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British Court Of Appeal Dismisses Iaa Case

SASKATCHEWAN INDIAN      JANUARY 1982      v12 n01 p02  
Editor's Note: The January issue of the Saskatchewan Indian is late. We felt the IAA Court ruling handed down January 28 and the Emergency session of the Constitution Commission was important news worthy of coverage immediately. We hope you agree, it was worth the wait.

The British court of appeal ruled Thursday, January 28th, that the Indian Association of Alberta had failed to prove that the Britain Crown is bound by law to uphold treaty obligations.

The IAA, through their British lawyer Louis Blom-Cooper, argued at length Thursday and Friday, January 14 and 15 that original treaty obligations resided in Britain and "nowhere could one find a transfer of those obligations either expressed by or by implications to Canada.

He argued further that any outstanding obligations which reside with the Imperial Crown do not pass to Canada unless there is a passage of total sovereignty to Canada.

By the Statute of Westminster of 1931 the British Parliament retained the right to amend the British North America Act which up to now has been informally recognized as Canada's constitution. Mr. Louis Blom-Cooper argued that Canada has not yet achieved full sovereignty

Canada not sovereign: IAA lawyer

and therefore cannot and does not have the power to unilaterally impact Indian treaties made with Britain.

British government lawyer Albert Alexander dismissed IAA arguments saying treaties, particularly with Alberta Indians, were made post confederation and obligations have resided with Canada all along.

Mr. Alexander said it is "pellucidly clear" that all treaties signed after 1867 were intended to be made between the Indians and the Crown in the right of Canada, and not in the right of the United Kingdom and Britain.

Were the British government to be held responsible for treaties a situation might arise where Indians could apply to the British courts for relief of treaty infractions. The British Courts could rule on those infractions without the power to enforce it.

Britain would be placed in a position where it would be interfering in Canadian internal affairs.

In his final submissions Wednesday, january 20, Mr. Blom-Cooper, IAA lawyer, cited the cases of India and Burma upon achieving independence from Britain had treaty and other responsibilities previously held by the British government transferred by legislation to their jurisdiction.

The three judges of the Court of Appeal reserved ruling on the case until 8 days later when the case was dismissed.

Lord Denning, master of the rolls, Lord Justice Kerr and Lord justice May dismissed the Alberta case. Each gave different reasons for decision.

By far the most supportive of the Indian cause for entrenchment were the reasons of Lord Denning. He said the guarantees to the aboriginal peoples contained in the charter of rights and freedoms should be honored by the Crown in the right of Canada "so long as the sun rises and the river flows".

But Lord Denning said Britain had no authority for Indians because the Crown was divided in the first half of the present century by constitutional "usage and practise". The Crown became separate and divisible according to the territory in which it was sovereign.

He went on to say that by section 40 (2) (c) of the Crown proceedings Act 1947 in order for proceedings to

Divisible crown lets Britain off hook

be brought against the Crown, the liability of the Crown must be one "in respect of her Majesty's Government in the United Kingdom."

Now that the Crown was separate and devisable, the obligations under the proclamations and treaties lay with the Crown in the right of Canada.

Lord justice Kerr agreed with Lord Denning and said Indian treaties were not treaties in the sense of international treaties between nations or sovereign states. On the divisibility of the Crown, Lord Justice Kerr went farther than Lord Denning saying that the rights and obligations of the crown would apply as soon as it could be seen that there was an established government of the crown in the territory in question.

Lord Justice May also agreed, saying that although only one person was sovereign within the British Commonwealth, it was now a "truism" that in matters of law, the Queen of Great Britain was entirely independent and distinct from the Queen in Canada.

Any treaties entered into by the Crown in the right of the United Kingdom became the responsibility

continued on page 36


British Court Of Appeal Dismisses Iaa Case

SASKATCHEWAN INDIAN      JANUARY 1982      v12 n01 p36  
continued from page 4

of the Government of Canada by the Statute of Westminster in 1931. Lord Justice May said treaties prior to 1763 were merely articles of submission.

lt is interesting to note that all three Lords said the Crown was divisible but they could not agree on when it became undone. Lord Denning said "the first half of the present century", Lord May said "1931" and Lord Kerr put it way back when government was first established which probably since it's hardly likely he recognizes Indian government, would be 1867 when Canada became a country.

In analysing the ruling, Chief Sol Sanderson said it was not a loss for Indians. "It is a moral and political victory," he said. "The ruling is political. It goes even further to support our position that there are very legal obligations on the part of the crown." He went on to say, "The Court of Appeal asserts such obligations have been transferred to Canada but it confirms the basic fine point that such obligations do in fact exist. This is our victory."

No control over IAA lawyer

Saskatchewan Indian lawyers, Delia Opekokew and Rodney Soonias both agree the IAA case was poorly argued in the Courts. Delia Opekokew said it was obvious the IAA did not have control over their London lawyer or he would not have been allowed to say some of the things he did.

During the court case, IAA lawyer Louis Blom-Cooper said Indians had their Chiefs and headmen to regulate "their simple societies" and enforce "their customs".

It is the position of Indians in Canada that Indian government was well developed before colonization and the "customs" Blom-Cooper refers to were in fact laws which arose out of the authority vested in the Chiefs and not out of customs "handed down by tradition", as Blom-Cooper argued.

He also referred to us as "primitive societies" whose "solitude was disturbed by the coming of the English from across the seas".

Twice during the hearing Lord Denning asked, "What do the Indians want?" The IAA gave no answer even though there is a clear position mandated by all the chiefs in Canada and embodied in the Treaty and Aboriginal Rights Principles and the Declaration.

Chief Sol Sanderson said the IAA is not advancing nationhood but local government autonomy. They have accepted the supremacy of parliament even though we assert we are sovereign. The IAA is continuing to push the minority rights position through their petition to the U.K. parliament.

The minority rights position the IAA is pushing in Britain is inexplicable given Alberta Indians vast oil reserves.

If Indians were recognized as having "minority rights in Canada" ownership of land and resources would fall under Federal or provincial government jurisdiction depending on the location of Indian lands. Given Premier Lougheed's position on provincial ownership of natural resources, minority rights recognition would mean Alberta Indian oil revenues would go directly into Alberta coffers to be channelled out again (with a percentage taken off the top for administration costs, etc.) to Alberta bands.

The position is a clear compromise of Indian nationhood and the IAA's motives are truly inexplicable.