Six Nations Crisis- “Canada’s Pandora’s Box?”

[jdobbin]

Here's one for you. Guerin v. The Queen [1984] 2 S.C.R. 335

This just gives the government a fiduciary duty to protect native rights. It doesn't say what limits to those rights are.

[Riverwind]

Here's one for you. Guerin v. The Queen [1984] 2 S.C.R. 335

In this case the gov't leased reserve land to golf course without any consideration for the interests of the native band. I would be shocked if the SCC had not ruled in the band's favor in this one.

To contrast, the Delcho are currently holding up the Mackenzie Valley pipeline project. They are the only aboriginal group that has not signed on. My understanding is the gov't is legally entitled to proceed with the project because it did consult with the Delcho and offered reasonable terms. Aboriginal title does not give the Delcho the power to block the project.

[Okwaho]

Here's one for you. Guerin v. The Queen [1984] 2 S.C.R. 335

This just gives the government a fiduciary duty to protect native rights. It doesn't say what limits to those rights are.

You better read it again! The final decision states that the land must be ceded to the Crown. Also look at how the Nisga'a Treaty was dealt with here's a government link. http://www.ainc-inac.gc.ca/pr/info/nit_e.html

Notice where it says: Beginning in the early 1970s, successive court cases confirmed that Aboriginal rights and title are legal rights and that they existed whether governments recognized them or not. In 1982, The Constitution Act was changed to recognize and affirm existing Aboriginal rights. This change did not create or define Aboriginal rights, rather, it "recognized and affirmed" existing Aboriginal rights and treaty rights.

It is important to understand that Aboriginal rights and treaty rights are different. Aboriginal rights are not clearly defined, and must be established through the courts on a case-by-case basis. Treaty rights are negotiated B and in modern treaties rights can be exhaustively set out and described in detail.

The governemnt uses sections 18 and 35 of the Indian Act in order try and get around tribal custom and usage. If you know and understand your Constitution you'll find that the Indian Act isn't even mentioned in as it is in direct contradiction to the Constitution.

[jdobbin]

You better read it again! The final decision states that the land must be ceded to the Crown. Also look at how the Nisga'a Treaty was dealt with here's a government link. http://www.ainc-inac.gc.ca/pr/info/nit_e.html

Notice where it says: Beginning in the early 1970s, successive court cases confirmed that Aboriginal rights and title are legal rights and that they existed whether governments recognized them or not. In 1982, The Constitution Act was changed to recognize and affirm existing Aboriginal rights. This change did not create or define Aboriginal rights, rather, it "recognized and affirmed" existing Aboriginal rights and treaty rights.

It is important to understand that Aboriginal rights and treaty rights are different. Aboriginal rights are not clearly defined, and must be established through the courts on a case-by-case basis. Treaty rights are negotiated B and in modern treaties rights can be exhaustively set out and described in detail.

The governemnt uses sections 18 and 35 of the Indian Act in order try and get around tribal custom and usage. If you know and understand your Constitution you'll find that the Indian Act isn't even mentioned in as it is in direct contradiction to the Constitution.

I've re-read the decision a few times now. Where does it say there are no limits there?

http://en.wikipedia.org/wiki/R._v._Guerin

The Nisga Treaty had lots of limits placed on it.

[saga]

Resolution at Caledonia is federal government's responsibility

By George Sorger, Hamilton

The Hamilton Spectator

(Aug 3, 2006)

Re: 'Onus on judge to rule' (The Spectator, July 25)

Many demanding "law and order" in Caledonia, along with this article about Justice Marshall's deliberations concerning the Six Nations occupation of their land at Caledonia, seem to ignore the fact that the disputed land is part of a formal treaty between the Crown, now the responsibility of the federal government, and the Six Nations.

The fact the land was sold to a developer, and then bought from the developer by the province of Ontario, does not change the fact that it is treaty land and cannot be sold or bought by anyone without Six Nations consent, which neither of the above sales had.

If the OPP are sent in once again to "clear" the Six Nations occupants from the site, we will be back where we started months ago, when the barricades went up and there were violent confrontations.

The courts and the OPP should not be expected to settle aboriginal land claims. This land claim must be settled by negotiations between the federal government and the Six Nations Confederacy. They are the authorities which inherited the responsibility for the treaties, describing who owns the above land and what the relationship between the two nations is to be.

Justice Marshall and the lawyers opposing the Six Nations describe the occupation of native land as an act of contempt of court, which carries a stiff penalty. I think there should be something called contempt of treaties, which should carry an equally stiff penalty, so that the formal treaties governing relations between Canada and the First Nations will be obeyed and the law prevails.

............

This letter to the Spec echoes my thoughts ... unfortunately some idiot wants to have an idiot rally again this friday. If they get loud and nasty again, we are going to drown them out with our car horns!

[Okwaho]

Resolution at Caledonia is federal government's responsibility

By George Sorger, Hamilton

The Hamilton Spectator

(Aug 3, 2006)

Re: 'Onus on judge to rule' (The Spectator, July 25)

Many demanding "law and order" in Caledonia, along with this article about Justice Marshall's deliberations concerning the Six Nations occupation of their land at Caledonia, seem to ignore the fact that the disputed land is part of a formal treaty between the Crown, now the responsibility of the federal government, and the Six Nations.

The fact the land was sold to a developer, and then bought from the developer by the province of Ontario, does not change the fact that it is treaty land and cannot be sold or bought by anyone without Six Nations consent, which neither of the above sales had.

If the OPP are sent in once again to "clear" the Six Nations occupants from the site, we will be back where we started months ago, when the barricades went up and there were violent confrontations.

The courts and the OPP should not be expected to settle aboriginal land claims. This land claim must be settled by negotiations between the federal government and the Six Nations Confederacy. They are the authorities which inherited the responsibility for the treaties, describing who owns the above land and what the relationship between the two nations is to be.

Justice Marshall and the lawyers opposing the Six Nations describe the occupation of native land as an act of contempt of court, which carries a stiff penalty. I think there should be something called contempt of treaties, which should carry an equally stiff penalty, so that the formal treaties governing relations between Canada and the First Nations will be obeyed and the law prevails.

............

This letter to the Spec echoes my thoughts ... unfortunately some idiot wants to have an idiot rally again this friday. If they get loud and nasty again, we are going to drown them out with our car horns!

Seko Saga! I just wanted to clarify in the letter that The Haldimand Proclamation is NOT a treaty! It is a Royal (Crown) Proclamation and in being so is actually a Crown Law. It is equal to the Constitution of Canada under Crown Law.

[Okwaho]

I've re-read the decision a few times now. Where does it say there are no limits there?

The Nisga Treaty had lots of limits placed on it.

You are misunderstanding my original post. The Nations in B.C. have title to all of their lands that were not and are not ceded or surrendered to the Crown.

Guerin v. The Queen [1984] 2 S.C.R. 335

(f) On December 6, 1957, the surrender of the lands was accepted by the federal Crown by Order in Council P.C. 1957- 1606, "in order that the lands covered thereby may be leased".

The plaintiffs based their case on breach of trust. They asserted that the federal Crown was a trustee of the surrendered lands.

Here are some exerpts from this government site http://www.ainc-inac.gc.ca/pr/agr/nsga/contex_e.html

B.C.'s History with Treaties

Since most treaty making over the last 100 years in Canada stopped at the Rockies, British Columbia's situation is unique. Until the negotiation of the Nisga'a Final Agreement, almost all of the province remained subject to outstanding Aboriginal land claims. The only treaties affecting the province are Treaty 8, which extends into northeastern B.C. from Alberta, and 14 limited-scope treaties on Vancouver Island.

The federal government must have the land ceded or surrendered to them before the province can obtain it.

[SickandTired]

Seko Saga! I just wanted to clarify in the letter that The Haldimand Proclamation is NOT a treaty! It is a Royal (Crown) Proclamation and in being so is actually a Crown Law. It is equal to the Constitution of Canada under Crown Law.

There is a case from the courts that confirms that the Haldimand Proclamation is not a treaty in the eyes of the court. The court consider the document a deed...

LOGAN v. STYRES ET AL. (sub nom. LOGAN v. ATTORNEY-GENERAL OF CANADA)

http://library.usask.ca/native/cnlc/vol05/261.html

"The Parliament of Canada has legislative authority under s. 91(24) of the B.N.A. Act to provide for the surrender of reserved Indian lands, even though this be done by a method which interferes with the system of internal government of Indian bands by hereditary chiefs. Members of the Six Nations Indians who settled on reserved land conveyed by the Haldimand Deed of October 25,1784 (sometimes called the Haldimand Treaty), a transfer confirmed by the Simcoe Deed of January 14, 1793, did so under the protection of the Crown, and they and their posterity consequently owed allegiance to the Crown, becoming subjects thereof. It cannot therefore be contended that they are immune from the competent laws of Canada, however unfair or unjust it may be in particular circumstances to interfere with their traditional system of internal government."

[jdobbin]

Seko Saga! I just wanted to clarify in the letter that The Haldimand Proclamation is NOT a treaty! It is a Royal (Crown) Proclamation and in being so is actually a Crown Law. It is equal to the Constitution of Canada under Crown Law.

Saga has been banned from the forum for abuse.

[jdobbin]

You are misunderstanding my original post. The Nations in B.C. have title to all of their lands that were not and are not ceded or surrendered to the Crown.

Guerin v. The Queen [1984] 2 S.C.R. 335

(f) On December 6, 1957, the surrender of the lands was accepted by the federal Crown by Order in Council P.C. 1957- 1606, "in order that the lands covered thereby may be leased".

The plaintiffs based their case on breach of trust. They asserted that the federal Crown was a trustee of the surrendered lands.

Here are some exerpts from this government site http://www.ainc-inac.gc.ca/pr/agr/nsga/contex_e.html

B.C.'s History with Treaties

Since most treaty making over the last 100 years in Canada stopped at the Rockies, British Columbia's situation is unique. Until the negotiation of the Nisga'a Final Agreement, almost all of the province remained subject to outstanding Aboriginal land claims. The only treaties affecting the province are Treaty 8, which extends into northeastern B.C. from Alberta, and 14 limited-scope treaties on Vancouver Island.

The federal government must have the land ceded or surrendered to them before the province can obtain it.

I'm not that familiar with the B.C. cases. Negotiations are taking place now?

[Riverwind]

I'm not that familiar with the B.C. cases. Negotiations are taking place now?

The BC case is not as black and white as he claims. Delgamuukw is judgement that covers this issue. Under Delgamuukw bands must prove that they occupied the land to the exclusion of others before 1846, the year Britain declared sovereignty over the area that became British Columbia. Then they have to prove some degree of continuity from that occupation until today.

Futhermore, the SCC made it very clear in Delgamuukw that it wants to see a negotiated settlement that achieves "the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown.”.

IOW - natives groups most definately do not have title to the lands today. They have a right to prove their claim to title and the gov't must enter into good faith negotiations, however, the court has also set the clear expectation that aboriginal groups must be reasonable in their demands as well.

[Tsi Nikayen' Enonhne']

She:kon!

Canadian courts have no jurisdiction over sovereign First Nations. Most of BC Alberta and Saskatchewan is unceded. No treaties. No rights to occupy those lands.

O:nen

[Riverwind]

Canadian courts have no jurisdiction over sovereign First Nations. Most of BC Alberta and Saskatchewan is unceded. No treaties. No rights to occupy those lands.

That is a completely false statement. Canada has sovereignty over all of those lands the only issue is whether some of those lands are _also_ subject to aboriginal title which gives aboriginals some rights to use the land for their purposes but does not give the sovereignty over the land. This difference is subtle but extremely important. Non-natives have a right to be on those lands and that principal has been confirmed by the SCC in Delgamuukw.

[jdobbin]

I'm not that familiar with the B.C. cases. Negotiations are taking place now?

The BC case is not as black and white as he claims. Delgamuukw is judgement that covers this issue. Under Delgamuukw bands must prove that they occupied the land to the exclusion of others before 1846, the year Britain declared sovereignty over the area that became British Columbia. Then they have to prove some degree of continuity from that occupation until today.

Futhermore, the SCC made it very clear in Delgamuukw that it wants to see a negotiated settlement that achieves "the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown.”.

IOW - natives groups most definately do not have title to the lands today. They have a right to prove their claim to title and the gov't must enter into good faith negotiations, however, the court has also set the clear expectation that aboriginal groups must be reasonable in their demands as well.

Ah. That makes sense. A complicated process to be sure and no wonder it takes years to settle a land claim case.

I wonder if environmentalist will support some of these claims this time knowing that they will be betrayed later on.

[jdobbin]

Canadian courts have no jurisdiction over sovereign First Nations. Most of BC Alberta and Saskatchewan is unceded. No treaties. No rights to occupy those lands.

Sounds like you are in no position to assert those claims.

[Tsi Nikayen' Enonhne']

She:kon!

Your court's interpretation of domestic law has no authority over us any more than it would have standing in the US or Cuba. You can make all the interpretations and declarations you want and it doesn't mean beans. Haudenosaunee are sovereign nations subject to our own Constitution and laws.

O:nen

[Riverwind]

Your court's interpretation of domestic law has no authority over us any more than it would have standing in the US or Cuba. You can make all the interpretations and declarations you want and it doesn't mean beans. Haudenosaunee are sovereign nations subject to our own Constitution and laws.

You can claim the world is flat but that does not make it true.

[jdobbin]

Your court's interpretation of domestic law has no authority over us any more than it would have standing in the US or Cuba. You can make all the interpretations and declarations you want and it doesn't mean beans. Haudenosaunee are sovereign nations subject to our own Constitution and laws.

And yet your own ability to enforce your laws on 500,000 people remains impotent.

[Tsi Nikayen' Enonhne']

She:kon!

Our ability is hardly impotent. That is why it is important to negotiate with your government to bargain a deal for those settlers remaining on our tract. If negotiations fail then it will be by sovereign right that either they are evicted or they reamin under Haudenosaunee rule.

O:nen

[jdobbin]

Our ability is hardly impotent. That is why it is important to negotiate with your government to bargain a deal for those settlers remaining on our tract. If negotiations fail then it will be by sovereign right that either they are evicted or they reamin under Haudenosaunee rule.

You've said before there is no sovereign government to negotiate with. And you don't recognize Canada. Seems to me that for you anyway negotiations can't happen.

[Tsi Nikayen' Enonhne']

She:kon!

We're not discussing land claims. We're discussing the safety and settlement of Canadians living on our lands. The government has already acknowledged our title to the lands and it now must deal with the problem of all the illegal and invalid deeds that non-natives hold within the tract.

We don't need to discuss this with the Crown since the Canadian and provincial governments take responsibilty for people who pay their taxes to them.

O:nen

[jdobbin]

She:kon!

We're not discussing land claims. We're discussing the safety and settlement of Canadians living on our lands. The government has already acknowledged our title to the lands and it now must deal with the problem of all the illegal and invalid deeds that non-natives hold within the tract.

We don't need to discuss this with the Crown since the Canadian and provincial governments take responsibilty for people who pay their taxes to them.

O:nen

Why would it be our problem when you don't recognize Canadians or that Canada has any land. You should be talking to rest of the nations of the world.

[jdobbin]

deleted

[Tsi Nikayen' Enonhne']

She:kon!

Certainly if the government negotiators had your attitude about letting those settlers living on the tract hang out to dry, we might very well be offering them eviction over citizenship. Fortunately, our peaceful nature, our agreement with the Crown to extend the Peace to subjects of the Crown under the Covanent Chain and our humanity towards people in a precarious circumstance propel us to search for a solution. After all is said and done we are still neighbours.....

O:nen

[Riverwind]

We're not discussing land claims. We're discussing the safety and settlement of Canadians living on our lands. The government has already acknowledged our title to the lands and it now must deal with the problem of all the illegal and invalid deeds that non-natives hold within the tract.

The gov't argues that Six Nations legally surrendered the Grand River lands a long time ago. Furthermore, even if those lands were acquired unfairly means those lands are not treaty lands since they were a 'gift' by the crown to Six Nations. i.e. the Grand River lands are not the traditional territory of Six Nations - Six Nations people are just another group of settlers on those lands. So when you talk about booting settlers off Six Nations lands you must be referring to yourself - correct?

In the case of BC, all titles to privately held land and crown land are legally valid until each aboriginal group proves otherwise. The SCC did _not_ say that aboriginal groups automatically have title to today - it said the aboriginal groups are entitled to prove that they have title and once they have done that they must negotiate a compromise with the gov't.