Stephen Craig Snake (Vart)
                                       Appellant
                                       c/o Bruce Clark, LL.B., M.A., Ph.D.

                                       File No. C22427


COURT OF APPEAL FOR ONTARIO

Between:

                  HER MAJESTY THE QUEEN

                                            Respondent

- and -


                  STEPHEN CRAIG SNAKE (VART)

                                            Appellant


APPELLANT'S REPLY FACTUM

INDEX

     Part 1 - Reply to AG Canada....................................2 

     Part 2 - Reply to AG Ontario..................................13 

     Part 3 - General Cross Reference..............................73 

     Authorities...................................................74

The issue actually raised on this appeal is juridical jurisdiction over "Indians" upon lands not proven to be "ceded to or purchased by Us" within the meaning of the seminal constitutional legislation, specifically, the Royal Proclamation of 1763.

The issue substituted by the AG Canada is juridical jurisdiction under domestic legislation, specifically, the Criminal Code.

The reasoning in respect of the substituted issue appears to be that since, on its face, the Criminal Code applies universally and assigns jurisdiction to the court below, that, therefore, by necessary implication, the court below has jurisdiction over "Indians" upon lands not proven to be "ceded to or purchased by Us."

The assumption at the head of that argument is that the Criminal Code implicitly has repealed the conflicting constitutional legislation.

But the constitutional legislation expressly and explicitly made an exception to the general rule that domestic legislation, such as the Criminal Code, can apply universally. From inception, such legislation does not and never has applied to "Indians" upon lands not proven to be "ceded to or purchased by Us."

The premise of the argument of the AG Canada is the oxymoron that domestic legislation, the Criminal Code, has repealed, by implication, conflicting constitutional legislation, the Royal Proclamation of 1763.

In reply, the appellant has to submit that where, as here, the constitutional and domestic legislation seem, implicitly, to conflict, the constitutional legislation by definition is paramount and the domestic legislation must be read as subject to it, not the other way round as the AG Canada would have it. Certainly this paramountcy holds where, as here, the conflict between constitutional law and domestic law is only implicit.

If the conflict were not merely implicit, but rather explicit, that is if the Criminal Code expressly and explicitly were, on its face, stated to be applicable to "Indians" upon lands not proven to be "ceded to or purchased by Us," the question would still remain: by what constitutional provision did the parliament of Canada acquire the jurisdiction to repeal the previously established constitutional legislation?

The AG Canada assumes that by assigning domestic jurisdiction over the criminal law to Canada, instead of to the provinces, in one pad of the constitution, the imperial parliament legislatively intended that Canada could repeal other pads of the constitution restricting domestic crown territorial jurisdiction to ceded territory. That assumption is improper.

Canada's jurisdiction to enact law relative to the criminal law is co-terminus with the territory that has been "ceded to or purchased by Us."

The point is that the various pads of the constitutional law must be read as respecting each other and, where possible, be reconciled. The constitution says, in one pad, that relative to territory that has not yet been "ceded to or purchased by Us" the "Indians" should not be "molested or disturbed." As to that yet unpurchased Indian territory, the constitution says that there shall be neither "grants" of land "upon any Pretence whatever," nor "Settlements" by any "Persons whatever."

The constitution also expressly says that the only non-native domestic court jurisdiction that exists relative to that yet unpurchased Indian territory is with respect to criminal fugitives who commit crimes outside the Indian territory and then flee onto it to escape justice.

In another pad of the constitution, it says that the parliament of Canada, rather than the legislative assemblies of the provinces, shall have jurisdiction over criminal matters.

There is no necessary conflict, no insurmountable impediment to reconciliation, between the Indian pad and the criminal law pad of the constitution. Those two pads by definition apply to different territory, so far at least as "Indians" are concerned.

In other words, the submission here is that as to the yet unceded Indian territory the Criminal Code is extraterritorial. The Criminal Code does not expressly and explicitly say otherwise. If it did say otherwise, the saying would be unconstitutional. The AG Canada argues that the Criminal Code implies otherwise, and that the implication effectively repeals the Indian pad of the constitution.

That is impossible, given the inherent nature of the paramountcy of constitutional law over conflicting domestic law.

2. The only constitutional argument that might credibly have been made, to the effect that the territorial integrity of the territory not "ceded to or purchased by Us" was ever breached vis-a-vis "Indians," depends upon arguing that the common law constitutional territorial restriction confirmed by the Royal Proclamation of 1763 was repealed by An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. lv, c. 66(1821).

That statute extended the criminal jurisdiction to "all Persons." If "Persons" includes "Indians," that statute repealed the territorial restriction in the proclamation even as to "Indians."

Unlike the Criminal Code, that statute is not mere domestic legislation. To the contrary, it is an enactment of the parliament of Great Britain specifically intended to have constitutional consequence in Canada. And it was expressly and explicitly designed to breach the territorial integrity established by the proclamation, at least as to some "Persons."

It does so specifically by applying the criminal law to "all Persons" in the Indian territory, whereas under the proclamation the only jurisdiction was to apprehend fugitives there who had committed crimes elsewhere.

The argument that "Persons" includes "Indians," and not just non-natives sojourning in the Indian territory, was set out with particularity in the academic legal treatise: Bruce Clark, Native Liberty Crown Sovereignty: The Existing Aboriginal Right of Sell-Government in Canada (Montreal and Kingston: McGill-Queen 5 University Press, 1990), in the chapter "Discontinuity: The Anti-thesis -- The Crimes and Offences Exception."

The error of Dr Clark's argument was exposed, however, by a subsequent academic legal publication: Hamar Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases," [[1992] Manitoba Law Journal 343-89. Professor Foster demonstrated that Dr Clark's chapter was based upon the assumption that "Persons" within the meaning of the 1821 imperial legislation included "Indians" within the meaning of the Royal Proclamation of 1763. Foster proves that "Persons" as at 1821 was well understood, both legislatively and in the practice of the courts of that era, to be exclusive of "Indians." If the imperial constitutional legislators had intended to include Indians, in the context of the first half of the 19th century they would for a certainty have said "Indians."

Dr Clark publicly has acknowledged his mistake.

There is no other constitutional law basis for making the argument for a repeal of the juridical jurisdiction restriction relative to the "Indians" upon territory not yet "ceded to or purchased by Us" within the meaning of the Royal Proclamation of 1763.

Indeed, even in terms of the proclamation itself, the terms "Indians" and "Persons" are both used, in a definitive sense that is mutually exclusive. The proclamation enacts that "Indians" should not be "molested or disturbed' and, correspondingly, that "all Persons whatever" are obliged to "remove themselves" from "Settlements" made upon territory not yet "ceded to or purchased by Us." By ordering "all Persons whatever" to "remove themselves" from the lands not "ceded to or purchased by Us" the imperial authority did not legislatively intend to order the "Indians" to remove themselves from such lands. The legislative point for ordering the removal of "Persons" was that "Indians" stay but not be "molested or disturbed." "Persons" and "Indians" were separate constitutional categories in the constitutive legislation. Professor Foster is right in "Forgotten Arguments" whereas Dr Clark was wrong in "The Crimes and Offences Exception."

Appendix. Petition and Petitioners' Factum in the matter of Clark v. Friesen. April 10, 1996.

Appendix. Appeal Book and Appellant's Factum in the matter of Law Society v. Clark. April 10, 1996.

Appendix. Petition and Petitioners' Factum in the matter of Pascal v. Walker. April 10, 1996.

Appendix. Appeal Book and Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10,1996.

Hamar Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases," [[1992] Manitoba Law Journal 343-89.

Bruce Clark, Native Liberty Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada (Montreal and Kingston: McGill-Queen's University Press, 1990).

3. An unconstitutional assumption of jurisdiction by domestic legislatures. Indeed, even by second instance judges appointed by domestic legislatures, even over a long period of time, cannot possibly repeal previously established constitutional law.

E.V. Dicey. Law and Opinion in England, London, Macmillan and Co, 1920, p. 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."

4. The important thing is that the judges see the constitution in overview perspective. The native/newcomer relationship has been settled, for legal purposes, by a finite set of four constitutive legal instruments.

These record inherent human rights in international law and constitutional common law: Sublimus Deus, 1537; Queen Anne's Order in Council of 9 March 1704 in the matter of Mohegan Indians v. Connecticut; the Royal Proclamation of 1763; and the Convention for the Prevention and Punishment of the Crime of Genocide, 1948. The law recorded by these is simple. clear and plain:

(a) the natives have sovereign jurisdiction upon yet unceded territory, under the protection of overarching crown sovereignty expressed constitutionally;

(b) the newcomers have sovereign jurisdiction upon ceded territory, also under the protection of the same overarching crown sovereignty expressed constitutionally; and,

(c) the premature encroachment of the newcomers upon the sovereign jurisdiction of the Indians upon yet unceded territory prima facie constitutes "Misprision of Treason" and "Fraud" and, arguably, "Complicity in Genocide," expressed constitutionally.

Specifically, in 1867 the imperial parliament of Great Britain saw fit to create 2 levels of domestic government in British North America, where formerly there had been only one. These were the federal and the provincial levels. Correspondingly, the imperial parliament had to allot as between these 2 levels the jurisdiction that formerly had been united in the one level.

This parceling out of jurisdictional responsibilities directly concerned only the territory that had been ceded, for that was the only territory in respect of which the domestic crown governments ever had any jurisdiction whatever. As to the unceded territory of the Indians, the Constitution Act, 1867 was not directly concerned. The yet unceded territory was outside the 1867 frame of reference.

That territory obliquely was mentioned, but only where the mentioning was relevant to the parceling out of jurisdiction relative to ceded territory.

Thus, in section 109 of the Constitution Act, 1867 the crown title that had always been "subject to" the yet unceded Indian "Interest" was confirmed to the provincial governments, instead of to the other candidate, the dominion government. This assignment was necessary in order to ascertain to which of the 2 governments the benefit accrued whenever the Indian "Interest" should be ceded to the crown. But the Indian "Interest" per se was not concerned with the assignment. The issue settled by section 109, the identity of the government acquiring the right to oversee the settlement of the formerly unceded territory once the Indian interest was ceded, was of no direct import to the Indian interest before it was ceded. And after it was ceded, it no longer existed.

Similarly, section 129 of the Constitution Act, 1867 allowed each of the 2 new governments to amend their constitutions as affected themselves only, but not to amend the constitution in a way that concerned the balance of power. This was achieved, in section 129, by the stipulation that the power to amend existed "except' as to enactments of the imperial government. The Indian "Interest," sheltering under the repeated references in the imperial legislation to the "Indian territories," fell within the ambit of the term "except' in section 129, just as it fell within the ambit of the term "subject to" in section 109.

Thirdly, once it was sorted out that the benefit of a territory being "ceded to or purchased by Us" accrued to the provinces rather than the dominion, it remained to sort out to which level was assigned the jurisdiction to represent "Us" at the treaty whereby the territory became ceded to or purchased by Us." This responsibility was assigned, by section 91(24), to the federal level.

Fourth, to ensure that the provinces would not jump the gun by settling the yet unceded Indian territories, that is by ignoring the qualification "subject to" in section 109, the imperial parliament included a fail-safe device. It enacted section 90, which gave the federal government the power to disallow provincial legislation that might in fact jump the gun.

When coupled with section 91(24), section 90 became not a mere power but a trust responsibility -- the constitutional trust undertaken by the crown at the common law and confirmed by Queen Anne's Order in Council of 1704 and the Royal Proclamation of 1763 -- of "Protection" of the Indians in relation to territory that was not yet "ceded to or purchased by Us," upon which territory the Indians were guaranteed that they would not be "molested or disturbed." This, in essence, was the duty legislatively acknowledged by the federal government by enactment of the Order in Council (Canada) of 23 January 1875.

Unfortunately, the federal government subsequently reneged upon that admitted trust responsibility by inaugurating a policy of forced assimilation. Providing that force was and is the ultra vires misuse of the Criminal Code and the subornation of the domestic judiciary to enforce it. Which brings us to this appeal herein.

Order in Council (Canada) of 23 January 1875. Appendix.

Appellant's Factum in the matter of AG Ontario v. Bear Island Foundation. Appendix of Legislation. Page 81.

The factum of the AG Ontario consists in a set of red herrings which do not address the terms and conditions of the constitutional legislation that speak directly to the issue actually raised on this appeal: -- juridical jurisdiction relative to "Indians" upon territory not shown in the constitutionally appropriate court to have been "ceded to or purchased by Us."

As noted at paragraph 5 of the factum of the AG Ontario, the court below found that the offence had occurred "on a weekend in the summer" sometime "between June 15, 1981 and August 7, 1982." "The victim was three or four years old at the time of the offence." There is no mention of corroboration; or of a history of contact between the alleged victim and the appellant since the time of the offence. Assuming an offence by some person against the complainant occurred in 1981, the testimony that such person was the appellant was based upon the memory of a three year old, attested to 14 years after the event. The accused was a juvenile himself at all material times. He denied any knowledge of the event, the occurrence of which from all that appears was not brought to his attention until 14 years after it allegedly occurred. It will be apparent to the judges of the Court of Appeal that on these facts in the normal appeal the conviction would have been challenged on its merits. Although such a challenge was raised by the notice of appeal, as also remarked at paragraph 5 "the trial judge's reasons for conviction.. are not challenged on this appeal." The reason, as remarked at paragraph 1, is that at the oral hearing, the Appellant filed a written factum and Notice of Constitutional Question addressing only one issue: the jurisdiction of the Ontario Court (Provincial Division) to try the Appellant. In oral submissions to the Court the Appellant abandoned all other grounds of appeal except the jurisdictional arguments, and requested that the appeal be converted to an in writing appeal. The Court granted that request.

In these circumstances, the details of the reasons for conviction by the trial judge and the sexual details are irrelevant. Furthermore, the fact the appellant decides to restrict his appeal to the jurisdiction issue does not mean that he agrees that the reasons for conviction are legitimate. In the circumstances, it is open to infer the appellant has determined from the arguable error of the trial judge's reasons that there is no justice for the Indian in the White man's court system -- at least for the Indian who has the independence of spirit (or effrontery depending upon one's perspective) to challenge and criminally to indict to the assumption of jurisdiction by the Whiteman's court system -- and that his energy is better spent on obtaining a general solution to institutionalized injustice, rather than merely nullifying his own conviction.

The appellant finds the references of the AG Ontario to the trial judge's reasons for conviction and the sexual details irrelevant to the issue on appeal. Aside from raising personal prejudice, he does not see the AG Ontario's point in raising those matters.

6. At paragraph 6 of the factum of the AG Ontario, a significantly more crucial misrepresentation is introduced. The sentence appears:

Since it is unclear whether the offence occurred on or off a reserve, the best for the Appellant will be assumed, namely that the offence took place on reserve lands.

That is the worst that can be assumed, not "the best." By "reserve," in the context here, the AG Ontario means a "reserve" in the Indian Act sense. If the offence occurred on a reserve in that sense, the necessary implication is that a treaty has occurred whereby the territory ceased being land not yet "ceded to or purchased by Us" within the meaning of the Royal Proclamation of 1763. The only legally valid reserves in the Indian Act sense are those created in consequence of a treaty, pursuant to which in exchange for various considerations the Indians relinquish the aboriginal right not to be "molested or disturbed." In virtue of the treaty the Indians relinquish the constitutional protection against being "molested or disturbed' in favour of obtaining the benefits of domestic legislation provided under the Indian Act.

For the purposes of this appeal, if the offence occurred on a legally valid "reserve" in the Indian Act sense the appellant would have no case.

The whole point of this appeal is that it is not established that that there has been a valid treaty relative to the region where the offence occurred, if it occurred.

Because the treaty is not established, it is not legitimate for the AG Ontario to have "assumed," as he did, that the place where the offence occurred is a "reserve". If it were a valid reserve there would be a valid treaty. In the net result, the court below would have had jurisdiction.

The entire of the factum of the AG Ontario is premised upon this seminal and erroneous assumption as to the prima facie constitutional status of the land. If that assumption were justified, the appellant would have to agree with the AG Ontario as to the juridical jurisdiction issue raised on this appeal. Indeed, section 88 of the Indian Act confirms the constitutional common law on this point of law all non-native laws of general application prima facie apply on reserves -- precisely because they are reserves rather than territory that has not been "ceded to or purchased by Us." As to reserve lands the Indian Act applies. In contrast, as to the lands not "ceded to or purchased by Us" Queen Anne's order and the proclamation apply. Under the Indian Act, prima facie the court below does have jurisdiction. Under Queen Anne's order and the proclamation prima facie it does not have jurisdiction.

7. At paragraph 7, the AG Ontario asserts that:

the Ontario Court (Provincial Division) has the necessary jurisdiction regardless of whether the offence occurred on or off a reserve, and regardless of the Appellant being a status Indian.

This assertion proceeds upon the basis of a misunderstanding of the underlying law of aboriginal rights.

The appellant's legal point is that, presumptively, he is an "Indian" within the meaning of the Royal Proclamation of 1763. This is a profoundly different legal status than that of "a status Indian," the phrase used by the AG Ontario. "A status Indian" is one who qualifies as an "Indian" within the meaning of the Indian Act. The Indian Act is domestic legislation. It defines "Indians" as persons who are entitled to be registered under that statute for the purpose of the domestic law rights which that statute creates.

Precisely because those "status Indian" rights are creations of domestic law, they are subject to the Criminal Code and all other domestic laws of general application. Section 88 of the Indian Act confirms this.

In contrast, the aboriginal right for which the appellant contends, namely the right not to be "molested or disturbed" by premature (prior to treaty) jurisdictional encroachments, is not based upon domestic legislation like the Indian Act. Correspondingly, it is not based upon being "a status Indian." Rather, the right for which the appellant contends, as a "Indian" in the Royal Proclamation sense, is based upon the constitutional common law as recognized and affirmed by Queen Anne's order and the proclamation. The constitutional aboriginal right is higher than the domestic Indian Act and Criminal Code. As mere domestic legislation, those two statutes must be read subject to the appellant's constitutional law right not to be "molested or disturbed" by premature jurisdictional encroachments.

8. Once the references in the factum of the AG Ontario to "reserves"and to "status" Indians have been weeded out, it becomes possible to focus with clarity upon the issue actually raised upon this appeal. From this perspective, the factum of the AG Ontario only becomes relevant and stops confusing the issue as at paragraph 7, where the AG Ontario contends that "regardless" of the question of "reserve" and "status" the appellant has no case. It is not until this juncture that the issue as actually raised on this particular appeal is actually joined.

In support of the contention that the appellant has no case, the AG Ontario begins by asserting at paragraph 8 that:

It is respectfully submitted that in R. v. Bruce Clark, infra, this Honourable Court has recently rejected precisely the same jurisdictional argument as made in the case at bar. It is therefore submitted that the Clark case disposes of this appeal against the Appellant.

It is true that in the case of R. v. Bruce Clark "The same jurisdictional argument" was made in the Court of Appeal. It is not true, however, that the argument was addressed. It was not. A reading of the reasons for judgment in the case of R. v. Bruce Clark will make clear and plain that the argument was not addressed. The Court of Appeal rose above the argument. It did not discuss the constitutional legislation upon which the argument is based. It assumed jurisdiction, on the basis that it has been doing so for a long time, and it excluded from its reasons any analysis of the constitutional legislation rendering that assumption per incurriam, ultra vires, treasonable, fraudulent and complicitous in genocide.

This willful blindness to existing constitutional law upon the basis of a domestic assumption was the basis for an application for leave to appeal to the Supreme Court of Canada. On the ground the issue itself was of no "importance" within the meaning of section 40(1) of the Supreme Court Act leave to appeal was denied on July 6,1996.

In these circumstances, it is false for the AG Ontario to pretend that the case of P. v. Bruce Clark is a precedent overruling and effectively repealing Sublimus Deus, 1537, Queen Anne's Order in Council of 9 March 1704 in the matter of Mohegan Indians v. Connecticut as affirmed by Order in Council of 15 January 1773, the Royal Proclamation of 1763 and the Convention for the Prevention and Punishment of the Crime of Genocide, 1946.

The case of R. v. Bruce Clark is analyzed in terms of its precedent value in greater detail and in a fuller context in the appellant's factums in Law Society v. Bruce Clark and Attorney General of Ontario v. Bear Island Foundation, both dated the same day as this factum, and the appellant herein relies upon that greater detail and fuller context.

Appendix. Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10, 1996.

Appendix. Appeal Book and Appellant's Factum in the matter of Law Society v. Bruce Clark. April 10,1996.

9. At paragraph 9, the AG Ontario cites and relies upon R. v. Pamajewon and Jones, R. v. Jones, R. v. Gardiner, et. al. as making "analytical contours" that preempt the present appeal. The appellant herein does not know what is meant by "analytical contours." If by this phrase the AG Ontario means to suggest that the same jurisdictional argument as raised herein was raised therein, and that the same constitutional legislation as relied upon herein was relied upon therein, and if this turns out to be true, then the appellant agrees that the said Pamajewon case deserves careful consideration. Otherwise, it is per incurriam and does not merit great respect relative to the issue and legislation raised and relied upon in this appeal.

If the Pamajewon case does purport knowingly to overrule and thus effectively to repeal the legislation relied upon herein, the appellant must submit that such overruling and repeal is constitutionally ultra vires.

The appellant herein notes that in the citation of the Pamajewon case the AG Ontario has indicated that on February 26,1996 the Supreme Court of Canada dismissed an appeal from the Court of Appeal, "reasons to follow." If the Pamajewon case has the extraordinary effect contended for by the AG Ontario, those pending reasons may be the most important reasons in Canadian legal history. For this reason, the appellant wishes to see and to comment upon those reasons. The appellant therefore seeks the privilege of making further reply when those reasons are available.

At paragraph 15 the AG Ontario asserts that the point, or at least a point, of the Pamajewon case is that:

the Criminal Code provisions relating to gambling are "validly enacted criminal law" and as such apply without modification to native persons on reserves (emphasis added).

The appellant has no difficulty with that assertion. That is a correct statement of existing law. If that is all the Pamajewon case stands for, the Pamajewon case is irrelevant to the appeal herein. The point of reserves" is that they are no longer territory that has not been "ceded to or purchased by Us," in the constitutional law sense. A treaty will have been made. The legal effect of the treaty, assuming it is a valid treaty of course, will have been that the territory ceased being under the Queen Anne's Order and the Royal Proclamation. The point of the treaty is that the "reserve" created falls, instead. under the domestic Indian Act. Unlike under Queen Anne's Order and the Royal Proclamation, under the Indian Act there is no constitutional injunction against the Indians being "molested or disturbed." That is the point of making the treaty: to end the isolation from the benefits of a closer relationship with non-native society. One feature of that closer, non-isolated relationship is subjection to the laws of general application of society at large. The Indian Act in section 88 confirms this. That is the legal point, the legal effect of the treaty process.

10. At paragraph 13, the AG Ontario argues that the appellant has misconstrued the Royal Proclamation of 1763 and/or more generally misunderstood the "legal effect on native lands of the asserted presence of the British Crown in what is now Canada." As proof, the AG Ontario stresses the clause in the Sparrow case "There was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such land vested in the Crown."

Even on its face this passage does not prove the point being made by the AG Ontario. The very opposite is the case. The appellant relies upon the assertion of "sovereignty" by the crown in right of the imperial government. It was pursuant to that assertion that Queen Anne's Order in Council of 1704 and the Royal Proclamation of 1763 were promulgated. The appellant relies upon those legislative instruments.

Those legislative instruments are expressions of the imperial government's "legislative power." The appellant relies upon those expressions of legislative power. They are the constitution.

The constitution precludes the premature assumption of jurisdiction being made by the domestic crown governments and courts. That is the appellant's essential legal point.

The juridical jurisdiction issue raised in the appeal herein was not raised in the Sparrow case. Queen Anne's Order in Council of 1704 was not relied upon or even mentioned in the Sparrow case. In these circumstances, it is false to pretend that the Sparrow case resolved an issue that was not even raised in the case. If the Sparrow case does pretend to address and to resolve the issue of juridical jurisdiction, which for a certainty it does not, the case would nevertheless be of negligible precedent value. It would be still be per incurriam, ultra vires, treasonable, fraudulent and genocidal. It would purport to do the legally impossible-repeal previously settled constitutional law -- a thing that requires a constitutional amendment to be achieved, validly.

E.V. Dicey. Law and Opinion in England. London, Macmillan and Co., 1920, p. 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."

11. Paragraph 14 is profoundly wrong and misleading. In it, the AG Ontario submits "there is a clear intention to directly and immediately extend the law of England to all parts of the relevant colonies." The AG Ontario infers this "intention" from a certain quoted passage found in the Royal Proclamation of 1763. The passage is extracted from Part 2 of the proclamation, the part dealing with the lands that have been purchased from the Indians.

As to such lands, the quoted passages say what the AG Ontario says they say, with one rather crucial exception. The AG Ontario has neglected to quote the qualifying passage "and under such Regulations and Restrictions as are used in other Colonies." The AG Ontario has quoted the passage as conferring upon the colonists the right "...to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England".

It is to be noted that the AG Ontario has not indicated any punctuation after the last word "England'. There is, for example, no "..." in the AG's sentence, such as might suggest that the passage did not end with the word " England." However, in the proclamation itself the word "England" is followed by a ",". After the comma follows the omitted clause "and under such Regulations and Restrictions as are used in other Colonies."

As at 1763 the law was perfectly settled in all crown colonies in British North America. That law was expressed in royal commissions and instructions which stipulated that the Indians upon their yet unceded lands were not to be molested or disturbed by colonial crown governments and courts. This constitutional principle had been the basis for Queen Anne's Order in Council of 1704. This constitutional principle was the opening premise upon which constitutional government was founded.

This is the point of the clause "and under such Regulations and Restrictions as are used in other Colonies." "Other Colonies" means colonies such as Connecticut from whence derived Queen Anne's Order in Council of 1704.

The Royal Proclamation went on to make this explicit. Thus, after granting to the colonists the right of jurisdiction over themselves on the ceded lands, in Part 2, the proclamation went on to Part 4, in which it expressly and explicitly summarized and reiterated the gist of "such Regulations and Restrictions as are used in other Colonies."

As the latter overrides the former and the specific overrides the general, Part 4 of the proclamation made clear and plain the qualification upon the colonists' jurisdiction as had been left unspecified by the general qualification in Part 2: "and under such Regulations and Restrictions as are used in other Colonies."

Thus, Part 4 confirmed no grants "upon any Pretence whatever". It enjoined "Settlements" by "all Persons whatever." It vested in the colonists' courts an exceptional jurisdiction over "fugitives" fleeing to the yet unceded lands.

Royal Proclamation of 1763. Appendix.

Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10, 1996. Appendix of Legislation. Page 77-78.

Clark. Native Liberty, Crown Sovereignty.

   Chapter 2. "The Prerogative Legislation."

     Section 1. "The Subordination and Delegation Principles."
     Pages 58-69.

     Section 2. "Royal Commissions, Instructions and the Proclamation
     of 1763." Pages 70 83.

   Chapter 3: "Continuity." 

     Section 1. "Non-Repeal of the Prerogative Legislation."
     Pages 84-97. 

     Section 2. "Positive Re-enactment: The Indian Territories Statutes."
     Pages 98 123.

Therefore, based upon the Royal Proclamation of 1763 itself, Sparrow and Pamajewon, it is submitted that it can no longer be questioned that the Crown had and has full legislative power over native land. Thus the Constitution Act 1867 properly enabled passage of legisla- tion applying to native land in Canada. Likewise, in turn, the legislationpassed thereunder creating criminal offences and criminal courts in which to try them applies according to its terms, throughout Canada. The presence or absence of any purchase or cession between the Native persons and the Crown is of no legal consequence whatsoever.

This is a useful passage because it so clearly and plainly not only states the option, but demonstrates the weakness of the reasoning process employed by the AG Ontario. The option is to chose between Sublimus Deus, 1537, Queen Anne's Order, the Royal Proclamation, and the Genocide Convention, on the one hand, and an edited version of the Royal Proclamation, Sparrow and Pamajewon, on the other hand.

The appellant leaves it to the Court of Appeal judges to read the proclamation without, as the AG Ontario has done, omitting the clause "and under such Regulations and Restrictions as are used in other Colonies."

He asks the judges to read Sparrow and Pamajewon with a view to attempting to locate in them the places at which it is made apparent that the issue of juridical jurisdiction relative to lands not yet "ceded to or purchased by Us," as contrasted with "reserve" lands, was the basis for those appeals.

Having done so, the appellant asks the judges to assess the unbroken centuries of judicial decisions in which it has been well known that all the imperial crown ever claimed in virtue of its assertion of "sovereignty" was the right of preemption: the exclusive right to buy, when the Indians should be ready to sell.

Appendix. Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10, 1996. Case law. Paragraph 22. Pages 21-37.

The appellant also argues that an order in council from the 1700's entitled Re Mohegan Indians v. Connecticut constitutionally precludes domestic courts from addressing matters involving native persons. See, for example, page 16 of the appellant's factum. It is submitted that the Mohegan Indians v. Connecticut order in council has no such effect in light of the following.

The appellant does not argue that the Mohegan legislation/precedent "constitutionally precludes domestic courts from addressing matters involving native persons." Rather, the Mohegan legislation/precedent guarantees the natives a constitutional due process right of access to an independent and impartial third party court, when the point of law they are raising is that the assumption of jurisdiction by the domestic courts is premature because the lands have not been "ceded to or purchased by Us."

There is a tremendous difference between these two renditions of the significance of the Mohegan legislation/precedent. In the first place the appellant recognizes that the non-native domestic courts do have jurisdiction over natives, in constitutionally appropriate circumstances. When a treaty is made by which the natives relinquish their prima facie constitutional right not to be "molested or disturbed," the non-native domestic courts do acquire jurisdiction.

As explained above, this is the situation with respect to natives upon Indian "reserves" within the meaning of the Indian Act. This is what makes section 88 of the Indian Act legitimate. Section 88 simply reiterates the constitutional common law. But section 88 cannot apply to lands not yet "ceded to or purchased by Us," because no domestic legislation can apply to such lands.

That is the entire legal point of the existence, in constitutional law, of the constitutional category of territory not yet "ceded to or purchased by Us." Upon that category of land the Indians "should not be molested or disturbed." Having the governments and courts of the colonists and their successors assume jurisdiction on such lands molests or disturbs the Indians. As one Indian, that is the appellant's legal point.

But his point goes on. He adds that the premature assumption of jurisdiction is prima fade treasonable and fraudulent.

He also recognizes that the judges of the non-native domestic courts have been committing this form of "Misprision of Treason" and "Fraud" within the meaning of the Royal Proclamation of 1763 for a long time. In fact, the assumption of jurisdiction has been common-place since the turn of the 20th century.

There was never any constitutional amendment to justify the introduction of the assumption.

But there was a set of domestic laws that unconstitutionally criminalized the Indians and their supporters for complaining in the courts or even organizing in order to so complain. The Sundance and the Potlach were made criminal offences, as was "stirring-up" the Indians or raising money for land claims purposes. By this force majeur means resistance was suppressed. The non-native domestic courts unconstitutionally enforced the unconstitutional domestic legislation, even though the judges themselves literally were trespassing in the territory not yet "ceded to or purchased by Us;" and even though the trespass was prima facie in breach of the Royal Proclamation's express, explicit and criminally sanctioned injunctions.

The Indian Act, 1880. Section 72. Whenever the Governor in Council deems it advisable for the good government of a band to introduce the system of chiefs, he may by Order in Council provide that the chiefs of any band of Indians shall be elected... in the event of His Excellency ordering that the chiefs of a band shall be elected, then and in such case the life chiefs shall not exercise the powers of chiefs unless elected under such order to the exercise of such powers. [emphasis added]

Appendix. Appellant's Factum in the matter of AG Ontario v. Bear Island Foundation.

Appendix of Legislation. Page 85. An Act further to amend The Indian Act, 1860, sc 1884, c. 27. 
	Section 1. Whoever induces, incites or stirs up any three or more Indians,... (a.) To make any request or demand of any agent or servant of the Government in a riotous, routous, disorderly or threatening manner, or in any manner calculated to cause a breach of the peace;... Is guilty of a misdemeanor."
	Section 3. Every Indian or other person who engages in or assists in celebrating the Indian festival known as the "Potlach" or in the Indian dance known as the "Tamanawas" [[Sundance] is guilty of a misdemeanor,... [[emphasis added]

Appendix. Appellant's Factum in the matter of AG Ontario v. Bear Island Foundation. Appendix of Legislation. Page 86. An Act to amend the Indian Act, sc 1926-27, c. 32. Section 6. The said Act is amended by inserting the following section immediately after section one hundred and forty nine thereof: "149A. Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from any Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence... [[emphasis added].

Appendix. Appellant's Factum in the matter of AG Ontario v. Bear Island Foundation. Appendix of Legislation. Page 86. Prime Minister Sir John A. Macdonald, in a memorandum dated January 3, 1887 and contained in a Return to an Order of House of Commons, dated May 2,1987 (20b) at 37: 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.

Order in Council (Canada) of 23 January 1875. [Legislative acknowledgment that the theft of Indian land under the auspices of provincial public lands acts is unconstitutional and must be disallowed. Instead of implementing this constitutional duty the federal government embarked upon the policy "to do away with the tribal system and assimilate the Indian people." This unconstitutional genocidal policy was implemented by the above mentioned domestic law amendments to the Indian Act, and was unconstitutionally enforced by the usurping non-native domestic judiciary.]

Appendix. Appellant's Factum in the matter of AG Ontario v. Bear Island Foundation. Appendix of Legislation. Page 81.

14. In these circumstances, the appellant believes there is a reasonable apprehension of bias in the non native domestic court system against his argument. He argues not only that non-native domestic court system in some cases has assumed jurisdiction prematurely, but that the assumption has constituted treason and fraud. This makes the judges criminals.

The appellant has an apprehension that the alleged criminals will not be able to judge the issue he raises in a manner that is independent of and impartial to the issue. He observes that those judges are in a conflict of interest relative to that issue.

When the constitutional legislation/precedent identified as Queen Anne's Order in Council of 9 March 1704 in the matter of Mohegan Indians v. Connecticut came to the attention of the appellant, he learned that the Mohegan Indians in 1704 had felt much the same apprehension as he feels.

The Mohegans had a dispute with Connecticut over the interpretation of their treaty with that colony. The Mohegans regarded the treaty as a trust document under which the territory retained its status as land not ceded to or purchased by the crown for the purpose of settlement. They felt that by this treaty the crown was supposed to hold the land for its better protection against settlement.

The crown in right of Connecticut felt that the treaty was an outright sale to it, whereby the aboriginal right not to be molested or disturbed by settlement was extinguished.

The Mohegans felt that the General Court of Connecticut was, or at least might be, biased in favour of Connecticut.

The Mohegans petitioned Queen Anne to constitute a special constitutional court to address this extinguishment question of mixed law and fact concerning the interpretation of treaties. Their argument was that the rule of law depends upon the existence of there being an independent and impartial third party to umpire disputes.

Queen Anne, upon the advice of her Privy Council acting upon the advice of the Lords Commissioners of Trade and Plantations acting upon the advice of Attorney General Lord Northey agreed with the Mohegans.

Lord Northey recommended the creation of a permanent "Court" to deal with extinguishment disputes, rather than a mere ad hoc committee to deal with this particular dispute. Queen Anne agreed. The resulting Order in Council of 9 March 1704 is in terms of a permanent "Standing Commission."

When a monarch of Great Britain acts judicially, as contrasted with politically or diplomatically, he or she does so in judicial committee. The committee advises the monarch as judge how to decide. The monarch endorses the committee's recommendation. The endorsement is the decision of the monarch qua court. The reasons for judgment are the recommendation of the judicial committee advising the monarch.

When the monarch of Great Britain fulfills this constitutional function at the appellate level, the committee is termed a Judicial Committee of the Privy Council.

When the monarch fulfills this constitutional function at the trial level, the committee is still a Judicial Committee of the Privy Council.

Queen Anne's Order in Council of 9 March 1704 endorsed a recommendation of her Judicial Committee of her Privy Council to constitute a trial level Judicial Committee to adjudicate such disputes between natives and newcomers as that illustrated by the petition in the matter of Mohegan Indians v. Connecticut. Queen Anne struck a trial level "Standing Commission" of the Privy Council and reserved a right to appeal from it to the appellate level of the Privy Council.

When the trial level Judicial Committee convened, the General Court of Connecticut appeared by counsel, as an interested party, for the purpose of objecting to the exercise by the committee of jurisdiction.

The ground for the objection was that the General Court of Connecticut felt that it itself was already the court of first instance of general and inherent jurisdiction. The objection was overruled. The General Court of Connecticut was held not to be a court of first instance of general and inherent jurisdiction vis-a-vis territory arguably not yet ceded to or purchased by the crown from the Indians.

At constitutional common law the colonists' court was understood to have jurisdiction relative to lands that had been ceded to or purchased by the crown from the Indians. As to lands not yet ceded to or purchased by the crown from the Indians, the Indians still had exclusive jurisdiction over themselves.

Crown "sovereignty' was asserted and constitutionally binding "crown legislation" was the result: the trial level Judicial Committee of the Privy Council was constituted by Queen Anne's Order to deal with the question of mixed law and fact of extinguishment.

Because the non-native domestic courts were interested parties affected by the outcome of that question, they were not regarded by the imperial constitution-maker as independent and impartial with respect to the adjudication of that question.

The overruling of the objection raised by the General Court of Connecticut was upheld at the appellate level of the Privy Council by Order in Council of 15 January 1773.

For these reasons, it is quite wrong and misleading for the AG Ontario to argue, as he has in paragraph 16 of his factum, that:

The appellant also argues that an order in council from the 1700's entitled In Re Mohegan Indians v. Connecticut constitutionally precludes domestic courts from addressing matters involving native persons. See, for example, page 16 of the appellant's factum. It is submitted that the Mohegan Indians v. Connecticut order in council has no such effect in light of the following [emphasis added].

That argument grossly overstates the appellant's position, and is insupportable in terms of the constitutional legislation in question.

"Page 16 of the appellant's factum," the authority cited by the AG Ontario, does not, even on its face, justify the hyperbole employed by the AG Ontario when saying:

The appellant also argues that an order in council from the 1700's entitled In Re Mohegan Indians v. Connecticut constitutionally precludes domestic courts from addressing matters involving native persons.

What actually appears at page 16 of the appellant's factum is:

19. In summary, the genesis, legislative history and punitive sanctions for breach by judges of the constitutional integrity of the above-described jurisdictional bifurcation relative to ceded versus unceded territory is as follows:

(b) International law and, in consequence, the constitutional law dictated by Great Britain relative to British North America in particular was reiterated by Queen Anne's Order in Council of 9 March 1704, which enacted that the adjudication of a dispute whether any given tract of territory had been ceded to or purchased by Us was vested not in the domestic crown courts but rather in a specially designated independent and impartial third party constitutional and international court.

15. Continuing with paragraph 16 of the factum of the AG Ontario, having erected a straw man by hyperbole the AG Ontario then attempted to knock it down beginning with the introductory sentence:

It is submitted that the Mohegan Indians v. Connecticut order in council relied upon has no such effect in light of the following.

What thereafter follows in the text of the factum of the AG Ontario is single-spaced, as if it were a quote from a scholarly publication. Two scholarly publications are in fact cited as authorities: Clark, Native Liberty Crown Sovereignty and Smith, Appeals to the Privy Council.

However, the single-spaced passage is not to be found at any of the page references given. The single spaced passage is an intense concentration of very indifferent and cavalier scholarship indeed.

The first paragraph of the said single-spaced passage in paragraph 16 of the factum of the AG Ontario reads as follows:

Scholarly analysis of the Mohegan order in council reveals that it is not a decision of the Judicial Committee of the Privy Council, but rather a decision of the Privy Council in another capacity, on appeal from a royal commission struck to deal with a land dispute in Connecticut, in special circumstances that gave rise to that dispute. And such it has nothing like the broad applicability which the Appellant claims. In particular there is nothing to support the assertion that it negates the express words of the Royal Proclamation of 1763 which enables the go erning authorities to establish civil and criminal courts of plenary jurisdiction in terms of both subject matter and geography.

Please take first the clause "the Mohegan order in council reveals that it is not a decision of the Judicial Committee of the Privy Council; but rather a decision of the Privy Council in another capacity." This is a distinction without a difference. Every time the Privy Council exercises juridical functions it does so in "Judicial Committee." There is no other way it can exercise such functions.

Much more important than this cosmetic question is the underlying point as to what the Privy Council fundamentally was, in the 18th century context. It was a legislative body invested with the jurisdiction to constitute constitutions for the crown's overseas dominions and territories. The British crown at that time claimed sovereignty over the whole of North America, even as to parts claimed by the crowns of France and Spain. The 18th century Privy Council was also a judicial body. In fact, all courts of law are historical extensions of the Privy Council. In the 12th century the Hall of the King, the kings "court," was at one and the same time a legislature to make law, an executive to implement law, and a court to construe law. As the volume of legal business grew these functions were parceled out to committees, each reporting to the King in his Privy Council. When the king approved the committee reports, they became law.

As a carry-over from these early times, even today in Canada the law created by the legislatures take effect from the time of royal assent, and the Governor General gives or withholds the royal assent based upon the recommendation of the Privy Council (Canada), the alter ego of the Queen in her Privy Council (UK).

Court decisions made by all crown courts jurisprudentially derive their force and effect, as statutory institutions, via the same theory of government.

The AG Ontario is arguing that the constitutional significance todayof the legislation/precedent in question (Queens Anne's Order in Council of 9 March 1704 as affirmed on appeal by Order in Council of 15 January 1773 in the matter of Mohegan Indians v. Connecticut) is diminished because of the fact that the Privy Council was acting at the time in a combined role of legislator-court, rather than exclusively as court. The very opposite is the law. The constitutional significance dramatically is enhanced.

There are 2 ways by which constitutional law can be constituted.

One is by legislative enactment, promulgated by a legislative body invested with jurisdiction to constitute constitutional law, such as, in the 18th century, the Queen in her Privy Council. The second is by judicial declaration of a principle of constitutional common law, proclaimed by a court of first instance to the issue relative to which the declaration is made.

Once constitutional law is ascertained by either of these 2 means, thereafter it can only be altered by legislative enactment. Relative to Canada, prior to 1982 a constitutional amendment enacted by the Parliament of Great Britain was required. Because of the Constitution Act, 1982 in future any such amendment can be enacted pursuant to the amending formula provided by that statute. This constitutional structure was confirmed by the appellate level Judicial Committee of the Privy Council in 1774 in Campbell v. Hall, and is the essence of the jurisdictional point made by the eminent British jurist E.V. Dicey in his Harvard Law School Guest Lectures of 1920.

The full constitutional significance of the Mohegan Case Order in Council derives from the fact it is both legislation and precedent. The Mohegans petitioned the Queen. The petition was the appropriate device for seeking an exercise of the prerogative power to recognize and affirm a principle of common law not heretofore addressed, either legislatively or judicially.

The principle raised by the petitioners was, in essence, twofold: it partook of the Roman law precept nemo potest esse simul actor et judex (no one can be at the same time suitor and judge); and it partook of the British law precept that justice must not only be done but be seen to be done.

Putting these together, the Mohegans asked the Queen to agree that there was a reasonable apprehension of bias in allowing the courts constituted by the colonists a monopoly over the adjudication of jurisdictional disputes between colonists and natives. Surely, they could argue, would not the conceding of jurisdiction to the courts of one of the two competitors tend to prejudge the issue in dispute. And why concede jurisdiction to the colonists' courts? Why not concede jurisdiction to the natives' courts, their ancient councils at which from time immemorial they were used to adjudicating disputes amongst themselves?

Queen Anne decided that the rule of law required an independent and impartial third party to serve as adjudicator The principle of the third party is as old as the rule of law itself. As David Hume said in his Theory of Politics that principle is "the foundation of civil government and society." Only by accepting this principle in relation to jurisdictional disputes between natives and newcomers could justice both be done and be seen to be done.

For this reason, Queen Anne in her Privy Council endorsed Attorney General Northey's recommendation to constitute a permanent "Court," which the order in council did do, by constituting a "Standing Commission" of the Privy Council as the trial level court.

That is all the appellate level of the Judicial Committee has ever been: a Standing Commission. When the Privy Council took the constitutionally constitutive step of constituting a trial level Standing Commission to act as a Judicial Committee of the Privy Council, it did so in response to a legal petition that had commenced legal proceedings for juridical relief under existing law in the matter of Mohegan Indians v. Connecticut.

Because the issue had never arisen before, the decision of the Privy Council was, classically, a "precedent," in the most literal and strictly legal sense of that term. In terms of Dicey's standard it did truly "take the form of a deduction from some legal principle whereof the validity is admitted," namely the principles of third party adjudication and justice being seen to be done. It applied those principles to jurisdictional disputes between natives and newcomers.

The Privy Council held an even hand between Her Majesty's native subjects and her newcomer subjects. And when the order in counsel received the royal assent the decision acquired the force of statute proclaiming a constitutional law principle, no less than when the Constitution Act 1982 received the royal assent.

16. Next, please take the concluding sentence in the AG Ontario's first single-spaced paragraph within paragraph 16 of the factum of the AG Ontario. It reads:

In particular, there is nothing to support the assertion that it negates the express words of the Royal Proclamation of 1763 which enables the governing authorities to establish civil and criminal courts of plenary iurisdiction in terms of both subject matter and geography. [emphasis added]

There are no "express words" in the proclamation doing what the AG Ontario pretends: giving the colonial courts "plenary jurisdiction" over 'geography' that includes the unsurrendered Indian territories, the lands not yet "ceded to or purchased by Us." The very opposite is the case.

There are "express words" geographically limiting the colonists' jurisdiction to lands that have been purchased from the Indians. The AG Ontario has omitted from his reading of the proclamation's colonial court jurisdiction part the qualifying clause "and under such Regulations and Restrictions as are used in other Colonies" -- other colonies such as Connecticut -- from whence the Mohegan Case Order in Council, which order was affirmed in 1773,10 years after the proclamation.

The proclamation is "express" that the Indians "should not be molested or disturbed."

By "express" words the proclamation permits one exception, and one exception only, to the general geographical preclusion of the jurisdiction of the colonists' courts:

And we do further expressly enjoin and require all Officers whatever, as well Military as those employed in the Management and Direction of Indian Affairs, within the Territories reserved for the Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason, Murders or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Territory, and to send them under a proper guard to the Colony where the Crime was committed of they stand accused, in order to take their Trial for the same.

In 1821 the Parliament of Great Britain by "express words" expanded upon the exception to the colonists' court jurisdiction as left in the proclamation. An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. IV, c. 66(1821) extended such court jurisdiction to persons other than Indians upon territory not yet ceded to or purchased by the crown. Being an enactment of the imperial parliament this statute had the effect of a constitutional amendment. It satisfied the requirement for constitutional amendment as settled in 1774 by Campbell v. Hall, which precedent itself was decided the year after the Privy Council affirmed the principle in the Mohegan Case.

The 1821 constitutional amendment was not done in bad faith by the imperial government. It did not represent a derogation from the crown's constitutional promise that that the Indians would not be "molested or disturbed' upon lands not "ceded to or purchased by Us."

To the contrary, the 1821 constitutional amendment was the better to fulfill the crown promise, also made in the same proclamation, of "Protection" of the Indians, by ensuring the integrity of the promise that they were not to be molested or disturbed. The Indian territories in 1821 were being ravaged by the unbridled competition between the fur traders of the competing Hudson's Bay Company, North West Company, American Fur Trade Company and a plethora of independent traders. The preamble the 1821 statute thus declared:

Whereas the competition in the Fur Trade between the Governor and Company of Adventurers of England trading into Hudson's Bay, and certain associations of persons trading in the name of "The North West Company of Montreal," has been found for some years past to be productive of great inconvenience and loss, not only to the said Company and Associates, but to the said trade in general, and also of great injury to the native Indians, and of other Persons subjects of His Majesty, and whereas the Animosities and Feuds arising from such Competition have also for some years past kept the Interior of America, to the Northward and Westward of the Provinces of Upper and Lower Canada, and of the Territories of the United States of America, in a State of continued Disturbance; and whereas many breaches of the peace, and violence extending to the loss of lives, and continual destruction of property, have continually occurred therein; and whereas, for the remedy of such evils, it is expedient and necessary that some more effectual regulations should be established for the apprehending, securing and bringing to justice all Persons committing such offences...

The text of the 1821 statute then extended the jurisdiction of the courts of Upper and Lower Canada to the territories and the Hudson's Bay Company lands.

As discussed above, "Persons" was used with the legislative intent of defining non-natives, in contradistinction to "Indians." The 1821 constitutional amendment was enacted for the "Protection" of the Indians, not to renege upon the constitutional undertaking that domestic government and court jurisdiction would not be assumed over them until they had made a treaty.

The sum total of constitutional legislation dealing directly with the juridical jurisdiction issue relative to territory arguably not yet "ceded to or purchased by Us" is contained in this finite set of instruments: the Mohegan Case Order, paragraph 1 of part 2 and paragraph 6 of part 4 of the Royal Proclamation of 1763, and the 1821Canada Jurisdiction Act. There has never been a constitutional amendment increasing the ambit of the juridical jurisdiction of the non-native domestic courts.

The use by the AG Ontario of the phrase "plenary jurisdiction in terms of both subject matter and geography" is constitutionally insupportable.

Campbell v. Hall (1774), 98 ER 848 (PC). And see discussion of this case, in Clark, Native Liberty, Crown Sovereignty, pp. 45-8.

Mitchel v United States, 9 Peter's 711, 745, 746, 749, 755 (United States Supreme Court) (1835) [The Indians have] a perpetual right of possession... [which] could not be taken without their consent... [because] The King waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property they could cede or reserve, and that the boundaries of his territorial and proprietary rights should be such, and such only as were stipulated by these treaties. This brings into practical operation another principle of law settled and declared in the case of Campbell v. Hall [(1774), 98 ER 1045 (JCPC)], that the Proclamation of 1763, which was the law of the provinces ceded by the treaty of 1763, was binding upon the king himself, and that a right once granted by a proclamation could not be annulled by a subsequent. It cannot be necessary to inquire whether these rights secured by a treaty approved by a king are less sacred than under his voluntary proclamation. The proclamation of 1763 was undoubtedly the law of the province till 1783: it gave direct authority to the Governors of Florida to grant crown lands, subject only to such conditions and restrictions as they or the King might prescribe. These lands were of two descriptions: such as had been ceded to the king by the Indians, in which he had full property and dominion, and passed in full property to the grantee; and those reserved and secured to the Indians, in which their right was perpetual possession, and his the ultimate reversion in fee, which passed by the grant, subject to the possessory right... This proclamation was also the law of all the North American colonies in relation to crown lands.

By doing so, the AG Ontario confers upon Ontario the jurisdiction to constitute, repeal and amend constitutional law.

Under the theory of crown sovereignty, the jurisdiction to constitute, repeal and amend constitutional law has always been a carefully guarded exclusive jurisdiction of the imperial government. In fact, it remained so until 1982 when, by the enactment by the imperial government of the Constitution Act, the jurisdiction to amend the constitution upon certain specified terms and conditions as to essential and formal validity was extended to Canada. Much of the legal history of North America is wrapped up in this legal issue. The United States fought a revolution to establish the very point of law that the AG Ontario has attempted to finesse in the second paragraph of the single-spaced passage in the 16th paragraph of the factum of the AG Ontario.

The legal effect of this argument of the AG Ontario, if it were credible, would be that Ontario is not a constitutional government, but rather, a sovereign country. Instead of being bound by the constitution, Ontario would be, and would always have been, at liberty at any time unilaterally to repeal the constitution. This argument is wrong at law.

More importantly, for present purposes, it is absolutely essential to Ontario's case on appeal that this argument be right. Indeed, unless this argument is right, Ontario has no case on the appeal herein. This crucial second paragraph reads:

The Mohegan order in council itself confirms the Crown's power to establish courts that have jurisdiction over native lands which the Crown has obviously long since done for what is now the province of Ontario. In this sense the order in council is entirely consistent with the Royal Proclamation of 1763, in which the Crown delegates to the governing authorities the unlimited power to "erect and constitute... Courts of Judicature and public Justice... for hearing and deter- mining all Causes, as well Criminal as Civil...

By this juncture the court of appeal judges will know that the word 'unlimited' in this passage is based upon a false premise. The power is limited (1) by the clause omitted by the AG Ontario "and under such Regulations and Restrictions as arc used in other Colonies," (2) by the Indian part of the proclamation and (3) by the 1821 statute.

The novel feature of this passage is the equation made by the 2 uses of the phrase "the Crown." The first time "the Crown" is used, it means the crown in right of the imperial government.

As to the crown in this right, the AG Ontario's first clause says "The Mohegan order in council itself confirms the Crown's power to establish courts that have jurisdiction over native lands,..." That clause asserts a point of structural constitutional law that is true. That clause is separated by a comma from the clause that completes the sentence, as follows: "..., which the Crown has obviously long since done for what is now the province of Ontario."

It is certainly true that "the Crown" in right of Ontario has, as asserted, "long since done for the province of Ontario." But there is a great constitutional difference in the constitutional power to do so, between the crown in right of the imperial government and the crown in right of the government of Ontario. The difference is that the former can constitute and repeal the constitution whereas, in contrast, the latter cannot. The former is sovereign whereas, in contrast, the latter is not.

The equation made by the AG Ontario between "the Crown" in these 2 contrasting capacities is a finesse of gigantic constitutional significance.

The reason the AG Ontario seeks to finesse the point rather than to make the point, is that the point is not capable of being made, only finessed.

The momentous sentence in its entirety is "The Mohegan order in council itself confirms the Crown's power to establish courts that have jurisdiction over native lands, which the Crown has obviously long since done for what is now the province of Ontario."

Having, by this untenable means, usurped for the Legislative Assembly of Ontario the sovereign power unilaterally to repeal the constitution restricting the jurisdiction of that parliament, the AG Ontario bolsters his argument with the reference to the Royal Proclamation of 1763 that omits the clause "and under such Regulations and Restrictions as are used in other Colonies."

It is possible that the AG Ontario inadvertently fell into this usurpation and this complementary omission by poor scholarship. On the other hand, the Royal Proclamation of 1763 expressly and explicitly anticipated not merely guile, but actual fraud, on the part of the colonists and their governments. when expressly and explicitly enjoining surveys and grants of lands prior to the time when territory is "ceded to or purchased by Us," the proclamation enacts:

We do therefore with the Advice of our Privy Council declare it to be our Royal Will and Pleasure that no Governor or Commander in Chief in any of our Colonies of Quebec East Florida or West Florida do pre- sume upon any Pretence whatever to grant Warrants of Survey or pass any Patents for Lands...

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...a conflict of interest is a terrible burden to repose in any group of people. The temptation is great upon any such group to compromise integrity in favour of interest. When that happens, the rule of law breaks down. The rule of law is the peoples' greatest possession. The appellant does not mean to suggest that there is a legal sense in which it can be said that Ontario is sovereign. Rather, his point is that great care must be taken to be specific concerning the context in which any assertion of sovereignty is presumed to be operative, So far as territory that has been "ceded to or purchased by the Us," all primary jurisdiction to constitute law is divided between thefederal and provincial governments. That was the task of the Constitution Act, 1867. The federal government and each province, each within its own allotted sphere, is sovereign in that sense. But none is sovereign in the sense of being able to encroach upon the sphere of another. Any one province is sovereign, for example, relative to the constitution of courts of law in relation to territory within the province that has been "ceded to or purchased by Us." Section 92(14) allotted that sovereign jurisdiction to the provinces. No one province, however, has sovereign jurisdiction to constitute courts relative to territory within some other province, or within the Indian territory not yet "ceded to or purchased by Us." Two constitutional exceptions only have been enacted concerning that statement.

First, under the Royal Proclamation provincial jurisdiction to constitute courts relative to fugitives was constituted relative the Indian territory.

Second, under the 1821 Act provincial jurisdiction was granted to constitute courts relative to non-Indian persons committing crimes within the within the Indian territory.

Aside from those 2 express exceptions, the territory not yet "ceded to or purchased by Us" is in the same category as the territory of another province, so far as Ontario is concerned. By the same token, within the territory not yet "ceded to or purchased by Us" the Indians remain just as sovereign as they were before the coming of the White man. That is what not being "molested or disturbed" means. It means being left alone, not being interfered with, sovereign in that territorially delimited sense. It does not mean sovereign in the same sense as the sovereignty claimed by the British crown, which meant sovereignty in the sense of being able to constitute and to change the balance of power between all the counter-balanced lesser sovereignties.

Ontario, for example, cannot aggrandize its sphere of sovereign power by taking from the sphere allotted to the federal government, to another province, or to the Indians in relation to territory not yet "ceded to or purchased by Us." If it could, Ontario would be sovereign in the sense that the British Parliament was sovereign relative to the Canadian constitution up until 1982, or in the sense since 1982 vested by the amending formula in the Constitution Act, 1982 in a majority of the people of Canada from two thirds of the provinces. If it could, Ontario would hold title to unceded land 'subject to' the Indian "Interest" within the meaning of section 109 of the Constitution Act, 1867.

18. The third paragraph of the single-spaced passage of the AG Ontario's 16th paragraph reads:

The concern underlying the Mohegan order in council is to ensure independent and impartial courts. This concern is fully met in the case at bar given that the Ontario Court (Provincial Division) as constituted in this case meets the constitutional requirements of impartiality and independence: R. v Valente, infra (S.C.C.)

The first sentence correctly has captured one half the principle: independence and impartiality. It has omitted the other half, the need that justice not only be done but be seen to be done.

More importantly, it is ingenuous to pretend that the courts appointed by newcomers can possibly be independent and impartial in respect of an issue that essence of which is that the judges of those courts for over a century have been in the habit of assuming a jurisdiction that is not merely per incurriam and ultra vires but in addition prima facie "Misprision of Treason" and a "Fraud and Abuse" and, arguably, "Complicity in Genocide." No human being can possibly be independent and impartial in respect of an issue upon the outcome of which, by operation of law alone, his own liability for serious crimes against the constitution and humanity turns. To suggest the judges of the non-native courts of Canada can be independent and impartial in these circumstances is to deny their humanity, in favour of elevating then to supra-human status. The "Great White Father" syndrome even at its greatest condition of advancement in the heyday of racist imperialism, the last half of the 19th century, never quite reached this pretence.

The Valente case has nothing to do with the issue of juridical jurisdiction over "Indians" upon the lands not yet "ceded to or purchased by Us" and over the related question whether given tracts are in fact "ceded to or purchased by Us." In contrast, the Mohegan Case Order in Council has everything to do with that precise issue. The Mohegan Case Order in Council is prior in time and more specific. It is constitutive of a constitutional principle.

Even if the Valente case had dealt with and purported expressly to overrule the constitutional principle recognized and affirmed by the Mohegan Case Order in Council, it could not legally do so. By the standard remarked by E.V. Dicey, a court of second instance can not directly overrule a statute or a precedent of first instance. A fortiori, the case of second instance cannot do so by implication.

The Mohegan Case Order in Council is both constitutional legislation and a constitutional precedent. Constitutional authority does come any higher than that.

Upon the basis of the constitutional structure established by Campbell v. Hall, if the constitutional principle recognized and affirmed by the Mohegan Case Order in Council is to be overturned, it will have to be in virtue of a statutory constitutional amendment.

The appellant asks the court of appeal judges to ask themselves: Did the General Court of Connecticut 1705 believe that it was independent and impartial? Decision-makers almost always feel that bias is an inadequacy to which they themselves will not succumb. The non-native courts constituted by Ontario stand in the shoes of the General Court of Connecticut. The appellant's legal point is the Mohegan case identified a constitution principle that absolves the judges of Ontario from the need to struggle with the question of their own possible bias.

The Mohegan legislation/precedent answered the general question for all non-native courts of British North America. That entrenched principle is part of the Loyalist constitutional heritage of Ontario. There is not only no need to debate the question of the possibility of personal or structural bias, under the rule of law it is inappropriate to do so. It was debated in 1704, and constitutionally resolved in favour of justice not only being done but being seen to be done. The resulting existing constitutional law should be respected until changed by constitutional amendment Judicial assumption is not the equivalent of constitutional amendment. Judicial assumption that goes counter to constitutional principle negates the rule of law, in a way more crushing to that ideal that any other possible form of attack upon it.

19. The fourth paragraph of the single-spaced passage of the AG Ontario's 16th paragraph reads;

Even if the order in council might at one time have had the implausible effect contended for by the Appellant, it has clearly been long overtaken by subsequent constitutional developments, and in particular, the development of Canada's unqualified judicial independence from the United Kingdom. As stated by the House of Lords in R. v Secretary of State, [[1982] 2 All ER 118 at 143: Their Lordships do not grant leave to appeal in this case. They wish to make it clear that their refusal of leave...is because in their opinion, for the accumulated reasons given in the judgments of the Court of Appeal, it is simply not arguable that any obligations of the Crown in respect of the Indian peoples of Canada are still the responsibility of Her Majesty's government in the United Kingdom. They are the responsibility of her Majesty's Government in Canada, and it is the Canadian courts and not the English courts that alone have jurisdiction to determine what those obligations are.

In reply, the first point is that the Mohegan Case Order in Council was not raised and was not addressed in the 1982 House of Lords' case of .

Second, the House of Lords does not have and never, historically, did have any jurisdiction relative to cases arising in the colonies. Rather, the House of Lords sits and always has sat on appeal only from cases commenced within the United Kingdom or Great Britain or England.

Third, everything that the House of Lords said in the passage quoted by the AG Ontario is absolutely correct at law, but only in so far as necessary to the disposition of the case before the court.

That case was commenced in the normal courts of England. It sought to hold the British Government responsible upon the trust obligation of "Protection" undertaken by the crown in the Royal Proclamation of 1763. The British Government had divested itself of that trust obligation by a series of stages that culminated in section 91(24) of the Constitution Act, 1867. That section completely devolved the trust obligation of "Protection" upon the Government of the Dominion of Canada. It left the British Government with no vestige of the trust obligation.

In consequence, there is no substantive law basis for maintaining an action in the courts of England against the British Government for breach of the trust obligation. That is what the courts of the United Kingdom held, and quite correctly so in strict law. That is all that was necessary to dispose of the case. That is all they held, and all they could hold, in the precedent sense.

When the House of Lords made the obiter dicta comment that "it is the Canadian courts and not the English courts that alone have jurisdiction to determine what those obligations are," it did so without the benefit of having before it the Mohegan Case Order in Council. In consequence, the House of Lords assumed that the only candidate courts for addressing the trust obligation issue were either "the Canadian courts" or "the English courts."

Legal counsel before the House of Lords did not inform that court that there was a third candidate, namely the independent and impartial trial level Judicial Committee of the Privy Council, the court constituted a "Standing Commission" by Queen Anne in 1704.

Furthermore, the House of Lords was not informed that the same order in council as constituted the trial level Judicial Committee also constituted a right of appeal from it to the appellate level of the Judicial Committee of the Privy Council, itself also a "Standing Commission" of the Privy Council.

The point is that there are not 2 but rather 4 court systems. There is the British court system that culminates in the House of Lords. There is the Canadian court system that has jurisdiction relative to territory "ceded to or purchased by Us" that culminates in the Supreme Court of Canada. There is the Indian court system that has jurisdiction relative to territory EM "ceded to or purchased by Us" that culminates in the councils of the several Indian nations. And there is the court system established by Queen Anne for dealing, as an independent and impartial third party court system with the question whether territory has been "ceded to or purchased by Us."

In 1950 the Canadian Supreme Court Act was amended by the Parliament of Canada so as to abolish appeals taken from the Canadian court system to the Judicial Committee of the Privy Council. At that juncture. under domestic law, cases commenced in the courts constituted under sections 92(14) and 101 by the provincial and federal governments respectively became appealable to the Supreme Court of Canada, but no longer beyond.

This amendment had nothing to do with the constitutionally independent court system constituted by Queen Anne. That court system was outside the frame of reference of the Supreme Court Act, both before and after the amendment.

Secondly, it is a moot point whether the Supreme Court Act amendment was valid even in respect of cases commenced in the Canadian court system to enforce the crown's "Protection" obligation now reposed in the federal government. It is arguable that the amendment is inoperable relative to that obligation because saved by its constitutional nature. It is not necessary to the appeal herein to make that argument, but it is necessary to raise an awareness that changes to domestic statutes can not blithely be assumed negatively to affect vested constitutional rights of natives.

In order adequately to comprehend the jurisdictional status quo, it is necessary to observe that an option faces the potential native litigant. He can bring his case in the Indian court system. For reasons of power politics, not law, any judgment of that court system will be ignored. If he tries to enforce any such judgment he will be persecuted as a criminal in the non-native court system, for assault or an offence to property, and the judges and police employed in relation to the non-native system will treat the Indian court decision as emanating from a "bogus" court. He will find there is no way through this profoundly racist and legally erroneous assumption. The non-native judges wilfully will blind themselves to the law, on the ground that the mere raising of the jurisdiction issue is "scandalous, frivolous, vexatious, without reasonable cause, disgraceful or in contempt."

As an alternative his own culture's native court system, the native litigant theoretically can bring his action in the non-native court system constituted by the federal or provincial governments. However, if he does that there is no serious prospect of an independent and impartial decision; at least not until he files his application for leave to appeal to the appellate level Judicial Committee of the Privy Council. At that juncture, the Supreme Court of Canada and the Judicial Committee will both refuse to grant leave to appeal to the Judicial Committee, on the prima facie ground that the Supreme Court Act abolished appeals from the Supreme Court of Canada in 1950. Neither the Supreme Court of Canada nor the Judicial Committee will permit the argument to be made that the natives' right to appeal to the Judicial Committee, being uniquely constitutionally vested, was not affected by the domestic law amendment.

The third apparent option is an illusion. It is to bring the action in the courts system of the United Kingdom. But the court system of the United Kingdom never had jurisdiction relative to legal disputes between natives and newcomers. Such disputes have always been extra-territorial to the domestic courts of the United Kingdom. As a pretext for getting into that court system the natives instigating the case in that system R. v. Secretary of State the natives sued the British Government, formatting the 115 as a dispute between the natives and that government. The House of Lords confirmed only that there was no substantive law basis for such an action.

In these circumstances, it will be comprehended that the native litigant's only real hope for a hearing that addresses the whole truth depends entirely upon his constitutional due process right of access to the independent and impartial trial level Judicial Committee of the Privy Council, the special constitutional court constituted by Queen Anne. Without access to that court, the law will not, genuinely, ever both be heard and be seen to be heard.

Smith, Appeals to the Privy Council to the American Plantations. 1950. Pages 41763.

Queen Anne's Order in Council of 9 March 1704 in the matter of Mohegan Indians v. Connecticut as affirmed by Order in Council of 15 January 1773. Appendix. Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10, 1996. Appendix of Legislation. Page 76.

Appendix. Appeal Book in the matter of Law Society v. Clark. Reply Affidavit. November 30, 1994. Pages 52-3. [The Law Society accused the solicitor Clark of professional misconduct for putting forward an order of a "bogus" court. The court in question was an Indian court. The Law Society Discipline Committee took it as self-evident that because the Indian court was not constituted by the Courts of Justice Act of Ontario it was by definition "bogus." Convocation of the Law Society overruled the Discipline Committee.]

Appendix. Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10,1996. Pages 4862. [The lower courts in a set of 11 appeals -- AG Ontario v. Bear Island Foundation (2), Clark v. Her Majesty the Queen (MNR), Clark v. Her Majesty the Queen, Franklin v. International Forest Products Limited, Friday v. Wendaban Stewardship Authority v. Mathias (2), Friday v. Her Majesty the Queen, George v. Her Majesty the Queen, Pascal v. International Forest Products Limited, Pilot v. Sept-Isles and Maliotenam Band Council, R. v Clark (2), R. v. Pascal, Shaukeens v. Her Majesty the Queen, Stevens v. Stoney Band (2). These cases arose in Quebec, Ontario, British Columbia and Alberta and from both the provincial and the federal court systems. Every lower court refused to address the constitutional law going to its own jurisdiction relative to Indians upon lands arguably not ceded to the crown, on the ground the allegation it did not have jurisdiction self evidently is "scandalous" or contrary to the Delgamuukw case. The Supreme Court of Canada denied leave to appeal to each and every of these applications, on the ground that the issue of juridical jurisdiction over Indians upon unceded lands was not of "importance" within the meaning of section 40(1) of the Supreme Court Act.]

Reasons for Judgment. September 12, 1996. Supreme Court of Canada. Delgamuukw v. Attorney General of British Columbia. [The Supreme Court of Canada held that even where leave to appeal had already been granted generally, the jurisdictional point could still not be argued because the lower courts had not addressed that point on its merits, and the Court needed the benefit of the lower courts' thoughts upon the subject. Besides, said the scc, the allegation regarding jurisdiction self-evidently was "preposterous" and counsel Bruce Clark was "a disgrace to the bar" for raising the point.]

This appeal raises a territorial objection to the assumption of jurisdiction by the non-native domestic courts relative to "Indians" upon territory arguably not yet "ceded to or purchased by Us." The essence of this territorial objection is that the Mohegan Case Order in Council has already settled the objection in the natives' favour. The non-native domestic courts prima facie have no territorial jurisdiction. Such jurisdiction must be earned, by proof of a legally valid Indian purchase, and that proof must occur before an independent and impartial third party court system.

In response, at paragraphs 17 through 22 the AG Ontario attempts to argue that the appellant must base his objection not upon a territorial conflict, but, rather, upon a subject-matter conflict.

The AG Ontario argues that the appellant bears the prima facieburden of establishing, to the satisfaction of the non-native domestic court system, that native law is substantively different than the Criminal Code. The AG Ontario then observes, correctly, that the appellant did not even try to establish a subject-matter conflict of laws between native law and non-native law.

In these circumstances, says the AG Ontario, the Criminal Code fills the vacuum left by the apparent absence of any conflicting native law.

The key to this argument is in its opening premise: the assumption that the non-native domestic courts prima facie have territorial jurisdiction to adjudicate the potential subject-matter conflict.

But this is precisely what the Mohegan Case Order in Council establishes that those courts do not have.

The AG Ontario seeks to finesse an extraordinarily important point of law.

He is suggesting that the non-native domestic courts can assume territorial jurisdiction, shift the burden of proof to the natives to prove to their satisfaction that there is a subject-matter conflict, and that they, the non-native domestic judges get to decide on the merits of the natives' submissions.

This is an illustration of the blinkering effect of the Great White Father syndrome. At constitutional law, that syndrome is what the Royal Proclamation of 1763 would term "Pretence" and a "great Fraud and Abuse," by which the non-natives get round having to prove the land has been "ceded to or purchased by Us" before assuming territorial jurisdiction.

The constitutional burden of proof is upon the crown to prove before an independent and impartial third party court, the trial level Judicial Committee, that the land has been "ceded to or purchased by Us."

Constitutionally this burden must be discharged before the non-native domestic court system can assume territorial jurisdiction.

The AG Ontario seeks to leap-frog this constitutional burden of proof, by starting with the assumption that the non-native domestic courts prima fade have territorial jurisdiction, and then by postulating that the primary burden of proof is upon the natives, to prove to the non-native domestic courts the existence of a substantive subject-matter conflict of laws.

21. At paragraph 18, the AG Ontario attempts improperly to introduce into the appeal 2 treaties that were not part of the record at the trial.

If any treaty is to be introduced and proved it must be before an independent and impartial third party court, specifically, the trial level Judicial Committee of the Privy Council.

Neither treaty was proven in the court below, nor could either treaty have been proven in that court. Had the AG Ontario made an application to attempt to proven either or both treaties in the court below, the appellant would have asked the court below to refer the treaty question to the independent and impartial third party court, the trial level Judicial Committee of the Privy Council.

22. At paragraph 19, the AG Ontario introduces the 1993 British Columbia Court of Appeal decision in the case of Delgamuukw v. Attorney General of British Columbia. The point for which that case is cited is its statement that the burden of proof supposedly is on the natives to prove, to the satisfaction of the non-native domestic courts, as a matter of fact, what they used to do with their land. Then, supposedly, the non-native domestic courts will decide what the aboriginal rights are -- the right to keep on doing the same (primitive) things.

At the outset of the said Court of Appeal hearing in the said Delgamuukw case, legal counsel Bruce Clark upon the instructions of several of the native nations of British Columbia and the rest of Canada advised the judges assembled that they were extraterritorially embarking upon a proceeding that rendered them liable to prosecution for "Misprision of Treason," "Fraud" and "Complicity in Genocide." Clark sought to advise the Court of Appeal judges that his obligation amicus curiae no less than as retained counsel was to apprehend those crimes in progress and, failing that, to effect a citizen's arrest of the judges for those crimes.

Without addressing the law the Court of Appeal judges asked Dr Clark to leave, which he did forthwith.

In the result the law going to juridical jurisdiction was not addressed at any stage of its deliberations by the British Columbia Court of Appeal. Subsequently, Dr Clark was retained by one of the several appellant's in the said Delgamuukw case, to state the same constitutional question, on the appeal from the Court of Appeal decision. On September 12, 1995 the Supreme Court of Canada refused to state the constitutional question, on the ground that it had not been raised at the trial or in the Court of Appeal.

Dr Clark has been convicted by the Law Society of Upper Canada of "professional misconduct' in relation to his request of the Court of Appeal judges that they allow themselves to be placed under citizen's arrest. The details of these events is elaborated upon in the petitioners' and appellant's factums in the matters of Law Society v. Clark, Attorney General of Ontario v. Bear Island Foundation, Pascal v. Walker and Clark v. Friesen.

The Delgamuukw case is at the center of a "Fraud and Abuse" of gigantic proportion. The governments of Canada and British Columbia are pressuring the natives of British Columbia into making treaties for that vast region that is still not "ceded to or purchased by Us." The fraudulent inducement underlying that treaty process is the assumption that the non-native domestic courts of British Columbia already have juridical jurisdiction to resolve any impasses in the treaty negotiations. This is the "big stick" behind the back of Canada and British Columbia in those negotiations with the native race of people -- the unspoken hard reality that, if and when push comes to shove in the hard give and take of negotiation, the courts appointed by one only of the two races of people at the bargaining table will have the casting vote.

The complicity of the courts of Canada in this illegal and unconscionable process, by stonewalling the issue of juridical jurisdiction, and by preventing it from going before the constitutionally appropriate independent and impartial third party court, is of everlasting significance to the integrity of the rule of law, indeed to the very soul of Canada, and all her regions.

The appellant respectfully asks the Court of Appeal for Ontario to take consummate care with the decision of the Court of Appeal for British Columbia in the Delgamuukw case, at the very least to become fully informed in respect of the complex of cases surrounding it.

Appendix. Petitioners' Factum and Supporting Affidavit in the matter of Clark v. Friesen. April 10, 1996.

Appendix. Appeal Book and Appellant's Factum in the matter of Law Society v. Clark. April 10, 1996.

Appendix. Petitioner and Petitioners' Factum in the matter of Pascal v. Walker. April 10, 1996.

Appendix. Appeal Book and Appellant's Factum in the matter of Attorney General of Ontario v. Bear Island Foundation. April 10, 1996.

23. The appellant wishes in reply specifically to record his agreement with the following passage that appears in paragraph 17 of the factum of the AG Ontario:

The clear meaning and intent of 5. 35 is to constitutionalize only rights which existed as of 17 April, 1982. As stated by the Supreme Court in Sparrow, supra, at p. 274: The word "existing" makes it clear that the rights to which 5. 35(1) applies are those that were in existence when the Constitution Act, 1982 came into effect. This means that extinguished rights are not revived by the Constitution Act, 1982.

The appellant's legal point on the appeal herein is that by constitutional definition all territory in Canada is either territory that has been "ceded to or purchased by Us" or has not been "ceded to or purchased by Us." By entrenching "existing" aboriginal rights, section 35(1) reiterated or at least saved the previously established law.

One feature of that previously established law and, correspondingly, of the aboriginal rights sheltering under it, is the rule in the Mohegan Case Order in Council.

The moment that the Supreme Court of Canada acknowledged the saving effect of section 35(1), by necessary implication it acknowledged that it has no jurisdiction relative the question of mixed law and fact whether any given tract of territory has been "ceded to or purchased by Us."

24. At paragraph 21, it appears to the appellant that the AG Ontario has made the same argument as made by the AG Canada in relation to the Criminal Code. For this reason, the appellant relies upon the reply he has already given above to the AG Canada. Both the AG Canada and the AG Ontario argue the Criminal Code purports on its face to apply "throughout Canada."

The appellant repeats that as a domestic law statute the Criminal Code must be taken to mean that part of Canada to which domestic-legislation can have application, which excludes, for constitutional law reasons, "Indians" upon territory not yet "ceded to or purchased by Us."

Under constitutional law the trial level Judicial Committee constituted by Queen Anne is the independent and impartial court in which is vested the juridical jurisdiction over the question of mixed law and fact whether a given tract has been "ceded to or purchased by Us."

25. At paragraph 22 the AG Ontario claims that the reasonableness test imported by section 1 of the Constitution Act, 1982 applies to section 35 of that statute. That is an insupportable claim.

Section 1 applies only to the Canadian Charter of Rights and Freedoms. Section 35 is not in the Canadian Charter of Rights and Freedoms.

The legal point of the reasonableness test is that it permits the domestic legislatures legislatively to suspend or revoke the rights and freedoms enumerated in the Canadian Charter of Rights and Freedoms if, in the discretion of the judges, the suspension is considered "reasonable" in "a free and democratic society."

Thus, the rights and freedoms enumerated in the Canadian Charter of Rights and Freedoms, such as "freedom of conscience and religion, freedom of thought, belief, opinion [etc.]" are not absolute. They are not constitutionally immune from suspension or revocation by means other than constitutional amendment. Rather, they are rights and freedoms that can be suspended or revoked by domestic law means.

There is, in effect, a special constitutional amending formula relative to the 'constitutional' rights and freedoms stipulated in the Canadian Charter of Rights and Freedoms. What this really means, is that the "constitutional" rights and freedoms in the Canadian Charter of Rights and Freedoms are not genuinely "constitutional." They are found in the constitution, but, because they can be suspended or revoked by domestic law means short of a constitutional amendment, they are really domestic law rights and freedoms. This is the reason the Canadian Charter of Rights and Freedoms is treated as a joke in the American law schools -- it is so patently a contradiction in terms.

There is a large body of constitutional law that remains outside the double-think of section 1 of the Canadian Charter of Rights and Freedoms. None of the previously established constitutional legislation concerning the balance of power between the several governmental jurisdictions, for example, is subjected to section 1 of the Canadian Charter of Rights and Freedoms. That section, for example, has no application to the balance of power established and confirmed by the Constitution Act, 1867.

Under sections 109 and 129 of the Constitution Act, 1867 the paramountcy of aboriginal rights of Indians upon territory not yet ceded to or purchased by the crown is confirmed by the phrases "subject to" and "except."

Section 109 confirms that the provinces hold title "subject to" the Indian "Interest" on territory not yet ceded to or purchased by the crown, precisely because the crown has always held title "subject to" the said Indian "Interest." All the crown, constitutionally, has ever claimed is the right of preemption - the exclusive right to buy when the Indians should be ready to sell.

Section 129 confirms that both the federal and provincial governments can repeal or amend all laws "except" the constitutional law laid down by imperial government. They can not change the terms and conditions of their very existence. One of these is, and always has been, the term and condition that the crown must respect existing aboriginal rights. It is the same principle:-all the crown, constitutionally, has ever claimed is the right of preemption -- the exclusive right to buy when the Indians should be ready to sell.

The point, now, is that section 1 of the Canadian Charter of Rights and Freedoms is neutral to the constitutional balance of power established and maintained outside the Canadian Charter of Rights and Freedoms.

Section 35(1) of the Constitution Act, 1982 recognizes and affirms "existing aboriginal rights." This is not a constitutive enactment. It is a saving. It is neutral to the nature and geographical extent of the previously established aboriginal rights. It merely recognizes and affirms that whatever they are and wherever they are, they are still in business after no more and no less than before the Constitution Act, 1982.

Section 35(1) and existing aboriginal rights are in Part II of the Constitution Act, 1982. Section 1 and the reasonableness test are in Part I of the Constitution Act, 1982. Part 1 has a special name: Canadian Charter of Rights and Freedoms. Section 35 is not subject to section 1.

If it were, it would certainly then be open for the AG Ontario to argue in courts of law, as he has in this appeal, that it is unreasonable for the non-native domestic courts not to have jurisdiction over Indians upon territory not proven to be ceded to or purchased by the crown from the Indians. But because section 35 is not subject to section 1, it is not open for them to make that argument, at least not in courts of law.

It is open for the AG Ontario to make that argument in the political forum and, upon the basis of it, to lobby for a constitutional amendment giving the non-native domestic courts the legal jurisdiction the AG feels is politically reasonable.

26. The appellant wishes to record his strong agreement with the AG Ontario's statement contained in paragraph 24, that there is a:

fundamental distinction between legal rights and political challenges, and in recognition that each of the two processes, the legal and political, must unfold within its own realm.

The "realm" for repealing the existing constitutional law (Sublimus Deus, the Mohegan Case Order in Council, the Royal Proclamation and the Genocide Convention) is, and always has been the political realm. It is not, and never has been, a judicial prerogative.

E.V. Dicey. Law and Opinion in England. London, Macmillan and Co., 1920., p. 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.

27. The appellant respectfully asks that this appeal be consolidated or otherwise heard together with the appeals in Law Society v. Clark and Attorney General of Ontario v. Bear Island Foundation.

April 10,1996.

"Stephen Snake"

Appellant.

Sublimus Deus, 1537: 8, 19, 26, 72

Queen Anne's Order in Council, 1704: 8, 12, 16 19, 21-2, 24, 26-8, 31 Al, 46, 48-9, 51-62, 72

Royal Proclamation of 1763: 2-9, 12, 15-17, 19, 21-9, 36, 41-53, 55-6, 62-3, 67, 72

An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. lv, c. 66(1821): 5-7, 42-6, 50

Constitution Act, 1867: 9-12, 26, 50-1, 55-7, 69-70

Order in Council (Canada) of 23 January 1875: 12, 31

Convention for the Prevention and Punishment of the Crime of Genocide, 1948: 9,19,72

Constitution Act, 1982: 38, 41, 45, 51, 67-71

Criminal Code: 2-5, 12, 17, 20, 62, 67-8

Indian Act: 15-18, 21, 28-30

Supreme Court Act: 19, 57-9, 61

AG Ontario v. Bear Island Foundation (2), (1984), 49 OR (2nd) 352 (HCJ); (1989), 68 OR (2nd) 394 (CA); [1991]2 SCR 570; (1995) scc (unreported): 60

Campbell v. Hall (1774), 98 ER 848 (PC): 38, 42, 44, 53

Clark v. HMQ (MNR), (1995) scc (Ont., unreported): 60

Clark v. HMQ, (1995) scc(Ont., unreported): 60

Delgamuukw v. AGBC [1991] 3 WWR 97 (Bcsc); [1991] 5 WWR 97 (BCCA); (1995) scc23799 (unreported): 60-1, 64-6

Franklin v. IFP Ltd., (1995) scc (BC, unreported): 60

Friday v. HMQ, (1995) scc(Ont., unreported): 60

Friday v. WSA (2), (1995) scc (Ont., unreported): 60

George v. HMQ, (1995) scc (FC, unreported): 60

Mitchel v United States, 9 Peter's 711 (USSC) (1835): 44-5

Pascal v. IFP Ltd., (1995) scc (BC, unreported): 60

Pilot v. Sept-Isles Band, (1995) scc (Que., unrep.): 60

R. v. Clark (2), (1995) scc (Ont., unreported): 18-19,60

R. v. Pamajewon (1994), 95 CCC (3d) 97 (Ont. CA); (1996) scc (unreported): 19-21, 26

R. v. Pascal, (1995) scc (so, unreported): 60

R. v. Secretary of State, [[1982] 2 All ER 118 (HL): 54-6, 59

R. v. Sparrow (1990), 56 000263 (scc): 21-2, 26, 67

R. v. Valente (1985), 23 ccc(3d) 193 (scc): 51-3

Shaukeens v. HMQ, (1995) SCC (FC, unreported): 60

Stevens v. Stoney Band (2), (1995) SCC (Alta, unrep.).

Canada. Return to an Order of the House of Commons. May 2,1987: 30

Bruce Clark. Native Liberty Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada (Montreal and Kingston: McGill-Queen's University Press, 1990): 6-8, 25, 36

E.V. Dicey. Law and Opinion in England. London: Macmillan and Co., 1920: 8, 23, 38, 40, 53, 72

Hamar Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases" [[1992] Manitoba Law Journal 343-89: 6-8

Joseph Smith. Appeals to the Privy Council from the American Plantations. New York: Columbia University Press. 1950: 36, 59