Jones William Ignace, Shelagh Anne
Franklin and James Allan Scott
Charles F. Willms
Counsel for Respondent
Mitchell R. Taylor
Counsel for A-G of Canada
Notice of Application for Leave to Appeal. August 22, 1997.................3 Order in Council (Great Britain) of 9 March 1704...........................5 Royal Proclamation of 1763.................................................8 Order in Council (Canada) of 23 January 1875..............................10 Convention for the Prevention and Punishment of the Crime of Genocide, 1948...................................................14 Exhibit 270. August 8, 1995 Letter........................................15 Exhibit 245. August 25, 1995 Demand.......................................25 Petition and Petitioner's Factum. Pascal v. Walker. April 10, 1996........26 Ruling and Reasons. Henderson J. SCBC. May 29, 1996.......................39 Ruling and Reasons. Josephson J. SCBC R v. Ignace et al. April 20, 21, 1997.....................................................46 May 9, 1997............................................................58 May 21, 1997...........................................................61 Court of Appeal Notice of Appeal. R v. Ignace et al. June 30, 1997........73 Notice of Motion. Pascal v. Walker. June 30, 1997.........................75 Notice of Motion. Ignace v. Regina. June 30, 1997.........................77 Order under Appeal. Huddart JA. R v. Ignace. July 23, 1997................79 Order under Appeal. Huddart JA. R v. Franklin July 23, 1997...............80 Order under Appeal. Huddart JA. R v. Pitawanakwat. July 23, 1997..........81 Order under Appeal. Huddart JA. Pascal v. Walker. July 23, 1997...........82 Reasons. Huddart JA. Pascal v. Walker. July 23, 1997......................84 Memorandum of Argument Part I: Facts..........................................................89 Part II: Points in issue...............................................91 Part III: Argument.....................................................91 Part IV: Nature of Order Requested....................................103 Part V: Table of Authorities..........................................103 Appendix "A". Mohegan Court, Passamaquoddy Court, Mi'gmaq Court and Algonquin Court v. Supreme Court of Canada and Supreme Court of the United States. Confederated Native Court. February 2, 1997...............104
AND FURTHER TAKE NOTICE that the documents identified in the Table of Contents and such further or other material as the applicant may advise and may be permitted will be referred to in support of such application for leave.
AND FURTHER TAKE NOTICE that the said application for leave shall be made on the ground that the court below knowingly or with indifference for the fact committed misprison of treason and fraud and complicity in genocide by assuming a jurisdiction constitutionally vested in an independent and impartial third-party adjudicator.
Dated at Ottawa, Ontario, this 10th September, 1997
Bruce Clark Counsel
1. In the summer of 1995 at Gustafsen Lake the natives Ignace and Pitawanakwat and their non-native agent Franklin asserted and implemented jurisdiction physically to resist as treasonable, fraudulent and genocidal the assumption of jurisdiction by newcomers and their courts in relation to arguably unceded Indian territory, in consequence of which on May 20, 1997 after a trial with a jury in the Supreme Court of British Columbia they were convicted of offences under Criminal Code sections 87, 244 (c), 267 and 430(2).
Exhibit 245 August 25, 1995 Demand. Infra. p. 25.
Exhibit 270 August 8, 1995 Letter. Infra. p. 15.
Notice of Appeal. June 30, 1997. Infra. p. 73.
2. The trial judge held (a) as a matter of law, that the said jurisdiction point was preempted from consideration by Delgamuukw v. AGBC,  5WWR 97 (BCCA), and (b) that as a matter of fact, they did not really believe in their jurisdiction point.
Rulings and Reasons. April 20, 21, 1997. Infra. p. 46.
Rulings and Reasons. May 9, 1997. Infra. p. 58.
Rulings and Reasons. May 21, 1997. Infra. p. 61.
3. On July 23, 1997 the applicants and the native Harold Pascal in the related matter of Pascal v. Walker applied to a single judge of the Court of Appeal for an immediate referral of the aforesaid native versus newcomer jurisdiction dispute to a panel for summary judgment.
Notice of Motion. Pascal v. Walker. June 30, 1997. Infra. p. 75.
Notice of Motion. Ignace v. Regina. June 30, 1997. Infra. p. 77.
4. The single judge, Huddart JA, held that the jurisdiction dispute was preempted from consideration by the cases of R v. Williams and R. v. Bruce Clark (both of which simply applied the case of Delgamuukw v. AGBC), and on this primary basis dismissed the Pascal appeal as abandoned. She adjourned the Ignace motion indefinitely, without reasons.
Orders. Huddart JA. July 23, 1997. Infra. pp. 79-82.
Reasons. Pascal v. Walker. July 23, 1997. Infra. p .84.
5. The 2nd basis employed by the single judge for dismissing the Pascal appeal as abandoned further evidences the institutionalized mala fides of the necomer bench. She held that Pascal had been "convicted" and that it was therefore too late for her to grant an order prohibiting his trial. There is absolutely nothing in the materials filed on the motion capable of sustaining her erroneous assumption that Pascal was convicted, nor could there possibly be since he has not been.
Reasons. Pascal v. Walker. July 23, 1997. Infra. p.84.
6. The 3rd basis employed by the single judge for dismissing the Pascal appeal as abandoned further evidences the institutionalized mala fides of the newcomer bench. She held that Pascal's "petition was for a declaration in general terms and referred to no specific case." In fact, Mr. Pascal's petition incorporated by reference his contemporaneously dated and delivered factum, the whole point of which was an application by the petitioner Pascal for an order prohibiting the respondent Judge Carl Walker from going ahead with the trial of a specific case involving several counts of driving without a provincial driver's license.
Reasons. Pascal v. Walker. July 23, 1997. Infra. p. 84.
Petition and Petitioners' Factum. Pascal v. Walker. April 10, 1996. Infra. pp.26-38; see especially p. 31 paragraph 3.
7. Without addressing the law going to jurisdiction the judges below knowingly or with indifference for the fact committed misprision of treason and fraud and complicity in genocide by assuming a jurisdiction constitutionally vested in an independent and impartial third-party adjudicator.
8. Furthermore, the trial judge in the Ignace case usurped the jury's function of deciding the facts by ruling on the defendants' state of mind, thus illegally precluding the defences of self-defence and colour of right.
9. Contrary to the tenet that the law must rule, it is predetermined that regardless of what the law concerning native juristic sovereignty standing alone may say to the contrary there is no chance whatsoever that the law will ever be addressed and respected in the newcomers' courts in British Columbia. That is, even though the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut enacts that the newcomer courts have no jurisdiction to receive evidence relative to the native versus newcomer jurisdictional conflict, it is predetermined that the British Columbia courts will never allow the natives' constitutionally entrenched remedy of independent and impartial third party adjudication of the evidence to be realized.
International Forest Products Limited v. Pascal. CA013520. February 26,1991. Lambert JA.
"...there is no possibility that a division of this Court would allow an appeal... on the ground that it was clear enough without a trial and without evidence that the LiL'Wat people were a sovereign people in a sovereign people in a sovereign land and that the courts of British Columbia had no jurisdiction over the matters in dispute."
10. In the summer of 1995 the same legal counsel as is acting on the present application for leave to appeal, Bruce Clark, sought leave to appeal in the Supreme Court of Canada in 11 other cases on the same ground as herein. Among the 11 was the above-mentioned British Columbia case of R v. Williams in which one of several native appellants was the same Harold Pascal as is concerned in the present case of Pascal v. Walker. The ground of appeal in every case was the lower courts' willful blindness to the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut. The Supreme Court of Canada denied leave to appeal in all 11 cases on the only ground available to it, namely, the fact the jurisdiction issue supposedly is not important within the meaning of section 40(1) of the Supreme Court Act.
In the fall of 1995 Clark again applied to the Supreme Court of Canada to raise the same point of law, as a constitutional question, this time on behalf of one of the several native appellants in the case of Delgamuukw v. Attorney General of British Columbia. On September 12, 1995 the Supreme Court of Canada refused to state the constitutional question on the ground that the issue had not been raised at the lower court level in the Delgamuukw case and, the issue being so obviously of such great importance, the Court preferred the input of the lower court judges in British Columbia before addressing the issue. The Court ruled that the jurisdiction issue had not been raised in the Delgamuukw case at the lower levels and that therefore the court jurisdiction issue was outside Delgamuukw's frame of reference.
On September 15, 1995, three days after the Supreme Court of Canada held Delgamuukw to be irrelevant to the court jurisdiction issue and virtually instructed Clark to return to British Columbia and raise the issue at the lower court level, Clark appeared in the Provincial Court of British Columbia on behalf of several of the Gustafsen Lake defendants, to carry out their instructions but, rather, was charged with criminal contempt of court for raising the issue, and ordered to be held in custody for one month in an institute for the criminally insane for evaluation from which he was discharged after one week as being of sound mind.
In the spring of 1997 at the show cause hearing to see whether the contempt charge should be proceeded with, Clark again attempted to raise the court jurisdiction issue and the fact that the Supreme Court on September 12, 1995 had ruled Delgamuukw to be irrelevant to the issue. The judge presiding at the show cause hearing decided nevertheless that the Delgamuukw case, and the Williams case applying it, preempted consideration of the court jurisdiction issue. He then summarily convicted Clark of criminal contempt of court at the show cause hearing without even arraigning Clark on the charge and conducting a trial.
The ground for applying to the Supreme Court of Canada for leave to appeal in R v. Bruce Clark was this refusal of the courts below to address the objection to jurisdiction by continuing to apply the Delgamuukw case as if it had addressed and resolved the issue. On July 31, 1997 the Supreme Court of Canada denied leave to appeal the case of R v. Bruce Clark. On July 23, 1997 Huddart JA in the order that is the subject of the present application for leave to appeal by Ignace, Franklin and Pitawanakwat applied the Williams case and the Clark case as finally determinative of the court jurisdiction issue. In willful blindness to the ruling by the Supreme Court of Canada on September 12, 1995 that the Delgamuukw case is irrelevant to the court jurisdiction issue, Hudddart JA did not deal with the fact that all the Williams case and the Clark case did was apply the Delgamuukw case as if it were determinative rather than irrelevant.
Mohegan Court, Passamaquoddy Court, Mi'gmaq Court and Algonquin Court v. Supreme Court of Canada and Supreme Court of the United States. Confederated Native Ct. Feb. 2, 1997. App. 'A'. Infra. p. 104 at internal pp. 40-45.
R v. Bruce Clark. Application for leave to appeal to the Supreme Court of Canada. Leave denied July 31, 1997.
Reasons. Pascal v. Walker. Huddart JA. Infra. p. 84.
11. The finding that the Delgamuukw case preempts the raising of the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut is untenable.
Transcript. September 12, 1995. Delgamuukw v. AGBC. SCC. Reasons for refusing to state the court jurisdiction issue as a Constitutional Question. pp. 16-17, 21. Chief Justice Lamer is speaking directly to counsel Bruce Clark:"If you had decided to initiate or if you decide tomorrow morning to initiate in the Supreme Court of British Columbia an action for declaratory relief saying that the British Columbia courts have no jurisdiction, that is a different matter and you could be arguing to the judge that, well, this is an issue that has never been tried and I want a declaratory, ...while you might have a good point to argue in the British Columbia Court of Appeal, this is not the place to start the thing... There is no doubt that it [the court jurisdiction issue] is a constitutional issue. If it is a constitutional issue that we decide to entertain, then it flows from that that we should state a constitutional question to send notice outside so that they intervene buth therefore this takes us to the fundamental question, 'Do we want to entertain, and why should we, in your view entertain a constitutional question in nature when that question was not raised below? '...the fact of the matter is that we do not have the benefit of the Supreme Court of British Columbia and the Court of Appeal."
12. Court jurisdiction is settled and denied to the newcomer courts by the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut. The Order in Council (Canada) of 23 January 1875 confirms the constitutional continuity of the previously established law. Together these orders in council confirm that prior to crown purchase of the Indian "Interest" within the meaning of section 109 of the Constitution Act, 1867 newcomer court jurisdiction under 92(14) of the Constitution Act, 1867 is precluded since section 109's phrase "subject to" signifies that the unpurchased Indian "Interest" is "independent of and capable of being vindicated in competition with the beneficial interest of the old province."
Order in Council (Great Britain) of 9 March 1704. Infra. p. 5.
Order in Council (Canada) of 23 January 1875. Infra. p.10. AG Ont. v. AG Can.,  AC 199, 205, 210-11.
13. The impugned assumption of court jurisdiction prima facie constitutes misprision of treason and fraud.
Royal Proclamation of 1763. Infra. p.8.
Mohegan Court v. Supreme Court. App. 'A'; Infra. p.104 @ pp. 33-36
14. The impugned assumption of court jurisdiction arguably constitutes complicity in genocide, for the assumption of court jurisdiction is what makes genocide in peacetime a possibility.
Convention for the Prevention and Punishment of the Crime of Genocide, 1948. Articles 2(b), 3(e), 4 and 6. Infra. p. 14.
Mohegan Court v. Supreme Court. App. 'A'. Infra. p.104 @ p.39.
A. Bear-Nicholas, "Citizenship, Education and Aboriginal People: The Humanitarian Art of Cultural Genocide"; Canadian and International Education 24:2, December 1996, pp. 59-107.
15. And genocide in peacetime in Canada is a fact. As the Law Society of Upper Canada has held:
"The 'genocide' of which Mr. Clark speaks is real, and has very nearly succeeded in destroying the Native Canadian community that flourished here when European settlers arrived...We are sympathetic, moreover, to Mr. Clark's assertion that the courts have been unwilling to listen to his argument"
Law Society of Upper Canada v. Bruce Clark. Convocation of the Law Society of Upper Canada. June 16, 1996. Reasons for Judgment.
16. In the case of Law Society of Upper Canada v. Bruce Clark the governing body of Canada's largest provincial bar association rejected the attempt by the Canadian judiciary (including the Registrar on behalf of the Supreme Court of Canada), by other provincial bars and by several provincial attorneys' general to have Clark disbarred for identifying in Canadian courts of law the Canadian judiciary's criminal complicity in the genocide, which allegation Clark raised as legal counsel on behalf of native clients whose people still are being made victims of the genocide.
17. Justice is eclipsed because the truth is not admissable in the Canadian courts. And the Canadian courts will not allow the juristically captive natives to gain access to the third-party court, access to which counstitutionally is entrenched. The net result is that third-party adjudication, the rule of law's remedy for the problem of the judicial genocide, remains stonewalled by the judiciary that is committing the crime. The modus operandi of the ongoing crime of genocide is judicial willful blindness to existing law. Willfull blindness negates the sine qua non of the rule of law: that the law can be read, and respected, as it is written. The structural conflict of interest of the Canadian judges is profound, and of genocidal consequence.
18. Even the end of keeping the country together can not justify, as its means, the negation of the rule of law and the commission of genocide. It may well have been the intent of Sir John A. Macdonald as the first Prime Minister of Canada to build and keep undivided his new nation when he chose, by the Indian Act of 1876, to ignore the Order in Council (Canada) of 23 January 1875. By that Indian Act he chose to foster native municipal governments that are taken to be subject to ordinary domestic law of general application, rather than to defend the previously established natural, international and constitutional law right of the natives as domestic dependent nations not to be molested or disturbed by newcomer governments, courts or citizens upon yet unceded territory.
The political choice of enforcing policy rather than law was illegal, even though it may have been motivated more from a desire to build the countries of Canada and the United States than to destroy the native nations who became those countries' victims. The end was laudable if, but only if, one is prepared willfully to be blind to the commission of genocide and the destruction of the rule of law in the interest of nationalism. If the Supreme Court of Canada is prepared in effect to repeat Sir John A Macdonald's choice the Court will forfeit the soul of the country, on the chance that this will keep the body together, for the country's soul is premised upon "the supremacy of God and the rule of law"; within the meaning of the Constitution Act, 1982.
Constitution Act, 1982. "Canada is founded upon principles that recognize the supremacy of God and the rule of law."
Appropriations Act, 1871. 25US S.71. Act of March 3, 1871, c.120, s1, 16 Stat.566. "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be invalidated or impaired."
Mohegan Court v. Supreme Court. App. 'A'; Infra. p. 104 @ pp.33, 36-8.
19. Therefore this application beseeches the Supreme Court judges: physicians-heal-yourselves, and by doing so heal your country. As Beloved's Baby Suggs "learned from her sixty years as a slave and ten years free: that there was no bad luck in the world but white people - They don't know when to stop." It is time now to stop the genocide in the Americas. Europe colonized Asia, Africa and the Americas. Asia and Africa were borrowed. The Americas were stolen. Asia and Africa have been returned, albeit altered, to their aboriginal people. Only in the Americas are the newcomers working, still, on the solution that precludes any measure of return: the destruction of the autochthonous culture that defines the independent existence of the aboriginal people.
This process is what Ignace, Franklin and Pitawanakwat resisted by legal right under natural, international and constitutional law. In willfull blindness to that anterior and superior law the newcomers' courts, still, are maintaining the established pattern of judicial genocide, by applying posterior and inferior federal and provincial law. In willful blindness to the rule of law the newcomer judges treat legal self-defence as illegal rebellion. The real criminals usurp juridical jurisdiction and then employ the usurped jurisdiction to criminalize resistance to the genocide. This then is the modus operandi of genocide in the Americas - judicial negation of the rule of law -the perfect crime. It is time for the newcomer judges to "know when to stop."
20. Section 40(1) of the Supreme Court Act stipulates that the test for whether the Court should grant leave to appeal is whether the issue to be raised on the appeal is important. On January 17, 1997 in the matter of the Quebec Succession Reference the Supreme Court of Canada granted leave to intervene to the Mi'gmaq Nation, Gespegewaqi District for the purpose of presenting to the Court the traditional native (as contrasted with the federal government nativbe) perspective regarding the referenced question; which question, in essence, is whether there is a common law of succession that the Court should declare to exist over and above the sole mode for constitutional change legislatively stipulated by the Constitutional Act, 1982.
The alternative is that the legislative stipulation of the one mode of amending the constitution by necessary implication precludes the Court from inaugurating a common law alternative. Leave to intervene was granted to the Mi'gmaq Nation, Gespegewaqi District for the avowed purpose that the Court become informed of the existing law which the traditionalist natives allege establishes that the assumption of jurisdiction by the Court over unceded Indian territory within Quebec, as elsewhere in North America, is ultra vires, treasonable, fraudulent and genocidal, and that upon this basis the Court ought to acknowledge that the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut wisely precludes newcomer court jurisdiction in relation to native versus newcomer jurisdiction disputes, in favour constitutionally of opting for independent and impartial third-party adjudication.
The relevance of this to the Quebec Succession Reference is by the following analogy. Since third party adjudication legislatively is required in the native versus newcomer situtation, should the principle of third-party adjudication be extended by the Court to the succession question as a common law principle? It is not as clear in the succession question context as it is in the native versus newcomer situation, that the Court is not a third-party. Nevertheless, the reticence of Quebec to accept the jurisdiction of the Court to decide the succession question certainly points to the possibility of proceeding by analogy.
Now, since the court jurisdiction issue as between native and newcomers is "important" enough to justify the granting of leave to appeal in response to the present application of Ignace, Franklin and Pitawanakwat? Since the issue is important enough when raised only by analogy in the Quebec Succession Reference, how can it be less important when raised directly as in the present application?
21. The test that the issue be "important" within the meaning of section 40(1) of the Supreme Court Act so obviously is satisfied by the within application, that the denial of leave to appeal will prove with finality that the judicial genocide is occurring with "intent" within the meaning of article 2 of the Genocide Convention, rather than through some innocent mistake of history past.
22. Furthermore, it is inappropriate to be dealing with such an important jurisdictional issue by analogy first, leaving open the possibility subsequently of dealing with the issue directly in some other case in future. This puts the cart before the horse: surely the issue should be dealt with directly, such as in the present case, before it is dealt with indirectly in Quebec Succession Reference. Since the hearing of the Quebec Succession Reference draws near, time is of the essence so far as hearing the issue directly in the native versus newcomer case, and the application herein presents the only visible means to ensuring that the issue will be dealt with in good time, and then only if the Court expedites this application and the appeal in consequence of it.
23. Truth will set the Judges of the Supreme Court and all other newcomer citizens of Canada free, as it will native people, for the perpetrators of genocide are defiled along with the victims. But, first, the Judges will have to become willing to acknowledge a hard and painful truth that affects themselves, for they alone now hold the key to the cell in which law as respect and justice as applied truth, along with Ignace and Pitawanakwat, are imprisoned.
24. EITHER: (a) THAT the convictions be quashed for want of jurisdiction in the court registering them; OR (b) THAT a stay be entered against their enforcement until such time as an independent and impartial third-party court shall have adjudicated the newcomer versus native jurisdiction dispute in accordance with the international and constitutional law principle settled by the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut.
September 10, 1997.
AG Ont. v. AG Can.,  AC 199........................................96 Delgamuukw v. AGBC. SCC. September 12, 1995..............................95 International Forest Products Limited v. Pascal. BCAA. Feb. 26, 1991.....92 Mohegan Court, Passamaquoddy Court, Mi'gmaq Court and Algonquin Court v. Supreme Court of Canada and Supreme Court of the United States. Confederated Native Court. Feb. 2, 1997........95, 96, 99 R. v. Bruce Clark, SCC. July 31, 1997....................................95 Law Society of Upper Canada v. Bruce Clark...............................97