13 pre confederation legislative instruments enacted by British Columbia the aboriginal rights of the native Nations of the Pacific North West validly had by necessary implication been extinguished. That is, although the 13 legislative instruments did not expressly refer to the Indian territories or aboriginal rights, the historical fact that those instruments administratively were applied beyond the treaty frontier supposedly necessarily implied a colonial government legislative intent to extinguish inconsistent aboriginal rights there.
150. Regardless of what the colonial legislature implicitly intended, the relevant legal point is that the legislature did not have jurisdiction unilaterally to extinguish aboriginal rights beyond the treaty frontier. McEachern CJ simply ignored the reminder made by Hall J in the 1973 Calder case that colonial governments were not sovereign, and repeated the erroneous assumption previously made by Judson J that the Governors of British Columbia were sovereign entities.
151. It is worth observing that McEachern CJ did not base his decision upon the terra nullius myth that the High Court of Australia exploded in the Mabo case. Rather, he based it upon the same extinguishment point that the High Court of Australia purportedly permitted in paragraph (3) of its Order. This is interesting because it is historically apparent that if the colonial legislature really did intend legislatively to extinguish aboriginal rights, it formulated that intent upon a terra nullius philosophy. That is, the racist position rejected by the Australian Court was embraced by McEachern CJ, albeit by a circuitous route. The Australian Court re-instituted the racist position, for that country, when it made its extinguishment assumption.
152. In their passages dealing with the extinguishment jurisdiction both Mabo and Delgamuukx are bad law, and for the same reason: the mistaken attribution of sovereign power to merely subordinate constitutional governments. As merely subordinate constitutional governments neither Canada nor Australia, nor their non-native courts, can, legally, get away with the pretence that the whites' national law unilaterally can extinguish the competing national rights of the native Nations. Whether they can get away with it politically, and then tailor the law to exonerate the crime, is the real question.
153. Where is the honour and justice in saying the homeland of the aborigines is not terra nullius, if in the next breath you say, as the Australian Court did, that the national rights of the aborigines can, unilaterally, be extinguished by the white master race? If the land is not terra nullius, then it is occupied by human beings whose right of self determination must, according to natural law, international law, and the constitutional law of every country rejecting blatant racism, be respected. Unilateral extinguishment is racism, and the Mabo case is both patronizing and cruel for recognizing prior occupancy but not the inalienable rights that accrue to human beings from prior occupancy.
154. The critique of the Delgamuukx case must be based upon the realization that legal counsel acting for the native Nation involved sued on behalf of that native Nation in the non-native Supreme Court of British Columbia without reserving the argument that that non-native court had no jurisdiction beyond the treaty frontier.
155. Having in this particular fashion waived its sovereign immunity in the non-native courts, the native Nation correspondingly admitted that the provincial Supreme Court Act applies beyond the treaty frontier.
156. If the Supreme Court Act applies beyond the treaty frontier, then logically speaking the provincial Land Titles Act must also apply beyond the treaty frontier.
157. If the Land Titles Act applies beyond the treaty frontier, then it is open to conclude that by ignoring aboriginal rights the provincial legislation by necessary implication extinguished aboriginal rights.
158. Once any non-native legislation applies beyond the treaty frontier, in principle all non-native legislation applies beyond the treaty frontier. And when that happens, aboriginal rights are not rights at all, but merely a pretext for whining for special privileges.
159. By acknowledging the jurisdiction beyond the treaty frontier of the court constituted by the non-native government, the native Nation in Delgamuukx by necessary implication acknowledged the jurisdiction of the provincial legislature beyond the treaty frontier.
160. The die was thus cast from the outset for the decision of McEachern CJ. For, from that point on, that is from the day the action was commenced in the form it took, all that was left for the native Nation to argue was that the provincial legislation did not extinguish aboriginal rights. It was too late to argue that it could not extinguish aboriginal rights.
161. The reason the provincial legislation could not extinguish aboriginal rights is that it has no jurisdiction beyond the treaty frontier. Not only does it have no jurisdiction, but the assertion of jurisdiction constitutes the crime of treason.
162. What is truly sinister is that the legal and political establish of Canada knows this, and is engaged in a massive conspiracy to thwart the rule of law upon the "existing" aboriginal rights issue.
163. A political revision of the Canadian constitution is being negotiated upon the basis of the treasonable "Pretence" that the exclusive jurisdiction of the native Nations beyond treaty frontier in British Columbia is not already secure as a matter of "existing aboriginal rights" confirmed by section 35(1) of the Constitution Act, 1982. The individual natives doing the negotiating are agents of the non-native governments, being products of the illegal Indian Act system fostered by the non-native governments to crush the native Nations own aboriginal hereditary systems. The lawyers representing the natives in Canada are in the service of the collaborating natives, because those are the only natives who have the money with which to pay lawyers. The money all comes from non-native governmental or philanthropic institutions whose interest conflicts with the native Nations' aboriginal governments' interest. The lawyers, governmental and philanthropic institutions' interest conflict with the hereditary governments' interest, but coalesces with the Indian Act collaborators' interest. The collaborators are well paid executives whose jobs as federal agents are at risk if the hereditary system regains power. And so the collaborators and their lawyers take the Judas money, while spewing rhetoric all the way to the bank about the inherent self-government right of the native people, a right they have sold out in the very terms of reference of the negotiations in which they employ their manipulative skills.
164. While this is going on politically, the non-native judges of British Columbia are abusing their administrative control of the legal process by stonewalling the existing law respecting aboriginal rights by preventing me from adducing that law, while at the same time ushering the Delgamuukx case through the appeal process in order to establish a precedent that pre-empts the existing law, ever, from being adduced.
165. The race is to the swift, in the sense that the Delgamuukx scam is coordinated with the contrived and fraudulent national constitutional negotiations.
166. The public interest in upholding the rule of law outweighs the public interest in defrauding the native Nations of the rights under existing law. Secondly, the public interest in rejecting racism outweighs the public interest in assimilating the natives.
167. The existing law respecting aboriginal rights beyond the treaty frontier is based ultimately on the rejection of racism and correspondingly upon the recognition in natural law, international law and constitutional law of the political independence of the native Nations.
168. This non-racist position was endorsed as acceptable by the Supreme Court of the United States in Morton v. Mancari 417 US 535, 554-5 (1974), which held that the hiring preference of the Bureau of Indian Affairs (BIA):
as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi- sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion...As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislation will not be disturbed.
169. In contrast, the approach of the Supreme Court of Canada has embraced the racism rejected by its American counterpart. Thus, in AG Canada v. Canard [1976] SCR 170, 176, 187, 204, 207, the court observed:
Section 91(24) of the British North America Act gave to the Parliament of Canada exclusive jurisdiction over the subject of "Indians and Lands reserved for the Indians."
/ / /
The subject matter defined in s. 91(24) necessarily contemplates legislation respecting the status and rights of a particular class of persons. If the words "equality before the law" in s. 1(b) of the Bill of Rights were to be construed as precluding legislation of this kind it would prevent Parliament from exercising the power entrusted to it by s. 91(24).
/ / /
The legislative history of the western world has recognized a great diversity of status among which those of married women, infants, aliens, villains, nobles, slaves, outlaws, merchants, illegitimate children, lunatics, bankrupts, clerics, etc. Flowing from status are special rights, duties, privileges or incapacities which are the consequences of status and which are sometimes called its incidents.
/ / /
The British North America Act, 1867, under the authority of which the Canadian Bill of Rights was enacted, by using the "Indians" in s. 91(24), creates a racial classification and refers to a racial group for whom it contemplates the possibility of special treatment.
170. From this point on I shall express and defend my belief that for public policy reasons, nonetheless than for technical legal reasons, rather than continue the treason of applying the racist Indian Act beyond the treaty frontier in British Columbia, existing law precluding the crime should be addressed and respected.
171. From this point on it will be important to bear in mind that, in virtue of sections 109 and 129 of that same British North America Act, 1867, the previously established law guaranteeing the exclusive jurisdiction of "the several Nations or Tribes" beyond the treaty frontier was saved, and section 91(24) must be subject to that proviso.
172. To adopt the terminology employed by the American Supreme Court in Morton v. Mancari that previously established law thus relates to "quasi-sovereign tribal entities," rather than to any "distinct racial group." That is, there is a fundamental difference between existing law governing the Indian territories beyond the treaty frontier, and existing law governing Indian reserves within the treaty frontier. The former is non-racist, because based upon the political independence of the native Nations as "quasi- sovereign tribal entities." The latter is racist, at least to the extent it includes Indian Act rights in addition to treaty rights, because the Indian Act is based upon section 91(24) which, according to the Supreme Court of Canada in the Canard case, "creates a racial classification and refers to a racial group for whom it contemplates the possibility of special treatment."
173. The former is the first half of what the phrase "existing aboriginal and treaty rights" refers to in section 35(1) of the Constitution Act, 1982. That is, existing aboriginal rights are those political rights preserved to the "Nations" under previously established natural, international and constitutional law that both ante dates and remains separate and distinct from the racial rights created subsequently by the federal government pursuant to the section 91(24) grant of jurisdiction over "Indians, and Lands reserved for the Indians." The political aboriginal rights exist only in relation to territory beyond the treaty frontier. The racial Indian Act rights exist only in relation reserve land situate within the treaty frontier.
174. "Treaty rights" are those contractual rights identified in the cession or purchase instruments between a native Nation and the crown, recording the agreed relinquishment of the Nation's independence in return for those recorded contractual rights. They exist only in relation to reserve land situate within the treaty frontier. These also are expressly saved by section 35(1)'s constitutional entrenchment of "existing aboriginal and treaty rights," being the second half of the expressly preserved class.
175. In contrast, Indian Act rights are neither existing aboriginal rights nor existing treaty rights. Rather, they are domestic statutory rights, delegated within the treaty frontier after a treaty has been made for the purpose of supplementing the contracted treaty rights. Although Indian Act rights supplement existing treaty rights, they nevertheless remain outside the saving in section 35(1) made in favour of "existing aboriginal and treaty rights."
176. This observation becomes crucial when one assesses the ramifications of section 15 of the Constitution Act, 1982 upon the scourge of racism.
177. Section 35(1) existing aboriginal and treaty rights survive section 15 precisely because section 35(1) expressly says they do. In contrast, Indian Act rights are not expressly saved by section 35(1). Not being expressly saved, they do not survive section 15(1) - which prohibits rights based upon racial discrimination. Furthermore they are not saved by the additional saving provided by section 15(2) in respect of affirmative action programs since Indian Act rights are not temporary affirmative action rights but rather permanently segregated rights. The components of this conclusion can be elaborated as follows.
178. The only exception to section 15's preclusion of racist legislation is provided by subsection (2). That subsection makes affirmative action programs an exception to the racial discrimination prohibition. Thus, it enacts:
Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
179. Affirmative action programs are fundamentally different from permanent legislation like the Indian Act. By intent and definition affirmative action programs are meant to self-destruct. That is, when the inequality they are designed to redress has been redressed they are redundant. In this sense, affirmative action programs legislatively are intended to terminate racial inequality, unlike the Indian Act the intent of which is permanently to divide. Affirmative action legislation ultimately is integrationist. In contrast, the Indian Act ultimately is segregationist.
180. The legal point established by the Supreme Court of Canada in the 1976 Canard case is that the Canadian Bill of Rights' 1960 prohibition of racism is ineffective (or, given cases like Drybones, Lavall and Lovelace at best only marginally effective) in the Indian context.
181. The Bill of Rights is ineffective because it was only enacted by the Parliament of Canada. For this reason, as a merely domestic act the Canadian Bill of Rights must be read subject to the paramount constitutional act, the Constitution Act (also known as the British North America Act), 1867. The point, according to the Supreme Court of Canada in Canard, is that the prohibition of racism made by the servient domestic legislation, the Bill of Rights, can not possibly override the express grant of racist jurisdiction made by the dominant legislation, the 1867 constitutional act.
182. But that argument can not survive section 15(1) of the Constitution Act, 1982.
183. Unlike the Canadian Bill of Rights, the Constitution Act, 1982 has constitutional weight, and not merely domestic weight. Therefore, whereas section 1(b) of the Bill of Rights was ineffective, section 15(1) of the Constitution Act, 1982 is effective.
184. Section 15(1) has rendered the Indian Act ultra vires, that is, beyond the power of the federal government to enact. The Indian Act, as Canard held, discriminates upon the basis of race. That was permissible in 1976, when Canard was decided, because section 1(b) of the Bill of Rights was superseded by section 91(24) of the British North America Act, 1867. But now, as of April 17, 1982 when section 15 of the Constitution Act, 1982 came into effect, section 91(24) can no longer be used to justify the Indian Act's racial discrimination.
185. Since the sine qua non of section 91(24) of the Constitution Act, 1867, as determined by the Supreme Court of Canada in Canard, is that it "creates a racial classification and refers to a racial group for whom it contemplates the possibility of special treatment," the Indian Act, being justifiable only in terms of section 91(24), is therefore unconstitutional.
186. Speaking strictly, the unconstitutional character of section 91(24) and the Indian Act makes no difference to the political rights of the native Nations beyond the treaty frontier. For the reasons explained in detail above, section 91(24) and the Indian Act do not apply beyond the treaty frontier. Even so, if some judge willfully blinds himself to the law precluding his own jurisdiction beyond the treaty frontier, as is in my experience the practice in British Columbia, the unconstitutional character of section 91(24) and the Indian Act provides an alternative line of defence for a native Nation that would resist the jurisdictional encroachment.
187. For example, suppose a band government dismisses from its employment a native national who had been acting in accordance with the native Nation's law, but in contravention of a band government policy. Suppose that this takes place beyond the treaty frontier in British Columbia. In the first place, the dismissal would be wrongful because the band government has no jurisdiction beyond the treaty frontier capable of superseding the Nation's authority. Secondly, the band is not an "employer," given that the Indian Act under which the band derives its jurisdiction is unconstitutional because in contravention of section 15 of the Constitution Act, 1982. For either reason, the dismissal is prima facie wrongful, as a matter of pure law.
188. To give a second example, suppose a band government is purporting to sell the native Nation's right to stewardship over a hereditary chief's land, without the consent of the hereditary chief in question. For the same two legal reasons, namely section 129 of the Constitution Act, 1867 and section 15 of the Constitution Act, 1982, the sale prima facie would be illegal, as a matter of pure law. Furthermore the knowing payment of money by the federal government to the band government under these circumstances would constitute misappropriation of public tax funds, as well as fraud, treason and complicity in genocide.
189. In the result, the crucial legal classification today is whether territory lies beyond the treaty frontier or within the treaty frontier. If territory lies beyond the treaty frontier, as does most of British Columbia, then "existing aboriginal rights" law under section 35(1) of the Constitution Act, 1982 guarantees the native Nations' exclusive territorial jurisdiction. Alternatively, the Indian Act is unconstitutional because racist and in consequence of that act's section 15 the hereditary governments have jurisdiction by default.
190. On the other hand, if territory lies within the treaty frontier then the band government prima facie does have jurisdiction, in virtue of the treaty recognizing the band government together with section 35(1) which affirms "existing treaty rights." The fact that the Indian Act is unconstitutional because racist does not deprive the band of jurisdiction, within the treaty frontier, because jurisdiction can rest upon the treaty, and is not entirely dependent upon the act. The situation is different beyond the treaty frontier because there there is no treaty to provide an alternative basis to the act upon which to rest the band's jurisdiction.
191. As to territory beyond the treaty frontier the non- native courts prima facie do not have jurisdiction to decide civil disputes. The courts of the native Nations do.
192. In contrast, as to territory within the treaty frontier the non-native courts prima facie do have jurisdiction to decide civil disputes. The courts of the native Nations do not.
193. The present constitutional negotiations are being steered toward the entrenchment of a right of "Indian self- government." In essence what this really means is the elevation of the Indian Act to constitutional status.
194. The racial discrimination epitomized by the Indian Act that is now unconstitutional in light of section 15 of the Constitution Act, 1982, will therefore receive a jump start that ensures both its survival and its permanence thereafter.
195. Seen from this perspective, it is apparent why the natives funded by the non-native governments are lining up behind the self government amendment. For them, personally, it is a job security program, in jobs where they are paid incomes substantially higher than they reasonably could expect to command in a marketplace based upon merit rather than upon political manipulation.
196. If the grass roots native people had the option of individually receiving the money that now is paid to the non-native bureaucracy and the native collaborators, they would seize the opportunity.
197. In that event, the non-native bureaucracy and the native collaborators would be out of work. Their function theoretically to administer funds for the grassroots native people but which in practice leaves the people virtually nothing after the cost and waste of the corrupt administration, would be redundant.
198. The people would gain a standard of living that would render other affirmative action programs largely superfluous.
199. The cycle of permanent ghettoes of poverty stricken and despairing native people would be broken, and the process of reconstruction of lives from within could begin as the people entered an era of personally having the financial means to make individual choice and hence responsibility and accountability viable.
200. The June 1992 edition of Reader's Digest contains an article entitled "Native Self-Government: Who Pays?" which advises (at 93):
The 1996 census counted 387,829 status Indians, 59,745 Metis and 27,290 Inuit. For Indians alone, the federal government has budgeted $4.4 billion for its 1992-93 program, or $12,359 for each man woman and child, just to fulfill its interpretation of treaties and other statutory obligations. Most of this money goes to paying the 3807 employees of DIAND (Department of Indian Affairs and Northern Development), building houses on reserves, paying the cost of administering Indian bands, and providing Indians with education free through university, health and dental care, job creation and employment training.Indians are also eligible for most of the social programs available to Canadians generally, such as family allowance, unemployment insurance and old age security. When spending on Indians under these programs is added to the $4.4 billion, the total reaches nearly $7 billion. And Indians living, working and shopping on reserves do not pay income tax, sales tax, property tax or GST.
Federal-budget documents for 1991-92 state that of major subsidies paid by Ottawa, "the largest component of this area of spending, as well as one of the fastest growing, is transfers for Indian and Inuit programs." The $4.4-billion Indian program spending could exceed $10 billion by the year 2000. This is due in part to a rapidly increasing Indian population, the exemption of Indian programs from federal-spending caps, and the lack of control DIAND has over money it gives directly to Indian bands.
Federal Auditor General Denis Desautels worries that this spending is often inadequately accounted for. DIAND now turns over 72 percent of its $2.6-billion budget for goods and services to Indian bands and tribal councils. Although they are supposed to account for each object of expenditure, few bands keep proper records. Therefore, Desautels says, DIAND does not have assurance in all cases that the funds are used for the purpose intended "or managed with due regard for economy, efficiency and effectiveness."
201. Based upon these figures, each Indian man, woman and child is supposedly getting the benefit of $20,000 each per year. For a family of then, a not uncommon family size upon reserves, that represents an annual family income of $200,000. A single mother with three children supposedly receives the benefit of an annual income of $80,000. Since these figures are tax free, the real income at a 40% total tax rate supposedly is $280,000 and $112,000 respectively.
202. Having resided upon Indian reserves for 8 years and worked in this field for 19 years, I can swear for an absolute certainty that very little of this seemingly grand largesse reaches the grassroots people. Rather, they live in conditions of deprivation and poverty, sometimes squalor, always severe hardship.
203. Where does all the money go? The trustees of its administration keep it or waste it. Who are the trustees? The non-native bureaucrats, the Indian Act collaborators, and the class of non-native hangers-on that advise them: the professional Indian performers and their entourages of lawyers and handlers who are being paid to negotiate the revision of the Canadian constitution and treaties with the Indians.
204. Those revisions almost certainly will include the right of "self-government." To what end? Will the corrupt establishment that the native collaborators now constitute relinquish control of the money to which they have become accustomed? I believe that self-government as now promoted by the legal and political establishment means little more than window dressing, coupled with a transfer of some of the non-native bureaucracy's political and economic dominance of the grassroots people to the elite constituted by the native collaborators.
205. The only natives who stand to benefit are those constituting the corrupted and privileged class doing the constitutional negotiating: the proteges of the Indian Act system, a system that is unconstitutional because racist from inception within the treaty frontier, and unconstitutional because treasonable from the date of implementation beyond the treaty frontier.
206. The point of the proposed self-government amendment is to legitimize the racist regime and excuse the treason.
207. Its practical result will be to entrench the criminals in power.
208. The public, native and non-native alike, is being defrauded.
209. This does not represent reform. It represents a continuation of the same regime of corruption that has brought the native people to despair for help not received, and the non-native people to resentment for thanks not given.
210. As the Readers Digest indicated at (91):
After decades of indifference to Indian demands, Canadians increasingly support calls for native self- government and for settlement of land claims and treaty rights. The Spicer commission, which toured Canada in 1991 seeking citizens' opinions on constitutional reform, estimated that more than 85 percent of non-aboriginal people favoured more equitable treatment for the country's Indians, Metis and Inuit. Last January 58 percent of Canadians supported self-government for aboriginal people.
/ / /
But what native leaders mean by self-government is very different from what Canadians seem to think they mean...
/ / /
Canadians and the native leaders also disagree over the financial obligations of governments to self- governing natives. Almost half of those polled by Angus Reid thought that federal payments should decrease after natives become self-governing. The question then arises: shouldn't natives who live on reserves tax themselves to pay for local improvements, just as rate payers in cities and towns are taxed to cover the costs of municipal services?
211. The public has no conception of the reason the tax exempt status of natives even exists, or the limits of that exemption.
212. At constitutional common law the native Nations beyond the treaty frontier were quasi-sovereign bodies politic. The Royal Proclamation of 1763 confirmed the common law, when it enacted "the several Nations or tribes...should not be molested or disturbed in...their Hunting Grounds." In furtherance of this general injunction, the proclamation in particular also confirmed the constitutional common law position that royal governments could not grant the natives' national lands, when it deemed such land grants to constitute a "Pretence...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." Since the native Nations are independent in relation to lands beyond the treaty frontier, therefore it was out of the question for royal governments to tax them.
213. By "out of the question" I mean literally so. Obviously, no government can tax the nationals of another independent government in relation to the territory that is reserved for the unmolested and undisturbed possession of the latter.
214. Naturally, if a native national should emigrate from the native national territory and take up residence within the treaty frontier in the territory of a royal government, then that native was expected to pay taxes for income earned there.
215. Regarding reserves within the treaty frontier the tax exemption continues as an implicit term of the treaty contract, regardless of the Indian Act. This is essentially what the Indian Act confirms, when it provides as it does in section 89 that on-reserve income is tax exempt whereas off-reserve income is taxable. The Indian Act did not create this law. It merely confirmed a law that is part of the founding legal framework of the country, the very social compact upon which the country is based.
216. A "reserve" in the section 2(1) Indian Act sense of land "set apart for a particular band" is native national land held back from the native Nation's earlier relinquishment of independence. As a matter of existing constitutional law there is no basis for royal governments taxing natives in relation to any activity upon land beyond the treaty frontier. This has absolutely nothing to do with the domestic legislation known as the Indian Act, and everything to do with the higher natural, international and constitutional law that precedes the Indian Act and that remains paramount over section 91(24) of the Constitution Act, 1867 and section 35(1) of the Constitution Act, 1982.
217. Canada is now in a legal bind of its own criminal making. To recapitulate: pre confederation British Columbia invaded the Indian territories beyond the treaty frontier. That British Columbia today consists in part of territory within the treaty frontier and in part of territory beyond the treaty frontier is legally indisputable. Governor Douglas made treaties on Vancouver Island and commenced negotiations for treaties on the mainland. This process was discontinued by his successor Governors. They simply applied the provincial legislation beyond the treaty frontier as if the land was terra nullius. At constitutional common law that application constituted treason at the time it began. In terms of the Royal Proclamation's re-iteration of the common law, that application was classically a "Pretence" contrary to the crown's "Pleasure," patently in breach of the crown's constitutionally undertaken "Protection" obligation. Following confederation, the federal government recognized that the provincial land legislation was unconstitutional beyond the treaty frontier. Thus, by the Minute of the federal Privy Council approved by the Governor General and dated 23rd January 1875 Canada approved the Report of the Hon. the Minister of Justice dated 19th January 1875. That report acknowledged the existing paramount law precluding grants beyond the treaty frontier, and recommended disallowance of the British Columbia crown lands legislation pending treaties with the native Nations. Pursuant to sections 91(24), 109, 129 and 146 of the Constitution Act, 1867 and articles 10 and 13 of the British Columbia Terms of Union of 1871, the federal government was duty bound to exercise its jurisdiction to disallow the offending provincial legislation under sections 56 and 90 of the Constitution Act, 1867. This is what the Minister of Justice reported and correspondingly what the federal government legislatively by Minute-in-Council admitted. That Minute-in- Council was never acted upon. Rather, the federal administration in the following year enacted the Indian Act of 1876, and then began the long night of treason beyond the treaty frontier that continues to this day. The 1876 Indian Act introduced the modern restricted definition of "reserve," being land set apart for a particular band. Then it started in earnest the process of setting apart such reserves for particular bands, even in regions where no treaties were made. You will recall that customarily reserves were tiny tracts held back for the use of local bands from the surrender by native Nations of their aboriginal independence over their once vast Hunting Grounds. Since in most of British Columbia treaties were not entered into, therefore another mechanism was employed. Based upon the fraudulent and treasonable "Pretence" that the provincial government could grant land beyond the treaty frontier, the provincial government by Orders-in-Council granted particular tracts to the federal government. Then, the federal government by Orders-in-Council set apart these tracts for particular bands. This whole process from beginning to end was, and remains, fraudulent and treasonable.
218. In order to get away with the scam, the federal and provincial governments conspired in a genocidal program to break the native national governments beyond the treaty frontier. Specifically, this meant genocidally doing away with the traditional hereditary system and replacing it with white model puppet governments called "bands" within the meaning of the Indian Act. When I employ the term "genocidal" I do so in the sense defined for legal purposes by the Convention for the Prevention and Punishment of the Crime of Genocide, 1948:
Article I.
The Contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime which they undertake to prevent and to punish.
Article II.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- (a) Killing members of the group;
- (b) Causing serious bodily or mental harm to
- members of the group;
- (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- (d) Imposing measures intended to prevent births within the group;
- (e) Forcibly transferring children of the group to another group.
Article III.
The following acts shall be punishable:
- (a) Genocide;
- (b) Conspiracy to commit genocide;
- (c) Direct and public indictment to commit genocide;
- (d) Attempt to commit genocide;
- (e) Complicity in genocide.
Article IV.
Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Article V.M
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the purposes of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III.
Article VI.
Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which have accepted its jurisdiction.
Article VII.
Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Article VIII.
Any Contracting Party may call upon the competent organs of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.
Article IX.
Disputes between the Contracting Parties relating to the interpretation, application of fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Article XII.
Any Contracting Party may at any time, by modification to the Secretary General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.
219. Canada by constitutional common and statutory law has jurisdiction "for the conduct of foreign relations" affecting the Indian "territories," within the meaning of those phrases in Article XII. In point of law, Canada has precisely two rights, and two rights only, in respect of those territories: the right of pre-emption regarding the purchase of them, and the right of foreign relations affecting them. However, Canada has not filed a "notification addressed to the Secretary-General of the United Nations" extending the Convention to the Indian territories.
220. It therefore might be argued that the Convention applies only within the treaty frontier in Canada, but not beyond it in the Indian territories. I reject this argument on the ground on its unconscionability and impracticability. Canada now takes the fraudulent and treasonable position that it has complete jurisdiction beyond the treaty frontier. This is a necessary consequence of Canada's usurpation of the jurisdiction of the native Nations since the Indian Act of 1876. That is, after Canada decided to commit treason by evading its own Minute-in-Council of 23rd January 1875, by applying the Indian Act to unpurchased British Columbia, it thereafter has maintained the criminal "Pretence" that it has jurisdiction beyond the treaty frontier. For this reason, Canada either could not raise an Article XII objection, or if it did would be estopped from relying upon the chicanery.
221. Article XII aside, there are four possible remedies for being victimized contrary to Article III available to a native Nation from beyond the treaty frontier.
222. First, as provided by Article VI the native Nation can purport to be the "State" with jurisdiction to try such offences in the Nation's unceded territory. Several native Nations for whom I act as legal counsel have in fact adopted this particular remedy, it being consistent with their sovereignty position based upon their own native law. It is also consistent with the existing natural law, international law and constitutional law that recognizes and affirms the independence for juristic purposes of native Nations in relation to territory not ceded to or purchased by the crown.
223. The difficulty with relying upon this first remedy alone is that the criminals against whom the conviction in the native Nation's court is registered have overwhelming police and military power that they employ to effect the very crime in question.
224. The native Nation physically and forcibly can not impede the crime, and Canada voluntarily will not obey her own law.
225. In legal theory Canada by its Constitution Act, 1982 "is founded upon principles that respect the supremacy of God and the rule of law." Living up to this supreme value is elusive. At the moment, only powerless idealists in British Columbia have indicated any interest in protecting the native Nations, and these few individuals are pilloried as extremists or even terrorists and traitors for speaking out. The yellow journalism in Canada upon this particular issue is co-ordinated and monolithic.
226. The second alternative existing legal remedy is for the native Nation to take its complaint into the non-native courts system of Canada.
227. The difficulty with this particular remedy is twofold. First, the non-native judges are the criminals since at worst they refuse to address the law constituting their crimes, and then react viciously and vindictively to attempts to bring that law to their attention, and at best they refuse to address the law, and then blithely, pleasantly and complacently continue on with its breach. Either way, having willfully blinded themselves to the paramount law that both precludes and renders criminal the exercise by them of territorial jurisdiction beyond the treaty frontier, the non-native judges persist in exercising jurisdiction and implementing other federal and provincial laws that are also unconstitutional and criminal in the face of the same paramount law those judges arbitrarily have refused to address.
228. Second, and most importantly, it ostensibly defeats the native Nation's assertion of juristic independence to be seen attorning to the competing jurisdiction of the non- native court system. The only way round this particular impediment is for the native nationalists to limit their involvement in the non-native system to assertions that the non-native system has no jurisdiction.
229. This can be done in several ways. For example, when the provincial government of British Columbia and logging companies turn to non-native courts for injunctions to preclude self help native remedies like road blocks on native national territory beyond the treaty frontier, the native nationalists can appear for the limited purpose of objecting to the usurpation of territorial jurisdiction by those non-native courts. When natives are charged for breaching the injunctions for criminal contempt of court, they can plead sovereign immunity in defence. When natives are charged with hunting or other offences they can raise in their defence both the non-native courts' prima facie lack of territorial jurisdiction, and their own sovereign immunity. In actions where native Nations have themselves sued, or in which being sued they have appeared without objecting to non-native court's territorial jurisdiction, they can immediately move for summary judgement or dismissal on the pure law jurisdictional ground.
230. At least if the rule of law were actually functioning in the non-native court system, these native Nations could force the existing law to be addressed in those ways. However, the rule of law is not functioning beyond the treaty frontier in the non-native court system upon this particular issue. I base this observation upon personal knowledge, having since November 6, 1990 tried repeatedly but unsuccessfully to have the law addressed by non-native courts in British Columbia in a whole raft of different cases.
231. It is really quite mind-boggling, the lengths to which the legal and political establish and its native collaborators have trashed the rule of law in their endeavours to evade accountability for their treason and crimes. When I first came to British Columbia from Ontario on November 6, 1990, I learned of the natives' fear of a criminal conspiracy fraudulently, treasonably and genocidally to steal their lands in future, and to whitewash past offences. I argued then that it was only a matter of placing the existing law before the judges, that this had not been done before, and that when it was done the rule of law would protect the native Nations.
232. Since then, I have been in court after court, only to find that the natives' worst fears were conservative. This is not a matter of conjecture or speculation. A permanent court record now exists, running to some 3000 pages of transcripts, in which the judges' conspiracy is established beyond a reasonable doubt.
233. But even armed with this irrefutable evidence I am unable to get the charges laid, let alone heard. Every single non-native judge, federal, provincial, civil and criminal has actively stonewalled the law, in circumstances where the criminal consequences of their actions have painstakingly been filed by me in writing with them.
234. They simply are willfully blind, and deaf, to the law that it is their sacred and sworn trust responsibility to address and implement.
235. All of the machinery of the administration of justice, from the court registrars to the local police and the Canadian Security and Intelligence Service, the Law Societies of the supposedly independent bar, everyone, literally everyone, refuses to get involved with preventing the crimes, or putting them to their proof. Everyone in authority is "just following orders," and everyone not in authority defers to those who are.
236. Since July 2, 1991 Chief Justice Esson of the British Columbia Supreme Court has stonewalled granting my clients an appointment to have the real law addressed that in the normal course would have been heard and disposed of within two weeks. While this has been going on the Court of Appeal has been expediting the appeal in the Delgamuukx case. For the reasons explained above, the Delgamuukx case did not address the law precluding the Supreme Court's jurisdiction. Nor did it address the law that constitutes the Supreme Court's usurpation of jurisdiction treason and complicity in genocide. Five Court of Appeal Judges are deciding the Delgamuukx appeal. Of those five, four, Lambert, Taggert, Macfarlane and Wallace JJ, have actively participated in the stonewalling of the law precluding their own jurisdiction in the cases in which I have been involved as legal counsel. That is, they are demonstrably and as a matter of record active participants in the scam. This was pointed out by me not only to these judges themselves, but also to several other judges, including Keith Libby, the Associate Chief Justice of the Provincial Court. He acknowledged as a matter of record that regardless of the law neither he, nor in his opinion any other judicial officer in Canada, would ever permit the charges to be heard. Having said this, he sealed up the Attorney General's own Exhibit #8 in the case before him.
237. That Exhibit was expressly represented by the Attorney General as itemizing some 32 pages from the arguments put before Chief Justice McEachern at trial in the Delgamuukx case, pages upon which the territorial jurisdiction argument and the authorities relied upon by me supposedly were raised and hence disposed of by McEachern.
238. I know this for a lie, and accordingly challenged the judge to read those pages before presuming to apply the Delgamuukx case as a precedent disposing of my argument.
239. Rather than read the pages, Judge Libby refused to look at them, even though they were the crown's Exhibit, not my clients'.
240. The Attorney General refuses to produce those pages from its records.
241. The Registrars of the Court of Appeal and the Supreme Court of British Columbia refuse to produce those records, even though they are public documents.
242. Having conspired in this fashion to evade the conclusive proof that Delgamuukx can not possibly constitute a precedent, Judge Libby on July 6, 1992 then applied it as a precedent, without assigning reasons.
243. He just did it, even though he and I both know his action is criminal, but that for practical purposes he is immune from prosecution due to his fellow conspirers' absolute control of the legal process. Thus, when I seek to charge him with the crime of treason and complicity in genocide, the other judges pretend that the only remedy is to appeal him, knowing full well that the Court of Appeal will ensure that the appeal is hung up indefinitely, like the earlier appeals criminally kept in abeyance through bureaucratic intransigence since July 2, 1991.
244. After a year and a half of attempting to have the law addressed, I believe that Judge Libby was correct in his assessment that regardless of the law the non-native legal system will not do its duty and provide a remedy. The attempts to force it to do so will nevertheless continue for so long as my clients have the heart to maintain their struggle.
245. In the meantime, the rule of law in Canada is proving to be a cruel farce.
246. The third alternative existing remedy is to have recourse to the International Court of Justice (ICJ).
247. Under Article 34 of the Statute of the International Court of Justice that tribunal has jurisdiction to hear disputes brought by one "State" against another "State." Canada is such a "State."
248. The practical question is whether a native Nation from beyond the treaty frontier is also a "State."
249. The argument against this status is that since in constitutional law and international law Canada has jurisdiction in respect of foreign relations affecting the unceded Indian territories, that therefore the native Nation is not a "State" within the meaning of Article 34.
250. On the other hand, there is no definition of the term "State," neither in the Statute of the Court, nor in the Rules of the Court, nor in any binding precedent. "State," for jurisdictional purposes, is not authoritatively defined anywhere. "State" is left as including a member nation of the United Nations and any other nation that files a declaration in the proper form agreeing to be bound by decisions of the ICJ.
251. Accordingly, my clients filed the proper form in the proper way attorning as a "State" to the jurisdiction of the ICJ. That is, they filed a Declaration pursuant to Resolution 9 (1946). In these circumstances, Article 36(6) of the Statute applies:
PROCEDURE
Article 36.
251.1 In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
252. Instead of placing the jurisdictional dispute before the Court to decide as expressly required by Article 36(6), the Registrar of the Court refused to place the native Nation's submission before the Court, on the ground that the native Nation was not a "State."
253. I objected to this rejection, on the ground that this was for the Court to decide, judicially, having listened to the law yet to be adduced by my clients and bearing upon the issue.
254. That law, as outlined above, settles that the native Nation beyond the treaty frontier is juristically sovereign. That is, existing law establishes that although Canada has jurisdiction to conduct foreign relations with respect to the native Nation's territory, nevertheless the native Nation retains exclusive court jurisdiction in relation to that territory.
255. The argument to be put forth before the Court is that an appropriate test for "State" can be the juridical test, as an alternative to the conduct of foreign relations test.
256. A purpose of the ICJ is to act as a third part judicial tribunal in situations where nations have a dispute and due to apprehension of bias neither wants to attorn to the jurisdiction of the courts of her adversary. Thus a "State," vis a vis another "State," exists for ICJ purposes whenever two nations that are juristically independent have an irreconcilable dispute. The ICJ thus serves as the rule of law's alternative to war. That, from its inception, has always been the primary rationale for the creation and maintenance of the Court.
257. Rather than let the ICJ listen to this argument and address the law upon which it is based, the Registrar of the Court made a peremptory and arbitrary bureaucratic decision that the native Nation was not a "State." The decision was peremptory and arbitrary in the precise sense that it was based on an a priori assumption that itself was based upon willful blindness to the law that refutes the assumption.
258. The decision was also ultra vires, that is beyond the jurisdiction of the Registrar to make, because Article 36(6) expressly reserves arguments going to the Court's jurisdiction to the Court itself, not to an administrative Court official looking after the mechanics of placing legal issues before the Court.
259. I objected. The Registrar got the President of the Court administratively to back him up, again without putting the issue to the Court as expressly required by Article 36(6).
260. In the result, the native Nation administratively has been stonewalled from having the law addressed that refutes the assumption that is resulting in the annihilation of its existence: genocide.
261. When I seek to bring the Registrar and the President of the Court to justice for their complicity in genocide pursuant to Article III(e) of the Convention for the Prevention and Punishment of Genocide, 1948, I am again stonewalled administratively.
262. The Netherlands, where the crime took place, replies that it has no jurisdiction to intervene due to the diplomatic immunity in that country of the Registrar and the President.
263. The United Kingdom, where the Registrar and President are citizens, does not deign to reply to my information indicting them. I am an officer of the Supreme Court of Ontario, one of Her Majesty's royal courts, and as such sworn to uphold the rule of law and oppose its suborning, but still the United Kingdom does not deign to respond, let alone refute the law upon which I rely.
264. The rule of law has in this fashion been held in contempt by the officials charged internationally with fostering it, the same as it has been held in contempt domestically within Canada.
265. The rule of law internationally is proving to be a cruel farce.
266. The hypocrisy of the guardians of the role of law both nationally and internationally is in an exposed position. Justice is not being done. Justice is being seen not done. Perhaps never more than now in human history has the rule of law been more important for all humanity, in all respects. If it can not be seen to function in the case of the native Nations, in 1992, when and where will it function when it is inconvenient to the powerful?
267. The fourth alternative existing legal remedy is to gain the sponsorship of some other "State" other than Canada that like Canada is a "Contracting Party" within the meaning of Articles VIII and IX of the Convention. Those articles provide that any Contracting Party, that is, any country that has signed the Convention, may cause the issue of Canada's complicity in genocide contrary to Article III(d) to be investigated by the International Court of Justice or by any other competent organ of the United Nations.
268. The Security Council would be "competent" in certain circumstances. For example, if there were to be a dispute threatening "international peace and security," then pursuant to the Charter of the United Nations:
Article 34.
The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
269. The difficulty with each of these four existing legal remedies is practical and political more than it is legal.
270. Canada hypocritically is able to stonewall the law domestically, and to abuse its reputation as a civil rights paragon internationally, to pre-empt the support without which such a major undertaking as obtaining and enforcing these remedies is for practical purposes virtually precluded.
271. Secondly, Canada has since 1880 fostered a class of native collaborators as its agents in the genocide of their own people. These native collaborators are accomplices to Canada's treason and genocide. They are also the Indian Act leadership that has a monopoly upon the mass dissemination of information from the native perspective both domestically and internationally. An appreciable part of the money spent upon Indian affairs is directed toward buying the services and scripting the performances of the professional Indians. They are the ones that are paid to travel abroad and go to seemingly endless conferences. They are the ones who have the time, inclination and skills to cultivate and manipulate the media. The scam they are paid to promote involves the waste of vast sums of money which creates the wholly misleading impression that Canada is trying its best to help the grassroots native people who are trapped in the cycle of self perpetuating poverty. The money is wasted upon constant travel, accomodation, meetings to debate, lawyers to conduct self defeating court cases (like Delgamuukx which reputedly has cost $15 million) and endless boxcar loads of useless and incredibly expensive consultants' reports.
272. The crucial perception is that the professional Indian class to whom the power implicit in the constitutional movement being staged for self government is antithetical to the continuity of native culture. Yet it is upon the fraudulent basis of saving native culture that the performers milk the non-native system and defraud their own people.
273. The guardians of the native Nations' hereditary system have a right and a sacred responsibility to expose and resist these crimes, not only for themselves but also more importantly for the continuity of the aboriginal culture that the hereditary system's own continuity embodies.
274. The hereditary system of native government is aboriginal culture; just as the native language is aboriginal culture.
275. Together, they constitute the warp and the woof that weave the social fabric. Both institutions are so basic to the unique identity of native society as to be synonymous with the independent existence of that society.
276. The destruction of aboriginal culture in Canada historically has been characterized by a systematic attack upon these two institutions: the hereditary system, and the language.
277. Unless this pattern is broken, Canada will become a classically racist state, as contrasted with what under existing law it now in legal theory is: a pluralistic association of two independent cultures, native and non- native.
278. For, the moment native society and non-native society stop being segregated for legal purposes upon the basis of deep seated cultural contrast, the only basis left for maintaining their segregated legal status is the cosmetic basis of racial contrast.
279. Legal segregation upon the basis of culture may sometimes be morally defensible. Legal segregation upon the basis of race can never be morally defensible.
280. The immoral conversion of Canada into a racist state presently is being effected in virtue of a criminal conspiracy. Contrary to existing native, natural, international, and constitutional law the non-native legal and political establishment is working together with corrupt native collaborators and adventurers treasonably and genocidally to exterminate the remnants of the hereditary system beyond the treaty frontier. The language element was weakened in the previous generation by means of the kidnapping, educational brainwashing and tortures familiar in the residential school system.
281. There are no illusions about this process among the cognoscenti. On October 15, 1991 I met with Premier Ghiz of Prince Edward Island and his federal adviser Gerry Steele on loan from the Department of Indian Affairs and Northern Affairs.
282. Steele acknowledged and took pride in the federal plan being coordinated with all the provincial offices.
283. That plan is to keep Canada together by giving the Indian puppets the self-government guarantee they personally want, even though all concerned know it is a corrupt make- executive program that will do nothing for the public, native or non-native.
284. After a few more years of increasingly publicized corruption, public opinion will swing against natives in general, and the puppets' free ride will be over.
285. The grassroots native people will be deeply hurt and resentful at the broken promise of a new day. Their chance of a renaissance of native culture will be lost.
286. The non-native public will be resentful at the huge costs with nothing but complaining in return.
287. The native collaborators and their handlers and hangers-on will profit.
288. Canada will be left holding a racist constitution and the legacy of a rule of law trashed in the course of achieving it.
289. Every Canadian has the right and the duty to assist with the identification, apprehension and prosecution of the criminals who if not stopped will turn Canada from a pluralistic federation of independent nations founded upon respect for "the supremacy of God and the rule of law" into a racist state founded upon treason and genocide.
290. Canada and the native people need friends and allies of the rule of law both at home and abroad to implement the law's four remedies identified above.
291. If existing law is respected beyond the treaty frontier, viable native governments based upon the aboriginal pattern may yet re-emerge. Natives who choose to forgo the challenge of making that happen will have the opportunity to integrate upon the basis of a high standard of living that breaks the welfare cycle. Both alternatives depend upon transferring the money, now being misdirected, directly to the people who are supposed to benefit but who do not.
292. Within the treaty frontier, the reform needed is to repeal or strike down the racist and unconstitutional Indian Act. Instead of re-inventing the Indian Act under the guise of a self-government amendment to the constitution, the treaties already constitutionally protected under section 35(1) should be updated and amended. In the course of achieving this reform the financial and tax morass can be corrected. When the native people actually receive the money now being wasted before it reaches them they will not need the tax exempt status that only serves to chain them to reserves in any event.
293. In any event of particular solutions, the reform of the law must now begin with an honest acknowledgement of the existing law.
294. If it proves necessary to grant amnesty for the corruption of past crimes, then it is better to do that than to compromise the rule of law by evading it.
295. The rule of law is the pattern, the principle that permanently describes the constituents of justice, as distinct from laws that merely describe ephemeral dos and don'ts.
296. Justice is a feeling, an instinct, a sense of harmony in the sum of the inter-relationships in living things - the living counterpart to the matter and anti-matter theory of particle physics: it exists because we recognize and oppose its antithesis, injustice.
297. The pattern that is emerging world-wide confirms that the concept of national sovereignty is being superseded by a greater standard, one that accounts and seeks peacefully to reconcile the impulse for fairness of all living beings.
298. The new world order will either accommodate this new perception, this new standard of universal justice, or it will degenerate into the destructive tyranny of particular states' sovereignty masquerading as the rule of law.
299. In terms of the Australian Mabo case, the rejection of terra nullius ideology marked an important half-way point in the journey. But the journey was stopped by the judges in that case before it achieved the destination, justice, when the judges assumed that having recognized aboriginal rights the non-aboriginal people's Parliament could unilaterally extinguish them. In this sense, Australia has much still to learn about true justice, about not giving with the left hand only to take with the right, about illusion and reality.
300. Perhaps Canada can become a model for the courts of Australia, and indeed for the world, in this true justice context. For aboriginal rights law in Canada is based upon concepts of universal justice: upon natural law, upon the law of the nation that incorporated natural law, and upon the constitutional law that reiterated it.
301. With the help of the courts of the native Nations from beyond the treaty frontier, and the help of loyal non- aboriginal Canadian citizens who will defend the rule of law, and with the help of international friends of Canada who will sponsor the native Nations' quest to cleanse Canada of racism and injustice, justice will be done and in the course of its achievement institutions more reliable for its administration will be forged for use in upcoming challenges, not only in Canada, but anywhere in the world.
302. Appendix "A" to this my affidavit consists in a declaration sworn by several native proponents of traditional government of native Nations dated May 29, 1992, entitled "Re Ecocide as Genocide."
303. Appendix "B" to this my affidavit consists in an indexed compilation of representative excerpts from exhibits annexed to, or identified as produced and shown in, the declaration to which reference is made in the proceeding paragraph. Cumulatively, through the detail and volume of the evidence presented, of court proceedings and correspondence excerpted, these materials establish the monolithic nature of the consciously fraudulent, treasonable and genocidal conspiracy of the judges and political establishment leaders - to thwart the rule of law - specifically by stonewalling the rational addressing in courts of the existing law refuting the legitimacy of their own criminal assumption of jurisdiction beyond the treaty frontier.
304. Appendix "C" to this my affidavit consists in an indexed compilation of representative transcripts of court proceedings and correspondence either omitted from or occurring subsequent to the said declaration.
305. This affidavit is given for the purpose of apprehending the crime in progress of treason and complicity in genocide and upholding the rule of law and for no other or improper purpose.
SWORN before me at the City of Vancouver, in Wel-law-psh] the Province of British aka Columbia, this 24th day Bruce Clark of July, 1992. A Commission of Oaths etc. Drew White Barrister & Solicitor
S.I.S.I.S.
<mg@uvaix.uvic.ca> or Stephen Samuel (samuel@bcgreen.com)
Last Updated:
Sun Jan 21 1996
Host site home page
Activist Home Page