The doctrines of Discovery and Conquest within the Law of Nations had effectively seen their rationalizations denounced by the other European states who were participatory in the formulation of ‘customary rules' for the acquisition of territories in the New World. Accordingly, it became necessary to consider alternative principles upon which to defend territorial claims to land title and sovereignty vis-à-vis the other Crowns in Europe. The problem was that the British required the cooperation and assistance of the First Nations’ peoples to maintain the fur trade, and their services as allies against the competing interests of the French and the United States of America was also essential. That being the political reality of the age, the British Crown elected to pursue the “surrender” of tracts of land from Aboriginal peoples through a process of treaties and the incorporation of the doctrine of ‘Cession’ as the foundation for their claims to territorial sovereignty in British North America under the Law of Nations.
Michael Akehurst has explained that, “Cession is the transfer of territory, usually by treaty, from one state to another.” Maureen Davies adds to this definition by noting that, “[t]he state is one of the fundamental units in international law. A sovereign state is an independent state. For the purpose of international considerations, its independence is de jure [by and in law] not de facto [as a matter of fact]. In other words, a sovereign state may exercise its power to create for itself a voluntary state of dependence [ie: a ‘Protectorate’ relationship with another state] through, for example, the exercise of its treaty-making powers…[s]ince a treaty is a consensual alteration of the rights and status that existed in all states under International Law, failure to delegate an incident of sovereignty leaves it undisturbed”. [Bold added]
There are two points to be made before proceeding further. The first was articulated by Chief Justice John Marshall in the decision he rendered for the United States Supreme Court in A.D. 1832. In Worcester v. Georgia he made the astute observation that, “[t]he words “treaty” and “nation” are words of our own [English] language, selected in our diplomatic and legislative proceedings, by ourselves, having a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.” The second point to be made is that according to both The Concise Oxford Dictionary of Current English and Webster’s College Dictionary, the word ‘cede’ (from which the word ‘cession’ is derived) has a dual interpretation. While on one hand the dictionaries provide a definition which stipulates synonymy with the word “surrender” or “give up”, both dictionaries also explicitly define the word as a “grant”.
The semantics of this duality in meaning cannot be over-emphasized in relation to cessions of land from Aboriginal peoples to the British Crown through treaties. Throughout the available literature on the respective understandings between First Nations’ peoples and the British Crown with regard to the treaty-making process the recurrent message gleaned is that both parties had separate and distinct understandings of what was being agreed upon. During the second half of the twentieth century and into the twenty-first legal scholars and politicians representing the Crown’s interest have endeavoured to conclude that these treaties were to be considered as “surrenders” of land title and sovereignty. Aboriginal peoples and their supporters assert that what these treaties symbolized was a ‘nation-to-nation’ agreement to share the land with the white settlers in exchange for specific benefits, but certainly not an extinguishment of their title to these lands.
The Treaties of Canada with the Indians of Manitoba and the North-West Territories including The Negotiations on which they were based, written by the British appointed Treaty Commissioner, The Hon. Alexander Morris P.C., makes it clear that the purpose of the treaties was to accomplish the objective, “of obtaining the alliance and promoting the welfare of the Indian…by entering into treaties of alliance with them,…”. As Maureen Davies has concluded, “it would be neither just nor constitutional for treaties establishing free, amicable associations to be construed later as abject surrenders, for to do so implies that the Crown wilfully deceived its allies. Nothing could be less compatible with the respect owing the Crown in its sovereign actions.”
A series of historical references from the second half of the eighteenth century and through until the latter part of the nineteenth century provides evidence to support the hypothesis that Aboriginal sovereignty and land title maintained a continuity of formal recognition in English Law, as well as within the Law of Nations throughout this period. It will also serve to demonstrate that the colonial governments in North America were not legally constituted as possessing attributes of sovereignty themselves and consequently possessed no legal authority or capacity in English Law or within the Law of Nations which would enable them to extinguish Aboriginal sovereign title within the parameters of either legal tradition through domestic legislative enactments or treaties.
In the British legal system it is possible to discern three direct sources of law which serve collectively to establish legal rights, entitlements and obligations within the English Law tradition:
The first source of law is royal prerogative, which provides the foundation for the authority of the Royal Proclamation of 1763. Robert B. Stewart has observed in his book, Treaty Relations of the British Commonwealth of Nations that prerogative in English Law means, “the powers, privileges and immunities peculiar to the King.” Prerogative powers of the King are the powers original and inherent in the Kingship, as distinct from powers conferred on him by statute. They are, “the ancient customary power of the Crown…The source of the King’s executive power in the realm of treaty making is still the ancient common-law prerogative, though the treaties themselves would be constituted under the Law of Nations and only later ratified by the domestic law of the state.”
The second source of law is referred to as the common law and is the body of precedents that have been established as a consequence of common practices (ie: customs) of the British Crown or court rulings from its judicial institutions which serve to define legal rights, obligations, etc., based on a presumption of the application of legal principles under similar circumstances.
The third source of law is the body of statute law, which includes constitutional enactments and subordinate legislation passed through the Parliament of Great Britain or one of the legislative institutions within the regions of its realm (ie: the legislatures of colonies or provinces under its domain). Within the British legal system there exists the principle of the supremacy of the Parliament of Great Britain, and the accepted doctrine is that legislative and judicial institutions created by the Parliament at Westminster are subordinate to and bound by the legal pronouncements of this Parliament and its court of highest instance, the Judicial Committee of the Privy Council.
Under English Law the Royal Proclamation of 1763 was established by royal prerogative “…for the purpose of maintaining peace, law, and order on the frontier…”, and to censure colonial government representatives and British subjects in the New World from “molesting” or “disturbing” the rights of First Nations’ peoples. King George III, evidently concerned about the implications of uprisings within the colonies and unceded territories on his mercantile enterprises, formally declared in English Law the right of Aboriginal peoples to live on their lands and be left to their own devices within territories that had not been ceded to the British Crown. This statutory declaration raised the ire of colonists in the Thirteen Colonies of the Americas and precipitated their Declaration of Independence from Britain a decade later, in A.D. 1776. These colonies achieved recognition of their independence through the Treaty of Versailles in A.D. 1783, but for the loyalist colonies within British North America that did not succeed the Royal Proclamation of 1763 remained unextinguished and effectively denied their colonial governments any powers of a sovereign state or corresponding independent state status under the Law of Nations.
Quite to the contrary in fact, the British Crown had established a legal precedent in A.D. 1773 in the case of the Mohegan Indians vs. Connecticut which recognized and affirmed that the Mohegan Indians were ‘juristically sovereign’ within their own territories. This common law entitlement to juristic sovereignty in English Law ratified their status under the Law of Nations as ‘Protectorates’ who signed numerous treaties with the Crown that remain in effect and have not been superseded in law at any point since their articulation nearly 250 years ago. The constitutional capacity of colonial governments to unilaterally extinguish Aboriginal sovereignty and land title was conclusively rejected by the Parliament of Great Britain in A.D. 1835 when, in the case of Cameron vs. Kyte, the Judicial Committee of the Privy Council confirmed that, “…colonial governments were not sovereign and accordingly had no inherent power to enact laws in derogation of aboriginal rights.” With the evolution of the ‘Dominion of Canada’ the direct sources of English Law, which includes these two common law precedents, continued in their authority to govern the legal rights, entitlements and obligations of our nation. The inherent rights of Aboriginal sovereignty and land title have since been constitutionally entrenched through the provisions of Section 35.(1) of the Constitution Act, 1981 as an “…existing aboriginal…right” possessed by First Nations’ peoples within the Canadian state.
Early in the nineteenth century eastern parts of North America became a battlefield to the legendary War of 1812, when “…the British kept a comin’…” Throughout the course of that war Aboriginal peoples served as allied nations on the side of the ‘Red Coats’ against the ‘Long Knives’. In particular, the League of the Iroquois Confederacy answered the call-to-arms, and provided valuable service to the British cause. When the British Crown and the United States of America agreed to peace terms in the Treaty of Ghent in A.D. 1814 the independent nationhood status of Aboriginal allies was formally recognized under the terms of this international peace accord and, as such, provides evidence attesting to Crown recognition of Aboriginal title under the Law of Nations.
According to Article Nine of the Treaty, “…all lands belonging to Indians allied with Britain must be returned to their Indian owners.” If the political realities of the period had not required recognition of the Aboriginal land title as distinct from the assumed Crown title then there would have been no need for the inclusion of this Article within the Treaty. It’s very existence and inclusion in clear language and certain terms provides validity for the assertion that First Nations’ peoples possessed legal entitlements that were recognized within a nationhood status under the Law of Nations well after the point in history that the Royal Proclamation of 1763 came into legal effect in English Law.
After ‘…the British kept a runnin’…’ and the hostilities between the Crown and its former colonies in America subsided several circumstances conspired to erode the “Middle Ground” between immigrants from the Old World and First Nations’ societies in the New World. First there was a dramatic rise in population within Upper Canada. From A.D. 1791 to A.D. 1812 the population increased by 500%, from 14,000 to 75,000, with the vast majority of new arrivals being Loyalists who relocated from the United States. Also, before the middle of the century 1,000,000 British immigrants and 450,000 Irish immigrants would journey to the New World.
Second, although Aboriginal peoples would remain essential to the fur trade up to the present day, the end of warfare between the colonies increased the capacity of European traders to dictate the terms of trade and gradually eroded the bargaining leverage of Aboriginal peoples in the commercial enterprises.
Third, the termination of imperial rivalries diminished the military necessity and utility of First Nations’ societies. Over the subsequent decades the evolution toward ‘responsible government’ within the colonies facilitated a gradual transfer of control over policies relative to Aboriginal peoples from the military apparatus to the realm of the civil administration. With this transition a corresponding reduction of amiable cooperation ensued and the partnership between Europeans and First Nations’ peoples drew to a close.
Lastly, and coincident with this transformation of relationships, there emerged in the early nineteenth century a variety of anthropological theories which promoted the view that it was possible to "“improve” primitive people through education in Christian principles and civilized behaviour". This served to usher in the Eurocentric attitudes of superiority and paternalism that lay dormant during the eighteenth century while the imperial commercial enterprises necessitated respect and cooperation between Old and New World peoples. Much like the historical point at which first contact in the Americas was established, European settlers were kept busy finding new ways to rationalize their desires against the legally recognized entitlements of First Nations’ peoples.
Despite these changes in the relative power of Aboriginal peoples vis-à-vis the colonial administrations in the north-eastern regions in North America, it is incorrect to conclude that by extension their sovereignty and legal rights under English Law or the Law of Nations became extinguished. These rights under both domestic and international bodies of law survived in spite of the change in attitudes toward Aboriginal peoples within the colonies and continue to the present day.
It is also important to caution the reader from broad brush strokes which would assume that the relationship between colonists and Aboriginal peoples in the north-eastern regions of North America had any corresponding capacity for recognition or enforcement on the north-western Plains, in the Interior Plateau region of British Columbia, or on the North-West Coast. In the early decades of the nineteenth century explorers and traders had only just started penetrating the vast territories of the North West Territories and Rupert’s Land. As John Ewers has observed, “the Blackfoot tribes were at the height of their power in the middle of the 19th century…for…forty-seven years after the Lewis and Clark expedition [A.D. 1804-06], no official government exploring party entered the Blackfoot country.”
It is pure fancy that the Crown could even pretend to be exercising supreme rule over the indigenous peoples who continued to live their lives within political communities that remained largely unchanged and unaffected by the war between colonists far to the east. It is all the more preposterous to give credence to the pompous declaration of sovereignty over these lands from a monarch who came to demonstrate a questionable grasp on sanity, and who lived across an Atlantic Ocean that Aboriginal peoples in the north-western regions of North America had never even come close to seeing this side of.
To help drive home the absurdity of pretending to possess supreme rule at the beginning of the nineteenth century over a region as vast as Canada, consider that the distance between Calgary and Toronto is fully 3,200 kilometers and that between Calgary and Halifax it is 4,800 kilometers. Presuming a good horse, the fastest mode of transportation available to cross the continent during that period, might be able to travel 80 kilometers per day (and that’s presuming a straight and unbroken path with no natural or human obstacles to overcome) it would still take a minimum of 40 to 60 days, respectively, to traverse such distances. Indeed, it would not be until A.D. 1874 that an official delegation of armed enforcers representing the Crown, the North-West Mounted Police, was able to make their way into the heart of the north-western Plains. Even at that point their numbers were in the hundreds, while the Blackfoot Confederacy still had a population in the thousands.
An important trilogy of Supreme Court decisions were rendered in the United States by Chief Justice John Marshall in A.D. 1831-32 that provide insight into perceptions of First Nations’ legal rights and relationships a third of the way through the nineteenth century. While not juridically binding on the British Crown, their relevance derives from the understanding they articulate in respect to the paradigm that was operative for defining Aboriginal legal entitlements during that age. Since the British and United States models of jurisprudence share a common normative base it is not an unrealistic presumption to conclude that their approach toward inter-societal agreements with First Nations’ peoples would have been fundamentally the same.
In Worcester v. Georgia, Marshall C.J. held that, “the Indian nations have always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil”. With reference to the Royal Proclamation of 1763 it was his view that Aboriginal sovereignty had not been extinguished. He accept this document, “…as asserting a title against Europeans only in reserving the right to acquire land from native people solely in the Crown…It merely bound the nation to the British Crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character.” It was Marshall C.J.’s conclusion that, “the settled doctrine of the law of nations is, that a weaker power does not surrender its independence – its right to self-government – by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.”
Since A.D. 1700 the British Crown and its subordinate ‘Dominion’ government in Canada have completed nearly 500 treaties with Aboriginal peoples. They utilized the instruments and terminology of international agreements under the Law of Nations to negotiate these treaties with First Nations’ societies and it would be reprehensible to now construe those inter-societal accords as instruments of domestic law. In A.D. 1928 the United Nations ruled in the Island of Palmas case that, “sovereignty over territory means “the right to exercise therein, to the exclusion of any other state, the functions of a state”, but elaborated on this principle by noting that said sovereignty, “…is not necessarily unlimited. Other states may, by treaty or local custom, acquire minor rights over the territory…”
Aboriginal sovereignty was not extinguished by the expression of Crown sovereignty in the Royal Proclamation of 1763. Rather, King George III’s prerogative created a condominium of sovereign titles under the Law of Nations within the territories of British North America that had been ceded or would come to be ceded through treaties during the nineteenth century. What the Royal Proclamation of 1763 did effectively accomplished was not only formal legal recognition of an ‘Aboriginal interest’ in the lands they had lived on since time immemorial vis-à-vis English Law, but also served to fetter Crown sovereignty in the assumed territories of British North America that were ceded to the British Crown vis-à-vis the Law of Nations. Further, in lands that have yet to be ceded to the Crown, First Nations’ sovereign title in those lands has been explicitly articulated within the common law and has been implicitly acknowledged by the Crown through its customary practice of dealing with Aboriginal allies through the process of treaty-making under the Law of Nations.
In order for the Right Honorable Pierre Elliott Trudeau, then Prime Minister of Canada, to achieve his ambitions relative to the Patriation of the Canadian Constitution in A.D. 1981 it was necessary to first go to the Parliament of Great Britain and have the Canada Act passed by imperial statute. It is quite instructive of the ‘European interests vs. Aboriginal rights’ dichotomy influencing the relationship between Old and New World peoples since the dawn of first contact that fully three-quarters of the debate in the British Parliament leading up to the Patriation centered on the rights of Aboriginal peoples.
This was not the first time that Parliamentarians debated intensely over the Crown’s obligations to its Aboriginal allies. In fact, in the period leading up to the Act of Union that established the Province of Canada in A.D. 1840 the British House of Commons was also absorbed in a similar debate. Richard Barlett has noted, “…the first recommendation of the 1837 Select Committee on Aborigines (British Settlements) of the British House of Commons was that whatever the legislative system of a colony, as far as possible the Indians be withdrawn from its control. The soundness of this recommendation was recognized by succeeding secretaries of state for the colonies; in the A.D. 1839 Report of the Committee of the Executive Council of Lower Canada, in the A.D. 1844 Report on the Affairs of the Indians in Canada, and in the A.D. 1858 Report of the Special Commissioners to Investigate Indian Affairs in Canada. In spite of this, control over Indian affairs devolved upon local governments as responsible government developed and as the imperial government restricted expenditures in colonial matters”.
With the devolution of “control” over Indian affairs to the colonial government at this point in history it is important to draw attention to the significant distinction between ‘control in fact vs. authority in law’. The word “control”, as defined in Webster’s College Dictionary, means, “to exercise restraint or direction over; dominate, regulate or command.” In contrast, the word “authority” means, “the power to determine, adjudicate, or otherwise settle issues; the right to control, command or determine” [italics and underline added]. Herein lays the seed for the misinterpretations and erroneous conclusions that have been drawn relative to Aboriginal rights to sovereignty and land title. While the colonial government achieved a de facto (in fact) capacity to gradually increase their rule and domination over Aboriginal peoples, they did not then, and have not since, achieved a de jure (in law) entitlement to extinguish or dissolve First Nations’ rights to sovereignty and self-government under either English Law or the Law of Nations. There were no pronouncements or formal legislative instruments passed through the Parliament of Great Britain that served to transfer the ‘Protectorate’ relationship between First Nations’ peoples and the Crown to its colonial administration in the Province of Canada; the new province was still considered subordinate to the Crown and lacked any sovereign identity or capacity for action under the Law of Nations.
Undoubtedly the colonists lust for land and dominion in the middle of the nineteenth century was made possible by the contributions of both the visitation of natural catastrophes on Aboriginal communities and the unscrupulous and unethical business practice of filling Indians with gifts of Rum (referred to as “Spirit Water”) in exchange for furs and pemmican. In A.D. 1837 fully two-thirds of the Blackfoot, Assiniboine, Cree and Ojibwa of the Plains were lost to a smallpox epidemic that ravaged their communities. In A.D. 1862 approximately 20,000 lives were lost in a smallpox epidemic that wiped out fully one-third of the Aboriginal peoples living within the regions of British Columbia. In A.D. 1869 another smallpox epidemic on the north-western Plains wiped out at least half of the Blackfoot Confederacy; those who had survived the earlier epidemic 32 years prior. Intentionally or tragically, the smallpox virus brought from the Old World to the New World decimated First Nations’ peoples.
The significant reduction in the Aboriginal population on the prairies and in the interior of British Columbia made settlement in the north-western regions of North America possible and enabled the colonists to suppress First Nations’ societies that had become increasingly devastated and demoralized by the loss of so many lives to disease. With a spiritual tradition since time immemorial, Aboriginal peoples succumbed to the ruinous consequences of disillusionment. Perhaps worse still, their demise by illness only seemed to empower Christian settlers toward the assumption that it was God’s wrath being cast upon the heathen. Such attitudes helped feed the premise that Aboriginal peoples were a “primitive” people who needed to be educated in Christian and civilized ways, and should therefore be kept separate and removed from mainstream society and treated as “wards” or “children” who required tutelage, for their own protection, before they could be integrated and assimilated into the settlement communities.
The de facto relationship between Aboriginal peoples and colonists as it were, did not serve to negate or disrupt First Nations de jure sovereign and land title rights. The Crown continued, as it had done since the beginning of the eighteenth century, to negotiate with Aboriginal peoples for the Cession of their territories under the Law of Nations process of ‘nation-to-nation’ treaty-making. When the ‘Dominion of Canada’ was established through the British North America Act of 1867 (now referred to as the Constitution Act, 1867) in order to produce the jurisdictional “…Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof: and for Purposes connected therewith” absolutely no mention was made of a reduction or extinguishment of the sovereignty and land title rights of the approximately 220,000 Indian peoples living within the territories of British North America at the time. There is only one reference in the entire Act to Aboriginal peoples, in which at Section 91(24) the Act provides that “…the exclusive Legislative Authority of the Parliament of Canada extends to…Indians, and Lands reserved for the Indians.”
Michael Asch and Patrick Macklem have observed, “…nowhere in the Constitution Act, 1867, does it actually state that the Canadian state enjoys sovereignty over its indigenous population…[D]espite initial appearances to the contrary, the justification for the assertion of Canadian sovereignty, an assertion which underpins the coherence of the contingent theory of Aboriginal rights, cannot be located in the text of the Constitution Act, 1867.” Peter W. Hogg, Constitutional Law expert and author of Constitutional Law of Canada, has added to an understanding of just exactly what was achieved by the British North America Act, 1867 (B.N.A. Act) by noting that, “…the B.N.A. Act did not mark any break with the colonial past. Independence from the United Kingdom was not desired or even contemplated for the future. The new Dominion, although enjoying a considerable degree of self-government, remained a British colony…In fact, of course, after 1867 there was an evolution to full independence, but it was a gradual process continuing well into the twentieth century.”
At this juncture in our nation’s history there was no departure in law from treating Aboriginal peoples as distinct nations and the requirement of the Royal Proclamation of 1763, along with the common law entitlements and restrictions embodied with the case law from the decisions of Mohegan Indians vs. Connecticut (A.D. 1773) and Cameron vs. Kyte (A.D. 1835) remained in effect to provide continuity for the de jure right of Aboriginal sovereignty. Section 109 of the British North America Act, 1867 also served to maintain the status quo relationship in law between the Crown and First Nations’ peoples, effectively acknowledging their “interest” in the land as one “…other than of the Province in the same.” The newly acquired “…Legislative Authority of the Parliament of Canada…” embodied within Section 91(24) of the Act did not free the Dominion from its obligation in law to honour and adhere to those “nation-to-nation” agreements that had created an Aboriginal “interest” in the land under English Law, and the executive powers bestowed upon the Dominion government with respect to “…all lands, mines, minerals and royalties…” were such as to make the Crown “…subject to any trusts existing in respect thereof…”.
Early in the life of the colony’s Parliament these obligations continued to be articulated within the statute law of the Dominion. With the formulation of the new Dominion came new legislation within the colony that acknowledged the prior obligations of the Crown. In A.D. 1868 An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordinance Lands served to “…ban throughout all of Canada the disposition of Indian reserves without a “surrender” by the First Nations’ peoples living on the reserve to the Crown. The requirement of a surrender conferred protection from the incursions of local interests, as local governments were unable to override it.” When in A.D. 1869 the Hudson’s Bay Company was forced to turn over its jurisdictional title to lands of the North West Territories and Rupert’s Land vis-à-vis English Law to the Dominion of Canada, a condition of the transfer again required that the Dominion “treat” with Aboriginal peoples for the Cession of their lands.
From A.D. 1871 to 1921 the Dominion of Canada mobilized to develop a western hinterland that could serve to enrich the eastern colonies. A condition of British Columbia’s admission into Confederation in A.D. 1871 was a Federal commitment to establish a trans-continental railroad that would serve to connect the North West Coast colonies to Upper Canada. The threat of American expansionism also motivated Sir John A. MacDonald to seek ways in which to settle European farmers across the territories claimed by Britain’s empire. It would prove to be an arduous process that would be confronted and opposed by First Nations’ peoples across Turtle Island. Military conquest was not an achievable political agenda, despite instances of harsh treatment and brutal acts of suppression, because Aboriginal peoples possessed a de jure title that had been recognized through the history of the English Law tradition and there existed an obligation under the Royal Proclamation of 1763 to “treat” with First Nations’ peoples. It was also pragmatically impossible for the Crown to exert sovereignty – that is, supreme rule – over a plethora of nations they encountered when they sent plenipotentiaries across the land to negotiate the eleven “Numbered Treaties”; covering an area from Quebec’s border with Ontario to the North West Coast of the continent.
Fly from Toronto to Vancouver some time, get a window seat, and look out upon the mass of land and water that lies far below you; a territorial region that makes up a state which governs fully 7% of the world’s arable land. Then, take a walk down 1885 Street or within the palisades of Fort Edmonton Park. If after those two experiences you still feel it possible for sovereignty to be achieved during that age, you have a far more vivid imagination than mine, and I fear a far less realistic one as well. Had there not been a serious threat of First Nations’ opposition to Crown aspirations there would have been no conditions producing the necessity to sit down in tipis and around campfires to negotiate the transfer of gifts and guarantees, uniforms, medals, farm animals, agriculture implements, medical and education services, and a commitment to share the land. There were distinct benefits in accepting terms of treaty with the British Crown during that period. The demise of the Buffalo herds caused starvation on the Plains as well as an obsessive desire for European trade goods and ultimately influenced some First Nations’ peoples to accept “surrender” of some of their territories in exchange for an agreement with Crown representatives that they would receive the protection and support of the great white Mother, Her Majesty the Queen.
Despite the devastation within Aboriginal communities caused by disease and incessant warfare, there still existed a choice to acknowledge and participate in a process of inter-societal negotiations, to seek common ground which could serve to produce mutually beneficial outcomes for separate and independent political communities. Aboriginal peoples agreed to live within “homelands” and to allow settlers onto lands that they had formally controlled. In exchange, British plenipotentiaries promised to serve the “welfare” of their peoples and the international doctrine of Guardianship was adopted and utilized to usher in an age of shared sovereignty within English Law and the Law of Nations over the regions of the North West Territories and Rupert’s Land through the process of signing the Numbered Treaties.
It is at this point in history, when the Dominion government passed into the laws of the colony the Indian Act of 1876, that we can rightly place what Bruce Clark identifies as the “…gap between the natives’ right at law and their treatment in practice in the colonies.” The Dominion Crown had no de jure [in law] authority to interfere with First Nations’ rights to sovereignty and land titles, but as the bureaucracy responsible for acknowledging and serving those rights they did develop the de facto [in fact] regulatory instruments to water those rights down to a point of virtual impotence.
This Act assumed the administration of Indians as colonized people and colonial policies were achieved through the use of this legislative statute. From its inception in A.D. 1876 and through several amendments between then and A.D. 1951 the Act regulated the displacement of traditional Indian leadership; introduced the community governance of elected band councils and a corresponding “atomization” of reserve societies; immobilized Indian peoples on reserve “homelands” through a policy of a “Pass” system; banished specific ceremonial and spiritual practices; forced enfranchisement to meet the objectives of arbitrary extinguishment of Aboriginal rights and to serve the aims of policies of “assimilation through integration”; suppressed fundraising initiatives by constituting the act of collecting revenue in pursuit of Aboriginal land claims or other political purposes as illegal acts; and unilaterally expropriated some First Nations’ lands recognized by Treaty under the Law of Nations to ranchers and mineral exploration company leases without first negotiating a Cession of these territories vis-à-vis the superior legal requirements of the Royal Proclamation of 1763 and the accompanying common law precedents under English Law.
First Nations’ peoples opposed the reduction of their rights with the new Dominion from the outset. As early as the A.D. 1880s the Nisga’a were protesting the loss of their lands and demanding compensation. The provisional government established by the leader of the North-West Rebellion, Louis Riel, in Manitoba in A.D. 1885 also stands as evidence of Metis opposition to the expansionist ambitions of eastern political and business elites, and represented a direct challenge to settlement in the Red River region. The hanging of Louis Riel, by orders from Sir John A. MacDonald, effectively silenced de facto sovereignty and resistance was significantly diminished for a period that lasted through until the end of the Second World War. It was then that a new climate of human rights idealism and a new United Nations forum for dispensing International Law pronouncements began to penetrate into the moral consciousness of the general public within the Dominion.
With the finding by the Judicial Committee of the Privy Council that the Aboriginal title had only been a “personal and usufructory” right to enjoy the benefit of their lands at the discretion of the Crown from the decision of St. Catherine’s Milling & Lumber Company vs. The Queen we have an example of an erroneous conclusion in law, inconsistent with all historical references under English Law and the Law of Nations. We also have the instrument of bad law that served to instruct the formulation of all Aboriginal policy within the colony until late into the 20th century.
With the evidence presented by the Royal Proclamation of 1763, the common law precedents of Mohegan Indians vs. Connecticut and Cameron vs. Kyte, Article Nine of the Treaty of Ghent of 1814, Section 109 of the British North America Act, 1867, and the conditions expressed with the transfer of title from the Hudson’s Bay Company to the Dominion, it is pretty fanciful to conclude a mere ‘personal and usufructory’ right to use and enjoyment of the land. One is left only to conclude that in this particular case the Judicial Committee of the Privy Council was quite simply wrong in their judgement. The spaciousness of this conceptualization of First Nations’ title was corrected in English Law in A.D. 1897 when the Judicial Committee of the Privy Council ruled in the case of the Attorney General of Canada vs. Attorney General of Ontario (otherwise known as the Indian Annuities Case). Within this decision the Court acknowledged that the Aboriginal claim to land was an “interest” for legal purposes, that this interest was an “independent” interest, and that this “independent” interest was constitutionally protected.
By the close of the nineteenth century, despite significant and devastating encroachments by the colony on the de facto ability of Aboriginal peoples to govern the affairs of their communities, the de jure recognition of Aboriginal sovereignty and land title in English Law and the Law of Nations had not been extinguished by the Parliament of Great Britain and remains in full force and effect. The doctrine of Cession adopted by the British Crown to achieve “surrenders” of land from First Nations’ peoples and the language of “treaties of alliance” used to negotiate Aboriginal cooperation and grants of land to the Crown did not explicitly delegate an incident of sovereignty. The de jure sovereign rights of First Nations’ peoples remained intact under English Law, the Law of Nations and International Law, regardless of its de facto reduction to silence within the domestic legislative instruments of the Dominion of Canada.
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