First Nations peoples are being eradicated by

[charter.rights]

9 sitting justices at any given time and over 25 years. From what I can tell, there have been roughly 24 different justices in that time period and all of them "blinded by political correctness"? You must be joking. Especially when you consider Mulroney and Harper appointed almost half of them.

The majority of SCoC Justices are Conservative appointees - including Chief Justice Audrey McLaughlin whom has been one of the most outspoken about our responsibility to protect Aboriginal rights. Seems as a Conservative she sees the law as supreme and political disinterest abhorrent to the laws of Canada.

[prairiechickin]

...he outlined the Queen’s promises of a “bounty and benevolence” which included reserves, agricultural provisions, schools, and annuities. Morris frequently mentioned concern about the well-being of children and the yet unborn; and the treaty, he promised, would last “as long as the sun shines and water flows.”

Clearly Treaty 4 was not a 'one time' deal, but an ongoing commitment and included federal funding for education and health care as well as annuities - annual payments to each member.

Verbal promises are contracts too, so treaty rights include what is writtne as well as discussion items (as above) updated to modern equivalents.

Yes, and ongoing commitment to provide a school/teacher on the reserve, a medicine chest and annual payments of five dollars per person. As for your verbal contracts, that's pure hogwash. By that standard whitey is on the hook for anything Indians can dream up and verify by saying, "Oh ya, my grandfather told me they promised us all new cars every three years." The treaties are legally binding contracts, what's in there is what you get. Anything more you dream up has no legal standing whatsoever.

[NWRS]

Yes, and ongoing commitment to provide a school/teacher on the reserve, a medicine chest and annual payments of five dollars per person. As for your verbal contracts, that's pure hogwash. By that standard whitey is on the hook for anything Indians can dream up and verify by saying, "Oh ya, my grandfather told me they promised us all new cars every three years." The treaties are legally binding contracts, what's in there is what you get. Anything more you dream up has no legal standing whatsoever.

Pretty much. there is a herd of caribou in labrador that is early extinct the government has tried to stop the local band from hunting them, but they refuse, and even go out of their way to shoot them from snowmobiles just to prove the point. No doubt there are many examples, they are entiteled, reality has no bearing.

[Wild Bill]

9 sitting justices at any given time and over 25 years. From what I can tell, there have been roughly 24 different justices in that time period and all of them "blinded by political correctness"? You must be joking. Especially when you consider Mulroney and Harper appointed almost half of them.

Perhaps you can correct my misunderstanding. I always thought that there was a fixed number of SCC judges at any given time. There would be issues arising and the SCC at that time would hear the case and deliver a ruling. At that point the issue was settled and that was the end of it.

Are you telling me that ALL the judges that have sat over 25 years have ruled on the issue of oral history with natives? That every new SCC judge considers and renders his own opinion? That even the smaller number of judges who actually ruled on oral histories were unanimous?

I must be missing something. This makes no sense. Surely you can enlighten me.

Edited December 27, 2011 by Wild Bill

[cybercoma]

Perhaps you can correct my misunderstanding. I always thought that there was a fixed number of SCC judges at any given time. There would be issues arising and the SCC at that time would hear the case and deliver a ruling. At that point the issue was settled and that was the end of it.

Are you telling me that ALL the judges that have sat over 25 years have ruled on the issue of oral history with natives? That every new SCC judge considers and renders his own opinion? That even the smaller number of judges who actually ruled on oral histories were unanimous?

I must be missing something. This makes no sense. Surely you can enlighten me.

Why don't you enlighten me as to which justices were biased and on which rulings. All I'm saying is that there as many as 25 different justices serving during that period, so I find it hard to believe that they were all biased.

[jacee]

Yes, and ongoing commitment to provide a school/teacher on the reserve, a medicine chest and annual payments of five dollars per person. As for your verbal contracts, that's pure hogwash. By that standard whitey is on the hook for anything Indians can dream up and verify by saying, "Oh ya, my grandfather told me they promised us all new cars every three years." The treaties are legally binding contracts, what's in there is what you get. Anything more you dream up has no legal standing whatsoever.

Oh. Excuse me as I temporarily mistook you for someone actually interested in understanding how the Supreme Court interprets and applies treaty rights.

Clearly you prefer your own misinterpretation, so I'll just leave it at that.

[Jerry J. Fortin]

Oh. Excuse me as I temporarily mistook you for someone actually interested in understanding how the Supreme Court interprets and applies treaty rights.

Clearly you prefer your own misinterpretation, so I'll just leave it at that.

Perhaps you will leave it at that, but I highly doubt it. I believe you are just spoiling for a fight. I think that after reading so many of your posts that you are a no account fool. I believe you to be both bias and bogus. I have little respect for the bullies and punks of our society, which I believe you to be.

[prairiechickin]

Oh. Excuse me as I temporarily mistook you for someone actually interested in understanding how the Supreme Court interprets and applies treaty rights.

Clearly you prefer your own misinterpretation, so I'll just leave it at that.

You show me exactly where the Supreme Court of Canada has altered Treaty Four specifically. I'm not talking airy-fairy generalizations and musings by individual judges, show me the specific case where any article of Treaty Four was altered. Show me that, then we can talk. You wanted a link to Treaty Four, I provided it, so read it, then show me where its been amended. Until then, you're just blowing smoke.

[Wild Bill]

Why don't you enlighten me as to which justices were biased and on which rulings. All I'm saying is that there as many as 25 different justices serving during that period, so I find it hard to believe that they were all biased.

You confuse me, CC! I never said that ALL SCC judges were politically correct and biased. I said that SOME could be, the same as anyone else!

I was responding to YOUR statement, which appeared to me to be saying that ALL SCC judges agreed on the ruling to accept oral histories and that ALL judges since then had reaffirmed that ruling! That of course would be ridiculous.

I simply meant that while SCC decisions must be a majority they do not have to be unanimous. The judges on the bench at that time who were in the MAJORITY with the decision are all we can say with certainty did agree with that decision.

Anyhow, I did a google and was promptly overwhelmed with "lawyertalk". So far it appears to me that this oral history claim dates back to a "Delgamuukw Decision" about land claims on the west coast, where it was decided that oral history IN SOME INSTANCES could be accepted in court, rather than treated as history as before.

I found a .pdf which means I can't cut and paste but here's a quote from one of the provincial judges, one Justice McEachern, who was satisfied over the need to accept oral evidence, given that the tribes involved did not practice writing. This was a case in British Columbia that had its final ruling overturned later by the Supreme Court.

http://osgoode.yorku.ca/osgmedia.nsf/0/FB9F32F8A02BD842852571B10076FF5E/$FILE/Legalizing%20Oral%20History.pdf

McEachern accepts that what is common knowledge in a tribe of events long before any of them were alive are likely acceptable but always verification must be made before oral histories can be accepted. He acknowledges that sometimes natives can be wrong or their history coloured their sincere beliefs.

"the fact that the plaintiffs' claim has been so much discussed for so many years, and the further fact that so much of the evidence was assembled communally in anticipation of litigation, or even during this litigation, must be taken into account."

"When I come to consider events long past I am driven to conclude on all the evidence, that much of the plaintiffs' historical evidence is not literally true."

"I am satisfied that the lay witnesses honestly believed everything they said was true and accurate. It was obvious to me, however, that very often they were recounting matters of faith which have become fact to them.If I do not accept their evidence it will seldom be because I think they are untruthful, but rather because I have a different view of what is fact and what is belief."

When his decision was overturned much of his treatment of oral histories were ruled invalid. The SCC judge was a Chief Justice Lamer, who essentially agreed with the difficulty in verifying oral histories but essentially stated that because the aboriginals usually had no other evidence it should be accepted at face value, regardless.

This is what I mean about judges having different opinions and also allowing politically correct values to colour their judgement. Chief Justice Lamer's decision remains controversial in the legal community to this day.

"Lamer instructed that the oral histories should have been placed on an "equal footing" with other kinds of historical evidence. But how exactly are trial judges to do this if they cannot distinguish between historical fact on the one hand and legend, myth and cultural values on the other? Or was Chief Justice Lamer suggesting that oral histories could be placed on an equal footing without distinquishing these various elements?

Unfortunately, Lamer did not answer these questions."

I don't pretend to understand all this as well as a lawyer but one thing seems clear. The idea of oral histories from natives being accepted as on a par with written documents is still moot in legal circles. Some posters on MLW would have us believe that this decision was handed down from Moses at Mount Sinai and must be accepted without question. Others would add that any SCC decision is universally shared within the legal community and will never, ever be amended or revoked by any future panel of SCC judges.

This is obviously a load of road apples! The decision was controversial at the time and remains so to this day. If a case of sufficient stature comes to trial again it is a certainty that aspects like oral history and verification will be revisited for further legal clarification. Some native champions may not be 100% happy at that time.

I should have known there'd be something like this hiding beneath all the righteousness and frankly, racism.

Edited December 27, 2011 by Wild Bill

[cybercoma]

I just wanted to know which justices were biased. I wasn't trying to suggest that none of them were. I just found it hard to believe that there could be that many justices and all of them were biased. So, you're saying it's not bias, but that the justices have different interpretations now. Is that right? I'm trying not to be a jerk here because you're one of the few posters with a dissenting opinion that I respect because you are typically respectful in return. The SCC, however, does not have to come to unanimous decisions. Nevertheless, Lamer's reasoning was spoken on behalf of the majority of justices in that case.

What's interesting about that particular case, and subsequently why it's important here, is that it recognized that aboriginals did not have written land titles in the way that Europeans did. Land titles were verbal agreements to the aboriginal communities. In this way, it is absolutely necessary to consider "oral history" in these cases, as there would be no paper trail for land ownership. That was something Europeans brought with them when they began laying claim to colonies.

It should be noted that there is consensus among historians that study Native American histories that there is a paucity of written documents until Europeans were well settled here. Any study of First Nations history must include references to oral histories and material history or it is incomplete. Native oral history is generally accepted and common practice among history scholars and anthropologists. As it comes to legal claims, it only makes sense. Why would nations with their own social and political institutions and histories follow European ones? To properly assess laws and contracts made with them, this must be taken into consideration. Not to do so, completely ignores the reality of their societies.

[charter.rights]

Yes, and ongoing commitment to provide a school/teacher on the reserve, a medicine chest and annual payments of five dollars per person. As for your verbal contracts, that's pure hogwash. By that standard whitey is on the hook for anything Indians can dream up and verify by saying, "Oh ya, my grandfather told me they promised us all new cars every three years." The treaties are legally binding contracts, what's in there is what you get. Anything more you dream up has no legal standing whatsoever.

Your hate towards Aboriginal people doesn't change the fact of law. Oral history is a valid form of evidence when it is tested according to the precepts outlined by the SCoC. British records also provide the balance of the evidence that shows that negotiators lied, cheated and omitted valuable components in the treaties.

The SCoC has already ruled that all treaties were oral agreements that were codified after the fact. As such the oral promises are as much part of the conditions as anything written down.

Get over it.

[Wild Bill]

What's interesting about that particular case, and subsequently why it's important here, is that it recognized that aboriginals did not have written land titles in the way that Europeans did. Land titles were verbal agreements to the aboriginal communities. In this way, it is absolutely necessary to consider "oral history" in these cases, as there would be no paper trail for land ownership. That was something Europeans brought with them when they began laying claim to colonies.

It should be noted that there is consensus among historians that study Native American histories that there is a paucity of written documents until Europeans were well settled here. Any study of First Nations history must include references to oral histories and material history or it is incomplete. Native oral history is generally accepted and common practice among history scholars and anthropologists. As it comes to legal claims, it only makes sense. Why would nations with their own social and political institutions and histories follow European ones? To properly assess laws and contracts made with them, this must be taken into consideration. Not to do so, completely ignores the reality of their societies.

And that's what Lamer recognized. Normally, oral history is treated as hearsay but Lamer recognized that a non-writing society must "be given a break", so to speak.

However, he also recognized that the evidence must be weighed carefully, since the natives may have inadvertently changed the history over the years. They could be perfectly truthful and sincere, just wrong!

As I had said and if you read the link, what has always offended me is the attitude certain native champions have expressed on this board that oral history has been accepted as both literally true and sacrosanct! Even though Lamer was overturned by what appears to a layman like myself as a bad decision, directly contradicting Lamer's point that oral evidence can be sincere but wrong, the SCC still left some gaping holes. Sooner or later a case will crop up that demands the point be re-addressed.

Meanwhile, it seems I was right not to accept the idea that the acceptance of oral history was absolute. Obviously, the court recognizes that there may be some distance between sincerity and truth.

[cybercoma]

That's all true, but some people here need to understand that it's a far cry from oral history being inadmissable and completely false.

[charter.rights]

And that's what Lamer recognized. Normally, oral history is treated as hearsay but Lamer recognized that a non-writing society must "be given a break", so to speak.

However, he also recognized that the evidence must be weighed carefully, since the natives may have inadvertently changed the history over the years. They could be perfectly truthful and sincere, just wrong!

As I had said and if you read the link, what has always offended me is the attitude certain native champions have expressed on this board that oral history has been accepted as both literally true and sacrosanct! Even though Lamer was overturned by what appears to a layman like myself as a bad decision, directly contradicting Lamer's point that oral evidence can be sincere but wrong, the SCC still left some gaping holes. Sooner or later a case will crop up that demands the point be re-addressed.

Meanwhile, it seems I was right not to accept the idea that the acceptance of oral history was absolute. Obviously, the court recognizes that there may be some distance between sincerity and truth.

12 Thirdly, where a treaty was concluded verbally and afterwards written up by representatives of the Crown, it would be unconscionable for the Crown to ignore the oral terms while relying on the written terms, per Dickson J. (as he then was) in Guerin v. The Queen, [1984] 2 S.C.R. 335. Dickson J. stated for the majority, at p. 388:

Nonetheless, the Crown, in my view, was not empowered by the surrender document to ignore the oral terms which the Band understood would be embodied in the lease. The oral representations form the backdrop against which the Crown’s conduct in discharging its fiduciary obligation must be measured. They inform and confine the field of discretion within which the Crown was free to act. After the Crown’s agents had induced the Band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore those terms.

14 Subsequent cases have distanced themselves from a “strict” rule of treaty interpretation, as more recently discussed by Cory J., in Badger, supra, at para. 52:

. . . when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North‑West Territories (1880), at pp. 338‑42; Sioui, supra, at p. 1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Friesen, Grant me Wherewith to Make my Living (1985). The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. [Emphasis added.]

51 In more recent times, as mentioned, the principle that the honour of the Crown is always at stake was asserted by the Ontario Court of Appeal in Taylor and Williams, supra. In that case, as here, the issue was to determine the actual terms of a treaty, whose terms were partly oral and partly written. MacKinnon A.C.J.O. said for the court, at pp. 235-36:

The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted, the honour of the Crown is always involved and no appearance of “sharp dealing” should be sanctioned. Mr. Justice Cartwright emphasized this in his dissenting reasons in R. v. George, . . . [1966] S.C.R. 267 at p. 279, where he said:

We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such a manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty.

Further, if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible: R. v. White and Bob (1964), 50 D.L.R. (2d) 613 at p. 652 . . . (B.C.C.A.); affirmed . . . [1965] S.C.R. vi. . . .

R. v. Mitchell 1999

68 Underlying all these issues is the need for a sensitive and generous approach to the evidence tendered to establish aboriginal rights, be they the right to title or lesser rights to fish, hunt or gather. Aboriginal peoples did not write down events in their pre-sovereignty histories. Therefore, orally transmitted history must be accepted, provided the conditions of usefulness and reasonable reliability set out in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, are respected. Usefulness asks whether the oral history provides evidence that would not otherwise be available or evidence of the aboriginal perspective on the right claimed. Reasonable reliability ensures that the witness represents a credible source of the particular people’s history. In determining the usefulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts.

69 The evidence, oral and documentary, must be evaluated from the aboriginal perspective. What would a certain practice or event have signified in their world and value system? Having evaluated the evidence, the final step is to translate the facts found and thus interpreted into a modern common law right. The right must be accurately delineated in a way that reflects common law traditions, while respecting the aboriginal perspective.

R. v. Marshall 2005

There you have it.

". . . when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement..."

The law as it is written.

Edited December 28, 2011 by charter.rights

[Wild Bill]

That's all true, but some people here need to understand that it's a far cry from oral history being inadmissable and completely false.

I've never thought that, CC! Like most things, the truth is usually somewhere in the middle. Fanatics on any side of an issue rarely inspire confidence.

And they NEVER admit they may have been wrong! They just weasel like a lawyer and change what they've stated before, moving the goalposts to make things look better for them.

Human nature, I suppose. You'd best be careful discussing this with me or we'll BOTH get branded racists!

[Jerry J. Fortin]

R. v. Mitchell 1999

R. v. Marshall 2005

There you have it.

". . . when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement..."

The law as it is written.

I got caught up in the part about "“Occupation” means “physical occupation” and “exclusive occupation” means an intention and capacity to retain exclusive control of the land. ". Interesting point.

[prairiechickin]

And they NEVER admit they may have been wrong! They just weasel like a lawyer and change what they've stated before, moving the goalposts to make things look better for them.

Abolutely true, Wild Bill, absolutely true.

[fellowtraveller]

Here is a place to start: the Prime Minister should request that the First Nations leaders nominate a federal Minister of Indian Affairs and Northern Development and that nomineee shall be appointed. There is no need for any constitutional change or provinical agreement, cabinet ministers serve at the pleasure of the PM and do not have to be elected.

First Nations need a place at The Big Table, because with that comes both reward and responsibility.

[cybercoma]

Here is a place to start: the Prime Minister should request that the First Nations leaders nominate a federal Minister of Indian Affairs and Northern Development and that nomineee shall be appointed. There is no need for any constitutional change or provinical agreement, cabinet ministers serve at the pleasure of the PM and do not have to be elected.

First Nations need a place at The Big Table, because with that comes both reward and responsibility.

Absolutely true. There has never been a Native Minister of Aboriginal and Northern Affairs. There are aboriginal MPs, so it's beyond me why they have never been made a minister. In fact, the government does not need to be made up exclusively from the party with the most seats, so there's no excuse.

[Wild Bill]

Absolutely true. There has never been a Native Minister of Aboriginal and Northern Affairs. There are aboriginal MPs, so it's beyond me why they have never been made a minister. In fact, the government does not need to be made up exclusively from the party with the most seats, so there's no excuse.

Seems to me a native MP could be said to have a conflict of interest. Then again, we'd be fools to carte blanche trust ANY MP!

[cybercoma]

Seems to me a native MP could be said to have a conflict of interest. Then again, we'd be fools to carte blanche trust ANY MP!

Does the Minister on the Status of Women have a conflict of interest because she's a woman?

[Wild Bill]

Does the Minister on the Status of Women have a conflict of interest because she's a woman?

Please don't take me literally, CC. An aboriginal MP is still an MP. I just don't really trust ANY politician!

I won't forgive and trust someone just because of their race.

[cybercoma]

Please don't take me literally, CC. An aboriginal MP is still an MP. I just don't really trust ANY politician!

I won't forgive and trust someone just because of their race.

I'm not saying they should be trusted any more or less than any other MP though. I'm saying that perhaps if there's going to be a Minister responsible for aboriginal peoples, then what fellowtraveler says makes sense. It should probably be an aboriginal MP.

[Wild Bill]

I'm not saying they should be trusted any more or less than any other MP though. I'm saying that perhaps if there's going to be a Minister responsible for aboriginal peoples, then what fellowtraveler says makes sense. It should probably be an aboriginal MP.

Maybe so. Certainly such a Minister couldn't do a worse job than what we've seen before.

[prairiechickin]

I for one would love to see an Indian take the Indian Affairs portfolio. It would mark a real point that we are at least trying to initiate a dialogue. But this Indian (don't care if its man or woman)

should have a deep understanding of both sides, and some sort of mandate to start a discussion of the relations between Natives and the rest of Canada. We need to stop stereotyping each other (all Indians are good, all white people are evil oppressors -- all Indians are on welfare and drunk and lazy and have too many kids), and start to talk about how we, as a nation, can bring our first peoples into what is, after all, a pretty cool place to live. If you are Native and sucking the slough-water of one of the finest Nations on the Planet, you have to ask yourself why. Why does a town of 250 people (Binscarth, Manitoba) have a perfectly functional water and sewer system, and never have to declare a state of emergency? Multiply that by ten thousand and that's all the small towns in Canada that managed to build funtional water systems. Why is this such a big deal on so many Reserves? I want to know. Tell me that, and then we'll talk about the mould and the stray dogs.