Some Traditional Natives rely on Constitutional Law. The Canadian Governments and Courts rely on Domestic Law. In a conflict of laws situation such as this, the conflict is supposed to be resolved by an established hierarchy of laws: the greatest law is Constitutional law, followed by Domestic law.
According to Constitutional Law, before the land is ceded to the Crown...the Natives have complete use, occupation and jurisdiction over the land. In return, the Crown provides "Protection" to the natives from the "great Frauds and Abuses" which result from people anxious to have the land before a treaty; and the Natives can only cede (sell) the land by concluding a formal treaty according to a strict Constitutional Formula to the Crown and not to individuals. After that formal Treaty has been signed according to law by both parties, then the use, occupation, and jurisdiction held by the Natives is joined (merges) with the underlying title held by the Crown. Then and only then the Crown can issue patents, deeds and individual titles to that land. Then and only then the Indian Act applies to the Natives on their Reserve created by the Treaty. And, then, the Domestic Law applies generally.
The current problems are occurring as they have occurred in the past because the Crown, contrary to Constitutional Law, has issued grants of survey, titles and deeds to land they did not "own", that is before a Treaty had been signed. By prematurely moving on to unceded land the courts and police and settlers, the domestic governments forcibly applied the Domestic Law in spite of the Constitutional Law. At the same time as unconstitutionally making illegal the Sundance, the Ghostdance and the Potlatch, all essential to the social, religious and political lives of the Traditional Natives, they unconstitutionally applied the Indian Act to unceded land even when on its face the Indian Act can only apply after a valid Treaty, and made illegal the Traditional Government of the natives. In this way the Domestic Governments set up unconstitutional Indian Act Band Governments on unceded land and paid natives, as they do today and historically has been done in any occupied country, to repress the Traditional Element and therefore the truth about the Constitutional Law.
The Canadian Governments' and Courts' reliance on Domestic Law to the exclusion of the Constitutional Law is one of the "great Frauds and Abuses" that illustrates the wise and prophetic establishment of the independent and impartial third party tribunal to resolve the boundary disputes such as exist today. Under the Constitution, there is a Standing Committee of the Privy Council which the Queen administratively is required to staff to hear the jurisdictional dispute. Once the dispute has been heard and ruled upon, the dignity of the Natives can be restored and the hopelessness and despair which is causing distressingly high mortality rates may abate. The Traditional governments will have their place equal to the Crown at the Treaty table "if and when the Natives are inclined to dispose" of their unceded territory. The mindless demolition of the environment can cease. And Canada will indeed be a country "founded on the Rule of Law."
- by Margaret Clark
September 18, 1995
In any situation where the highest levels of power are engaged in "Fraud", "Treason", and "Genocide" as defined by the constitution, one must seek the "Big Lie". In this particular instance the Big Lie promoted by the Attorney General, the police and the courts is that there is one law which applies comprehensively across Canada. But, under the Canadian Constitution there are two laws: one applicable to existing aboriginal rights on unceeded (Prior to Treaty) Indian Territory; one appplicable on ceded territory.
Everything is being done in a frantic attempt to defame the validity of the traditional natives claims under the Constitution, all in aid of the Big Lie. The press release from the police convention is an example: it claims that militant natives are trying to exert political pressure to change the law, when in truth they are defenders of both the native Great Law and non-native Constitutional Law. They desperately are trying to have the Constitutional Law addressed by an impartial, independent, third party tribunal. The demonization of the defenders against the said "Fraud", "Treason", and "Genocide" as "terrorists and thugs" is but another instance of trying to deny them and their legal argument any credibility.
Their lawyer, Dr. Bruce Clark, is in jail for trying to apprise the Court of the Constitutional law that supports his clients' position. Instead of meeting his law with law of equal weight that precludes his clients' position, the judge refused to look at the law. Earlier that day, Dr. Clark was refused access to his clients who were already in jail when he sought to see them. As a lawyer, his responsibility was to prepare for trial or to brief other counsel if they had voluntarily elected to change counsel. During court the judge committed judicial perjury when he stated that all of Dr. Clark's clients had elected other counsel when, on the face of the court list to which the judge was referring, Brent "Shadow" Potulicki had no counsel and in fact had demanded to see Dr. Clark.
Today, denial of counsel continues. Some or all of his clients are in another section of the same jail and he can hear them calling out that they want to talk to Bruce Clark, their lawyer. Both his demands to see his clients, and their repeated demands to see their lawyer are denied. The denial of counsel is strategically significant because although natives may be willing to die defending their rights, imprisonment is worse than death, particularly for the native who has a deep attachment to his land. Historically, imprisonment or the threat of imprisonment has been a sucessful tool in the fight to extinguish traditional resistance in the on-going genocide of the traditional native people. In an attempt to break his resolve to occupy the position that is right in law, Dr. Clark is being subjected to sleep deprivation, an acknowledged form of torture, by the scanner placed outside of his cell blaring at proscribed intervals throught the night. The old legal adage seems to be in effect: if you can't meet the law, use the facts; but if you can't meet the law or the facts, shoot the messenger!
But truth and the Constitutional Law are on our side and in a country "based on the Rule of Law" surely the powers that be eventually will have the honour and dignity to come out from behind the lesser domestic law and face the legal issue of juridical jurisdiction on unceded territory before the independent and impartial third-party constitutional court as required by our Constitution.
The latest outrage is the committal of Counsel Dr. Clark to a 14 day compulsory psychiatric evaluation. He is being held in Riverview Mental Hospital.