1537. "Natural law" is that special type of law that is so basic to humanity as to be thought God-given or philosophically self-evident. Speaking on behalf of Christian Europe, in 1537 on the basis of natural law the Pope declared that for international law purposes the Europeans were legally bound to respect the natives' previously established jurisdiction as human beings ((1)).
1704. "Constitutional common law" is that special type of law that comes into being when a court declares a first principle that is beyond the ordinary jurisdiction of governments unilaterally to repeal ((3)) constitutional court, on the ground that the colonial court it already had such jurisdiction, and the Indians were under it. Queen Anne agreed with the Mohegans, and constituted the special court ((5)).
1763. "Constitutional legislation" consists in those orders in council and statues of the imperial government which constitute and limit the powers of the federal and provincial governments, such as the order in council known as the Royal Proclamation of 1763. It affirms the above mentioned natural, international, common and constitutional law. Only the imperial parliament could enact a repeal ((7)) of the previously established legal position.
1876. As a matter of Canadian government policy, the bureaucracy prematurely began applying the locally enacted Indian Act to yet unsurrendered Hunting Grounds. Even on the face of the said Indian Act itself that application was, and remains, illegal: the act purports only to apply to each "reserve" ((10)). The Prime Minister Sir John A. Macdonald admitted that the reason for the new policy was the genocidal one of forcing assimilation ((13)) for the purpose of ending that part's existence is a crime related to genocide. This law binds Canadian judges. The practice of those judges is to assume jurisdiction over the Indians' yet unsurrendered Hunting Grounds, contrary to the above mentioned natural, international, common and constitutional law. This aids and abets the genocide of one part of native society in virtue of the premature and hence ultra vires employment both of the domestic criminal law sanctions of death and imprisonment as well as civil law injunctive relief, the combination of which precludes the continuity of the independent aboriginal economy and aids the setting up in substitution of a permanent welfare economy administered by the illegal (in relation specifically to "Hunting Grounds") puppet "band" governments.
1995. The Queen in Council (U.K.) is being petitioned to uphold the rule of law.
DATED at Ottawa, Ontario, March 27, 1995.
Bruce Clark
Counsel for petitioners.
2 Dicey. Lectures. 1920. 488. "Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. It can not override statutory law. The courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a statute, but they can not set a statute aside. Nor have they in England ever adopted the doctrine which exists, one is told, in Scotland, that a statute may be obsolete by disuse. It can not from its very nature override any established principle of judge-made law."
3 Hume. Politics. (F. Watkins, ed. Toronto. Nelson. 1951.) Page 84. "Here then is the origin of civil government and society."
4 PC2/96:163-7,175-6/116:513-515/117:10-11. Attorney General Northey recommended a constitutional "Court" (rather than a mere royal commission of enquiry) to adjudicate legal disputes between Indian nations and crown governments, which recommendation was enacted into law by order in council (U.K.) dated 9 March 1704, implemented by the court itself, and confirmed at the appellate level by the Judicial Committee of the Privy Council on 15 January 1773. Smith. Appeals to the Privy Council. 1950. Page 425 (note 48).
6 Campbell v. Hall (1774), 98 ER 848, 895-8 (PC).
7 See, for example: Quebec Act, 1774, s. 3; An Act to Provide for the Government of British Columbia, 21 & 22 Vict., c. 99, s. 4; the Constitution Act, 1867, ss. 91(24), 109 and 129; the Statute of Westminster, 1931, s.7(1); and the Constitution Act, 1982, ss. 25(a) and 35(l).
8 "reserve": Indian Act, 1876, s.6: "The term 'reserve' means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians..." (emphasis added)
9 "Hunting Grounds": Order in Council dated 7 October 1763: "...the several Nations or Tribes of Indians with whom We are connected and live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds..." (emphasis added)
10 Attorney General Northey. 1704: "an apparent Injury to them [the Indians] and her Majesty" (emphasis added). Royal Proclamation of 1763: "Pretence...Frauds and Abuses...Misprision of Treason."
11 Return to an Order of the House of Commons, 2 May 1887 (20b) at 37. Prime Minister Sir John A Macdonald in a Memorandum dated 3 January 1887. "The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion, as speedily as they are fit for the change."
12 An Act further to amend "The Indian Act, 1880." SC 1884, c. 27, ss. 1 and 3. The Indian Act. RSC 1886, c. 43, s. 75.
13 Convention for the Prevention and Punishment of the Crime of Genocide, 1948. Article II. "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (b) Causing serious bodily or mental harm to members of the group."