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ECLIPSE AND ENLIGHTENMENT

Since coming to the Mi'qmaq country at Listuguj in the summer of 1996, I have learned of the traditional story of the ship that brought darkness which will be followed by light and an awakening. The story brings me sadness, but also great hope.

Following the European invasion, justice for the aboriginal people was eclipsed. The darkness in the legend seems, to me at least, to symbolize the injustice.

The darkest hour occurred on August 21, 1996. Then, the Supreme Court of Canada delivered its considered opinion regarding the ultimate nature and character of aboriginal rights, in a set of four cases. In these, the Supreme Court of Canada purported to reverse the previously settled constitutional and international law, simply by ignoring its existence.

Yet only a constitutional amendment can reverse settled constitutional law. And only an international convention can over turn settled international law.

The attempt by the Supreme Court of Canada to reverse existing constitutional and international law is a pretence, one that reneges upon the crown's solemn and legally binding undertaking of protection toward the aboriginal people, and negates the rule of law.

Three of the four cases started in British Columbia: Van der Peet, Smokehouse and Gladstone. One began in Ontario: Pamajewon. These four completed a thought, the expression of which began in 1991, with the same Supreme Court's decision in another Ontario case: Bear Island. And the thought expressed is essentially the same as that recorded in a case this summer relative to the Maritimes: Marshall.

The thought is that aboriginal and treaty rights are subject to federal and provincial law, except to the extent that the aboriginal people can satisfy the federal and provincial courts that an exception should be made in individual cases.

So far as aboriginal rights, as contrasted with treaty rights, are concerned those courts have indicated the aboriginal people must now prove that whatever activity it is they want to carry out as an aboriginal right was carried out in the same way in pre-contact times by their ancestors.

The judges add that native oral history is unreliable as the means of proof, because they call it "self-serving." Since there are no written records from pre-contact times, this leaves proving the exception difficult. Oral history is not only disregarded but treated with contempt; and there is no written history. Therefore, for all practical purposes, proof of aboriginal rights, as an exception to the application of federal and provincial legislation, is virtually impossible.

Like the 1996 Atlantic Canada case of Marshall, the Pacific coast cases of Van der Peet, Smokehouse and Gladstone held that Indians cannot legally sell fish contrary to federal and provincial law. In essence, the judges reasoned that "selling" is a money economy concept; and, in pre-contact times, there was no money economy.

The fact that aboriginal people bartered fish was not regarded, by the non-native judges, as the legal equivalent of selling fish. It could have been so regarded, but it was not so regarded.

The apparent difference between the Marshall case and the three B.C. cases was the presence in the Marshall case of a treaty. But this fact turned out to make no real difference.

The treaty in question in Marshall indicated that the Indians could sell fish to non-native truckhouses. But, as the Nova Scotia court noted, the truckhouse trading system was discontinued two years after the treaty was signed. The court held that the discontinuance of the truckhouse system automatically discontinued the right to sell.

In the Pamajewon case, the exemption from the so-called need to comply with federal and provincial legislation was gambling. The Indians offered evidence that aboriginal people did in fact gamble in pre-contact times, just as in the fishery cases evidence had been offered that in pro-contact times the people bartered fish.

The reaction of the judges in the gambling case was consistent with their reaction in the fishery cases. It was not the fact of gambling that was relevant to them, but rather the way in which it was carried out. And the scale upon which it was carried out.

They decided that modern forms of gambling were not permissible, precisely because, being modern as to style and scale, they were not aboriginal. The judges thus preferred to focus upon cosmetics rather than substance; upon details rather than principles.

The Bear Island case dealt with the related issue of what defines a valid extinguishment by treaty. As background to this case it is important to be aware that the Royal Proclamation of 1763 and the Statute of Frauds, 1670 enact that an extinguishment of aboriginal rights is valid if, but only if, the intent of the particular Indian community to cede or sell is arrived at in a "public Meeting or Assembly," and then recorded in a contract that describes with legal accuracy the land being conveyed. The contract must then be signed by the community's leaders.

None of these mandatory preconditions were met in the Bear Island situation. No matter, said the Supreme Court of Canada. Instead, the court held that the acceptance by some community members of treaty payments under a treaty negotiated and signed with other native communities, and the unilateral setting apart by Canada of Indian Act "reserve" lands, effected an "adhesion" to the other communities' treaty.

Therefore, even though the Bear Island aboriginal people never negotiated and approved or signed any treaty, the court held that their aboriginal rights had been extinguished by a treaty.

when these 1990s cases are taken as a set, the net result is that aboriginal and treaty rights are a mirage, at least in so far as the courts of the federal and provincial governments are concerned. By whatever route the native people approach the issue of the legal priority that aboriginal occupation confers, the road is blocked by the courts of the newcomers, on one pretext or another.

This is not surprising. The newcomers' courts are in a profound conflict of interest.

The root of this conflict runs very deep. Since the European invasion began, there have always been two conflicting attitudes contending for paramountcy in the minds and hearts of the newcomers' society. From the outset, some newcomers both coveted and feared the untamed wilderness an the first people inhabiting it, and wanted cut the one down and exterminate the other.

In 1493, the year after Columbus made his great or at least so-called discovery, the Roman Catholic Church proclaimed the natural law governing questions of legal rights as between natives and newcomers. Because, at that time, the church was universal in Europe that declaration of natural law determined international law.

The declaration took the form of formal legislation, a papal bull entitled Inter Cetera. It enacted that aboriginal people were not humans with souls but rather animals without souls and, for this reason, without rights either of jurisdiction or property in the lands of the new world.

Controversy raged in European legal circles. Not all Europeans had the same attitude of rapaciousness and racism. There was another faction, that saw the new world and its native people as a symbol of salvation, rather than a challenge and a threat; they saw a Garden of Eden peopled by more noble beings, where others imagined a dark forest inhabited by sub-human demons in peoples' form.

In 1537, a subsequent papal bull, entitled Sublimus Deus, repealed Inter Cetera on all points of law. Thus, natural law and international law came to recognize and affirm that aboriginal people are human with souls, jurisdiction and property, which must be respected as a matter of law. Sublimus Deus concluded by enacting "should the contrary happen, it shall be null and of no effect."

The contrary has happened, as clearly focused by the set of cases in the 1990s in Canada. Yet, there has been no repeal of Sublimus Deus. To the contrary, the legal point settled by Sublimus Deus became so entrenched in international law as to provide the blueprint for the constitutional law of both Canada and the United States.

On the eve of the American revolution the Royal Proclamation of 1763 restated Sublimus Deus and the various constitutional instruments reiterating its legal point over the intervening years. Thus, the proclamation confirmed that the aboriginal people could not, legally, be molested or disturbed by newcomer governments, their courts or their citizens. At least, not upon "any Lands whatever" which were not "ceded to or purchased by" the crown.

As to such Indian land, being all land for which the crown could produce no deed of sale from the Indians occupying it, the making of land grants by crown officials was proclaimed to be the crime of "Fraud."

Thus, the proclamation issued an injunction prohibiting "upon any Pretence whatever" the making of "Grants" or even "Surveys" relative to the yet-unsurrendered Indian lands.

Furthermore, any "Settlements" by "any Persons whatever" were ordered off the yet-unsurrendered Indian lands.

And this is where the rule of law began to break down. For although there was never any repeal of the international and constitutional law constituted and confirmed by Sublimus Deus and the Royal Proclamation, there was in fact a rush into the yet-unsurrendered Indian lands of illegal surveys, grants and settlements.

Among the first illegal settlers trespassing upon the Indian lands were the newcomers' lawyers, judges and police. They set up shop, made it safe for, and then invited in, the rest of the settlers.

when the Indians complained about this blatant breach of existing law, the trespassing lawyers, judges and police employed their stolen monopoly over the legal process in the Indian territories to protect the illegal settlements.

The reason this process does not represent merely a breach of the law, but an eclipse of the rule of law and therefore of justice, is precisely because the illegal invasion of the Indian lands was spear-headed and is still maintained by lawyers, judges and police. They are supposed to be the guardians of the rule of law. when they turn their coordinated talents to thwarting the law, as they have, the rule of law necessarily goes into a sleep.

This is the darkness, I think, of which the traditional Mi'qmaqs have always known and spoken. The enlightenment and the awaking that their legend forecasts may be at hand.

In accordance with their tradition, the prophesied light will come from the east from their land-the land of people of the Atlantic region, where the European invasion began.

Today's generation has a map to follow Three hundred years ago, the Mohegan Indians on the Atlantic coast faced the same dilemma as that faced today by the aboriginal people of all of North America. Then, the Mohegans had a legal dispute with Connecticut over the intent of a treaty. The Mohegans believed the treaty was intended to curb settlement by placing the land in trust But under the excuse of the treaty, the government had introduced settlers onto the Mohegan lands.

The Mohegans knew that the rule of law cannot function, ever, other than by means of third party adjudication. Therefore they did not want their dispute with Connecticut to be decided by the General Court of Connecticut. So they petitioned Queen Anne to create an independent and impartial third party court, for the constitutional purpose of adjudicating such fundamental questions between natives and newcomers.

The General Court of Connecticut strenuously opposed the Mohegans' petition. That court argued that it was already the third party court. It argued that the Mohegans were one party; that the settlers and the government of the colony were the second party; and, that it, the Connecticut court, was separate from the settlers and government of the colony. On this basis, the court argued that the rule of law's cornerstone principle, third party adjudication, was not upset by having the General Court of Connecticut being the umpire in the legal disputes between natives and newcomers. 

contiuation......