FOR LEGAL PURPOSES, THE MARITIME NATIONS OF EUROPE in the 16th through 18th centuries recognized that the indigenous peoples of the Americas were entitled to be respected as human beings. Thus, for example, on the basis that natural law is binding in equity the religious in 1535 enacted the Papal Bull proclaiming that natives were not upon any pretext to be molested or disturbed as to their possessions or property. In 1763 George III by royal proclamation confirmed the same principle of law, as have several judicial decisions which independently constitute the constitutional common law governing the jurisdictional division of legislative, executive and judicial powers in British North America, now known as the USA and Canada.
RESPECT AND CONSENT ARE THE SOUL OF LIBERTY. A single instrument like that of 1535 or that of 1763 is but evidence of homage paid by different generations.
ONE CONSEQUENCE IS THAT WHITE COURTS in the province of British Columbia (Canada) do not have jurisdiction over the Lil'Wat territory. The particular international law conventions, constitutional legislative instruments and constitutional common law decisions that settle this point have recently been identified and submitted to the courts.
THE IMMEDIATE PROBLEM is that the individuals who control the court processes in Canada and in the International Court of Justice at The Hague are abusing their administrative functions so as to prevent the law from being heard. The Chief Justices of British Columbia and other Supreme Court judges have issued a series of injunctions permitting logging on the Lil'Wat territory while at the same time refusing to listen to the precedents, statutes and conventions that preclude their jurisdiction over that territory. They have in conjunction with the Law Society denied other natives and non natives legal counsel of choice to forestall the hearing of those precedents, statutes and conventions in other cases, and some judges have threatened legal counsel both physically and economically for seeking to file with the courts the precedents, statutes and conventions that constitute their willful blindness a belligerent act in terms of international law and a treasonable fraud in terms of constitutional law.
THE LIL'WATS HAVE TURNED TO THE INTERNATIONAL COURT of Justice at The Hague. On September 10, 1991, they filed with that honourable court an Application Instituting Proceedings that reads as follows:
LIL'WAT on its own behalf and on behalf of its TRUSTEESand:
the NATIONS of EUROPE, and CANADA including BRITISH COLUMBIA as their successor and assign
FRANCE, HOLLAND, RUSSIA and ENGLAND on their own behalf and on behalf of the NATIONS of EUROPE,
and CANADA including BRITISH COLUMBIA as their successor and assign on its own behalf and on behalf of all its PROVINCES
TO: The Registrar, ICJ, Peace Palace, 2517 KJ The Hague, September 10, 1991.
SIR: The undersigned, Bruce Clark LL.B., M.A., Ph.D.(Law), has the honour to submit to the International Court of Justice an application instituting proceedings on behalf of the aforesaid applicant against the aforesaid respondents and to require the Registrar of the said Court forthwith to communicate the said application as dictated by Articles 40(2) and 40(3) of the Statute of the International Court of Justice and Articles 26(1)(a), 29(1), 38(4), 42, 43, 73(2) and 74 of the Rules of Court.
1. during the imperialist invasion of North America the European nations and their successors and assigns agreed amongst themselves, and with native nations, to claim title while nonetheless respecting upon the condition of consent the natives' previously established liberty in possession;
2. in consequence, native juridical jurisdiction in and over the yet unceded territory of British North America including LIL'WAT juridical jurisdiction in relation specifically to the places identified as the Ure Creek maintenance road at 122o37'N/S 50o17'E/W and the Duffy Lake Road at 122o41'N/S 50o18'E/W constitutes an existing liberty under Statute Article 38(1), as established by the positive law authorities identified in the Schedule appended hereto;
3. the non-native Supreme Court of British Columbia in Vancouver Registry action numbers CA013520 and CA014107 refuses to address the said law that prima facie precludes its own competing jurisdiction in and over the said places, and in the result the said Supreme Court authorizes and directs crimes against humanity and acts both of war and treason against LIL'WAT natives;
4. in relation to the said places each of the parties identified herein enjoys sovereign immunity in the domestic juridical institutions of the others and thus for the purpose of ascertaining the jurisdiction of this Court, each correspondingly juristically constitutes or is tantamount to a State within the meaning of Articles 34 and 35 of the Statute;
5. by Declaration dated 29 August 1991 the applicant has complied with and perfected its locus standi under Resolution 9 (1946) of the Security Council of the United Nations dated 15 October 1946, and alternatively the applicant as defrauded beneficiary exercises the locus standi of its defrauding trustees the co applicants and respondents ex aequo et bono pursuant to Statute Article 38(2); and
6. in the event the admissibility of the application or the jurisdiction of the Court is questioned, the Court itself must judicially settle the issue pursuant to Statute Article 36(6), Rules Articles 41 and 79 and Resolution 9 Article 5, and if jurisdiction is then judicially found to be lacking the Court may either proprio motu or at the applicant's request move to acquire it pursuant to Statute Article 70:
ACCORDINGLY, THE GOVERNMENT OF LIL'WAT ASKS THE COURT TO ADJUDGE AND DECLARE:
7. that LIL'WAT has exclusive juridical jurisdiction in and over the said places;
8. that the respondents are under an international law obligation both to respect and to protect the said jurisdiction;
9. that regardless of the said competing and paramount jurisdiction of LIL'WAT, the territorial jurisdiction of the said Supreme Court may not be assumed and has not been established; and
10. that, in order to prevent the genocide of the applicant pending disposition of this preliminary point of international jurisdictional law, no domestic court ought unilaterally and by force majeure to exercise jurisdiction except within the approbation of this Court, and then only upon such terms respecting comity and security as to this honourable Court shall seem just and reasonable to recommend pursuant to Statute Article 41 and Rules Articles 73 and 74.
The undersigned has been appointed by the Government of LIL'WAT as its Agent for the purpose of this application and all proceedings thereon.
[[outdated address of service for Bruce Clark omitted]]
I, Tsemhu7qw, the undersigned LIL'WAT representative, certify the authenticity of the above signature of Dr Bruce Clark, Agent of LIL'WAT.
THE WORLD COURT HAS JURISDICTION if and only if Lil'Wat is a "State" within the meaning of that word as used in the Statute of the International Court of Justice, since only "States" can bring cases to the world court. The Lil'Wats are well prepared legally to deal with any such preliminary objection. Indeed, it is precisely in meeting the objection that imminently threatened indigenous peoples throughout the Americas can be rescued under existing international law. The precedents, statutes and conventions upon which the Lil'Wats rely establish that the Lil'Wat territory is juristically independent. The narrow legal question is whether juristic independence is sufficient to constitute a "State" for the purposes of ascertaining the jurisdiction of the ICJ. Once the law that settles that question has been addressed by the court, the racist position that natives are not entitled to respect as juristic entities will be exposed as legally untenable in international law. The nations of the world that have contributed to the creation of that law have an interest in seeing its integrity and hence their honour vindicated.
UNDER THE STATUTE AND RULES of the court this preliminary jurisdictional question can only be answered by the judges. Even so, the Deputy Registrar of the ICJ has taken it upon himself to answer this question. Thus, instead of carrying out his administrative duty of forwarding the Lil'Wat Application he replied under letter dated September 12, 1991: "I regret to have to inform you that I can take no action in response to your communication." Thus, the Deputy Registrar is treating as an axiom his assumption that the natives of Canada can under no circumstances constitute a "State". In virtue of this assumption the Deputy Registrar administratively is precluding the judges of the ICJ from hearing the precedents, statutes and conventions that refute the assumption as a matter of existing international law. No review process for challenging this arbitrary affront to the integrity of the rule of law is presently available under the statute and rules of the court. They do not anticipate the possibility that the bureaucrat would usurp the judicial function exclusively vested in the judges of the court. Thus, the same essential thing as has happened in the Supreme Court of British Columbia is happening in the International Court of Justice. In virtue of the patent abuse of administrative power the rule of law has been superseded in both venues.
THIS IS MORE SERIOUS IN THE INSTANCE OF THE ICJ than in the instance of the Supreme Court of British Columbia. The fundamental legal issue is over domestic court jurisdiction in relation to yet unceded Indian territory. The precedents, statutes and conventions establish that as between the Supreme Court of British Columbia and the Lil'Wats the natives have exclusive original jurisdiction vis-a-vis the Lil'Wat territory. This is not a question that can be answered by assuming from the outset that either competing domestic system has jurisdiction to resolve the conflict. That is, even if the Supreme Court of British Columbia were willing to act judicially by listening to the law precluding its jurisdiction (to which law that court has previously willfully blinded itself) it is wrong to assume that that court but not the Indian court can resolve the issue.
THE WORLD COURT WAS CREATED IN ORDER to deal with the problem of bias. When two bodies politic disagree over something as fundamental as jurisdiction over territory it is unjust and unreasonable to assume that one of them can decide the dispute in its own court system. For example if Canada were to agree to let the Lil'Wat peoples' court decide, the non-natives who want the Lil'Wats' land would be entitled to object on the ground that there was an apprehension of bias, the natural assumption being that the Lil'Wat peoples' court could not be counted upon to decide impartially. Seen from this perspective, it is apparent that the crucial question is: who gets to decide? The solution adopted by the world community has been to let neither interested party's court system decide. The only way so far discovered to give precedence to the rule of law has been to have such jurisdictional disputes submitted to the world court, to be decided by this independent institution upon the basis of international law.
EXISTING INTERNATIONAL LAW is on the Lil'Wats' side. If and when the law is addressed it will be known that the assumption of the Deputy Registrar is untenable. His a priori underestimation of the natives' legal position stems from the fact that Canada is in all respects an autonomous member of the international community of nations. Canada, for example, is a member of the United Nations. Lil'Wat is not. However, it is a non sequitur to assume that political acceptability rather than juristic independence constitutes the test for establishing status as a "State" for ICJ jurisdiction purposes.
THE LIL'WATS SEEK JUSTICE NOT PATRONAGE, and respect not condescension. For this reason they have of necessity placed the jurisdictional issue before the International Court of Justice. The law upon which they rely is succinctly identified in the one page Schedule appended to their Application to the ICJ, as follows:
2. Its specific maxims: nemo potest esse simul actor et judex (no one can be at the same time suitor and judge) and ex turpi causa non oritur actio (fraud vitiates all).
3. Connolly v. Woolrich (1867), 11 LCJ 197 (Que.), 205-207: international law applies implicitly.
4. Capitulation of New France, Montreal, 1760, article 40: international law applies explicitly.
5. Royal Proclamation of 1763 (GB), part II paragraphs1 and 2, and part IV paragraphs 1-5: Non native colonial courts do not acquire any territorial jurisdiction in and over unceded territory, but rather are enjoined from molesting or disturbing the native nations upon any pretext, fraud or abuse.
6. International Covenant on Civil and Political Rights articles 1(1)-(3), 27, 40, 47 and 50, Convention on the Prevention and Punishment of the Crime of Genocide article 2, Universal Declaration of Human Rights articles 8 and 15, and Canadian Criminal Code sections 424 and 431: Canada reiterates the previously established international law obligations and undertakings.
7. An act for preventing Frauds and regulating Abuses in the Plantation Trade 1696 chapt. 2 (GB) section 12, An act for the better securing the Dependency of His Majesty's Dominions in "America" upon the Crown and Parliament of "Great Britain" 1766 chapt. 12 (GB) sections 1 and 2, Colonial Laws Validity Act 1865 sections 3 and 4, Statute of Westminster 1931 section 7(1), Constitution Act 1867 sections 12, 55, 56, 58, 59, 61, 65, 90, 91(24), 91(27), 92(5), 92(13), 92(14), 92(16), 109, 129, 132 and 146, Constitution Act 1982 preamble's incorporation of the constitutive elements of international law and sections 35(1) and 52: Canada including British Columbia is precluded from derogating the previousl established international law obligations and undertakings.
8. Mohegan Indians v. Connecticut (1773), in Clark, Native Liberty, 39-45: native nations are juristically independent.
9. Campbell v. Hall (1774), 98 ER 848, 895-9: only the British Parliament can change this juridical status quo.
10. Cameron v. Kyte (1835), 12 ER 679, 682-4: Canada including British Columbia can not legally purport to change this juridical status quo in the absence of a constitutional amendment and an international accord.
11. St. Catherine's Milling & Lumber Co. v. R. (1887), 13 SCR 577, 621, St. Catherine's Milling & Lumber Co. v. R. (1888), 14 AC 46(PC), 54, AG Can. v. AG Ont.,  AC 199 (PC), 204-5, 210-11, AG BC v. AG Can.,  AC 153 (PC), 163-5, 169-72, R. v. Secretary of State for Foreign & Commonwealth Affairs,  2 ALL ER 118 (CA), 125: Canada's existence historically stems from the allegiance to the crown of the native nations, an allegiance achieved in virtue of the crown's recognition of the previously established international law obligations and undertakings, which continue to bind and correspondingly to protect the native nations.
12. Clark, B. Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada. (Montreal and Kingston: McGill-Queen's University Press, 1990).
September 10, 1991.
"Bruce Clark" Agent for ApplicantEQUAL APPLICATION OF EXISTING LAW is integral to the rule of law. The great powers of Europe and the Americas have benefitted from that rule. The question remains whether the rule will prove paramount when its observance is inconvenient to them. When put to the test, as it now is, can the rule of law also serve internationally to protect the weak from the strong? Liberty as a right depends upon the answer.
LIL'WAT INTENDS TO PERSEVERE with the Application Instituting Proceedings in the world court. Their victory can provide hope for the liberty of other threatened indigenous peoples in the Americas. It will auger well for peace generally, as humanity demonstrates that it has evolved to a point at which its institutions of law are commensurate with its principles of law.
THAT A NEW WORLD ORDER should be seen as dawning in 1992 is perhaps the completion of one cycle, and the commencement of another, as prophesized by indigenous peoples throughout the Americas. The prophecies, however, do not say whether the new world order will be the first book in a new series, or the final book, on human history. The free will option to let liberty triumph over power must surely be the pivotal point.
Dated at Homberg (Ohm), Deutschland, this 19th day November, 1991.