Constitutional Reform

[Rue]

REAL lawyer would find the treaties invalid long time ago. It was broken by natives themself and their use of alcohol (among other things)

There are LOT of outright illegalities in the "exception for natives".

No of course not Saipan. In fact no one in the legal community dealing with aboriginal treaty issues argues the Canadian government has NOT violated the treaties. The only thing in dispute right now is how much compensation to pay.

As for the social problems of the native peoples, I am no bleeding heart. Yes they have been gripped by self destructive social malaise but let's get real-that social malaise is

deeply related to a cultural clash still to be resolved and the problems of the native peoples in rural areas is no different then with white people in rural areas-lack of work and isolation drives humans to self destructive behaviour regardless of race. Russia, Sweden, Norway, Alaska all struggle with high suicide rates and fatal and alcohol related accidents with cars, etc.

As well if we disqualified native peoples from their collective rights because some of them drink, oopsy what do you do with all us non natives who drink?

Seriously Saipan, the collective legal rights of native peoples that preceded the creation of Canada in 1867 and were inherited by our consitutional legal system are not in question-the amount of compensation is.

I am not about to finger point about the behaviour of self destruction in the native communities. I think the native peoples will have to deal with it but what I can say is our non native society has the same problems too.

The constitutional traditions The Bambino tries to explain recognize the treaties deliberately and do not allow the current government or its preceding or proceeding ones to avoid the legal issues that will have to be resolved and are slowly.

There's problems yes but the legal system as flawed or slow as it may be is all we have and its a hell of a lot better then what you find in the majority of the world so rather than put it down, I will work with it and I say again as I guess an unreal lawyer, over the many posts The Bambino has done as good a job explaining the constitutional system as well as any legal teacher I know. Most of what he says is apolitical. He's just stating it as it works. The politics of feeling some are entitled and some are not is not something law is supposed to do. Its supposed to assure the law applies to all equally and consistently. Is it subject to politically partisan compromise, yes sure, but the constitution tries to balance all the partisan arguements to see they can be accommodated.

Sure democracy has its limitations but can anyone explain to me a better system than our Parliamentary one? I would love to hear.

Please don't tell me China or Russia or the US system or the French or Italian ones. No thanks. Also not Taiwan. They slap each other silly in their assembly. I am being a bit tongue in cheek.

Edited September 9, 2011 by Rue

[g_bambino]

No you are wrong.

And you are incapable of proving how.

[Rue]

Who exactly are "indigenous people"?

Like say in Europe for example, so it's more clear.

Indigenous was used in a political context to describe people living in Canada before the Europeans came. It was used juast as the word "native" or "aboriginal" was.

Legally its meaning comes from how it would be defined in any given statute. Indigenous when used to describe habitats describes plants, animals, that are native to the region and were not brought in by humans. So for example a Norway Rat is not indigenous to North America. It originated they believe in Asia somewhere in Vietnam or perhaps Borneo and then slowly moved both by foot and boat.

Starlings the bird, are not indigenous to Canada they came here with humans as did pigeons which are rock doves. Lampreys were not indigenous to the Great Lakes but came to them after humans built the St. Lawrence seaway and provided a way for them to get there. Zebra mussels are not indigenous to North America as they piggy backed in the ballast of ships from Europe.

Now are native peoples indigenous. We say yes because we say they came from Asia and Mongolia by walking over the ice from Russia nd slowly making their way into the Americas. We call them indigenous because as far as we know they did not come after any other people before them.

In the Canadian legal context we make a clear distinction between the indigenous or aboriginal nations ad their peoples and the Europeans who came after them and founded Canada, i.e., the French and British. We make no reference to the Vikings who some say came here early as well. Canada's constitution envisioned the native indigenous peoples of North America, the French and the British. It then over the years added a 4th component, the "others", i.e., everyone else who has come other than the 3 components I mentioned.

The 4 components are seen to be equal by our constitution but what makes the aboriginal peoples collective rights unique is they are seen to have been inherited by the Canadian government from Britain and recognized as a fundamental component of our legal system.

The native peoples were defined as a collective of collectives and recognized as having the right to their own parallel laws within their collective of collectives just as we created 12 provinces each with their own governments.

The constitution has always recognized the collective of collectives and its right to parallel government internal rule just as it balances provincial jurisdictions with the federal one. The constitution however says, the collective of collectives of native people deals with the federal government, not provincial governments. Jurisdiction to interact with it is soley done at the federal level unless the various nations of the collective consent to dealing with provinces.

The constitution does NOT force the native peoples to recognize the provincial government or deal with it if they don't want to but it does not allow the native peoples to opt out of confederation but still demand rights as if it was a member of the confederation. It can't have it both ways. If it wants to be part of the federal nation, then its collective rights are recognized. If it walks away then its hard to say what happens. All that is clear is provinces can't usurp federal jurisdiction and force their laws on native peoples.

For example if Quebec wanted to seperate, it has no jurisdiction as it assumes to seize 80% of the province recognized by the federal government as having land treaties giving the native peoples collective rights to use them and remain part of the federal nation. Quebec's government only has jurisdiction over certain geographic areas without preceding native land claims the feds inherited.

Edited September 9, 2011 by Rue

[g_bambino]

They are observers...

Even if that were true, observer status does not equate with sovereign status. Please name any First Nation that holds a seat in the General Assembly.

There are comminications inter alia with various parties... such as China.

And again: We're not discussing business relations here. We are talking about sovereignty, constitutional law, and international diplomacy. Please name which First Nation exchanges ambassadors with which country.

Treaties are more than contracts

Treaties are contracts, and need not be signed between sovereign entities.

trea•ty noun \ˈtrē-tē\

1:

the action of treating and especially of negotiating

2:

a : an agreement or arrangement made by negotiation: (1): private treaty (2): a contract in writing between two or more political authorities (as states or sovereigns) formally signed by representatives duly authorized and usually ratified by the lawmaking authority of the state

b: a document in which such a contract is set down

Meriam-Webster Dictionary

Note: Though First Nations have a degree of autonomy and are, to a point, self-governing, thus fitting the description of a "political authority", a political authority (or state) does not need to be sovereign to enter into a treaty.

The treaties are between the governing bodies of the First Nations (chiefs, councils, etc.) and the governing body of Canada (the monarch in-Council, in-Parliament, and on-the-Bench); "nation to nation", as they say. But, there doesn't seem to be anything that indicates the two nations involved are in any way on an equal footing in comparison to one another -- the Crown, with sovereignty over all of Canada and which alone has the authority to oversee any purchase or transfer of First Nations lands, is the foundation of the Canadian nation's governing structure, but not of any First Nation within Canada; First Nations are subject to Canadian law passed by the Crown in its Canadian parlaiment and interpreted by the Crown in its Canadian courts -- nor is there anything that says the parties must be equal. Still, they are both equally bound by the constitution, in which the treaties are embedded.

----------

One can only wonder at how you reconcile this:

If you view it as an annex, it is illegal in current international law to annex anther nations territory. As stated Canada has little if any absolute right to any territory within Canada. It is only by forced occupation that it exerts force and rule - rule by force, not rule of law, but the constitution invalidates that and declared Canada a free country that is ruled under rule of law, not rule of force. In many ways it is the British BNA that are occupying Canada, while Canada itself is going to be forced to be pacified to an advisory role in internal occupation of the territories within Canada. British law is static in Canada due to Westminster and the Canada act. It is not gone.

With this:

You live in a world that isn't based in reality.

[+]

Edited September 9, 2011 by g_bambino

[fellowtraveller]

The treaties are with the Crown and the Supreme Court - not our governments - represent the Crown.

Once again, you are confused about the role of the Supreme Court. The Supreme Court does not have supremity over the Canadian Government. It does have supremacy over subordinate, lesser courts.

No court exists to create law, only interpret law which is made by a legislative body, like Parliament.

When an activist court takes it on itself to create law, time for a smackdown.

[jacee]

@ g_bambino

It seems you are looking for absolute answers where they don't exist. The status of Aboriginal rights in Canada is becoming clearer through the courts but is still very much in flux. If you are not familiar with the duty of the Crown to consult and to accommodate Aboriginal rights, a google search on that might be enlightening.That duty applies to all traditional and treaty lands, not just 'reserves'. It's a significant factor re pipelines, forestry and any and all development on the land. It's becoming a significant factor in municipal development also.

[charter.rights]

Once again, you are confused about the role of the Supreme Court. The Supreme Court does not have supremity over the Canadian Government. It does have supremacy over subordinate, lesser courts.

No court exists to create law, only interpret law which is made by a legislative body, like Parliament.

When an activist court takes it on itself to create law, time for a smackdown.

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.

[Smallc]

Once again, you are confused about the role of the Supreme Court.

It seems they're still confused. The Supreme Court can only interpret things that have been set out either through law, convention, tradition, or presumed intent. The other branches of government, especially the legislative branch, can change the things that the Supreme Court interprets whenever they want (though some things require the help of the provinces).

To summarize, the Supreme Court is not superior to the Parliament or the executive branch, what's usually referred to as the Government of Canada.

[charter.rights]

It seems they're still confused. The Supreme Court can only interpret things that have been set out either through law, convention, tradition, or presumed intent. The other branches of government, especially the legislative branch, can change the things that the Supreme Court interprets whenever they want (though some things require the help of the provinces).

To summarize, the Supreme Court is not superior to the Parliament or the executive branch, what's usually referred to as the Government of Canada.

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

[Smallc]

No

[jacee]

Parliament is bound to obey the law.

Government consists of three branches - Executive (Privy Council), Legislative (HoC, Senate), Judicial (Supreme Court)

Parliament cannot change Crown treaties unilaterally.

[Smallc]

Parliament cannot change Crown treaties unilaterally.

No, but neither can the Supreme Court. Treaties only have as much recognition as Canada gives them.

[William Ashley]

You must have missed the link I provided. Look again.

you read Arabic?

I've been following the issue, the NTC has not passed a constitution for Libya. You are wrong.

Much the same as the closest thing to "a constitution" Israel has is "the Law" Talmun Torah covenant etc..

Islamic law is the "Basis" for law for the NTC, sharia etc.. this imo does not really represent a constitution, it more so states we are Islamic - religious government is not a constitutionally secular legal basis.

"The NTC is the highest authority."

And what is that?

None the less I find that there are just word changes etc.. and different people... none the less they are still "intending" to adopt a constitution, they don't actually have one.

Its a plan not a constitution. It is a declaration by an oligarchy, not the voice of the people.

Its saying what they are going to do, --- it really doesn't define Libya. It doesn't say how government will function. Under that all it is is well Sharia, there is no government.

I don't recall the Koran setting out the function of government, all I remember is a bunch of stories about animals and stuff and the equally bizarre if not more so equivalent to revelations.

If you thought the bible was cryptic try the Koran. whoa.

Edited September 10, 2011 by William Ashley

[William Ashley]

No, the Crown is a part of the Supreme Court (the Queen-on-the-Bench), just as it is a part of the government (the Queen-in-Council); both derive their authority from the Crown.

No, treaties are part of the constitution, and no one part of the constitution supersedes another.

As is the case with any other party with a grievance against the Crown; laws (passed by the Queen-in-Parliament) are often challenged by individuals or groups as being unconstitutional, for example. But, since the Supreme Court's jurisdiction does not end at the edges of the reserves, First Nations and the governing bodies thereof are under the Crown's authority, and therefore not sovereign.

I know you're trying to take this angle that it is only the people who make up First Nations who are sovereign of the Crown. But, that is an untenable notion since the people who make up First Nations need to exist somewhere, and they cannot exist on Canadian soil yet, at the same time, not be subject to Canadian law.

[-]

habeas corpus. Opinions arn't alwaya different as a response to an act.

Like I said you can have overlapping jurisdictions, where an act may or may not be a breach of the peace to a given jurisdiction. Many times states resolve treaties to clarify those sorts of issues.

The British Annexed and claimed most of Canada, and set out to enter treaties. You are either a denier of the source, or not aware how heavily first nations rights to self determination have been watered down over the last 200 years. Over the last half century or so, some of that enfranchisement has reasserted itself - but realize that treaty is still being conduct or is still being clarified even today -- in BC very recently in Ontario say 1920's and still ongoing on disputes. The First nations are the grieved, Canadians I don't think will show up to their court - aside from treaty. Other than war acts and civil disobedience what other recourse exists? It is not because of a superior position but due to the gravity of the situation. Canada is weak. First Nations 1/10th the population of Canada could paralyze Canada if they asserted themselves and bring it to its knees. The overall outcome however may not be too good for everyone.

Bear in mind there are emerging deals economically and organizationally with China emerging. All peaceful of course.

For instance

http://www.theglobeandmail.com/news/opinions/opinion/investing-in-a-first-nations-china-strategy/article2124447/

Edited September 10, 2011 by William Ashley

[jacee]

No, but neither can the Supreme Court. Treaties only have as much recognition as Canada gives them.

As the Supreme Court gives them, to be precise, and that's quite a lot these days. The other branches of gov must abide by the rulings - the law - as must we all.

Also Indigenous Peoples have access to the International Court of Justice when Canadian courts are exhausted, and the Supreme Court knows it.

The ICJ rules according to the UN Declaration on Rights of Indigenous Peoples. Harper initially reneged on Canada's commitment to that document but eventually caved to international and Canadian pressure and signed on.

It's a very interesting document, created by incorporating relevant parts of many other UN declarations - Human rights, etc. There are no 'new' rights in it: only those that apply to everyone.

Most interesting is the fact that one of the contributing documents was one created to entrench rights of colonies/former colonies (like Canada) as they became and consolidated independence.

The federal government's influence is in implementation of the laws/treaties of course and they continue as they always have to lie, cheat, steal, commit fraud, stall, obfuscate, bargain in bad faith and use "sharp dealing" tactics (specifically forbidden by the Supreme Court). They do this 'on our behalf', of course.

[Smallc]

As the Supreme Court gives them, to be precise, and that's quite a lot these days. The other branches of gov must abide by the rulings - the law - as must we all.

The legislative branch can change the law if it doesn't like something. Sure, there's a process, but it can be done. The Supreme court isn't superior to everything else.

[jacee]

The legislative branch can change the law if it doesn't like something. Sure, there's a process, but it can be done. The Supreme court isn't superior to everything else.

That's just not true smallc. When all appeals are exhausted the Supreme Court's rulings are the law and Parliament is NOT above the law. These are treaties, already law, that the Supreme Court interprets when there are challenges. Parliament cannot unilaterally change them. It can negotiate new treaties with a First Nation and only with their consent and their commu nity ratification.

[Smallc]

That's just not true smallc. When all appeals are exhausted the Supreme Court's rulings are the law and Parliament is NOT above the law.

Parliament makes the law, not the Supreme Court. Parliament at any time could choose to change anything...hell, with the help of the provinces, they can get rid of the supreme court.

[jacee]

Interesting tidbit from WmAshley's globeandmail link above:

" Both Canada and China support the United Nations Declaration on the Rights of Indigenous Peoples, which states that indigenous peoples must provide their consent to activities on their traditional territories. This UN declaration is a foundation to build a co-operative relationship between first nations and the governments of Canada and China."

And again, traditional territories are all lands occupied at the time of contact, not just the 'reserves'.

[jacee]

Parliament makes the law, not the Supreme Court. Parliament at any time could choose to change anything...hell, with the help of the provinces, they can get rid of the supreme court.

I say you are wrong, so you will have to find evidence to back your assertion.

If parliament could change the treaties, they would have done so long before now.

The rule of law applies to everyone, including parliament.

Edited September 10, 2011 by jacee

[Smallc]

I say you are wrong, so you will have to find evidence to back your assertion.

No, you're the one talking about things that aren't accepted knowledge, like the idea that the courts are about Parliament, which they aren't.

The rule of law applies to everyone, including parliament.

Well of course it does, but the point is that the courts are not above parliament, and that parliament has the power to make laws, or edit them. Sometimes that's a complicated procedure, but it still holds true. You want proof? Look at the written part of the Constitution of Canada.

[charter.rights]

The legislative branch can change the law if it doesn't like something. Sure, there's a process, but it can be done. The Supreme court isn't superior to everything else.

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.

[Smallc]

And, as I've already said, with the help of the provinces, Parliament can change the Charter of Rights and Freedoms.

[jacee]

And, as I've already said, with the help of the provinces, Parliament can change the Charter of Rights and Freedoms.

But can parliament change the treaties?

I think not.

[charter.rights]

But can parliament change the treaties?

I think not.

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

Edited September 10, 2011 by charter.rights