Atleo calls for end of Indian Act within five years

[g_bambino]

In other words, you have two competing constitutional directives, if you will, and the ultimate solution is that the demands of responsible government require the Queen to act upon the advise of Her Ministers, even if, as far as the status of Indians in Canada or governance of the Channel Islands, it would seem Her constitutional position would free Her from the normal constraints on her use of the Royal Prerogative in cases where there is a conflict.

So, in the absence of other advice, the Queen acts on that of her Canadian federal ministers. But, that just makes me wonder even more: if the First Nations are not supposed to fall within the jurisdiction of the Queen in her federal Council, why do FNs not have their own council of ministers to advise the Queen, under whose sovereignty they live, on affairs outside of the Canadian government's mandate? That's the way it works for the provinces.

[scribblet]

I don't think ending the "Act" is a possibility either, my guess is he's dangling a carrot with the expectations of more money $$$$

[ToadBrother]

So, in the absence of other advice, the Queen acts on that of her Canadian federal ministers. But, that just makes me wonder even more: if the First Nations are not supposed to fall within the jurisdiction of the Queen in her federal Council, why do FNs not have their own council of ministers to advise the Queen, under whose sovereignty they live, on affairs outside of the Canadian government's mandate? That's the way it works for the provinces.

I think part of the problem here is defining just how constitutional the status of the Proclamation is. I don't think it's quite correct to state that the Proclamation was meant or ever ultimately did set up a separate framework for the Indian peoples of British North America. Certainly no one at the time thought so, and it was largely ignored save for a few court decisions and passing reference in the Charter, up until Delgamuukw, but that decision extended only to rejecting the notion that aboriginal title had been extinguished, using the Proclamation as the chief document demonstrating that the Crown had had a binding legal obligation to deal with the Indian nations when seeking to occupy their land.

It's also the case that, even if we accept that the Proclamation ultimately somehow had set up another level of government, with its own ministers and Privy Council (which obviously it did not, and I don't think even the most liberal reading could justify such an interpretation), we also can go by the principal that later constitutional changes modified or perhaps even voided certain potential interpretations. In this case, I'd say the BNA Act, 1867, would be seen as altering any constitutional arrangements with First Nations, clearly put out in Section 91:

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,--

...

24. Indians, and Lands reserved for the Indians.

...

http://www.solon.org/Constitutions/Canada/English/ca_1867.html

This clearly puts responsibility for the Indians and their reserves in the hands of the Federal Government, and it is from this that the Indian Act directly flows. Clearly if we accept that the Royal Proclamation of 1763 is a constitutional document (and I am of the opinion that it is), then the powers explicitly named as the Federal Parliament's jurisdiction would be seen as amending any previous powers that the Crown in its various capacities had over the Indians.

The Supreme Court didn't particularly answer the entire question as to the status of the Royal Proclamation (as I said, only dealing with a very specific issue as to the claim of extinguishing of Indian title), so to some degree there is no formal binding answer to your question, but I think we can see how the Supreme Court would very likely rule, or more to the point demonstrates precisely why the Queen passes these matters on to Her Ministers in Canada.

The long and short is that whatever the intentions of the Royal Proclamation of 1763 (and I think it's purpose was to remove any claim that the British colonies could act unilaterally in either making war or peace with the Indian tribes by essentially making them coeval with the colonies, requiring the British Crown's direct involvement and intervention), the BNA Act clearly delivered those powers reserved for the Sovereign, however He or She was to be advised, into the Canadian Crown's hand, and ultimately into the Sovereign's Ministers.

Edited July 21, 2010 by ToadBrother

[g_bambino]

It's also the case that, even if we accept that the Proclamation ultimately somehow had set up another level of government, with its own ministers and Privy Council (which obviously it did not, and I don't think even the most liberal reading could justify such an interpretation), we also can go by the principal that later constitutional changes modified or perhaps even voided certain potential interpretations. In this case, I'd say the BNA Act, 1867, would be seen as altering any constitutional arrangements with First Nations, clearly put out in Section 91...

Oh, I was never under the impression that the Royal Proclamation established a separate system of government for the aboriginals; merely that it placed the territory reserved for First Nations outside the jurisdiction of the King's colonial governments (of which the present federal Crown-in-Council is the direct descendant). That left the FNs with their own chieftainships, band councils, and the like, though still under the sovereignty of the Crown.

I take your point re. S.91 of the Constitution Act 1867, but it relates specifically to the scope of the federal legislature - the Queen-in-parliament - not the federal government - the Queen-in-Council - per say. Still, That clause does seem to rule out the possibility of a separate FNs jurisdiction - at least one with the same co-sovereignty as the federal and provincial spheres presently have - given that it's organs of governance would always be subordinate to, at least, the federal parliament and courts. Without an amendment to S.91, a territory like Nunavut seems all that's possible.

[+]

Edited July 21, 2010 by g_bambino

[bebe]

Oh, I was never under the impression that the Royal Proclamation established a separate system of government for the aboriginals; merely that it placed the territory reserved for First Nations outside the jurisdiction of the King's colonial governments (of which the present federal Crown-in-Council is the direct descendant). That left the FNs with their own chieftainships, band councils, and the like, though still under the sovereignty of the Crown.

I take your point re. S.91 of the Constitution Act 1867, but it relates specifically to the scope of the federal legislature - the Queen-in-parliament - not the federal government - the Queen-in-Council - per say. Still, That clause does seem to rule out the possibility of a separate FNs jurisdiction - at least one with the same co-sovereignty as the federal and provincial spheres presently have - given that it's organs of governance would always be subordinate to, at least, the federal parliament and courts. Without an amendment to S.91, a territory like Nunavut seems all that's possible.

[+]

I'm not convinced that Aboriginal lands and governance can come 'under' royal or colonial jurisdiction, just because the Queen (or our federal government) says so. Our Constitution recognizes and affirms "existing Aboriginal and treaty rights". Those Aboriginal rights don't exist because the Queen (or our laws) said so: They exist because they occupied this land for thousands of years prior and those rights cannot be extinguished, regardless of what our documents say.

[charter.rights]

What is important to remember is that the lands north and west of the New England colonies were unimportant and somewhat hostile territories. In particular, we see a number of treaties occurring both before and after the RP1763 that seek safety and settlement in a westward and southern expansion in what is now the US. Identifying the northern regions as Indian Lands mitigated the possibility (that had occurred prior to the Treaty of Loggstown 1754) that the Indians would become upset and attack settlers in un-surrendered lands. Of course the minds of the British, the Iroquois controlled a vast region and so they treatied with them to keep subordinate Nations from attacking settlers.

From my research, Six Nations brokered most of these deals and their friendly nature with the British through the Silver Covenant Chain 1701 gave the attention they needed to get the British to agree to protect those lands. While trying to interpret the RP language in today's terms is somewhat misleading to those who take a simplistic approach, the real meat and potatoes of the RP173 is that the Crown and Six Nations were steadfast allies both interested in much the same things...power and control. And what the British had in New England, the Iroquois also had in Indian land.

[charter.rights]

I'm not convinced that Aboriginal lands and governance can come 'under' royal or colonial jurisdiction, just because the Queen (or our federal government) says so. Our Constitution recognizes and affirms "existing Aboriginal and treaty rights". Those Aboriginal rights don't exist because the Queen (or our laws) said so: They exist because they occupied this land for thousands of years prior and those rights cannot be extinguished, regardless of what our documents say.

It didn't. Understanding many of the historical phrases continued within, the Crown only offered protection - like a cloak surrounding the Indians - in exchange for peaceful co-existence.

"You are in you boat, and we are in our canoe both on the same path but never interfering with each other."

Quote from the Silver Covenant Chain Treaty

And if we remember, the Crown could not in 1763 take absolute control of Canadians lands since there were still French settlers, Indians and wilderness that stood between them and any claims. The Quebec Act 1774 clarifies that intention as it identifies certain "Countries, Territories, and Islands in America," which it claims jurisdiction. It does not extend to Indian lands "not ceded to or purchased by us"

Edited July 22, 2010 by charter.rights

[Hydraboss]

Regardless of where indian lands/governance stand constitutionally, they are defacto under the rule of the Canadian federal government. If an indian commits murder, he is tried in a Canadian court. The federal government dictates the treaty welfare amounts they receive. Land claims are resolved based on what Canadian courts and government decide is "equitable". While posters (and poster children) like CR wish to point to this treaty and that proclamation, the reality is that the indians will submit to whatever is decided through Canadian channels. Who would they appeal to (ultimately) other than the Canadian Supreme Court? The UN? The international indian whatever-whatever?

They live with what we decide. End of story.

[Smallc]

Hydra, love the signature

[charter.rights]

Regardless of where indian lands/governance stand constitutionally, they are defacto under the rule of the Canadian federal government. If an indian commits murder, he is tried in a Canadian court. The federal government dictates the treaty welfare amounts they receive. Land claims are resolved based on what Canadian courts and government decide is "equitable". While posters (and poster children) like CR wish to point to this treaty and that proclamation, the reality is that the indians will submit to whatever is decided through Canadian channels. Who would they appeal to (ultimately) other than the Canadian Supreme Court? The UN? The international indian whatever-whatever?

They live with what we decide. End of story.

Actually that is a nice myth, but totally incorrect.

First Nations submit primarily because of one thing - money. The federal government pushes and shoves First Nation bands by withholding money for important services. They have attacked the AFN through the same kinds of funding shortfalls.

Negotiation, law and consideration of aboriginal jurisprudence are how the courts settle native claims. The law set out by treaty and the Royal Proclamation are pretty thick law in most cases and the honour of the Crown requires that they respect the agreements they made.

As First Nations develop their own revenue streams the federal government and their manipulation are becoming less significant and less able to control their actions. That is why the Canadian government is quick to use military or quasi military tactics against First Nations protests. If the native get too much money, then we have less of a chance that the outcomes of negotiations, and court cases will turn out in our favour.

[charter.rights]

I can assure you as well that the Honour of the Crown, the Silver Covenant Chain and the Two Row Wampum are at the beginning of every discussion between the Crown and Six Nations. Without those treaties, there would be no use for discussion.

[g_bambino]

I'm not convinced that Aboriginal lands and governance can come 'under' royal or colonial jurisdiction, just because the Queen (or our federal government) says so. Our Constitution recognizes and affirms "existing Aboriginal and treaty rights". Those Aboriginal rights don't exist because the Queen (or our laws) said so: They exist because they occupied this land for thousands of years prior and those rights cannot be extinguished, regardless of what our documents say.

The clause of the Charter you misquote states:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

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

Canadian Charter of Rights and Freedoms

That very same Royal Proclamation that recognises aboriginal rights and freedoms also establishes the Queen's sovereignty over First Nations:

[T]he 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 further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments... [Emphasis mine.]

Royal Proclamation of 1763

I'm afraid you can't pick and choose which parts of the constitution are valid and which aren't.

[charter.rights]

Sorry g_baby you'll have to speak up. I can't read you when you are on ignore.

[Hydraboss]

Actually that is a nice myth, but totally incorrect.

Wrong, meatball. It's EXACTLY correct.

First Nations submit primarily because of one thing - money.

WOW! Now THAT just shocks the hell out of me! Who'da thunk that an indian would do what he's told because he wants money? Not me.

The federal government pushes and shoves First Nation bands by withholding money for important services. They have attacked the AFN through the same kinds of funding shortfalls.

So you admit that the Canadian government makes you guys do what it wishes! And without force, too. Just got to hold the old Friday check for a while, eh?

Negotiation, law and consideration of aboriginal jurisprudence are how the courts settle native claims. The law set out by treaty and the Royal Proclamation are pretty thick law in most cases and the honour of the Crown requires that they respect the agreements they made.

Nice try. Notice how you have to kneel and hope the Crown gives a damn about it's "honour" (or else you get nothing).

As First Nations develop their own revenue streams the federal government and their manipulation are becoming less significant and less able to control their actions.

So if we let you run more casinos and shit, you'll quit living off of our goodwill (and welfare)? Excellent. Building permit granted.

That is why the Canadian government is quick to use military or quasi military tactics against First Nations protests. If the native get too much money, then we have less of a chance that the outcomes of negotiations, and court cases will turn out in our favour.

You're a kept people (those on reserves) and you do what you're told. When you throw a fit, we throw you a bone. When you throw a tantrum, we put up with it for a while. When we get tired of it, we send in the military to spank you a little. What do you have to show for all your "shadow warriors"? What "Great Stories" will you tell your grandkids? How about the "Tale of the DuMaurier Casino Battle" where you bravely won the right to smoke in casinos and bingo halls on reserves? Then there's the riveting "Burning of the Houses of Caledonia" where heroic warriors terrorized "a" family? Ranks right up there with Little Big Horn, doesn't it?

[g_bambino]

Hydra, love the signature

I had a sneaking suspicion it had something to do with CR, but I've had him on ignore for ages and had to do a "view anyway" just to see. It was worth it!

But I think it should read:

Six Nations - Another Middle Eastern Canadian Welfare State

[Hydraboss]

I had a sneaking suspicion it had something to do with CR, but I've had him on ignore for ages and had to do a "view anyway" just to see. It was worth it!

But I think it should read:

Six Nations - Another Middle Eastern Canadian Welfare State

Done.

[bebe]

The clause of the Charter you misquote states:

That very same Royal Proclamation that recognises aboriginal rights and freedoms also establishes the Queen's sovereignty over First Nations:

I'm afraid you can't pick and choose which parts of the constitution are valid and which aren't.

Actually, I was quoting Sec 35 ...

Section 35

(1) The existing aboriginal and treaty rights of the aboriginal peoples of

Canada are hereby recognised and affirmed.

http://www.edu.gov.mb.ca/k12/cur/socstud/foundation_gr6/blms/6-3-2c.pdf

... only to point out that Aboriginal rights were and are existing rights that are recognised in our Constitution, not rights bestowed upon Aboriginal people by Canada nor by the Crown.

Edited July 22, 2010 by bebe

[Smallc]

Done.

[charter.rights]

Wrong, meatball. It's EXACTLY correct.

Nice try. Notice how you have to kneel and hope the Crown gives a damn about it's "honour" (or else you get nothing).

Funny enough the top law schools are teaching it, and the Supreme Court of Canada holds it as one of its highest principles. You are another one of the pathetic fantasy land characters Shwa mentions. Perhaps you are Tatoo?

The Honour of First Nations – The Honour of the Crown The Unique Relationship of First Nations with the Crown David Arnot

"The Supreme Court of Canada resurrected the notion of the Honour of the Crown in its

landmark decision on Guerin v. R. S.C.C. 19849 where it first stated that the government

has a fiduciary duty towards First Nations. By unanimously rebuking government

privilege the court marked a milestone in restoring a system of law based on principles

rather than persons. Defining “fiduciary duty of the Crown,” the court restored the

concept of holding ministers to a standard of fairness that demands forethought as to what

conduct lends credibility and honour to the Crown, instead of what conduct can be

technically justified under the current law. The Supreme Court clearly rebuked the notion

that a minister’s reasons to act can be defended on the grounds of political expediency.

In Marshall No. 1, 1999, the Supreme Court outlined with clarity the principles that

underlie the high standard of the Honour of the Crown as follows:

This appeal puts to the test the principle, emphasized by the Supreme

Court on several occasions, that the Honour of the Crown is always at

stake in its dealings with Aboriginal people. This is one of the principles

of interpretation set forth in the Badger Case, Supreme Court of Canada.

Interpretations of treaties and statutory provisions which have an impact

upon treaty or Aboriginal rights must be approached in a manner which

maintains the integrity of the Crown. It is always assumed that the Crown

intends to fulfill its promises. No appearance of “sharp dealings” will be

sanctioned.

This principle that the Crown’s honour is at stake when the Crown enters

into treaties with First Nations dates back at least to the Supreme Court of

Canada’s decision in 1895 in Ontario v. The Dominion of Canada and the

Province of Quebec. In that decision Gwynne, J. dissenting, stated:

“The terms and conditions expressed in treaty instruments that have to be

performed by or on behalf of the Crown have always been regarded as

involving a trust graciously assumed by the Crown to the fulfillment of

which with the Indians, the fate and Honour of the Crown is pledged.”10

And the Crown lawyers are reading it:

The Crown's Fiduciary Relationship with Aboriginal Peoples

The scope of the fiduciary concept was extended significantly in R. v. Sparrow (1990),(6) the Court’s first section 35 decision. Sparrow determined that:

* the “general guiding principle” for section 35 is that “the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship”;

* "the honour of the Crown is at stake in dealings with aboriginal peoples.(7) The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified”;

* “[t]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test.(8)

You can't swim can you......

[charter.rights]

Actually, I was quoting Sec 35 ...

Section 35

(1) The existing aboriginal and treaty rights of the aboriginal peoples of

Canada are hereby recognised and affirmed.

http://www.edu.gov.mb.ca/k12/cur/socstud/foundation_gr6/blms/6-3-2c.pdf

... only to point out that Aboriginal rights were and are existing rights that are recognised in our Constitution, not rights bestowed upon Aboriginal people by Canada nor by the Crown.

or rights extended by the Charter...which means a Constitutional conference can't change the rights....

[charter.rights]

Done.

Me too...

[Hydraboss]

Funny enough the top law schools are teaching it, and the Supreme Court of Canada holds it as one of its highest principles. You are another one of the pathetic fantasy land characters Shwa mentions. Perhaps you are Tatoo?

"Looook Boss! De Check! De Check!"

"Hey Boss, can we go and smoke cigarettes in the casino now?"

"Yes, Tattoo. As soon as all of our guests are awarded all of the lands claimed by Six Nations. After all, Tattoo, this IS Fantasy Island!"

[Hydraboss]

Me too...

I'd probably be offended if I were a Tory. And it's pretty much impossible to argue the "priest" thing.

[charter.rights]

"Looook Boss! De Check! De Check!"

"Hey Boss, can we go and smoke cigarettes in the casino now?"

"Yes, Tattoo. As soon as all of our guests are awarded all of the lands claimed by Six Nations. After all, Tattoo, this IS Fantasy Island!"

Right up your alley. Tell me another...is the government here to help me?

[bebe]

"Looook Boss! De Check! De Check!"

"Hey Boss, can we go and smoke cigarettes in the casino now?"

"Yes, Tattoo. As soon as all of our guests are awarded all of the lands claimed by Six Nations. After all, Tattoo, this IS Fantasy Island!"

I must say ... you've certainly got a burr up your butt. Have you tried colon cleanse?

http://en.wikipedia.org/wiki/File:Combination_enema_and_douche_syringe.jpg

Edited July 22, 2010 by bebe