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Struck Out: Constitutional Court Action By Saskatchewan Chiefs Refused In Britain

SASKATCHEWAN INDIAN      JUNE 1982      v12 n05 p06  
The British High Court of Justice has again denied that the Crown in right of the United Kingdom owes obligations, under Treaty or otherwise, to the Indian people of Canada.

In February of this year, Saskatchewan launched a court action in England seeking declarations that the treaty agreements and trust relationship between Indian Nations and the Crown remain in full force and continue to bind the British Crown. Also sought was a declaration that these treaties were really international in nature and that no changes could be made regarding these treaties without the express consent of all the parties involved. In an earlier case of the Indian Association of Alberta, it had been conceded that Indian treaties were not of an international character.

The judges of the British Court of Appeal in that case were unanimous that treaty and trust obligations of the Crown had been transferred from England to Canada. However the judges gave quite different reasons for the transfer and also about when it should have occurred. One judge indicated that.the Crown had divided in some mysterious way around 1926. At that time responsibility for Indians was transferred to the Crown in right of Canada.

The second judge thought it happened in 1867 when Canada formed its own government. The third judge felt that it probably happened in 1867 but certainly not later than 1931.

The Crown lawyers moved, before the Saskatchewan case could be heard, to strike it out on the basis that it should be heard in Canada and not in England. Their primary argument was that the issue had already been decided in the case of the Indian Association of Alberta and that treaty and trust obligations were therefore owed by the Crown in right of Canada and not by the Crown in right of Great Britain.

The lawyers for Saskatchewan argued that the Alberta case did not reflect the position of Saskatchewan Indians and that the case should be allowed to be heard. So persuasive was the argument that after the hearing the Crown lawyers were prepared to concede that they had lost their motion.

However, Mr. Justice Megarry nevertheless somehow felt himself bound by the earlier decision of the Court of Appeal. He states that:

"The Crown made obligations as the Sovereign and with the diversion and transfer of sovereignty the obligations are transferred. That transfer could have been carried out by statute, but in this case it was not. I cannot see that a promise by the British Crown prevents transfer of obligations with the transfer of sovereignty. The Crown may carry out these agreements through its Ministers in Canada and the Crown in right of Canada may act as trustee of these trusts. The Alberta case is decisive..."

On the point of the International status of the treaties, Mr. Justice Megarry did not feel the need to comment.

The application of Saskatchewan Indians to have their full trial heard was struck out. Additionally, an order for court costs was made in favour of the Crown. Leave to appeal was, however, automatically granted within two weeks from when the judgement is entered, sometime in early June.

The decision whether or not to appeal must be made by the Constitutional Commission of the FSI within that time.