Margaret Clark: Which Laws Apply?


Constitutional vs. Domestic Law

- by Margaret Clark
September 11, 1995

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."

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