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The Historical And Legal Perspective Of Indian Government

Bill Pillipow

SASKATCHEWAN INDIAN      JULY/AUGUST 1988      p10  
To understand how Indian people and Indian nations can best put forward their argument for enforcement of treaties and Indian self determination, it is necessary to review the history and events from early times to the present.

The history of Indian nations is the longest history this nation of ours has. To advance the Indian position one must base it on fact and put forth the best scenario possible. Fact is on the side of the Indian nations as it relates to the federal crown - the Indian position is based on fairness - it is just, equitable and right.

One must start many years before the pronouncement of the Royal Proclamation of 1763, but it was in that year, 225 years ago, that the Proclamation set down in writing the rights and privileges of the Indian nations and the clear obligations to be undertaken by the Crown. For the next 104 years, the British Crown and the Indian nations were governed by it until once again it was affirmed in the British North America Act, passed in 1867. By Section 91(24), the responsibility for obligations of Indians and Indian nations rested squarely on the Federal Crown. Soon thereafter, Treaties were entered into between the Indian nations and the federal crown, commencing in the early 1870's and continuing until the last treaty was signed in 1921. We then proceed to the Natural Resources Transfer Agreement entered into between the federal crown and the provincial Crown in 1930. The next important step, if you will, is culminated by the passage of the Canada bill the Canada Constitution of 1982.

The question that must be asked is, which of these events are most important to the Treaty Indians of Canada? Which of these matters are sacred and solemn and which of these can be altered, changed or amended without the consent of the Indian people?

Firstly, the Royal Proclamation of 1763 is a solemn sovereign pronouncement and is not changeable. The British North America Act which now becomes history in a way, because of our new Constitution, had a way of being amended without Indian consent. Treaties are agreements or arrangements between two entities. They cannot be altered or changed without the consent of both parties; these parties are the federal crown and the Indian nations.

The Natural Resources Transfer Agreement of 1930 is an agreement between the federal crown and the province and did not involve negotiations with Indian people or Indian nations. The federal crown did not come to you for your consent or for your advice before they entered into that agreement. There is no provision in that agreement for the requirement for Indians to go to the provinces for their rights. The arrangements between the Indian nations the federal crown. If there is something to be obtained from the province, it is the responsibility of the federal crown to get it for you.

The Constitution of 1982 will affect the Treaty Indian and the aboriginal. I will deal with that later.

Now, let us take a look at each one of these separately. What does the Royal Proclamation of 1763 really say? What does it do? It is 225 years old, and it has been incorporated in the Constitution. It covers every aboriginal and every Treaty Indian. In that proclamation, the King of England guaranteed certain things to the aboriginal people of this country which still remain today. He guaranteed personal liberties and protection of property. He offered the use of the British Judicial system, including the highest court of the land; the Privy Council. Lord Denning of that court deals with treaties, in a decision in 1982 to which I will come later.

THE CHARTER OF RIGHTS AND FREEDOMS

The Charter specifically guarantees to the aboriginal peoples the rights and freedoms which I have discussed earlier. These are the relevant clauses:

25. The guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate and derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including:

a) any rights or freedoms that have been recogized by the Royal Proclamation of October 7, 1763 and,

b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

35. (1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

It also provides for a constitutional conference to be called within one year.  That conference to consider "an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples."(Clause 37 (2)).


The Historical And Legal Perspective Of Indian Government

Bill Pillipow

SASKATCHEWAN INDIAN      JULY/AUGUST 1988      p11  
In addition, the King guaranteed to you your continued livelihood by the vocation of hunting and fishing, etc. He dealt with you as nations and, in particular, in very clear language he stipulated how land was to be held and dealt with. He provided for protection against abuses and frauds. There was a provision to require a licence, without fee, before any trade was to take place by anyone with the Indians, which in today's language we may interpret as meaning no taxation. This arrangement carried on for 104 years until 1867 when the British North America Act was passed.

The British North America Act did not alter any of the provisions in the Proclamation of 1763. All that it said, and said clearly, was that the responsibility for Indians in Canada from that point on would be the responsibility of the Federal crown and so it is today. Section 91 subsection 24 is very clear on that point.

Next point in time we have the treaties. The federal crown was required to come to the Indians because they needed the land for settlement and colonization. They did not come to the Indians because of the goodness of their hearts. They came to you because of need and necessity. Treaties are solemn. They were entered into with a great deal of discussion and solemnity.

CROWN OBLIGATIONS

There were certain things given up by the Indians but there were obligations undertaken towards the Indians by the Federal crown and those still remain today and are sacred. What the treaty said in general was that there would be a square mile of land or 640 acres set aside for every family of five. That there would be annual payments into perpetuity. Perpetuity means so long as the river flows and so long as the sun shines. It's not a difficult word. It means forever. Annual means every year. There was to be annual distribution of powder, shot, twine and a flag and these were to come each year. There was agricultural assistance, once. Does it mean for the people at the time of treaty or does it mean once for every Indian into perpetuity?

There was a school or education. Education in the total sense as we know it. There were guarantees of hunting, trapping and fishing and there was the medicine chest. Treaty Six includes the medicine chest clause, indicating health care and there was self-determination; self determination was recognized and not extinguished as some are saying today. I submit that in treaty, self-determination was reaffirmed.

I want to come back to discuss the Privy Council and the decision of 1982 by Lord Denning. I consider this decision to be of utmost importance to all Treaty Indians.

The Privy Council is the highest court in the British Judicial system covering not only Britain but the colonies of Britain. All appeals on constitutional matters from the colonies were taken to this court over many years in time. With Canada it was until 1982. This court has justices appointed to it. They are not referred to as judges. They are referred to as Lords and these gentlemen are appointed for their experience, wisdom and legal knowledge and they are similar to the system that the Indians use with respect to appointments to your Senate in terms of experience, wisdom and knowledge. You could almost equate them to your elders and to your senators. One member of that court is Lord Denning. Lord Denning is well respected as an international jurist and quoted repeatedly. This particular case in 1982 was brought by the Indians of Alberta, New Brunswick and Nova Scotia because they were afraid that if the Constitution was brought to Canada, the obligations of the Crown may be lost of watered down. The application asked for a declaration that Crown responsibility be left with the British Crown. That case was lost flat out. The Privy Council held without question that the obligation to the Indians could be transferred from the British Crown to the Canadian Crown by patriating the Constitution. For some reason, Indians do not refer to this decision; perhaps because they feel that they lost the application. Well, Lord Denning sensed that there was great apprehension by the Indians about their rights and the obligations of the Crown and that it would be best, and indeed necessary, to set down in writing these obligations, whether British or Canadian, so that these apprehensions could be laid to rest once and for all. So important, I feel, is what Lord Denning has stated that his decision is necessary reading by every Treaty Indian in Canada.

DENNING'S DECISION

I now intend to quote widely from Lord Denning's decision. At page 83, he states, "The Indian peoples of Canada have been there from the beginning of time so they are called the aboriginal peoples. They have their chiefs and headmen to regulate their society and to enforce their customs. I say to enforce their customs because in early societies custom is the basis of law. Once a custom is established, it gives rise to rights and obligations which the Chiefs and Headmen will enforce. These customary laws are not written down. They are handed down by tradition from one generation to another. Yet, beyond doubt they are well established and have the force of law within the community."


The Historical And Legal Perspective Of Indian Government

Bill Pillipow

SASKATCHEWAN INDIAN      JULY/AUGUST 1988      p12  
Then he goes on, "In England we still have the laws which are derived from customs from time immemorial. You people, the Indians, you have laws and they came about the same way as ours did from the beginning. They were based on custom and in law custom is accepted as a basis."

"The Royal Proclamation of 1763 had great impact throughout Canada. It was regarded as of high constitutional importance. It was ranked by the Indian people as their bill of rights equivalent to our own bill of rights in England eighty years before. To my mind the Royal Proclamation of 1763 was equivalent to an entrenched provision in the constitution of the colonies in North America. It was binding on the Crown so long as the sun rises and the river flows."

Furthermore, states Lord Denning, and I quote at page 92, "It's force as a statute is analagous to the status of the Magna Carta which has always been considered to be the law throughout the empire." That's the same level that Lord Denning equates to the Royal Proclamation of 1763. The 1763 Proclamation governed the position of the Indian peoples for the next 104 years until the British North America (B.N.A.) Act was passed and still continues to do so.

Lord Denning then deals with the B.N.A. Act, at page 93, "How did this affect the Indians? Section 91.24 gave the Dominion Parliament the exclusive power to legislate for Indians and lands reserved for Indians and that's all it did." The federal crown was to carry it out on the basis of the Royal Proclamation.

He deals with treaties next. He states, at page 95, "By the treaty the Indians ceded and surrendered much of their lands to the Crown and in return the Crown undertook the obligations the Indians specified in the treaties. It was an obligation by the federal crown; by the British Crown to begin with in name of the federal crown of Canada. It still so remains today."

Finally, Lord Denning at page 98, deals with the Canada Bill, 1982, "This brings me to the Canada bill. It is designed to give complete independence to Canada. It is to be done by patriating the Constitution to use a coined word. It is to be done by the Constitution Act of 1982. No longer will the United Kingdom, Parliament have any power to pass any law extending to Canada ... but the Dominion Parliament will have the power to do so. This is to be done by setting out a new constitution for Canada to be enacted by the United Kingdom Parliament. This new constitution contains a charter of Rights and freedoms.

It is very clear that the federal crown undertook certain obligations and those obligations will continue.

"It seems to me that the Canada Bill itself does all that can be done to protect the rights and freedoms of the aboriginal peoples of Canada. It entrenches them as part of the Constitution, so that they cannot be diminished or reduced except by the prescribed procedure and by the prescribed majorities. In addition, it provides for a conference at the highest level to be held so as to settle exactly what their rights are. That is most important, for they are very ill-defined at the moment."

"There is nothing so far as I can see, to warrant any distrust by the Indians of the Government of Canada. But, in case there should be, the discussion in this case will strengthen their hand so as to enable them to withstand any onslaught. They will be able to say that their rights and freedoms have been guaranteed to them by the crown, originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada, but, in any case, by the Crown. No Parliament should do anything to lessen the worth of these guarantees. They should be honored by the Crown in respect of Canada "so long as the sun rises and the river flows." That promise must never be broken."

We must remember that these words were spoken six years ago by the highest, most prestigious jurist of the highest court in the commonwealth. Since that time we have had three conferences and what has been accomplished? Six years ago there was an idea that all would go well and the Canadian Crown would carry out its obligation with the highest degree of sincerity and dispatch. The Treaty Indian people and the Indian nations feel more betrayed now than ever.

I may suggest that this message of Lord Denning's is a message that every politician in Canada should keep in mind at all times. One sometimes is led to believe that the political with in Canada and the politician who aspires to statesmanship is either not aware of the federal crown's obligations or is indifferent to it. Whatever the case, history will have to judge the consequences.

Now that's the decision of Lord Denning in 1982.

THE CANADIAN COURTS

At this point, I would like to discuss the position that the Canadian courts have taken with respect to Indian Treaty Rights, before and after 1982.

Prior to Lord Denning's decision of 1982, there were very many decisions handed down by the Canadian courts and many were not supportive of the Treaty position. Today I want to refer to one such case to illustrate the point and that is the Sikyea Case.


The Historical And Legal Perspective Of Indian Government

Bill Pillipow

SASKATCHEWAN INDIAN      JULY/AUGUST 1988      p13  
Mr. Sikyea was a status Indian and a member of a band covered by Treaty II, signed in 1921 between the federal crown and some of the Indians in the Northwest Territories. Mr. Sikyea, who became ill of tuberculosis and could not work, was living on welfare assistance. On May 7, 1962, he was charged with hunting ducks in closed season, contrary to the Migratory Birds Convention Act. The Treaty provided for the vocation of hunting and fishing throughout the surrendered track of land. The case went for decision to the Supreme Court of Canada. The Supreme Court adopted the reasoning of Mr. Justice Johnson of the Court of Appeal of the Northwest Territories. The effect of the judgement was that Mr. Sikyea's treaty right was overruled by the Migratory Bird's Convention Act and he was found guilty. The Canadian court had concluded that promises made under treaty could be overruled by Federal legislation.

Now I want to refer to two cases since 1982 to indicate where the courts in Canada are going. The first one is the Nowegijick case. This case dealt with the taxation of Indians; Mr. Justice Dickson, speaking on behalf of the entire Supreme Court of Canada, stated at page 94, "it seems to me, however, that treaties and statutes relating to Indian's should be liberally construed and doubtful expressions resolved in favour of the Indians. If the statute contains language which can be reasonably construed to confer tax exemption that construction which might be available to deny exemption. In Jones vs. Meehan 175 U.S.1, it was held that, "Indian treaties must be construed, not according to the technical meaning of their words, but in the sense in which they would naturally be understood by the Indians."

The second case, Guerin vs. The Queen (1985) which resulted from the Federal Crown's position of a fuduciary obligation case upon it when dealing with reserve land on the Musqueam Indian Reserve in British Columbia. Again, Chief Justice Dickson of the Supreme Court of Canada in 1984 stated that there rests upon the federal crown, a fiduciary duty or responsibility when it deals with reserve lands. This responsibility of the Federal Crown should strengthen further the proposition that the federal crown has a duty to the Treaty Indian in the form of a treaty obligation.

Thus, it can be said that the courts have made a turn since the passing of the Canada Bill and the Charter of Rights and are prepared to support the Indian Treaty position as solemn and sacred. In addition, it can be suggested that the courts may look to the way the Indian naturally understood the terms used and discussions had at the time of the making of Treaty as the meaning to be ascribed to that Treaty.

I know that the Indian Senate and the elders have taken the position consistently that Treaties are not to be taken to court; that it is not the court's responsibility to adjudicate treaties; that the Treaties are solemn and sacred. The position of the elders is that the treaties are only to be administered. Well, I think the Chief Justice of the Supreme Court of Canada has just said that. He has said that it is how you, the Indian, naturally understood what the meaning of the Treaty was and is how it should be interpreted and applied. He has given you the opportunity and right to decide what it was that the Indian understood the treaty to mean at the time that it was made.

CONCLUSIONS

In conclusion, are there some lessons that we may be able to learn from these events of history and the obligations on both sides? I say there are and I would like to suggest a few.

First, I say to the Treaty Indian people, take full advantage of those things which are firmly established. Firstly; education that means all education. Education will point the way. We need the input in this country of all sectors of society and most of all we need the input of the Indian way of life. In the last while we have had many Indian university graduates. We have them in law. We have them in the teaching profession. We need them in the field of medicine. We need them in the field of politics and we need them in every walk of life. We need that serenity and that appreciation for our nature and the sanctity for land which the rest of our society sometimes passes by, because we move too quickly. My suggestion is use the education to your advantage as much as you can, deal with your children and make sure they take advantage of it.

In regards to taxation, there is Section 87 of the Indian Act. It came from the basis of the Royal Proclamation and the Treaties. Use that base for economic development. It will serve you well.

Use these established and accepted positions to your advantage in the Proclamation of 1763, the Treaty and the law.

Second, what can be done to improve the Indian position? I say solidify your position by advancing from a position of fact. It's in your favour. Move from the basis of the Proclamation, the Treaties and the Canada Act. I think the general public should be aware of those historical facts. Clarify and put forth the Indian understanding of the treaties as set out by the Chief Justice Dickson in the Nowegijick case and advance that position at every opportunity that you can.

Third, move vigorously ahead with advancing land claims. Get that behind you. If the provincial and the federal crown are not co-operative and the political climate is not there, use the courts. I would suggest that the courts are moving in a direction of recognizing the rights, the freedoms, the liberties and the obligations which the federal crown owes to the Indian people.

Fourth, advance the position of self-determination. If you want it, you can have it, should be the motto. Self-determination will produce self-government. You have a right to it.

Fifth, and probably the most important of all, set your own priorities and let the Crown react to your priorities rather than reacting to positions set out by the crown. I think the priorities must be set by the people that are affected. That happens to be the Indian Nations and the Treaty Indians. Fact is on your side, use it wisely.