Dec 12/97: It's about more than the trees...


Eva Lyman
December 12, 1997

Recently the issue of Aboriginal jurisdiction was in the news twice, from the opposite corners of Canada. Two court cases, each dealing with forest use by Aboriginal people hit the news, one in New Brunswick and the other on Haida Gwaii.

These cases both touch upon a much deeper issue, as Mr. Justice John Turnbull in New Brunswick stated. He delved into the larger constitutional, and historical picture, and ruled that crown land, where it had not been purchased by the Crown, still belonged to the Native people.

In B.C. the court ruled that if the Aboriginal people could prove that the land belonged to them, the trees belonged to them. The ministry of Forests was immediately up in arms, stating that nothing would change. Nothing has changed in B.C. for over 100 years. But legally and constitutionally speaking, Justice Turnbull is closer to the truth.

The lawyer most precisely specialized in the area of Aboriginal jurisdiction in Canada is Dr. Bruce Clark. His Doctorate of Law is specifically in North American Aboriginal jurisdiction. He spent two years in Englalnd and Scotland researching documents for his thesis, and when he published the Ph.D. dissertation (under the title Native Liberty - Crown Sovereignty), he received nothing but praise from his learned colleagues across Canada.

Since 1995, however, Dr. Clark has not been allowed to practice or represent Native clients in B.C. This is a pity. During his last appearance in a B.C. court room the media dwelt on his eccentric appearance, and his sometimes crusty manner, but the man is without a doubt brilliant. He last appeared in Surrey at the Gustafsen Standoff trial, as a witness for the defense of W.J. Ignace, aka Wolverine. Here he gave the story not only of Aboriginal constitutional rights, but the long path which brought him to the realization that strictly speaking, Canadian courts have no jurisdiction on land that had not been sold or ceded to the Crown by the Aboriginal nations.

For Bruce Clark it all started over twenty years ago in Northern Ontario, where he was a successful young lawyer. A group of Aboriginal clients entered his life: he defended their sacred mountain from a ski development. When these clients first consulted him, they explained that this was their land: "We were here first, we're human, it's ours. Unless you can show us that you bought this land from us, we were here first, we're still human, and it's still ours," they told the startled Clark.

Clark began to review constitutional law to refresh his memory on the issue of Aboriginal jurisdiction. He was seeking a remedy via the courts of his own culture. Then it struck him as if by a thunderbolt. He recalled: "The moment I did that, I relinquished my Native Clients' sovereignty". He began to re-examine the laws.

After seven years, during which time he successfully stopped the development of the Sacred Mountain, Clark decided to study the issues of Native sovereignty in more depth. He first obtained a Master's degree at the University of Western Ontario specializing in the societies of the North American Indians. Afterwards he moved to Scotland to get a Doctorate of law, specializing in the narrow field of the Constitution as it applies to Native sovereignty in Canada.

Upon returning from his studies, Doctor Clark published his thesis, which at first met with rave reviews. However, as soon as he took on legal cases to apply the law, he began to meet with determined opposition from his legal brethren, particularly those on the Bench. He soon began to see judges as part of the problem, part of the reason why the law was not being addressed. They in turn reacted vehemently to his accusations of collusion. Chief Justice J.A. Lamer raged at Clark in 1995: "Your ideas are call judges are a disgrace to the Bar!"

What was the explosive 'new' knowledge that Clark uncovered, that changed the earlier accolades of the late 80's, when reviewers of his Ph.D. raved that "Perhaps no one is more knowledgeable on the issues of Native rights and law"?

Quite simply, Clark confirmed through his studies what he had realized intuitively when dealing with his first Aboriginal clients: The minute you assume that the constitutional pie is divided into two halves, one marked Provincial jurisdiction, and the other Federal, you are illegally extinguishing Native title.

While in Scotland, Clark researched old laws, and in particular cases like the 1704 decision by Queen Anne in her Privy Council, where she intervened as a Third Party tribunal on behalf of the Mohecans of Connecticut. That decision stated that no one could settle on Indian land unless it had been previously purchased by the Crown. In other words, land that had always been Indian, and was not ceded to the Crown, was off limits to immigrant settlement. Critically also, this decision underlines the fact that the Crown's title does not underlie Aboriginal land, and Canadian courts have no jurisdiction there. This is the key point that must be remembered. Canadian Courts have skirted around this issue in case after case, after case, probably for fear of the implications.

A later proclamation by George III in 1763 expanded on the 1704 law, stating that people who either willfully or inadvertently settled on Indian land would have to "remove themselves forthwith". This proclamation also stipulated that judges and surveyors who contravened this ruling were guilty of treason.

Clark followed the paper trail to our own British North America Act, and the Constitution act of 1982, and found that nowhere were these laws repealed by the Privy Council or an equivalent Canadian court. Since they had not been repealed, Clark reasoned, they are still in force. In fact, sections 109 of the BNA Act of 1867 (continued in the new Constitution act of 1982) states specifically that previous laws relating to Indians are still in force. And section 129, article 10, (terms of union, when B.C. joined confederation) stipulates that B.C. is bound by the Constitution Act (BNA Act at the time). These documents mean that the Royal Proclamation of King George is still in force, as to the way that land is to be ceded by the Aboriginal People to the Crown. If this has not been done, it is still "Indian territory" plain and simple!

With Dr. Clark on the stand as a witness last spring, the court was treated to several days of fascinating in depth lectures on Constitutional law by the man whom many have called the most pre-eminent Canadian expert on the subject. The scant media, who were present were regrettably more interested to report that Dr. Clark admitted to a hostile attorney that he once took Prozac! Could it be that the mainstream media want to keep the public in the dark on this most important matter?

Dr. Clark has a very clear way of explaining the jurisdiction split in Canada. He compares jurisdiction to sections of a pie. Most people believe the division of powers in Canada is a pie split in two: Federal and Provincial jurisdiction.

This, according to Clark, is incorrect. Taking the pie analogy to a correct interpretation, the pie is actually divided into three parts. One part is Provincial jurisdiction, another Federal, and the remaining portion is Aboriginal jurisdiction over all land not specifically ceded to the Crown. All territory is "Indian land", where no treaties had ever been signed to purchase land from the Native people in their councils, as required under the original laws. In other words, the Crown's jurisdiction does not extend under the Aboriginal lands, it stops beside them. That is why most of British Columbia is, in constitutional law, still Aboriginal territory.

This news may alarm many non-Aboriginal Canadians. It may well be because of the political and economic implications, that Justices in British Columbia have turned a blind eye to the law, prompting Clark to quip that they are like kids with their hands in the cookie jar stealing cookies. When asked about the jar, they look around, saying "What cookie jar?"

Since the early 1990's Clark has fought the judicial system on behalf of numerous Native clients. In some B.C. cases logging on unceded land was at stake. In no case were the appropriate questions of jurisdiction addressed. Dozens of cases were thrown out on a variety of pretexts, some as ridiculous as a stamp missing on a document, that could have been obtained in 5 minutes.

What are the implications to British Columbians of the laws as presented by Dr. Clark? To put it in a nutshell: Due to a failure to apply constitutional law since B.C. entered Confederation, we have assumed that the "Queen" has title to the "public" land in B.C., and that Crown title underlies lands held in fee simple. If Dr. Clark is correct, it is not really the Queen, but the Aboriginal people who hold that title.

Perceptively Clark has argued that if his interpretation of the law were incorrect, he would have been apprised of this fact by his many opponents on the bench, and at bar long ago. He concludes that their failure to do so, means that his interpretation is indeed correct. It must be heartening for Dr. Clark to hear Mr Justice Turnbull make a ruling that would appear to uphold the same interpretation of the Constitution!

What is the implication for ordinary British Columbians? Probably very little. The Aboriginal people I have spoken to, including the traditionalist Wolverine, are quick to reassure us that they would not ask anyone to leave the Province. Even Dr. Clark stated during an interview, that he felt resolution of the jurisdiction issue in B.C. would have to be political in nature. Clearly more than 3 million unsuspecting, non-Aboriginal citizens cannot be asked to "remove themselves forthwith" even if the Royal Proclamation says so, without a violent backlash.

Without a doubt, the Aboriginal Nations of Canada, and particularly of B.C., have been unfairly deprived of benefits from their resources, and have been held hostage by the state, rather than being allowed their rightful dignity and income from the land's ample resources. The pressure to stonewall comes no doubt from the forestry corporations and the mining corporations who realize that they would have to share their profits more fairly, and might even have to become more sustainably minded.

We will not know how resources would be shared, what sort of split could be negotiated between Aboriginals and the Settler population until we decide to sit down with the "Native people in their councils" as prescribed in the Royal Proclamation, and seriously discuss the matter.

There seem to be different views about how best to proceed to a resolution among two main factions in Aboriginal communities. What they seem to boil down to is roughly this: The "traditionalists" believe (and the Royal Proclamation, as well as ancient tradition appear to be on their side), that decisions must be made in a much more broad, pluralistic way than is being done by the Government imposed land claims process. The elected Chief and Council system imposed by the Indian Act is in fact not traditional, and (according to the traditionalists like Wolverine, or Harold Pascal of the Lil'wat Nation), illegal. It puts decision-making powers in too few hands. In other words it is not truly (as we settlers might say) grass roots and democratic, and has been imposed by an illegal process.

One would hope that with the realization (or should one say admission?) that Aboriginal people in this area still have jurisdiction over the land, we will allow them the power - which is constitutionally theirs, it must be remembered, and is being illegally usurped - to scrap the Indian Affairs Department, and set up the systems of their choice.

The process which most traditionalists would seem to prefer to resolve the impasse we find ourselves in, is an impartial third party tribunal. This was, according to Dr. Clark, the historic way of resolving conflicts that all of the Aboriginal Nations had used for centuries. It might be somewhat similar to using a mediator in a labour dispute in the current Canadian context.

The first step toward seeking a solution must be creating an awareness of the constitutional situation in the mainstream population. If we understand reality, we will be in a much better position to come to a consensus resolution. Today the majority of Canadians have no inkling of the constitutional facts. The Aboriginal people, on the other hand, seem to be much more aware of them. Their bitterness is understandable, particularly in this context.

Once this situation is fully realized, we will have different options to resolve them. Dare we dream large dreams, of radically new solutions, or will fear, envy and greed win the day again? We can become fragmented, remain divided or forge strong grass roots ties, a truly different multicultural "province" that withstands the test of time. One could ask the question: If we can have a French multicultural Province with a different law, and official language, as well as religion, from the rest of Canada, why not a "Native" multicultural Province?

Let's walk with caution but boldly and with courage to a better day!

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