charter.rights

Wrong. Rights are "inherent" and asserted by the individual. Nelson Mandela asserted his right to be part of a free society, to speak freely and openly, and to defy those who would suppress him. He was put under house arrest for over 20 years. In the end it wasn't the state who came to his aid. It was the people, and the international community that put pressure on South Africa to reform and open the door of apartheid into a democratic society. Although the state may attempt to thwart the rights of individuals and groups, eventually they will not stand. In Canada we have a Constitution which includes a Charter of Rights and Freedoms that says that aboriginal rights are not subject any restrictions placed on it by the Charter. Note that the rights are ones that have been recognized by the Royal Proclamation 1763 or by lands claims agreements. It does not say "recognized by Canada". This puts the rights (as the subtitle suggests) outside of the Charter.

Now he resorts to ad hominem attacks because he can't argue with the facts.

Hogwash. There will be no unilateral changes because it is illegal under the Constitution amendment procedures. The needs of non-aboriginal Canadians are irrelevant to the rights and freedoms protected under the Charter. The "Honour of the Crown" is a legal concept that guarantees that the Crown (and its subordinate government) will always act in good faith in the best interests of aboriginal people....and that would include any attempt to amend the Constitution without their consent.

Parliament is NOT supreme. It cannot unilaterally change the Constitution. It requires the consent of the Provinces. Aboriginal rights cannot be abrogated or derogated. BEFORE any constitutional change proposal First Nations could ask the Supreme Court to decide whether any proposed change was derogating their rights. If the Court found it was, the Court could strike down any change. In my understanding the amendment procedure in the Constitution is there to strengthen rights of people, or the procedures of Parliament where it was consistent with Canadian values (hence the requirement for Provincial consent) and laws. It isn't there to advance some racist agenda to derogate any rights or freedoms, especially aboriginal and treaty rights. The same can be said about the "notwithstanding" clause. it is there for similar reasons using a less stringent procedure. The argument about supremacy is moot since the Constitution - The Rule of Law - is Supreme. It is Supreme over the actions of Parliament and the Provinces. It is supreme over the executive and legal branches. It is supreme over the government. The "checks and balances" occur in the Constitution's requirement for consent - consent of the Provinces and consent of First Nations to amend any treaties. Aboriginal rights cannot be given up by consent or taken away by consent of any amendment because those rights exist outside of the Charter of Rights and Freedoms. And while petty arguments can be jostled back and forth over this and that, Aboriginal rights (which are largely undefined)continue to exist and will continue to be examined and clarified by the Courts. And finally, Aboriginal rights convey a duty on the Crown to act in the best interests of Aboriginal people, and to protect their interests above all others. That duty cannot be abrogated or derogated either and like rights are merely subject to interpretation from time to time.

You shouldn't be. That is typical of smallc. Making statements based on her opinion and devoid of fact or any reference to back it up.

Only with the "help of the provinces". Parliament cannot make changes unilaterally. That "help from the provinces" represents the supremacy of the Constitution, and the Supremacy of the Supreme Court of Canada which could over-ride Parliament and the Provinces if the move to amend the Constitution does not follow the intent or procedure of the amending formula. "52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. "

Nor can they change aboriginal rights. Aboriginal and treaty rights are recognized by Canada, not created by us.

The legislative branch can only change law so long as it is in compliance with the Charter of Rights and Freedoms. When the Supreme Court makes a determination that a law is not in compliance the government has no other recourse but to follow the law. The Constitution of Canada is supreme over the government, Parliament and the courts and by that nature the Supreme Court is at the top of the legal chain, not the government.

"The Government of Canada" is "Harper's government" exclusive of the other parties. Parliament includes the whole kit and caboodle.

Nope. The Supreme Court holds supremacy over the government. It can and does periodically compel it to act in a certain way. It does not hold that same authority over Parliament though which is supreme in its own right. By striking down law, the SCoC DOES create law at the same time. By making something illegal it forces the government to make new law, or amend current law to comply with the Constitution.

You don't want to be part of the discussion, that's fine. You don't contribute anything, anyway.

The Supreme Court does not agree.

Nope. You have it wrong. "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... " The parts of "Our Dominions and Territories" only applies to the 4 colonies, Grenada, West Florida, East Florida and Quebec in which many parts of those colonies had not at the time of the Proclamation been surrendered. The Proclamation reserved for those territories within the 4 colonies to the Indians and prohibited forfeiture, seizure, occupation, surrender or use with first obtaining a surrender by the Crown. Even the governors of those colonies were prohibited from dealing directly with the Indians. Outside of those 4 colonies the territory remained under the sovereign title of the First Nation that inhabited it. The Supreme Court has held that title is a plenum dominum (title superior to all others) until it was surrendered (according to the laws, customs and traditions of the First Nation) by treaty. In particular no part of Canada south, west and north of a line drawn between Montreal and the French River was of any interest to the Crown prior to and shortly after the Proclamation. Although a series of numbered treaties sought to obtain land from the Indians across Canada, the Indians were smart enough to only surrender some of their rights, while retaining other rights that are now binding on the Crown and the government of Canada. However, southern Ontario and other parts of Canada have never been surrendered or subject to treaties and remain the sovereign territory of the First Nations who occupied them at the time of the Proclamation.

Exactly why WE should be doing the right thing instead of ignoring their claims and obfuscating the mandatory consultation.

Ask Gaddafi about that one. He has not consented to the UN or NATO deposing him from Libia (nor do they care if he consents or not). Go back dreaming sonny boy.

Mitchell Map 1757 Jeffreys Map 1776 If one zooms in to Ontario you will see that not only before 1763 but after 1763 Southern Ontario was Six Nations Territory.

Totally incorrect. Joseph Brant never held the authority to surrender land. The law of the day required that a formal surrender had to take place meeting the customs, traditions and laws of the First Nation. All surrenders had to have the consent of the full Confederacy Council (50 Chiefs). No surrender has ever taken place in the Haldimand Tract. Beginning in about 1840 the government tried to obtain a surrender of the Plank Road lands, including a mile on either side of the road in order to build a highway. Six Nations refused to surrender suggesting that they would only lease the land. A number of agreements were drawn up by the Indian Agent and Six Nations continued to refuse to sign. By 1844 the then Governor General would not agree to allow leases of the Plank Road and mysteriously a document appeared with the names of 25 men (not condoled Chiefs) purporting the surrender. When Six Nations got wind of the fake document they petitioned the Governor General through a number of letters and records of meetings to rescind the land occupations that were taking place as they had no intention of surrendering the lands. That claim remains unresolved. There there are a number of tracts in Brantford that are still in dispute as well. Six Nations has documentation that considered the surrender of a small plot to build the Town of Brantford, but the purported surrender was never executed. Lots of land in the Haldimand Tract had been occupied and Six Nations over the last 220 years has demanded that the government remove squatters and settlers. There have been a number of direct 99 year land leases to farmers and the Mennonites that were illegally converted to title but no surrenders, and Six Nations has all the documentation to back it up. Nope. The Mississauga never held title or rights to any land in Southern Ontario. Southern Ontario still is the exclusive title belonging to Six Nations. Under the law, aboriginal title is recognized as having existed prior to the Royal Proclamation 1763. After the Proclamation the only way for us to obtain would have been a direct surrender (treaty) to the Crown. Six Nations still holds their original title. That means of course that the Mississauga never surrendered any land in the Burlington meeting either. Rather the Mississauga were in S.O. as a result of the Two Spoons One Bowl Treaty they had with Six Nations and it was Six Nations who petition the Crown on their behalf to compensate those whom had settled there. The payment made to the Mississauga was nothing more than a relocation fee. The "guy paying for all this nonsense" is actually Six Nations. Not only have they lost 220 years of use of the land and resources but the government holds over $1 trillion in Six Nations money in trusts and isn't even paying the interest on the account to Six Nations. Legally unpaid compounded interest must be added to the trust account and with current rates that account will double in less than 20 years. We are on the hook for that for sure but only because we having been paying our debts. The equitable solution is to give all of Ontario back to Six Nations control, letting them collect revenue and taxes from us, then see if the government will act expediently to negotiate with them over our the illegal occupations we are in. But since the government won't give up that kind of power, or face their (our) obligation to negotiated with Six Nations honourably, then Six Nations has no choice in my mind, than to protest occupy and use proprietary estoppel to stop development. I agree. However, what you think is a priority and what is really a priority are two different things. You need a lot more education on the actual issues, the history and legalities before you can make any informed opinion.

Saipan doesn't believe in the law. He is an anarchist, don't you know?

Not hardly. I can dance around you but with such an ignorant post, why would I bother. It is a waste of my valuable time. And it isn't name-calling. I was speaking about your comments being dumb and not accusing you of what you believe to be obvious.

Ya right. Dumb is dumb and you take the cake for this week.

Dumbest comment of the week.

You fail the first principle of understanding the issues. Reserves are sovereign lands not surrendered to the Crown and we can't touch them without first asking the First Nations themselves.

There are two types of rights protected in the Charter. Aboriginal rights are rights recognized by the Royal Proclamation 1763 (having existed at least from that time) and treaty rights which were added in specific number treaties, or will be added in some future treaty. Aboriginal rights also include aboriginal title to land which is a "plenum dominum" (absolute title above all else) until the land is surrendered. Surrenders must follow a specific prescription laid out in the Royal Proclamation 176 and clarified by the Supreme Court in the Chippewas of Sarnia v. Canada. The Crown did not take dominion over Canada in the Royal Proclamation 1763. Rather the Proclamation took dominion over the 4 colonies and reserved all lands within those colonies not surrender or ceded to us as "Indian Lands". Those 4 colonies were Grenada, East Florida, West Florida and Quebec (surrendered in the Treaty of Paris by France). Interestingly enough the British were not interest in Ontario, the north or western Canada at the time. The Supreme Court has ruled that aboriginal title (which over-rides any Crown claim to land) remains a superior title unless it was surrendered. However, while various numbered treaties surrendered some rights to land they did not surrender absolute title and First Nations retained a broad spectrum of rights over the lands and resources that are presently being refined before the courts. The bottom line determined so far is that those rights require the government to not only consult, negotiate and accommodate native concerns prior to any development, but that development and mining / logging can be held up indefinitely until the full consultation process has been completed. This applies mostly to lands under treaty. In lands not surrendered, Indians retain full and absolute title to the land. Nothing short of a treaty would be required in order for us to continue to develop those types of lands. However, much of these issues are also before the courts and it would be premature to suggest any outcome. The courts have gone as far as saying that Indians have a right to protest over unceded land and the courts will issue injunctions against the government and developers where no treaty exists, or where a treaty does exist and the duty to consult has not full been executed. The Supreme Court has held that giving land back to First Nations is not automatic since there has been development and unsuspecting recipients of the land that would interfere with the transfer of land. Rather they have suggested that negotiation with the affected First Nation is the proper avenue in which land or money or a combination of both may be an equitable solution. So far it has been this government's policy to only offer money in any lands claims settlement, even though they have on many occasions swapped land to First Nations' control to settle disputes.

To the contrary of bambino, the Royal Proclamation 1763 does not "set out" rights. It confirms and affirms them. Aboriginal rights existed prior to the Proclamation and are continued under that principle. And those rights cannot be abrogated.

Look! The straw man appears!