The fourth doctrine under the Law of Nations that has been utilized to defend Crown title in British North America was Prescription. Micheal Akehurst explains that, “prescription is based on effective control over territory…[it] is the acquisition of territory which belonged to another state,…” It is the tenets of this doctrine that L.C. Green employed with the arguments he articulated in The Law of Nations and the New World; that Aboriginal title had effectively been extinguished by the Crown’s “…long exercise of sovereignty with all the concomitant incidents of jurisdiction that go there with…” Referred to as the ‘Settlement Thesis’; the doctrine of Prescription served to provide the paradigm for the conceptualization of Crown sovereignty within the A.D. 1983 decision of the Supreme Court of Canada in Regina vs. Sparrow. Although the negation of Aboriginal rights was placed within the parameters of a “Reasonable Measures” test, the Supreme Court concluded that the exercise of Crown sovereignty over a long duration of time had demonstrated its legal validity, and that Aboriginal rights and entitlements were dependent on their continued recognition by the Canadian state.
There is no contesting the fact that the de facto [in fact] exercise of Crown sovereignty increased in capacity early in the twentieth century and Aboriginal peoples endured the racism and paternalism incorporated within official colonial policies relative to their legal identity within the Dominion of Canada. While this was the political climate and treatment they received at the hands of the colonial government and local settlements within their respective jurisdictional spheres of influence, developments on the international stage were connecting the threads of continuity for their de jure [in law] inherent rights to sovereignty and land title under the Law of Nations. Within a new dynamic of a global juridical community governed by The League of Nations and an emerging body of International Law principles for determining the claims to rights and entitlements between states, Aboriginal sovereignty and land title was to maintain its recognition and would eventually be rejuvenated out of silence within English Law, and by extension Canadian Law, by the ‘First Nations’ Renaissance’ during the second half of the twentieth century.
Between A.D. 1910 and 1918 the Dominion of Canada contributed significantly to the suppression of First Nations’ peoples and Aboriginal cultural identities. Through a series of Indian Act amendments the Parliament of Canada gave power to the Indian Agents to expropriate reserve lands unilaterally, a clearly ultra-virus [outside the law] act of greed that contravened their legal authority under English Law; since Section 91(24) of the British North America Act, 1867 did not entitle them to legislate for, “Indians and lands reserved for Indians” in such a way as to derogate from the legal entitlements embodied in Section 109 of the Act; which effectively provided a Crown recognition of Aboriginal juristical sovereignty , a Crown recognition of an Aboriginal ‘trust’ interest in lands that had been ceded by treaties, and a constitutionally entrenched requirement to negotiate cession of lands possessed by First Nations’ peoples.
Another amendment allowed for the devolution of social services delivery to the jurisdiction of provincial governments, in the hope of abdicating from the Crown’s Guardianship obligations under the Law of Nations and in contravention of the exclusive legislative authority explicitly assigned to the Dominion government’s responsibility by the Crown; the Parliament of Westminster. Last, but not least, was an amendment which enabled the Indian Agents to arbitrarily co-opt any Indian into citizenship if they demonstrated “civilized” qualities; striking their names from the band list of Status Indians and dissolving their Aboriginal identity within Dominion Law. When opposition to these government practices escalated the government simply passed another amendment to the Indian Act in A.D. 1927 that, “…made it illegal to raise funds for the purpose of pressing an aboriginal claim.”
As repressive as the colony became toward Aboriginal peoples as it strived itself to achieve self-government from the British Empire and receive international recognition as an autonomous state at the Paris Peace Conference in A.D. 1919, it had still not acquired the legal stature necessary under English Law or International Law to extinguish de jure Aboriginal sovereignty or land title that had been legally recognized and affirmed since the Royal Proclamation of 1763. By attaining an independent vote in The League of Nations the Dominion government also consented to the legitimacy of the League’s juridical authority to adjudicate on disputed claims to territorial title under International Law. The Canadian government became legally bound to accept and adhere to the decision of the Permanent Court of International Justice in the Wimbledon case of A.D. 1923. In that decision it was held that, “[t]he Court declines to see, in the conclusion of any treaty by which a state undertakes to perform or refrain from performing a particular act [ie: the occupation of specific lands] an abandonment of sovereignty… [T]he right of entering into international engagements is an attribute of state sovereignty.”
The historical relationship between the British Crown and First Nations’ peoples was predicated on a ‘nation-to-nation’ acknowledgement of independent Aboriginal nationhood and juristical sovereignty. The requirement for cessions of land from Aboriginal peoples to the Crown under English Law and the customary practice of utilizing the treaty-making process for acquiring title to territories through the doctrine of Cession under the Law of Nations resulted in the subordinate Crown-in-right-of-Canada inheriting a fettering of its sovereignty from the de jure Aboriginal sovereignty that continued to exist within the lands transferred to the control of the Dominion of Canada by the British Crown. The Government of Canada did not achieve the capacity in law to amend the Constitutional Law of the Dominion until the Patriation of the Constitution was accomplished through the Canada Act of A.D. 1981. At exactly the same time, by Section 35.(1) of the Constitution Act, 1981, the Crown-in-right-of-Canada became obligated through this statute to accept the, “…existing Aboriginal and treaty rights of the Aboriginal people of Canada…” and acknowledge that they were “…hereby recognized and affirmed.” A Full Box of legal rights and entitlements, including Aboriginal shared sovereignty and title in lands granted to the Canadian state as its sovereign territory was the paradoxical consequence of the fruition of the Dominion’s evolution to self-government vis-à-vis the British Crown and English Law.
In Canada – A Political and Social History, Edgar McInnis outlines the de jure powers of the Dominion of Canada in A.D. 1920. “In 1920 Canada was still technically a colony subject to the over-riding authority of the imperial government. The British Parliament could pass laws applicable to the whole empire…and the Canadian constitution was a British statute, which could only be altered by the Parliament of Westminster. Diplomatic control was exercised by the British government on behalf of the whole empire, and the Dominion could neither conclude its own treaties with foreign countries nor establish diplomatic missions abroad.” Although Edgar McInnis also observes that within the de facto relationship between the British Crown and the Dominion these restrictions were made, “…more nominal than actual”, it must be emphasized that we are herein concerned with de jure [in law] entitlements and not de facto [in fact] processes.
The evolution to autonomy from the British Crown was substantially achieved by the Balfour Report that followed the Imperial Conference of A.D. 1926. Recognizing that the Commonwealth, “…defies classification and bears no real resemblance to any other political organization which now exists or has ever yet been tried,” the report proceeds to describe its component parts as, “autonomous communities with the British empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.” Following the Imperial Conference of A.D. 1930 the Parliament of Westminster passed the Statute of Westminster in A.D. 1931, through which, “[t]he Dominions were freed from the provisions of the Colonial Laws Validity Act and might change or repeal any imperial law that was in force within their borders, and no future imperial statute was to apply to the Dominion without its consent.” Even with this enhancement of the de jure rights of the Dominion government however, “the Statute of Westminster…[did not] put an end to all imperial authority…The Parliament of Westminster could still legislate for the whole empire under certain conditions…, and it was specifically laid down that the statute gave no power to Canada to change the British North America Act.”
By the Natural Transfer Agreement Act of A.D. 1931 a transfer of power over natural resources to the provincial governments within the Dominion effectively increased the de facto capacity of provincial legislatures to wrest control over their de jure realms of jurisdictional authority under Section 92 of the British North America Act, 1867 from the Parliament of Canada. At this juncture in the evolution of the Canadian state there are several points to be made to support the assertion that de jure Aboriginal rights maintained continuity in English Law and International Law and were not, nor legally could have been, extinguished by the Parliament of Canada or the provincial legislatures.
The first observation relates to the incorporation of the Statute of Westminster into the body of Constitutional Law that stood in place to articulate the de jure power of the Dominion’s Parliament. Although the Dominion could now, “change or repeal any imperial law that was in force within their borders…,” no domestic statute, common or prerogative law exists that explicitly serves to extinguish the jurisdictional sovereignty, land title and Aboriginal ‘interest’ that had been formally recognized by the Crown in its historical dealings with First Nation’s peoples prior to or subsequent to this Act.
Secondly, the Dominion government was specifically prohibited from changing the British North America Act, 1867, in which the Aboriginal ‘interest’ is acknowledged as an interest, “…other than of the Province in the same…,” by Section 109 of the Act.
Lastly, in A.D. 1928, arbitrator, Max Huber, ruled in the Island of Palmas case that in International Law, “[a] distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of a right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.”
The Dominion of Canada achieved the creation of a right to self-government by the Statute of Westminster in A.D. 1931, but it did not achieve, or attempt to bring about any legal departure from the English Law tradition. The Aboriginal rights to juristical sovereignty, their ‘interest’ in lands ceded to the Crown through treaties, as well as their title to unceded territories within the Dominion remained in full legal force and effect as a consequence of their evolution within both English Law and International Law since the Royal Proclamation of 1763.
At the start of this chapter it was observed that the doctrine of Prescription has been held up as rationalization for vesting de jure sovereignty over territories defined by “British North America” as the exclusive domain of the Canadian state in International Law. As noted, according to L.C. Green, as well as the Supreme Court of Canada in Regina vs. Sparrow, the long exercise of de facto sovereignty over lands inhabited by another state, or states, effectively produces the de jure entitlement. However, the capacity under International Law to acquire validation for territorial acquisitions defended under the doctrine of Prescription is subject to a significant qualification. Michael Akehurst has elaborated in respect to this doctrine that, “[e]ffective control by the acquiring state probably needs to be accompanied by acquiescence on the part of the losing state; protests, or other acts or statements which demonstrate a lack of acquiescence can probably prevent acquisition of title by prescription.”
It was noted earlier that the Nisga’a formally protested the loss of their lands from as early as the A.D. 1880s and right through the period marked by the evolution of Canada’s de facto sovereignty, until at least A.D. 1973 and the decision of the Supreme Court of Canada in the case of Calder et al. vs. Attorney General of British Columbia. Although the Nisga’a lost this decision on a technical point of law, all six judges recognized an Aboriginal title in law, and three of the judges recognized the notion of Aboriginal rights founded on “original occupancy.” The concept found its expression in Canadian Law and served to alter Federal government policy formulations relative to Aboriginal affairs in Canada. The North West Rebellion of A.D. 1885 also demonstrated a lack of acquiescence and protest against the loss of Metis lands and the settlement of the Red River region in Manitoba. Indeed, the historical evolution of the Canadian state in the twentieth and twenty-first centuries is pock-marked by a lack of acquiescence and protests from First Nations’ peoples against the usurpation of Aboriginal rights as they were acknowledged in the spirit of the treaty negotiations with the British Crown during the nineteenth century. A plethora of government committees, commissions and inquiries have been struck between the A. D. 1920s and the present day to address this demonstrated lack of acquiescence from “coast to coast, to coast”.
As devastating as ideas born out of the Italian Renaissance proved to be for First Nations’ peoples in the New World from the fifteenth century through to the middle of the twentieth century, there was also a boon in acknowledgements of their rights in International Law as the global hostilities marked by the Second World War drew to a close and the General Assembly of the United Nations gained esteem as the new arbitrator and adjudicator of international territorial disputes. In a world appalled by the Holocaust suffered by Jewish peoples in Nazi Germany a heightened sense of obligation crystalized on the global stage toward the articulation of Positive Law principles that could serve to embody a framework of Human Rights ideals. Formally pronounced in the A.D. 1948 Universal Declaration of Human Rights, as passed by the General Assembly of the United Nations, International Law recognized the right of all ‘peoples’ to self-government and self-determination. When the Canadian government became signatory to this declaration in A.D. 1956 it accepted an International Law obligation to both support and promote the principles of Human Rights that the Declaration had been designed to serve. Increasingly over the subsequent decades the de jure rights of Aboriginal peoples vis-à-vis English Law and International Law reawakened from their silence to challenge the de facto exercise and de jure entitlement to sovereignty asserted by the Government of Canada.
During World War II Aboriginal peoples again answered the Crown’s call-to-arms and fought to their deaths alongside Canadians of British and French ancestry. These contributions made to the Allied Forces war effort went without formal acknowledgement within Canada until an Indian War Memorial was finally erected by the Government of Canada in A.D. 1996. When Aboriginal war veterans returned to their homes from the battlefields of Europe the racist policies of the Indian Act continued to regulate every aspect of their lives in negative ways. Aboriginal veterans, church groups and supporters protested against such treatment and in A.D. 1951 the Government of Canada was forced by public pressure to repeal those sections of the Act that had formally banned First Nations’ ceremonial practices and the raising of money for political purposes.
Despite these changes to the Indian Act, the rights of Aboriginal peoples in Canada would continue to fight against suppression. Tony Hall, Professor of Native American History, makes the observation that, “[a]s the Department of Indian Affairs [and Northern Development (D.I.A.N.D.)] and the Christian churches withdrew some of the most blatant forms of coercive control over Indian lives, other agencies began asserting new forms of authority over Native people. In the 1960s, for instance, provincial child welfare agencies began asserting tremendous power over Native families by removing young people from their Aboriginal kin and placing them in non-Indian foster homes. This form of forced institutionalization both influenced and mirrored a massive intervention of the Canadian penal system into the Aboriginal domain.”
From the time of Confederation to the dying years of the Trudeau Era government policy in relation to First Nations’ issues resembled what has been referred to as, “Internal Colonialism”. The underlying premise associated with this policy was that Aboriginal peoples should be housed in “reserve” lands until such time as they could be educated in the white mans’ ways. Once the process of education was complete, Aboriginal peoples could then be assimilated into the greater Canadian state. This process was paternalistic in its approach and espoused arguments contending that such policies were designed to protect and shield First Nations’ peoples from the evils of society until such a point in time as they could be deemed capable of dealing with them.
It would seem that time arose in the middle of the century, when the concept of Termination reared its ugly head in the United States between A.D. 1953 and 1960. As a means, “…to extinguish aboriginal and treaty rights and shift jurisdiction and responsibility for Indians and their lands to state governments,” as well as to achieve, “[t]he devolution of municipal powers to Indian communities…” the U.S. government terminated Aboriginal and treaty rights within sixty-one communities and tribal groups during this period. The philosophical underpinnings and political calculations of such a policy influenced the approach employed to address the “Indian problem” north of the U.S. border as well, which became apparent when Pierre Elliott Trudeau released the Government of Canada’s White Paper, A New Indian Policy, in A.D. 1969.
As part of what the Trudeau government called its “Just Society” policy approach, this publication, “…blamed the economic and social stagnation of Indians and their condition of dependency on the existing policy of internal colonialism.” Beginning with this premise, “…the White Paper proposed that the only acceptable solution to the “Indian problem” was to integrate Indians fully and equally into Canadian society.” In order to achieve this end it, “…recommended the repeal of the Indian Act, the removal of special status for Indians, the elimination of the Indian Affairs Department, and the extension of all provincial economic, social, educational, health, and other services to Indians.” It was not, however, capable of achieving termination of Aboriginal rights in law and caused a backlash within First Nations’ societies, as well as within the general population of the state. It proved to be a defining moment in our nation’s history for the defeat of any notion that the doctrine of Prescription could serve as validation for Canada’s acquisition of territorial title in British North America under International Law. Rather than dissolving those rights, it served to reawaken and give renewed voice to the legal reality that First Nations’ peoples in Canada do in fact possess de jure rights to juristical sovereignty, an Aboriginal ‘interest’ in lands ceded to the Crown by treaties, and a de jure title to unceded territory within the boundaries of the Canadian state in English Law that have never been repealed and stand today as, “…hereby recognized and affirmed” through the Constitution Act, 1981.
Reaction to this new government position in respect to Aboriginal policy was swift and hostile, as First Nations’ leaders rightly perceived the new policy as one of abandonment. The transfer of responsibility over Aboriginal programs from the Federal to provincial governments was deemed to be a devaluation of the rights of indigenous peoples, and was considered by some as a process of genocide. Political opposition and interest group pressure eventually brought about an official abandonment of this policy by the Trudeau government in A.D. 1971, but its proposals for dealing with First Nations’ issues added fuel to the flames of distrust burning within the relationship between the state and its Aboriginal peoples. Questions remained as to the true intentions of the Canadian Crown in relation to its fiduciary responsibility for its First Nations’ peoples. While the White Paper failed to achieve its apparent goals of, “assimilation through integration” and “termination” of Aboriginal de jure rights and entitlements, it did serve as a catalyst for change. Most certainly unintended by the Government of Canada, the White Paper instead facilitated an expansion of inter-First Nations' political organization and gave rise to a plethora of new voices for articulating hitherto suppressed de jure Aboriginal rights to self-government and self-determination.
As early as A.D. 1970 the Indian Brotherhood of the Northwest Territories (the Dene Nation) denied that their peoples had surrendered either sovereignty or land title within the territories their people had lived on since time immemorial to the Crown. The National Indian Brotherhood (later changing its name to the Assembly of First Nations) was also formed during this period to represent Status Indian interests; the Indian Tapirisat of Canada (ITC) was formed to represent the rights of Yukon Indians; and the Native Council of Canada organized to be a voice for Non-Status Indians and urban Indian populations across Canada. In A.D. 1973 the Supreme Court of Canada decision in Calder et al. vs. Attorney General of British Columbia acknowledged formally, for the first time in Canadian Law, the concept of an underlying Aboriginal title in lands that had been transferred by the British Crown to the Crown-in-right-of-Canada, and three of the six judges concluded that this title was based on original occupancy. Although not a conclusive recognition of inherent Aboriginal rights, this decision sent red flags up in the offices of the Department of Justice and within D.I.A.N.D., which contributed to the shift in government policy relative to Aboriginal land claims.
In the A.D. 1890s the U.S. government broke with the historical practice of negotiating treaties with First Nations’ societies and, with an upper hand achieved through decades of oppression and genocide, changed the terminology of such inter-societal accords to “Agreements”; as a means to diminish their standing under International Law and cloak the rights and entitlements arrived at with the subordinate symbolic stature of mere domestic law intra-national conciliations. The Government of Canada, never averse to borrowing ideas and concepts from our southern neighbours to deal with the “Indian problem”, made the same shift in terminology during the mid-1970s and entered into negotiations with the Cree-Naskapi of Northern Quebec for land title over their ancestral territories. With the objective of building dams to produce a market for hydro-electric energy, the Federal and Quebec governments reached a tentative accord on terms with the Cree-Naskapi and incorporated them with a “comprehensive land claims settlement” that is referred to as the James Bay & Northern Quebec Agreement of A.D. 1975.
Also occurring in A.D. 1973, a dispute over the terms of Treaty 11 resulted in hearings in the Northwest Territories before Justice William Morrow. After hearing testimony from Aboriginal elders, some of whom had been present during the signing of the treaty, Justice Morrow concluded that the treaties had been, “…misrepresented and inadequately explained.” Again in A.D. 1975 dispute arose in the North over construction of the Mackenzie Valley Pipeline. Eminent jurist, Justice Thomas Berger, was appointed to conduct an official Inquiry. With the publication of his Inquiry report following extensive hearings throughout the North, Justice Berger recommended that construction of the pipeline be halted until such time as Aboriginal land claims had been concluded. In later years he was forced off the bench of the Supreme Court of British Columbia for speaking out publicly against the deplorable treatment that Aboriginal peoples have been subjected to by the Canadian Crown. Thomas Berger recorded and published his learned observations in his book, The Long and Terrible Shadow, which served to heighten knowledge across the country about the Canadian government’s treatment of First Nations’ peoples. Not unlike Las Casas in the early sixteenth century, Justice Berger’s castigation of the Crown effectively exposed Canada’s abhorrent ownership of its own Leyenda Negra.
All of the above noted examples provide evidence for a lack of acquiescence and ample evidence of protests against Crown claims to sovereignty and land title. They serve to discount the Settlement Thesis and the validation of acquisition of territorial title based on the doctrine of Prescription in International Law. These historical references make it evident that Prescription is incapable of justifying sovereignty and territorial title in Canada’s assumed territories. By extension it must also be acknowledged that the Supreme Court of Canada erred in concluding that de jure Aboriginal rights are contingent upon the benevolence of the Canadian state in their A.D. 1983 decision rendered in the case of Regina vs. Sparrow.
Based on the research I have completed over the past three decades into First Nations-Crown relations in the New World during the past five centuries, it is my conclusion that the only validation for the de jure acquisition of territorial Crown title that can be defended under the Law of Nations or International Law is the doctrine of Cession. Since it has been observed that the very act of entering into treaties is an attribute of state sovereignty, it must be concluded that First Nations’ peoples in the New World possessed that attribute before entering into treaties with the Crown. Since an incident of sovereignty cannot be extinguished without explicit articulation of that intent, a lack of pronouncements specifying that extinguishment leaves the de jure right to sovereignty undisturbed.
Despite the pompous declaration of sovereignty in the Royal Proclamation of 1763, there was no explicit pronouncement that professed to terminate First Nations’ sovereignty. In fact, a decade later the Judicial Committee of the Privy Council acknowledged and formally established juristical sovereignty as a right at common law in the English Law tradition, even after numerous treaties had been concluded with the Mohegan Indians. The clause found in all post-Confederation treaties, which provides that, “[the said] Indians…cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen, and Her successors forever, all their rights, titles and privileges whatsoever, to lands included…”, did not explicitly declare that their “sovereignty” was extinguished. While legal experts representing the Crown could have explicitly used that term, they did not, and the common law of their own legal tradition had already acknowledged an Aboriginal right to juristical sovereignty, even after treaties were signed, a century earlier.
There are some within government circles who like to argue that the language of the clause in the post-Confederation treaties represents a clear intent to extinguish Aboriginal sovereignty, but I caution that to walk that path opens a Pandora’s Box; which includes such speculations as whether the spirit of the agreements was understood by all signatories to the treaties in the same way. There is an abundance of evidence available to support a contrary conclusion. For years the Crown has argued that it is the “letter of the law” that must serve to guide determinations of what was achieved by the treaties. By that standard, since none of those letters explicitly spelled out, “Aboriginal sovereignty is extinguished”, the Aboriginal de jure right in lands inhabited by First Nations’ peoples and their ancestors since time immemorial remains in full force and effect within both English Law and International Law. As such, it is an inherent right possessed by Aboriginal peoples throughout Canada.
The process of treaty-making failed to disturb the juristical sovereignty in lands ceded to the title of the Crown and also served to create a constitutionally entrenched Aboriginal ‘interest’ in those lands vis-à-vis English Law. In lands that have yet to be ceded to the Crown both juristical sovereignty and de jure land title belongs to the First Nations’ peoples whose ancestors have inhabited said lands since time immemorial. Since juristical sovereignty is an Aboriginal right in both ceded and unceded territories assumed to be within the sovereign domain of the Crown-in-right-of-Canada, it must be concluded that said Crown sovereignty is fettered and that the Canadian state is in actuality legally constituted on the framework of a condominium of sovereign interests and legal entitlements.
This conclusion could serve to conjure up horrific implications for the future of the Canadian state in many minds. Not unlike the unsettling emotions I experienced not so many years ago while watching C.B.C. television coverage of the Quebec Referendum on separation. Fear of the fabric of our nation being torn apart by such a finding helps to explain, at least in part, why I stood frozen with my toes gripped tightly to the end of the diving board for so long. It must be acknowledged today, however, that our nation’s fabric is already very seriously frayed. Unless and until revolutionary approaches are considered and acted upon, the currents of change will be no more forgiving on the Canadian state than they have proven themselves to be on a diversity of political communities that have waxed and waned throughout the history of civilization.
I believe it accurate to say that the political climate in Canada today represents a crisis of identity analogous to the experience of some people in the life-stage of adolescence. That said it is important to recall the observation made by Theodore E. Steinway, who once noted that, “[in] one of our concert pianos, 243 taut strings exert a pull of 40,000 pound on an iron frame. It is proof that out of great tension may come great harmony.” The final words of wisdom are reserved to Michael Asch and Patrick Macklem; “…trauma often permits the exploration of previously unexplored assumptions about the values by which we live our lives and, as a result, the possibility of growth and transformation.”
Henry David Thoreau is quoted as having once expressed the view that, “[i]t takes two to speak the truth – one to speak and another to hear.” It is my hope that through the course of reflection on the evidence herein presented, Canadians will together mature into an appreciation for and acceptance of the truth as I have come to know it.
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