The Aboriginal children who were subjected to the federal residential schools wanted only one thing: to go home. Their families were at home. Home was a sanctuary from the crimes against humanity that were inflicted upon them at the residential schools.
Running around in circles of the globe, to spend all their cash, to take a good look, at what’s in a book, was of no interest to them. To cope with atrocities, many bought hair spray for its alcohol content. They could mix it with water, then drink it to make the pain disappear, if only for a while.
Some were such young children, that they lost their language, their families, their identities and their homes. They became lost generations who watched as those who had homes travelled around the globe in jets, ships and vehicles that harmed the environment.
Important non-Aboriginals who had homes were never at home. Aboriginals who wanted to return home, were forced to stay at residential schools. The Canadian government thought it could exterminate the Indian from the Aboriginal, if only it could keep Aboriginal children away from home for 10 months of every year. When Aboriginal children ran home, the RCMP enforced Canada’s laws to bring them back to the residential schools.
Nevertheless, the children, with the assistance of their families, did their best to find a way to stay home from the residential schools regardless of the futility of trying.
What Ought To Be Done Is Impeded By
A Constitutional Dilemma:
Four Processes Affecting Aboriginal And Treaty Rights
The Roles Played By Legislatures And Courts
Four processes/themes can be examined from the government of Canada’s historical actions and by systemic roles expected during the interim requiring judicial activism by Courts, predictable legislative retaliation from federal Parliament and unexpected involvement from Provincial legislatures. During the interim of what? The interim is the time it takes for Canada’s Aboriginal nations to negotiate a consensus with the Government of Canada that defines Treaty rights and the promised third level of government in Canada: Aboriginal Self-Government.
Aboriginal Self-Government would allow the original Aboriginal nations to share their North American lands with the European immigrants who arrived to form Canada and United States. Aboriginals did not recognize Canadian-American borders, or provincial/territorial borders within Canada or state borders within the United States. Even among Aboriginal Nations, land was shared among nations. As a result, Treaty documents of Canada require Canadian Courts to recognize Treaty documents from the United States as if they carried the precedential weight of Canadian Treaty documents.
Furthermore, in Canada, treaties were made between Aboriginal nations and the British monarchy. Canada’s involvement complicated matters. Mired in fog, Canadian case law had created interim precedents that confused division of powers matters with Treaty matters. The confusion was caused when a historically oral Aboriginal culture’s evidence was disallowed as hearsay and unrecognized by a British legal tradition whose culture required written documentation for legal recognition.
Subsequently, the government of Canada Constitutionalized the Courts’ legal errors. But for the Constitutionalization of the Courts’ errors, a long line of precedent setting cases, cited and followed prior to 1931's Statute of Westminster granting Canada control over its international affairs including Treaty powers and prior to the 1960s when Aboriginals were allowed to vote and became legal persons in Canada able to testify, the precedent setting cases and the entire line of cases that relied upon them for decades would have been overturned so that substantive justice could be done.
In order for substantive justice to be done, the government of Canada must fulfill its end of the treaties made with Aboriginal nations who share their lands with the offspring of the generations of immigrants. For Canada to fulfill the treaties, it must take the time to negotiate a consensus and finance the creation of Aboriginal Self-Government within Canada. In essence, Aboriginal nations would share their lands with Canada, having jurisdiction over the civil laws within their territories that may cross not only provincial borders, but Canada-U.S. borders, while Canadian and American criminal laws would remain under the jurisdiction of Canadian and American federal governments.
Where Aboriginal nations held lands that crossed into the United States, negotiating a consensus with Canada would only be the beginning, and would eventually be followed by negotiating a consensus with the United States. Aboriginal peoples have been patient, waiting centuries until Canada is ready to negotiate a consensus. Likewise, even if Canada fulfilled its end of the treaties, Aboriginals would wait until the United States was ready to fulfill their end of the treaties.
On the one hand, a culture that shared land with other nations, the Aboriginal North American nations. On the other hand, a culture that was built on the possession and exclusive ownership of land, the European nations. When Aboriginal cultures shared their lands with European cultures, the European cultures took possession of the lands. Aboriginal cultures shared their lands with European cultures on the condition that Aboriginals could maintain their way of life through a negotiated consensus that would allow them to form a Self-Government within Canada and a Self-Government within the United States.
Four Processes/Themes Examined By Roles Expected For Legislatures and Courts
With regard to Canada, Courts and legislatures have considered four processes/themes: (1) Patriation, (2) Internal Aboriginal Processes RE: Patriation, (3) Future Processes of Rights Protection and (4) Substantive Aboriginal Rights.
Patriation: Parliament wanted to bring back or patriate our Constitution from Britain any way possible, to include a Canadian made amending formula and a Charter of Rights. The Courts thus re-interpreted cases from a chain of flawed law originating from pre-1935 (when Ministerial consent was necessary, access was denied to Aboriginals who might otherwise have provided evidence) and pre-1960 legal precedents (when Aboriginals were not legal persons with a right to give evidence in Court or vote in political elections) and the lines of cases that relied upon them.
Internal Aboriginal Process RE: Patriation: Executives, Ministers, Members of Parliament and provincial legislatures and the civil service conducted a dialogue with members of Canada’s Aboriginal Nations in order to reach a consensus. They heard the Aboriginal concept of one island sharing many nations/laws. Courts would thus recognize Aboriginal representation, Elder input and Aboriginal jurisdictions.
Future Processes of Rights Protection: In order to codify contractual treaties where Aboriginal Nations offered to share their lands accepted by Canada for the consideration of Self-Government that would maintain a way a life for time immemorial for Aboriginal peoples, Parliament has a responsibility to negotiate by consensus political Treaty/Aboriginal rights and define them for its side of the contract. The Courts could thus invite Aboriginal involvement in the Court process, in argument and to present Evidence that includes oral evidence from an oral culture.
Substantive Aboriginal Rights: Parliament has a duty to fund/implement Aboriginal Self-Government control of land/resources to be under Aboriginal jurisdiction. The Courts could then define Treaty/Aboriginal Rights, and Constitutionalize historical and modern Aboriginal Rights.
What was the role of Courts and legislatures according to the themes? Legislatures create mechanisms for Courts to follow. Are the mechanisms consistent or inconsistent with justice? Justice requires legislatures to plant a healthy seed. Courts must then nurture the growth of that seed. After creating that seed by Treaty with the Imperial Crown, Aboriginals want a say in the Constitutional mechanism of how the seed grows. The seed is Canada.
Let’s examine the above four processes affecting Aboriginal and Treaty rights, the roles played by legislatures and Courts, and whether those roles are consistent or inconsistent with justice. In part one, the evidence is presented. In part two, I’ll offer general conclusions on these processes, roles and the consistency of the result.
In order to examine the four processes/themes and the expected systemic roles played by Legislatures and Courts, it is necessary to wonder how a chain of Constitutionalized flawed law can be overturned. The flawed law was likewise codified via Supreme Court of Canada decisions creating legal precedent, relied upon by lower Courts for decades in an extensive, long line of cited cases that have created numerous injustices against Aboriginal peoples. The Constitutional dilemma is created by the question, “Acknowledging the Constitutional principle that one part of the Constitution cannot be used to override another part of the Constitution, how can one part of the Constitution override another part of the Constitution? It is an unsolvable problem.
Worse than that, much of the case law up to the mid-1930s produced precedents without Aboriginal involvement in the cases. In order to take Court action and to file security for costs, Aboriginals had to first obtain consent from the Minister of Indian Affairs, which was not forthcoming. Until the 1960s when Aboriginals received the right to vote in Canada and became legal persons, Aboriginals did not argue their positions in Court. Dialogue arguing Aboriginal positions from an Aboriginal perspective on their treatment by legislatures and Courts did not occur until the Special Joint Commission on the Constitution of Canada invited briefs and heard testimony from approximately 20 Aboriginal groups between 1980 and 1981.
The hearings educated Members of Parliament and the general public on what contributed to the fore mentioned practice where ordinary federal and provincial law overrode treaties. The legal errors were based on questionable, and from an Aboriginal perspective, invalid and illegal precedents. Such a scenario was never supposed to be the case on the wording of mutually negotiated treaties that were to last forever.
Perhaps Aboriginal Self-Government within Canada is capable of rectifying the question posed by the dilemma that has developed from Constitutionalized legislation that decided a federal-provincial division of powers matter but has been applied by Courts to decide Aboriginal and Treaty rights matters. If it is, both legislatures and Courts will be required to participate in solving a problem they created not by intent but by ignorance. Once a solution to the unsolvable Constitutional dilemma is decided upon, justice may require that perhaps more than a hundred years of flawed case law must be reviewed by law clerks and government administrators.
A Chain Held By Weak Links
For instance, the Natural Resource Transfer Agreement (NRTA) of 1930 unilaterally altered the Treaty of June 21, 1899, Treaty No. 8 (one of eleven numbered treaties, among others), removing Aboriginal control over their resources on their lands. In particular, commercial hunting and fishing privileges included the Treaty “right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered” [“as if the Treaty had never been entered into”], the decisive point guaranteed by the Treaty Commission to relieve Aboriginal fears (according to the Commission’s filed report.). The word “vocation” is important because it is defined as, “a person’s regular calling or business; one’s occupation or profession”. In 1982, this NRTA containing a unilateral override of a Treaty right was, from an Aboriginal perspective, illegal under the Treaty but it was a legislated precedent misapplied in a line of weak Canadian law on Aboriginal cases. Furthermore, it was Constitutionalized in the Schedule to the Constitution Act, 1982 and it is now cited as the Constitution Act, 1930. Our Courts created such NRTA based judgments because Aboriginal peoples were unable to present evidence either because they lacked the consent of the Minister (until approximately 1935) or because they were not legal persons with rights of citizenship and the right to vote in Canada (until 1960).
The Supreme Court in R. v. Badger calls the Constitution Act 1930, para. 12 binding law based on its R. v. Horseman decision at para. 60, where it states, “although the Agreement did take away the right to hunt commercially, the nature of the right to hunt for food was substantially enlarged...Both the area of hunting and the way in which the hunting could be conducted was extended and removed from the jurisdiction of provincial governments. Such Judicial reasoning is typical of what Ms. Delia Opekokew called, “disputes between the federal government and the provincial government as to who owned lands after Treaty...and did not really affect Aboriginals but in fact affected provincial governments.”
The Supreme Court ought to be wary of law purported to affect Aboriginals from prior to 1960 and especially from prior to 1935. Although the Constitution Act, 1930 is part of the Supreme Law of Canada, it ought to be used to define federal-provincial “official interest in lands” after Treaty, rather than as derogating or abrogating Indian Aboriginal or Treaty rights. The reason to question such law as being supreme for Aboriginal rights and as purporting some consentual benefit as if by agreement is its lack of Aboriginal involvement in the Court process, and its absence of both Aboriginal argument and evidence. It ought to be considered Supreme law only for federal-provincial interests in Treaty lands and not as a mutual amendment to the rights within a Treaty as if the amendment were negotiated for consideration. Badger is based on Horseman, a precedent in defining Aboriginal hunting rights, which is based on the Constitution Act, 1930, the NRTA, which is a federal-provincial dispute over who owns land after Treaty and not involving Aboriginal rights at all.
2002 British Columbia Referendum
Equally blatant, in B.C., few treaties were completed, many remain to be negotiated. If the Constitution Act, 1930, the NRTA, settled the scope of Aboriginal hunting rights, then why has B.C. initiated a referendum concerning Treaty land, leases, licenses, commercial interests, hunting and fishing, resource/environmental management, Aboriginal Self-Government, Treaty mechanisms and Aboriginal tax exemptions? The assimilationist referendum contains a confusing mix of individual rights with collective rights and a blatant signal that one type may abrogate or derogate the other. It confuses division of powers matters with Aboriginal and Treaty rights matters. By proposing to alter case law by referendum, it revisits issues purportedly settled by Courts, such as resource management, elevating the order of priorities decided for non-Aboriginal sports fishing. Is a referendum not the opposite of a commitment to negotiate?
Whereas the Government of British Columbia is committed to negotiating workable, affordable Treaty settlements that will provide certainty, finality, and equality; Do you agree that the Provincial Government should adopt the following principles to guide its participation in Treaty negotiations? 1 Private property should not be expropriated for Treaty settlements. Yes or No. 2 The terms and conditions of leases and licenses should be respected; fair compensation for unavoidable disruption of commercial interests should be ensured. Yes or No. 3 Hunting, fishing and recreational opportunities on Crown land should be ensured for all British Columbians. Yes or No. 4 Parks and protected areas should be maintained for the use and benefit of all British Columbians. Yes or No. 5 Province-wide standards of resource management and environmental protection should continue to apply. Yes or No. 6 Aboriginal Self-Government should have the characteristics of local government, with powers delegated from Canada and British Columbia. Yes or No. 7 Treaties should include mechanisms for harmonizing land use planning between Aboriginal governments and neighbouring local governments. Yes or No. 8 The existing tax exemptions for Aboriginal Peoples should be phased out. Yes or No.
From the perspective of post-patriation Constitutional case law, there is a concern that Aboriginal and Treaty rights not be abrogated or derogated unilaterally by federal or provincial governments. Case law exceptions being conservation and resource management purposes. Aboriginal tribes/nations expect amendments to treaties to require consultation at the extreme minimum but consent is the preference. Existing Treaty rights are now Constitutionalized by ss.25, 35 and 35.1 of the Constitution Act, 1982. Yet there is a communicational void because Aboriginal understanding is that negotiated Treaty rights providing control over land involves control over resources. Control over resources requires Self-Government on a par with provincial governments.
Provincial Intrusion Into Federal-Aboriginal Negotiations
Chief Willy Littlechild, Legal Advisor, Indian Association of Alberta requested Aboriginal participation in the Constitutional amending formula after patriation, which was ultimately added in 1983 by s.35.1 rather than prior as he had requested. He was concerned that a provincial agreement requirement adds a second government (the Provinces) to Aboriginal-Federal Treaty/Aboriginal rights recognition and that instead of Aboriginal nations having to negotiate with the federal government, that they would also have to negotiate with the provincial governments. Twenty years later, the 2002 B.C. Referendum is a realization of Chief Littlechild’s fears.
Aboriginal Self-Government was recognized in part IV of the 1992 Charlottetown Accord, but the Accord was connected with non-Aboriginal issues and failed. Professor Peter Hogg has stated that the Charlottetown Accord would have “given meaning to Self-Government in a modern context.”
The Accord would have paved a new Canada Clause in s.2 of the Constitution Act 1867 and s.2(1)(b) stated:
the Aboriginal peoples of Canada, being the first peoples to govern this land, have the right to promote their languages, cultures and traditions and to ensure the integrity of their societies, and their governments constitute one of the three orders of government in Canada.
The Accord would have strengthened Aboriginal and Treaty rights in a number of Constitutional and Charter areas. Furthermore, it set a framework whereby “the role of Aboriginal peoples in relation to the Supreme Court should be recorded in a political accord and should be on the agenda of a future First Ministers’ Conference on Aboriginal issues”; however, on the agenda of the political Accord would be Aboriginal consultation for Supreme Court appointments and a proposed “Aboriginal Council of Elders ... entitled to make submissions to the Supreme Court, when the Court considers Aboriginal Issues.” A council of Elders would presumably provide the Supreme Court with information that prevents it from relying on cases linked like a chain to legislation and case law decided without Indian involvement prior to 1935 and prior to 1960. That chain means recent cases, valid on the surface, must be found not to rely on cases that rely on decisions made without Aboriginal argument, evidence and involvement. Nor should division of powers disputes in that chain of cases linked with the NRTA be held to decide or define Aboriginal and Treaty Rights.
Capacity To Make Treaties and the Authority Conferred By Treaties
Treaties were international between nations or tribes and the Imperial Crown rather than sui generis. Under Canadian case law, treaties with Aboriginal Nations are not international treaties under International Law. Today, s.88 of the Indian Act, valid under s.91(24) of the Constitution Act, 1867, is “subject to Treaty”, but no Treaty states Aboriginals are to be governed under s.91(24) or the B.N.A. Act, 1867 and many treaties precede the B.N.A. Act. Under treaties, Aboriginal nations were to be self-sufficient entities within the British colonies of an Imperial Majesty, whose power devolved to Canada by the Statute of Westminster in 1931. Before that, Canada had no international jurisdiction to make a Treaty. Britain made treaties on behalf of Canada. Did the 1930 NRTA have the power to affect Treaty rights made between Britain and Treaty 8 Aboriginals in 1899? Not according to another Constitutional document, the Statute of Westminster, 1931, also found in the Schedule to the Constitution Act, 1982. Canada had no power to make or amend a Treaty until 1931, when the Statute of Westminster became effective.
Treaties are political relationships, not land or real estate deals. Canada claimed not to be bound by treaties before the 1840 Act of Union. Canada subsequently claimed not to be bound by treaties made prior to confederation in 1867. Aboriginal nations made treaties with the British Crown and Canada had no capacity to make treaties until 1931, when Britain passed the Statute of Westminster. By the Statute of Westminster, Britain transferred its paternalistic international Treaty making capacity on behalf of Canada to Canada. At that point in 1931, Canada finally had the capacity to make international treaties for itself.
Treaties were all made with the Crown of Great Britain, the Imperial Crown, not with Canada. Until the Statute of Westminster, 1931, and the letters patent to the Governor General of 1947, Canada did not have the capacity to enter into treaties with other nations in its own right.
Aboriginals point out that political treaties should be recognized under international law, rather than have mere sui generis status provided in the case law.
Signing A Treaty Is A Political Act:
When Canada Lacked Both Political Existence and Treaty Capacity,
Canada’s Capacity To Sign A Treaty Was In Its Aboriginal Negotiations.
Who Negotiated Canada’s First Constitutional Document With the British?
Unlike the Anishinabek, the Iroquois and Allied Indians sought consent before patriation, which did not occur. They considered the Royal Proclamation of 1763 to be Canada’s first Constitutional document because it set out the “procedures for treaties between our Indian nations and the Imperial Crown.” It was also both the Aboriginal and the British source of negotiation power for making treaties.
The Iroquois stated that Canada lacked authorization to negotiate treaties with Aboriginal nations because such jurisdiction was not provided by the British Royal Proclamation of 1763. Canada had no power to amend the British Royal Proclamation of 1763, not by s.91(24) of the B.N.A. Act, 1867 and not by the Statute of Westminster of 1931. The Statute of Westminster gave Canada power to negotiate international treaties but not sui generis treaties (case law) with Indian nations. Nor did the 1949 transfer of lands from the Imperial Parliament to the Government of Canada cede to Canada, the power to amend the Constitution of Canada. Canada did not gain that power until patriation of our Constitution in 1982.
In its address to the British Parliament, which it repeated for the Special Joint Committee in Canada, the Iroquois nations suggested that in order for Britain to have shifted its Treaty obligations to Canada, it must have had the consent of the Aboriginal nations. Britain did not negotiate such a consent with the Aboriginal nations. The Iroquois nations asserted the Royal Proclamation of 1763 as affirming (1) changes in relations with governments must have Aboriginal consent; and (2) that they have rights to Treaty protection; and (3) Self-Government.
By stating that Aboriginal political rights need to be recognized and Self-Government jurisdictions need to be defined, Sol Sanderson, Chief, Federation of Saskatchewan Indians noted that the obvious “act of signing a Treaty recognizes a degree of governing powers”, that non-renewable resources were not discussed in any treaties, that resource-sharing must be negotiated, that Self-Government would extend off reserves to include urban Indians, that they do not recognize provincial-federal boundaries and that Self-Government includes fiscal relationships with the federal government and the right to make laws governing education of Indian children, the sustenance of Indian cultures, Indian government buildings, Indian Courts, Indian law where provincial law does not operate but where the Criminal Code does operate, representation on the Supreme Court and sovereignty as original nations.
Chief Sanderson described some of the injustices inflicted on the Aboriginal peoples. The 1840 Detribalization Plan was designed to take away Indian political and cultural rights. The 1947 Liquidation Plan was a 25 year plan to liquidate the Indian nations. The 1969 White Paper was a 5 year plan to assimilate Indian nations by emptying reserves. He wanted a Protectorate Office entrenched in the Constitution [which Chief Littlechild suggested would be an adjudicator or tribunal to replace federal and provincial Courts on matters touching Indian interests]. Chief Sanderson saw Canada’s judicial system as one that allowed no oral, historical or political evidence from Aboriginal peoples. That meant the law did not protect or recognize Indian rights. Eugene Steinhauer observed that fact as threatening Indian political and cultural survival.
By All Signatories To The Constitution Act, 1982,
Referendums Were Considered But Rejected As A Constitutional Procedure
Eugene Steinhauer, President, Indian Association of Alberta stated that Treaty rights protection proposed in s.24 was superficial, amidst a Charter with no collective rights. A proposed referendum process undermined Indian peoples’ survival. A referendum where majority rule tramples minorities would render consensus unnecessary. After considering and rejecting a Constitutionalized referendum procedure, all signatories of the Constitution Act, 1982 brought it home without a Referendum procedure.
An Aboriginal way of thinking, knowing, seeing and experiencing the world rendered my Constitutional dilemma moot. Moot not only because the 1930 Constitution Act only decides a federal-provincial dispute over who has official jurisdiction over Treaty land but because it ought not to have been applied by the Courts to decide and define Aboriginal and Treaty rights. Yet, cases where the NRTA (1930 Constitution Act) was misapplied such as R. v. Horseman, were subsequently relied on by R. v. Badger, then linked in that chain of questionable law to determine findings for what today ought to be doubted as valid law. Furthermore, doubt that law for its ex parte findings that were determined without Indian involvement to which I have referred.
What further renders my Constitutional dilemma moot is trust, the honour of the Crown, not because it has been upheld, but because it has been broken. Yet, Aboriginals still dare to believe that in time justice will be done; that Aboriginal negotiation with parliament and perhaps with legislatures will eventually create just mechanisms for informed Courts to apply through consultation rather than imposition.
Aboriginal Nelson Smallegs from Treaty No. 7 area demonstrated the trust that Aboriginals have in Parliament and Legislatures when he addressed the Special Joint Committee on the Constitution in 1981 by saying,
“I do not envy what you are sitting through. I would not take your place for anything in the world, but you are put there with your knowledge. You must have a good background, that you are put on this Committee, to decide the Constitution for all the people across Canada. I just want to say very strongly, think, and think about the Indian, his future, because I do not want to talk about what happened 100 years ago. We learned a lot from that 100 years. I want to have my grandchildren and my great grandchildren have a better life than I had and my grandfather had.”
Aboriginals perceived unjust case law, based on illegal precedents of now Constitutionalized documents that were themselves based on questionable jurisdiction and substance. In other parts of the world, this would lead to violence and endless cycles of killing and revenge killing. In Canada, we are fortunate that Aboriginal peoples are patient, proud of their Indian nations and of their country Canada, both of whom share one “vast island”. They were pleased with the dialogue that occurred at the Special Joint Committee on the Constitution of Canada in 1982.
Preference For Legislatively Negotiated Aboriginal And Treaty Rights
Aboriginal peoples say they are the older brother and they treat the injustice inflicted upon them as the irresponsibility of a foolish younger brother who steadfastly refuses to consult them. They view the patriation of the Constitution as a way to force the younger brother to negotiate a settlement of Aboriginal and Treaty rights. Aboriginals consider Court decisions to be inferior to negotiated settlements. They consider Constitutionalization of the requirement to consult them as a means to force negotiation through the Constitution.
The Honourable Bryce Mackasey stated,
“We cannot redress all the injustices of the past, you have not asked us to do that...the best settlements are the negotiated settlements...lawyers will tell you that...we have got to force negotiation and that is what you are asking us to do somehow through the Constitution, that is why I say: let us not be too elaborate.”
Government Procedural Priorities
The Liberal Party resolution was “to bring back the Constitution unilaterally” meaning whether the provinces support it or not, and “the patriated Constitution must include an amending formula” and “it will also include...a Charter of Human Rights.” Aboriginals wanted the existence of Aboriginal and Treaty rights entrenched in the Constitution prior to patriation. Premier Blakeney of Saskatchewan wanted it to be after patriation. A middle ground was found from the presentation of Kirk Kickingbird, a Washington attorney who had just completed a review of 200 years of Indian legal history in the United States. As legal counsel for the Federation of Saskatchewan Indians, he proposed including the existence and protection of Aboriginal and Treaty rights without stating what they are, so that they may be negotiated later, in the future. That way, Aboriginals are not locked into a Constitutionalization of diminished rights. Each Treaty and Aboriginal right would have to be negotiated with representatives of legislatures. Then once negotiated, Aboriginal and Treaty rights would be defined by the Courts, who would do so regardless of whether they are Constitutionalized or not.
At the time of the patriation hearings, Patrick Madahbee was President of the Union of Ontario Indians and an agent for the Anishinabek who comprise Ojibways or Chippewas, Ottawas, Delawares, Potowatomis and Algonquin nations situated North of the Great Lakes. He spoke of how their grand councils, comprising chiefs or Ogimauks, made treaties with other Indian Nations in every direction, including Madoweg, the Iroquois confederacy, the Abernaki, Mi’kmaq Matronimouw, Micmacs, Mashkegons, Anishnabeg-Aski, Lake of the Woods Cree and subsequently with European nations, the French and later the British. He spoke of the Treaty of Niagara, ratified at Detroit in 1764 as the foundation of all treaties and though Canada does not recognize treaties made [“outside its present borders” ] in the United States, Indian nations do not recognize Canada’s current borders as de-legitimizing cross-border treaties made with the Imperial British Crown, which were to be protected by the Royal Proclamation of 1763. Canada’s Indian nations were thus joined as links on a silver covenant chain of participating nations in the Treaty between the British and Iroquois confederacy that was recorded on a wampum belt for posterity. The linked chain of the two distinct cultures was to continue forever.
The plan of the government of Canada was to patriate the Constitution first and then work out Indian rights second. The first part of the plan was accomplished by ss.25 and 35 upon patriation in 1982 and then the second part of the plan was partially addressed by amendment to s.25(b), the addition of ss.35(3) and (4) and the creation of s.35.1, all by Constitutional Amendment Proclamation, 1983, SI/84-102.Yet the legislative assembly in Parliament has not negotiated to define Aboriginal and Treaty rights, leaving that instead for the Courts.
Sharing Land and Resources as a Political Chose In Action, Not Physical Property
Our Aboriginal nations shared land and natural resources. The concept of nation was not tied to exclusive possession over lands, which were considered a common possession to be used by whoever happened to be there at the moment. The same land could be part of many Indian nations. The word, “peoples” has a legal status and legal rights under International Law. The Charter of the United Nations: Article 1(2) codifies a principle of right of peoples to self-determination. Indian “peoples” are nations who were wise enough to self-determine their future by choosing to make peace treaties rather than fighting over land that they traditionally shared with other nations from time immemorial.
Collective Political Rights Extinguished by Both Individual Property Rights and Blood
When Indian nations offered to share their land in return for peace, the British made treaties that were real estate deals, which Patrick Madahbee stated initially “read like any other British real estate conveyancing document.” While the Aboriginal nations were offering collective rights to share the land, the British were taking exclusive possession and presuming they could then dictate how Aboriginal nations were to exercise collective rights to which they needed no instruction or permission. Section 91(24) of the B.N.A. Act was used by the Federal government to legislate paternal control over how Aboriginal nations were to exercise their collective rights in sharing the land now under exclusive possession of the federal government, while provincial governments took exclusive possession of natural resources. The federal government has never allocated funding to implement self-determination of Self-Government of Aboriginal peoples but it allocates transfer payments to “have not” provinces.
By 1870, the federal government unilaterally defined who was Indian. Would England unilaterally define who was a citizen of France? In Canada, collective political rights are being confused with race. They are being extinguished by both racism and individual property rights. Collective political rights suffer extinguishment by racism that is based on the percentage of Aboriginal heritage in one’s bloodline, given separate and distinct status of Indian and metis in the Constitution and by sex and marriage in the Indian Act, with financial implications for those differentially designated. Aboriginal societies want to decide their citizenship and that may include non-Aboriginals connected with their communities neither by blood nor marriage.
The federal government of Canada made unilateral decisions that gradually reduced the powers of Indian governments and as Indian dependence on federal governments increased, Indian economic structures decreased. A tribal society with individual liberties among a collective is different from individual rights that are protected from state interference by what is now our Charter of Rights and Freedoms. Section 25 of the Charter is to shield existing Aboriginal rights from abrogation or derogation by the Charter, so that collective rights of tribal languages, cultures and social and vocational traditions of Aboriginal peoples cannot be diminished by individual rights practised by all Canadians.
Aboriginal Oral Languages Lost And
Unacknowledged In Untranslated Written Legal Documents
While Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 contains the English version of the Constitution Act, 1982 and Schedule A to the Canada Act 1982, (U.K.) 1982, c. 11 contains the French version, and both are equally authoritative, these languages only comprise half the founding heritage of Canada, that being the two languages of the European immigrants who fought for exclusive possession of Aboriginal nations’ lands. Yet the Canada Act 1982, (U.K.) was translated to no Aboriginal language from among the perhaps 604 Aboriginal nations of Canada that comprise the other half of our heritage as a nation. Therefore, Aboriginal languages carry no authoritative weight in our Constitution. Furthermore, so far as I know, no Treaty, statute or government regulation touching upon Aboriginal Law has been translated into any Aboriginal language either.
In fact, previous government education programs such as the residential schools fiasco initiated in 1928 have resulted in a situation where many Aboriginal children cannot converse in the language of their grandfathers. The residential schools program attempted to assimilate Aboriginals by taking the Indian out of the Aboriginal, targeting generations of children by banning the use of their languages, cultures, removing them from their homes and families to a church operated residential school far away that was infested with racists, sadists and pedophiles who used violence and sexual exploitation to subjugate the children in what was a crime against humanity.
Aboriginal Consensus v. Non-Aboriginal Majority Rule
Indian government has traditionally been by consensus, requiring negotiation until all have been convinced, no matter how long it takes. It is not unlike a jury that must reach a unanimous decision in order to reach a verdict. That contrasts with the system of majority rule. According to Mr. Hawkes, the Aboriginal rule of unanimity protects the minority. Whereas under majority rule, there is no necessity to consult minorities or negotiate with them. Out-voting them is sufficient.
Until 1960, Aboriginals did not have a vote and neither did they have a legal voice. When Aboriginals were allowed to be citizens of Canada, when they were given a legal voice to politically participate in Canada as legal persons, their perception was that they were also unilaterally deprived of their nationalities or of their citizenship in their Indian nations. What was their legal citizenship prior to 1960? Peoples who share lands with other peoples can conceive of peoples who share nationalities with other peoples. If the land can be collective property of many Indian nations, it is not a stretch that Indian peoples who have a connection with land claimed by two collectives could have two nationalities. Indian peoples have connection both to a history prior to European immigration and to a history from the point of contact to the present. They are citizens of both.
Loss of Sovereignty Without Consent
Treaties did not consent to loss of sovereignty and in many cases, they did not consent to a relationship with Canada. The British Crown promised to respect Indian sovereignty. Aboriginal nations viewed participation in Constitutional negotiations as a means to prevent Canada and the provinces from “[restricting, abridging, or in any way modifying the rights of Indian nations]” and they did not want patriation without first negotiating entrenchment of Indian rights.
Aboriginal peoples perceive themselves as political entities who made nation to nation treaties with the Imperial Crown. Many treaties and the Royal Declaration of 1763 use the words, “Nations or Tribes of nations”:
...And whereas it is just reasonable and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by the U.S., are reserved to them, or any of them, as their Hunting Grounds...”
Treaties were political, not racial. Neither the Royal Proclamation of 1763, the Constitution Act, 1867, legislation nor treaties used the words “native peoples”, which Aboriginal peoples considered to be based on race. Historically and legally, the word “native peoples”, has no political meaning.
The Royal Proclamation of 1763...all the early treaties...contain the words “nation” or “tribes”...there is no precedent, legal, Constitutional or historical for the use of the words, “native peoples” or “native peoples of Canada”. The words have no legal meaning...these words, “native peoples” are racially, rather than politically, based...and race is not the source of our rights...We...use the words “nations”, “tribes”, and those have meaning and we - [as did Lord Bathurst’s directive to the Government of Upper Canada and the Indian Department in 1815 but he preferred use of the word “nations” over “tribes”] suggest their use be continued in the Constitution of Canada.
The “Proposed Resolution As Tabled October 6, 1980" for what ultimately became s. 25 of the Charter of Rights and Freedoms but which then was s.24, originally used the word “native peoples”, which the approximately 20 Aboriginal groups who addressed the 1980-81 Special Joint Committee on the Constitution considered to be racist:
Undeclared Rights and Freedoms 24. The guarantee in this Charter of certain rights and freedoms shall not
be construed as denying the existence of any other rights or
freedoms that exist in Canada, including any rights or freedoms
that pertain to the native peoples of Canada .
25. This section is the present section 24 amended to state in greater detail the kinds of rights and freedoms pertaining to native peoples that are not affected by the Charter and would set them apart from other rights and freedoms not affected by the Charter. [For the present section 25 see subsection 52(1) and the explanatory note hereto.)
The Charter Of Rights Has No Connection To “Undeclared Rights” Known To Exist
Aboriginal peoples, objected to the term, “undeclared rights” because they had declared the existence of their rights and the Crown knew of those rights. Paul Williams, an agent for the Anishinabek, Union of Ontario Indians, stated that protections from Charter derogation was not that important because Charter rights were individual rights but Treaty and Aboriginal rights were collective rights.
Williams also objected to Aboriginal rights being worded in negative terms rather than in positive terms, which he said ought to include statements that: (1) the Royal Proclamation of October 7, 1763 is part of the Constitution because “it provides for the rights of the nations or tribes”; (2) the treaties between the nations or tribes and Her Majesty are binding and part of the Constitution; (a)(i) Indian nations have the right to determine their own citizenship and to base it on immigration rather than race (as required under the Indian Act); (ii) discrimination against Aboriginal women is part of the federally made Indian Act but not a law among Indian nations [this concern was addressed when it was Constitutionalized by amendment in 1983 by s.35(4): Notwithstanding any other provision of this Act, the Aboriginal and Treaty rights referred to in subsection (1) are guaranteed equally to make and female persons.”]; Indian rights exist to (b) form Self-Government (f) and to practice Self-Government; [Could Self-Government now be an individual right as well as, under s.2(d) “freedom of association” of the Charter?] © control of lands and resources; (d) determine education of their children; (e) use their languages; (f) exercise Treaty rights and (g) exercise all rights Aboriginals exercised as nations or tribes at the time of first contact or negotiated by Treaty without surrendering.
Paul Williams’ argument was that numerous Indian nations exist within Canada, are recognized by Treaty and ought to be recognized in the Constitution because Canada must now honour those treaties made by the British, which purportedly devolved to Canada by the Statute of Westminster in 1931 despite the fact that:
...nothing in the statute of Westminster suggests Britain’s Treaty responsibilities to our nations were fully devolved to Canada, and we know of no rule of international law which permits one nation to transfer its Treaty obligations to another, a third nation, without the consent of the nation with whom it has the Treaty.
How these numerous Indian committees exercise Self-Government within Canada would be left until after patriation because it would require negotiation that exceeds the time frame necessary for patriation.
Process: Constitutionalizing The Existence of Aboriginal and Treaty Rights
Saskatchewan Premier Allan Blakeney proposed recognition of Aboriginal and Treaty rights but he preferred that they be recognized after patriation, contrary to the Aboriginal groups in Saskatchewan who comprised the largest number of Aboriginals in any Canadian province and preferred Indian rights be protected prior to patriation. Indian representatives went to England to present their case to the British House of Commons, the House of Lords and the Queen or her Official Representative. Premier Blakeney proposed the following:
Appendix K, Indian and Native Rights, Section 24, Saskatchewan Draft Marginal note changed
from: Undeclared rights and freedoms
to: Other rights and freedoms
24. (1) The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
(2) Nothing in this Charter abrogates or derogate from, or shall be construed or applied so as to abrogate or derogate from, any rights enjoyed by Indians by virtue of treaties made between Indians and the Crown or any historic rights which pertain to Indians, Inuit, Metis, or other native peoples of Canada.
When the Honourable Jean Chretien, Minister of Justice, as he was then, made a statement to the Special Joint Committee on the Constitution on January 12, 1981, he titled the section on Aboriginal and Treaty rights as “Native Rights”, saying the committee had heard from numerous groups of “Native peoples”:
Most of the matters raised before the Committee remain subject to negotiation between governments and native peoples. The Prime Minister has made a commitment that these negotiations will take place immediately after patriation.
Yet it is possible to state in greater detail the kinds of native rights which are not to be adversely affected by the Charter and it is possible to set these rights apart from the other undeclared rights and freedoms. Therefore, I am proposing somewhat along the lines suggested by Premier Blakeney that Section 24 be re-worded to read as follows:
The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of:
a) any Aboriginal, Treaty or other rights or freedoms that may pertain to the Aboriginal peoples of Canada including any right or freedom that may have been recognized by the Royal Proclamation of October 7, 1763; or
b) any other rights or freedoms that may exist in Canada.
The final version was partly repealed and re-enacted to become:
Aboriginal rights and freedoms not affected by Charter
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any Aboriginal, Treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 7163; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
Paragraph 25(b) was repealed and re-enacted by the Constitutional Amendment Proclamation, 1983, See SI/84-102.
Paragraph 25(b) as originally enacted read as follows:
“(b) any right or freedoms that may be acquired by the Aboriginal peoples of Canada by way of land claims settlement.”
Misapplication of Aboriginal/Treaty Rights Not Subject To Section 1 of the Charter
The case law recognizes s.25 as a shield, protecting Aboriginal and Treaty collective rights from individual Charter rights. Section 25 has been called an interpretive clause by Thomas Isaac but Paul Williams is correct, collective Aboriginal and Treaty rights cannot logically be abrogated or derogated by individual rights in the Charter. Sections 35 and 35.1 of the Constitution Act, 1982 sit outside the Charter. That means sections 25, 35 and 35.1 are not subject to section 1 of the Charter or the section 1 tests from R. v. Oakes used to limit individual Charter rights. Both R. v. Sparrow and R. v. Badger admit s.35 is not subject to s.1 but then they go about limiting collective rights by using section 1 tests of individual rights to determine a valid legislative objective, minimal impairment, a link or rational connection and balancing or proportionality tests.
Division of Powers v. Aboriginal and Treaty Rights
Such case law inconsistencies are different from unilateral legislative law inconsistencies that contrast with mutual Treaty terms solemnly negotiated by concurrent intent concerning the fore mentioned misapplication of the Constitutionalized 1930 NRTA. The NRTA was applied to diminish Aboriginal and Treaty commercial fishing rights in R. v. Horseman, but the NRTA settles a federal-provincial dispute for official jurisdiction over Aboriginal and Treaty land. It was little more than a division of powers matter not involving Indians whatsoever in the agreements or the legislation that applied to the federal, Alberta, B.C., Saskatchewan and Manitoba governments. The logic of R. v. Badger (at paras. 46-7) relying on R. v. Horseman’s (at para.60) interpretation of para.12 of the (ex parte legislation, from an Indian perspective) 1930 NRTA and calling it a binding resolution of the Treaty right to hunt commercially is weak.
Rights Differ Among Indian Nations
Because the rights of each Indian nation are different, there is no such thing as Indian rights spanning four provinces. There are different and negotiated Treaty rights. There are way-of-life rights that include political rights that were consolidated into Aboriginal rights. They too were not all the same among Indian nations. It was thus collective rights that Aboriginals wanted recognized and protected prior to patriation. Recognized, protected collective rights would show their societal rights existed prior to any confirmatory Royal Proclamation or Constitution created by European immigrants.
Entrenchment of Treaty protection prior to patriation was important because:
Laws of Canada, made by the Parliament of Canada, have not made treaties binding on Canada...we have people in court...because federal and provincial laws have...”superceded the terms of the treaties.” We are suggesting a provision within the Constitution itself that treaties are binding upon the federal government; that they are not subject to the kind of unilateral abrogation that has taken place the past 113 years.
Courts Fill Constitutional and Legislative Gaps By Using Federal and Provincial Laws;
Courts Fill the Gap of Undefined Collective Rights By Using Tests For Individual Rights;
But All That Would Change with Implementation of Aboriginal Self-Government and Constitutional Definition of the Scope of Aboriginal and Treaty Collective Rights
Nothing in our Constitution revives Treaty rights that were unilaterally extinguished by federal or provincial laws. Rather, existing Aboriginal or Treaty rights, those not extinguished or surrendered, have been protected. In cases since patriation and after R. v. Oakes, Courts have tended to apply s.1 Charter tests to limit Treaty rights, possible because of a lack of Aboriginal Self-Government that has left a gap for provincial and federal laws to apply where no Aboriginal Self-Government laws have stated Treaty rights.
It Is Time To Define Aboriginal and Treaty Rights As Collective Rights
I would anticipate that if Aboriginal governments gave some thought to stating their rights, both Aboriginal and Treaty, as Aboriginal Laws, that federal and provincial legislation would eventually legislate to exclude what would become Aboriginal jurisdictions. One problem at present, is that Aboriginal and Treaty rights remain publicly undefined. Though that may have been so that inadequately, improperly or incomplete rights would not become Constitutionalized, the Aboriginal Court actions over Treaty rights continue.
Self-Government To Rectify Weak But Constitutionalized Legislation and Case Law
Self-Government would exercise control over land, which would require exercising control over resources on those lands, which in turn would provide legitimacy to Aboriginal and Treaty vocations for both communal self-sufficiency and the financing of Self-Government. Self-Government would be able to ensure Aboriginal and Treaty rights are not defined by division of powers disputes between Federal and Provincial governments.
Justice Requires Negotiation of Aboriginal and Treaty Rights
By Political Process, Not By Court Imposition
During the 1980-81 hearings by the Special Joint Committee on the Constitution, the Honourable Bryce Mackasey acknowledged the existence of Aboriginal and Treaty rights, but asked, “what are they and how are they best determined.” From then Prime Minister, Pierre Trudeau, to members of the Special Joint Committee, the Constitution was viewed as a mechanism by which the Courts would resolve problems; however; they expressed the concern that if Aboriginal and Treaty rights were not negotiated [which was what the Aboriginal groups wanted], if one took the matter of definition out of the political process and put it in the Courts, then injustice would result. If legislatures Constitutionalize bad law, then when Courts apply it, injustice will be done:
Aboriginal rights are best determined and resolved through negotiations, through the political process, based on a statement perhaps that such things exist. Rather than have [them determined] through the Constitutional process and have the Courts determine with perhaps insensitivity or lack of appreciation or knowledge, and I think this is the Prime Minister’s concern, as well, that this is one of the things that if we take it out of the political process and put it in the Courts, it will not do the Aboriginal people justice.
In order to do justice with regard to Aboriginal and Treaty rights, Mackasey saw definition of them as being necessarily for the political arena and not for Constitutional entrenchment, but mere recognition was significantly sufficient for the Constitution, saying if the Constitution recognizes them, defined or not, Courts will define and spell them out. It appeared to be a contradictory statement. Are they to be negotiated politically with Legislatures or defined by Courts whether negotiated with Legislatures or not? Treaty 7 Aboriginals chose negotiation through participation in the Constitutional process prior to patriation but the time limitations for patriation prevented such a negotiation.
After the Order-In-Council Of June 23, 1870 Transferred Hudson’s Bay Company Territories to Canada, the Government of Canada Promised Negotiations But in 1982, the Inuit Requested That the Order-In-Council Be Constitutionalized By Including it in Schedule I of the Constitution Act.
What the government did do at the request of the Inuit Council was to Constitutionalize the acquisition of the Hudson’s Bay Company territories by Canada, a Constitutional recognition of Aboriginal rights prior to Treaty or transfer. Jean Chretien, in his Statements to the Special Joint Committee on Constitutional added:
...as requested by the Inuit Council on National Issues, the Order-In-Council of June 23, 1870 admitting Rupert’s Land and the North West Territory to the Union will be added to Schedule 1 of the Constitution Act.
These territories were then called Rupert’s Land and the North-Western Territory. Treaty No. 7 Aboriginals cited the Royal Proclamation of 1763 and the Canadian Senate and House of Commons address to the Queen in 1870 as evidence of legislative recognition of Aboriginal rights; but, the Canadian government declaration uses the words, “Claims of Indian tribes...will be considered and settled in conformity with equitable principles”:
And furthermore that, upon the transference of the territories in question to the Canadian government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the Aborianes.
These words indicate a negotiation is to take place but they do not suppose unilateral legislation. Carved from these lands, a minuscule version of Manitoba joins Canada in 1870, followed by B.C. in 1871, Yukon in 1898, Alberta and Saskatchewan in 1905, and by 1912 the remaining portions of Manitoba, Ontario and Quebec (part of which became Labrador when Newfoundland joined in 1949). Principles of Equity would suggest that the government of Canada did not pay quantum meruit for what Aboriginal peoples traded.
Inuit Request To the Special Joint Commission On the Constitution of Canada
Prior to patriation, the Government of Canada Constitutionalized into the “Schedule to the Constitution Act, 1982", the “Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the union dated the 23rd day of June, 1870", renamed as “Rupert’s Land and the North-Western Territory Order.”
Nunavut Negotiations Began in 1969, Prior To the Inuit Request Re Patriation
That benign recognition appeared to set the stage for the Nunavut Agreement in Principle and an unanticipated means of amending the Constitution of Canada by Aboriginal consent and negotiation, not by ss.38 or 41-44 of the Constitution Act, 1982 but by s.35(3).
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Recognition of existing Aboriginal and Treaty rights
35. (1) The existing Aboriginal and Treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.
Definition of “Aboriginal peoples of Canada”
(2) In this Act, “Aboriginal peoples of Canada” includes Indian, Inuit, Metis peoples of Canada.
Land claims agreements
(3) For greater certainty, in subsection (1) “Treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.”
So here, there is a precedent that s.35(3) can be used as a Constitutional amendment provision that requires the consent of Aboriginal peoples. Thomas Isaac points out that s.35(3) Constitutionalizes the Nunavut Final Agreement, providing its Treaty rights with Constitutional status:
The result is that the agreement, when ratified, is not subject to extinguishment, or amendment by Parliament exclusively. Rather, any amendment to the agreement must be mutual as outlined in the agreement [art. 2.14.1, Canada, Indian Affairs and Northern Development, Agreement-In-Principle Between the Inuit of the Nunavut Settlement Area and Her Majesty in Right of Canada, (Ottawa: 1990) [hereinafter, “the agreement”] reads: “Except where otherwise permitted in the Final Agreement, amendment of the Final Agreement shall require the consent of the parties by the process to be set out in the Amendment Provisions of the Final Agreement.”
The agreement makes provisions for the explicit recognition of s.35(3), “Based on this Agreement, the parties shall continue negotiations in good faith, to conclude a Final Agreement within eighteen months of the ratification of the Agreement, which Final Agreement will be a land claims agreement within the meaning of s.35 of the Constitution Act, 1982.”
Isaac notes that by s.35(3), these Treaty rights now have more weight than legislative or contractual provisions and as Constitutionalized Treaty rights, they require Aboriginal consent to amend what is a Constitutional document by virtue of s.35(3). The Final Agreement has since been ratified and on April 1, 1999, Nunavut became Canada’s third territory. It was carved out of the North-Western Territory, from the Order-In-Council of June 23, 1870 admitting Rupert’s Land and the North Western Territory, an acquisition from the Hudson’s Bay Company, whose authority was with the British Imperial Crown.
Negotiation After Order-In-Council of 1870 and Prior To Nunavut Agreement
Purported British/Hudson’s Bay Company authority to transfer the land to Canada was prior to Treaty No. 1 (August 3, 1871), Treaty No. 2 (August 21, 1871), Treaty No. 3 (October 3, 1873), Treaty No. 4 (September 15, 1874), Treaty No. 5 (September 20 and 24, 1875), Treaty No. 6 (August 23, 28 and September 9, 1876), Treaty No. 7 (September 22, 1877), Treaty No. 8 (several dates, 1899), The James Bay - Treaty No. 9 (several dates, 1905), Treaty No. 10 (1906), Treaty No. 11 (several dates, 1921) and more recent treaties with Indian Nations whose ownership precedes European immigration.
In 1870, it takes a leap of faith for one party to transfer land to a second party that belongs to a third party. But there is no doubt that Aboriginal and Treaty rights were not extinguished in 1870 in the official transfer from Britain to Canada. By analogy, there ought to be no extinguishment of Aboriginal or Treaty rights in 1930 by the NRTA between the Dominion Government of Canada and the Provinces of Manitoba, B.C., Alberta and Saskatchewan. The division of powers over Aboriginal and Treaty lands merely transferred determination of official jurisdiction from Canada to the Provinces of Manitoba, B.C., Alberta and Sasktachewan.
Lack of Implementation of Aboriginal and Treaty Rights Is UnConstitutional
While Thomas pointed out that had the Nunavut Agreement-In-Principle not been ratified, its lack of implementation would have violated a Constitutional right. A duty of the Crown for the implementation would be to provide funding. It was a moot conjecture because Nunavut became Canada’s third Territory on April 1, 1999.
Political Precedent To Provide Funding For Implementation of Self-Government By Treaty Could Have Legal Significance Enforceable By Courts
What matters is that Nunavut has created a political precedent that Aboriginal Self-Government requires funding from the Parliament of Canada. That is Canada’s legislative role. It must implement the Nunavut Treaty right as Constitutionalized by consent in the Final Agreement. From the moment of the Nunavut Final Agreement forward, the federal legislative role in Self-Government has a reference point. It is to provide funding to implement Aboriginal Self-Government, a fully elected legislative assembly,
“...giving the peoples of the Eastern Arctic a voice in their affairs and their future...and at the same time..., Canadians of the south have come to recognize the right of peoples of the north to take control of their destiny...As a nation, we have come to understand that our country is made up of different communities, each with a unique identity and unique values. Values that enrich and strengthen this common project we call Canada...we embrace our many peoples and cultures...More than 30 years ago, when I was a young Minister, I came here [to Iqaluit] for the first time...the 6 years, 2 months, 2 days and 3 hours that I was Minister of Indian and Northern Affairs were the best years of my life.”
Only Languages of European Immigrants Are Constitutionalized
Languages of Aboriginals Are Not Spoken By Federal Or Provincial Governments
The Prime Minister spoke English and French only, while Northern peoples introduced their languages and artistic entertainment to a televised southern Canadian audience:
“30 years ago , we Inuit reached a turning point in our history. It was time for a new vision, a vision which united and protected our distinct culture, for us and for our children [as translated]. With this in mind, the Tungavik Federation of Nunavut was formed in 1982, its role and goal was to focus and negotiate Inuit land claims issues and agreements with the federal government. This complex task of unprecedented scale has resulted in the Nunavut Agreement, the largest Aboriginal land settlement in Canadian history.”
While the language provisions of the Charter promote two founding nations, purportedly French and English, Aboriginals of many different languages suggest the founding cultures are the (1) Indian nations and (2) the European immigrants.
Structure Of the Constitution of Canada, 1982
The proposed role of the legislatures and the Courts were set out by Paul Williams for the purpose of Constitutional interpretation. His proposal ultimately formed the structure of the Constitution, though not how the Courts later interpreted it. With regard to Aboriginal and Treaty rights, he suggested (1) that s. 1 of the Charter should not limit such collective rights [which the Courts have disregarded in case law for ss.25, 35 and 35.1], (2) that they ought to be in a separate part of the Constitution [ss.35 and 35.1 are situated outside the Charter], and (3) that the amending formula protecting Indian rights ought to be by consent. [s.35.1 provides for participation; however, until the Nunavut Agreement, s.35 had neither required consent nor been used as a form of constitutional amending formula requiring both consent of Aboriginal peoples and implementation funds from the government]:
The principle of noninterference by one government with the internal workings of another has been part of the treaties with the Crown since the very beginning [though not implemented by the government of Canada]...mere recognition is not enough...rights require protection and entrenchment...so rights recognized in the first round...do not disappear in the first amendment.
We therefore propose that the rights and relations we are discussing here should be placed in a separate part of the Constitution, and that that part should not be amended without our consent and agreement.
...words of the present section 1, which place further limits on the application of the Constitution and the rights protected in the Constitution, should not apply to the separate part we are discussing.
What we are proposing is an amending formula which would protect the rights of Indian nations and their existence from arbitrary or unilateral change or attack by other governments of this land.
...chiefs would prefer British rather than Canadian entrenchment, recognition and protection of these rights. Nevertheless, proper recognition and protection within Canada would be acceptable.
Paul Williams described two kinds of treaties. Constitutional treaties ought to be those describing political relations, not property treaties such as those that are real estate deals, which could be protected by other means.
How Can Legislatures Prevent Unjust Court Decisions?
Hearing from the 20 Aboriginal groups, the Special Joint Committee became concerned about the Aboriginal perception of unjust Court decisions. Mr. Allmand realized that legislatures must prevent unjust Court decisions in the future:
...our Courts in Canada have established a long line of precedents which have failed to recognize the rights which you have argued here this evening and which you believe exist and many other people believe exist. And unfortunately, governments and other Courts are using those precedents to continue injustices, to pile one injustice upon another, and what you are suggesting in effect is that we wipe clean that long string of precedents which did not recognize treaties and other Constitutional documents and make it that the Indian nations and Indian peoples of Canada have rights, that they be put beyond the power of provincial and federal legislatures and that they be looked upon as they were originally looked upon...you want us to wipe clean that slate of a long line of Court decisions, wipe them away?
Due to separation of powers among Canada’s executive, its legislatures and its Courts, due to the independence of the judiciary, can legislatures merely wipe clean a long line of Court decisions in order to prevent further injustices from Courts relying upon precedents that are essentially errors in law? Yes, legislatures have that power. When that decision is made, Courts will follow and define the details of laws created by legislatures.
Self-Government: the Promised Obligation of the First Imperial Crown Treaty of 1664
Mr. Madahbee answered Mr. Allmand by saying that Aboriginal peoples have much to offer Canada and if the government of Canada could use the Constitutional opportunity to prevent Courts from inflicting such injustices in the future, then the promise of the first Crown Treaty with the Iroquois Confederacy in September 24-5, 1664, described by Paul Williams, would allow implementation of Aboriginal Self-Government within Canada:
Two Row Wampum Belt of the 1664 Treaty of Albany Preserved,
Contains Two Parallel Lines On A White Field
its meaning is preserved on a wampum belt which contains two parallel lines on a white field. Its significance is that the boat of the six nations confederacy and the boat of the British will travel down the same river in the same direction but neither shall interfere in the course of the other. That is, neither government shall interfere in the internal affairs and internal workings of the other.
Aboriginal Evidence Was Hearsay, Making Aboriginal Oral Culture and History Hearsay
Rodney, Soonias, legal counsel, Federation of Saskatchewan Indians explained that the intent of Premier Blakeney’s s.93(a) was to point out that Treaty and Aboriginal rights included oral traditions and lifestyles, “not just what is in the Treaty, not just what is written down.” Here, they are talking of oral evidence and implied rights based on historical and sociological evidence, negotiations and understandings.
Oral evidence was subsequently acknowledged by the Supreme Court of Canada in Delgamuukw v. B.C. but then it misunderstood and misapplied the Aboriginal concept of land ownership by creating a test of exclusive ownership. When such a test was applied, no Aboriginal nations could pass it. It was based on exclusive possession of land but that concept contrasted with the Aboriginal understanding that land must be shared and cannot be exclusive:
Pre-sovereignty occupation by the First Nation has to be exclusive. If land was used by others, then it’s necessary to show the claimant First Nation had intention to retain exclusive control & power to exclude others if they chose (Hogg, pp.27-24, 27-25).
Lack Of Implementation Does Not Extinquish Aboriginal Or Treaty Rights
Kirk Kinkingbird, legal counsel, Federation of Saskatchewan Indians, the Washington, D.C. attorney stated that in the United States, unless they were specifically surrendered, time has not diminished political rights of treaties between sovereign nations. This concept means that lack of implementation of a Treaty right, for no matter how long, does not extinguish that right
Constitutionalization As A Reference Point For Judges
Chief Littlechild suggested that entrenchment of Treaty rights means that they would have priority status to other legislation [that unilaterally extinguished them], which would provide a reference point for judges. That would bring us back to the problem that one part of the Constitution cannot override another. Yet Chief Sanderson referred to the “sacredness of signing Treaty”, an “ongoing trust obligation” and that “honourable men entered into the treaties.” Such references spoke of the honour of the Crown and Canada’s fiduciary obligations to Indian nations which ultimately became part of case law almost from the moment they were made.
Dialogue Is Necessary
The dialogue on Aboriginal and Treaty rights from the Special Joint Commission on the Constitution demonstrates deliberation on the roles of the legislatures and the Courts as defined by the Constitution of Canada. The failure of the legislatures to negotiate a definition of Treaty and Aboriginal rights since patriation and the failure by Courts to follow the chain of decisions back to their discredited pre-1935 or pre-1960 origins or more recently still, prior to the admission of oral, historical and implied evidence, has lead to weak case law on Indian Treaty and Aboriginal rights. The Nunavut Agreement was 30 years in the making, involved the federal government and the Inuit peoples, defines Treaty rights requiring Aboriginal consent and federal obligations to fund implementation, and alters s.35(3) to transform it into a new means for amending the Constitution. The gradual emergence of Aboriginal Self-Government in other Treaty areas will redefine roles and it will itself be a defining step in amending the roles played by federal and provincial legislatures and Courts. This third level of government ought to be different from municipal government for the reason that Aboriginals envision it as a political chose in action.
The Self-Government chose in action will be exercised to preserve the existence of sovereign Aboriginal societies planted by the Treaty negotiations for and within this developing seed we call Canada. If Canadian law is a living tree, the political Aboriginal negotiators who signed North America’s and Canada’s first treaties are at its roots. Collective and political Aboriginal and Treaty rights are not understood or implemented by legislatures and Courts, who have to date undervalued the legal and political premise from which law in Canada has sprung and which has provided Canada with its opportunity and authority to import British law and political structure. Where does Aboriginal Self-Government fit in Canada’s governmental jurisdictions and structures?
Dialogue from Aboriginal groups on Patriation of the Constitution was able to convince the 1980-81 Special Commission on the Constitution of the existence of Aboriginal and Treaty rights but the means of protecting them did not reach a consensus.
As the government of Canada, the federal Parliament’s legislative intent was to patriate the Constitution, to bring it back to Canada, to place it under Canadian control, to include an amending formula and a Charter of Human Rights. Parliament’s Executive would do that unilaterally if necessary but it preferred to patriate our Constitution with as much agreement as could be obtained from Provinces and interest groups, including those from Aboriginal peoples.
The Courts were described as perpetrators of injustice, who had to be educated and Constitutionally compelled to re-interpret cases that relied upon a chain of flawed law, especially from prior to 1935 but also from prior to 1960. Even recent case law, if it relied on decisions that relied on flawed earlier decisions or misapplied legislation, then it too ought to be subject to re-interpretation in order to prevent continued injustice along the line of cases based on errors in law.
(2) Internal Aboriginal Process RE: Patriation
Internal Aboriginal Process With Regard To Patriation included obtaining a seat at the Constitutional table by opening a dialogue with both the British Crown and the federal government, by reaching a consensus on both whether Aboriginal and Treaty rights ought to have been included prior to or after Patriation, and if included, whether they ought to have been defined or remain undefined.
Aboriginal groups preferred legislative entrenchment of the existence of Aboriginal and Treaty rights prior to patriation but they wanted those rights to remain undefined until they could negotiate a consensus with legislatures on their definition, no matter how long it took; however, time limitations would prevent consensus on definitions prior to patriation. Based on past actions by legislatures and Courts, faith in the governments to honour their obligations and in the Courts to do justice and to define Indian rights should have been non-existent but Aboriginal groups displayed a hope that their quality of life within Canada could be improved if their societies were allowed to participate within Canadian society.
Aboriginals saw themselves as living on an island of North America, where their lands and lifestyles crossed the Canada-United States border and inter-provincial/inter-territorial (as well as inter-state) boundaries. They shared their lands with both other Indian nations and Canada and the United States. They see that since different societies and generations can share and negotiate terms to share the same land, then they can also negotiate terms to share some of the same laws but also leave room for Aboriginal jurisdictions with distinct Aboriginal laws within Canada.
It is similar to how Quebec has a provincial Civil Code but shares a Criminal Code with Canada. Indian Self-Government is understood as promised by Treaty, including the Royal Proclamation of 1763 (Self-Government), the Wampum Treaty of Niagara of 1764 (Treaty rights) and the first Crown Treaty with the Iroquois Confederacy in September 1664. Aboriginal Self-Government is connected with resources, meaning that Aboriginal nations would expect to make laws to control their access to resources on lands they share with other Canadians. The notion that land and resources could be exclusively possessed was a nonsensical concept for Indian nations.
Courts must beware of cases purporting to affect Aboriginal and Treaty rights that did not involve Aboriginal argument, evidence or participation. Aboriginal lawyers and judges want to be part of the legal process, either as members of the Bar and the Court or as an Elder Advisory Council that would provide information, evidence and argument to the Courts at all levels on matters touching Aboriginal or Treaty rights. Courts must also show deference to Aboriginal jurisdictions, once implemented, where Aboriginal laws will control land use, resources and access to resources.
(3) Future Processes Of Rights Protection
Legislatures will be expected to acknowledge Aboriginal and Treaty rights as being political rights, negotiated by peace treaties with independent nations. They will be expected to negotiate the scope of Aboriginal and Treaty rights with each political entity, to reach a consensus on what they are within a reasonable time and to provide funds to implement them within a reasonable time. The creation of the territory of Nunavut has set a precedent on how the procedure ought to take place.
While it was unwise to Constitutionally entrench the scope of Aboriginal and Treaty rights prior to patriation until they were negotiated between Indian nations and the federal government, it has been 30 years since patriation and there has been little progress. The living conditions on at least a dozen Aboriginal reserves such as Ottawapiskat (Attawapiskat) remain subhuman, deplorable, something ordinarily found in the poorest among the world’s poor nations.
Other than general statements that Treaty rights were to be negotiated by mutual consent and Aboriginal rights originated from societal customs and traditional ways of life, government has ignored the post-Patriation obligation to define Treaty and Aboriginal rights, to define Aboriginal jurisdictions and to fund Aboriginal Self-Government over those jurisdictions.
There was an acknowledgement that the definition of rights ought not to be left to Courts to unilaterally determine without legislative guidance and without legislatures first determining those rights by Aboriginal consent after negotiation with Aboriginal Treaty negotiators. Because if that were the case, both the Special Joint Committee on the Constitution including then Prime Minister Pierre Trudeau and the 20 Aboriginal groups waiting to negotiate the scope of such rights were all certain that justice could not be done. In the past thirty years, that is what has happened.
While there has been Aboriginal involvement in the Court process, in making arguments and in the acceptance of oral and unwritten historical evidence, the chain of weak Indian case law and misapplied legislation has not been researched, uncovered or fully disclosed. Nor have a Council of Elders been able to educate judges on the Indian matters over which judges must decide without any legislative guidance whatsoever. Without legislators negotiating the scope of Aboriginal and Treaty rights which would include Self-Government and jurisdictions that control Aboriginal access to shared lands and resources, the Courts will still lack guidance in improving the quality of Indian case law and in creating a better quality of life for Aboriginal peoples. Aboriginal tribunals may contribute some, once implemented.
(4) Substantive Aboriginal Rights
Legislatures can set the stage for correcting weak Indian case law and misapplied legislation, including Constitutionalized legislation that has been misapplied.
Appoint a Judical Committee Advised by an Aboriginal Council of Elders
To do that, Parliament and Provinces must create a judicial committee to work with an advisory Aboriginal council of Elders. Its task would be to review the Constitution, Legislation and Case Law, identifying and defining errors in law that have incorrectly been Constitutionalized, codified in legislation and relied upon as precedent in case law, including all the long line of cases that relied upon errors in law that mistakenly became precedent. Then Parliament and Provinces must legislatively correct and provide the Judiciary with the tools to correct the errors in law wherever they may be, so that justice may be done, so that the quality of life for Canada’s Aboriginals may be equal to that of other Canadians.
Beyond that, Legislatures must support Aboriginal Self-Government, so that an Aboriginal nation (as an internal society) may control not only its access to shared lands and resources but so that it may define its citizenship (band membership) without a blood line to determine percentage of Aboriginal blood (as any other nation allows immigration outside blood) and form the scope of its government, laws, education, culture and means of enforcement.
The honour of the Crown requires federal provision of funding to initiate implementation of Aboriginal Self-Government, regardless of the number of years that have passed since the promise was made by Treaty, as acknowledged by the Imperial Crown to “nations or tribes” in the Royal Proclamation of 1763; and rights on the wampum of its sister Treaty of Niagara 1764 .
And before that, the promise of Aboriginal Self-Government remains preserved on the wampum belt from the first Crown Treaty with the Iroquois Confederacy in September 1664.
Courts await the federal negotiation with Aboriginals on the scope of Aboriginal and Treaty rights, as promised in the dialogue between members of the Special Joint Commission on the Constitution and the Aboriginal groups. Prior to Patriation, those Aboriginal groups accepted Constitutional acknowledgement that their rights exist, on the promise that negotiation would take place to define the scope of those rights.
In the meanwhile, Courts fill the gaps as cases arise. Courts have determined that Aboriginal and Treaty rights, Constitutionalized but undefined, if existing in historical form, are to be accepted as existing in a modernized form.
But what rights exist? Since 1982, Courts have waited for guidance from federal-Aboriginal negotiations that have yet to begin; however, so long as decisions minimally interfere with federal legislation, there is no incentive for the federal government to negotiate as promised. Failure to negotiate the scope of Aboriginal and Treaty rights ought to violate the unwritten promise understood from dialogue with the 1980-81 Special Joint Commission on the Constitution prior to patriation.
Were Courts to accept a case from Aboriginal groups who received the promise prior to patriation, perhaps the validity of Patriation could be challenged or perhaps the Courts would rule that the government has an obligation to negotiate as promised during the 1980-81 Special Joint Commission dialogue on the Constitution prior to patriation.
Were Courts to indefinitely suspend all cases involving the scope of Aboriginal and Treaty rights that arrive before them and send the litigants to Parliament with an Order to Negotiate as promised during the Patriation hearings of the 1980-81 Special Joint Commission on the Constitution, legislators may perhaps begin negotiations with Aboriginal peoples on the scope of Aboriginal and Treaty rights with a renewed political urgency that is now non-existent.
Would Courts ever require government to fulfill its public promise to Aboriginal groups during Patriation to negotiate the scope of Aboriginal and Treaty rights, fund Self-Government and define a jurisdiction to govern?
What Is the Role Of the Legislatures and the Courts
According To Each Of the Four Themes Or Processes?
In 1982, the federal Parliament brought home the Constitution with an amending formula and a Charter of Rights and Freedoms. The Courts have since applied the Constitution Act, 1982 and provisions that apply to Aboriginal peoples. Aboriginal peoples have educated the public on the scope of their rights in long forgotten Constitutional conferences during Patriation.
Since Patriation, Aboriginal peoples have proposed amendments such as the those in the Charlottetown Accord, expressing their desire for implementation of Self-Government, to control access to shared lands and resources, to have a political and judicial voice on matters touching their interests. Yet legislators have not negotiated a definitive scope of Aboriginal and Treaty rights.
Courts have thus no means for consulting a Council of Elders and no means to ensure Aboriginal representation on matters that affect them. Courts cannot show deference to non-existent Aboriginal Tribunals, yet to be established after more than two centuries.
The future requires legislators to negotiate a consensus that defines the scope of Treaty and Aboriginal rights and the jurisdictions of Self-Government. The Courts must be either legislatively provided with a means to access a Council of Elders or they must find a judicially initiated means to access a Council of Elders. Such a wealth of Aboriginal knowledge would allow Courts to develop informed decisions on Aboriginal matters and interests.
Courts require legislative guidance on the scope of Aboriginal and Treaty rights and the jurisdictions of Aboriginal Self-Government to avoid repeating a judicial history of relying upon misapplied legislation and of applying weak case law that lacks pertinent argument and evidence in the absence of Aboriginal participation. Injustice will occur in case law and in quality of life until legislators negotiate Self-Government with Aboriginal peoples, funding initial implementation for a defined Self-Government jurisdiction over access to land, resources and by acknowledging Aboriginal political rights.
At that point, Courts will have all the pieces of the puzzle with which to define Aboriginal and Treaty rights, both from a historical perspective and from a new ability to re-interpreted Aboriginal case law precedent after the errors in law have been researched, identified, defined and corrected.
Aboriginal peoples want their rights Constitutionalized once defined. Courts would then have the necessary ingredients to define their scope in relation to federal and provincial legislation. If the Nunavut Agreement is the blueprint, then negotiations may include both the scope of Aboriginal and Treaty rights, the jurisdictions of Self-Government and the amending formula for Constitutionalized Treaty rights under s.35(3). By placing the terms right in the negotiated Agreement itself, Constitutionalization may perhaps follow.
Consistent Or Inconsistent?
Are these legislative and Court roles consistent or inconsistent? Whether the legislators and Aboriginal peoples negotiate and define Treaty and Aboriginal rights and the scope of Self-Government jurisdictions or not, Courts have defined those rights when cases required. Justice has been inconsistent or non-existent.
Dialogue between the Special Joint Committee on the Constitution and Aboriginal groups in 1980-81 produced a stated and shared belief that there could be no justice in the Courts for Aboriginals unless and until legislators and Aboriginal groups reached a consensus on the scope of Aboriginal and Treaty rights. Such a legislated consensus would guide Courts and create Self-Government mechanisms for judges to apply consentually negotiated knowledge on issues touching Aboriginal peoples.
A lack of negotiation, a lack of Constitutionalization of Aboriginal and Treaty rights, of the scope, jurisdiction and funding of Aboriginal Self-Government, a lack of implementation by legislators result in uncertain Treaty and Aboriginal rights. Confusion about the jurisdiction of Aboriginal Self-Government prevents all pertinent argument, evidence and knowledge from being presented to judges. That confusion limits the ability of the Courts to consistently do justice on Aboriginal issues or produce reliable case law.
When legislators choose not to fulfill a promise to negotiate Treaty and Aboriginal rights, choose not to negotiate a consensual definition of the scope of those rights, choose not to define jurisdictions of Aboriginal Self-Government, choose not to fund Aboriginal Self-Government, they set the stage for national shame and Aboriginal disaster. Undefined rights and jurisdictions create conditions where Aboriginals are isolated from the Canadian population, where opportunity exists for a flawed Department of Indian Affairs policy to become the 1928 residential schools program that resulted in crimes against humanity for generations, where the quality of life on reserves such as Attawapiskat (2011) does not allow Aboriginals to live with dignity, respect, sanitation, health or independence.
This song was written long ago but poverty and lack of support from Canada Council, the Foundation to Assist Canadian Talent On Record (FACTOR) and the Alberta Foundation for the Arts (AFA) has kept it from being released with all its compositional parts.
This version combines drums, piano, bass, lead vocal and harmony vocal for the first time; however, the song is still missing its guitar parts. Furthermore, a five minute version of the song was mixed with a seven minute version of the song in order to combine the lead and harmony vocals with the drums, bass and piano for the first time. Aside from creating some technical and timing difficulties serving as a protest of Canada Council, FACTOR, AFA policies, that changed the arrangement and meant an intricate harmony progression had to be omitted from this version.
There has been an inordinate amount of interest in this song and as a result of offers I have received about this song, I wanted to release at least one version of the song that combined drums, piano, bass, lead vocal and harmony vocals.
The guitar version of the song is different and unique and could stand on its own as a separate release (without the piano) once Petrified Wood Recording Studios, Stage One is functional sometime in 2012.
G.P.S. does not stand for Global Positioning Satellite, which would be useful for finding Home from anywhere on the globe. Nay. G.P.S. is the performing name of Gail Savorn. She does all three of the beautiful three part harmonies on the verses and bridges. I’ll be writing songs just for her voice. She is one of the music industry’s great undiscovered vocal talents. I hope to change that omission soon.
Of course, in Canada, unless one migrates to Vancouver or Toronto, one is considered to be in the middle of nowhere and that is how we are treated here in the Edmonton area by Canada Council and FACTOR - but for those favoured named/numbered companies, businesses and labels with such vast resources, they don’t need anything from them. Thus, they offer financial assistance to artists who do not need it. In Canada, professional artists are apparently those who do not need funding. Once they meet that criteria of lack of necessity, then they can have more grants than they could ever require.
The AFA has its favourites and provides advantages without competition to those it prefers over the moody, difficult artistic types. The AFA certainly does not like other artists to ask them why some performance opportunities are not distributed with a fair competition. Such questions result in a call from the head honcho who tells us we are not real artists and to leave his staff alone. It seems that honest, truthful, succinct questions hit home.
On this song, Geologist performs piano, bass, lead vocals. G.P.S. (Gail Savorn) performs a 3-part harmonic counter melody.
Drums, piano and bass accompany vocals by Geologist and three harmonic counter melody vocals by G.P.S. (Gail Savorn).
I Don't Say A Word, Geologist
To be released as a single, Monday, December 19, 2011 (though nobody will notice since it has no marketing and promotion funding), nine days after Human Rights day, one day prior to the usual Tuesday release day, “I Don’t Say A Word” describes the aftermath of a crime against humanity committed under the umbrella of the Canadian government, its laws enforced by the RCMP, its churches, its priests and nuns, its teachers and health workers. It was a cultural genocide to take the Aboriginal out of the Indian, an ethnocide committed under the guise of being an assimilation policy.
The underground rock instrumental, “I Don’t Say A Word” comprising piano, electric guitar, 12-string acoustic guitar, bass describes the spiritual consequences when we make our homes on Aboriginal land, silence the drum of the people and ignore voices of pain.
The entire Curse The Evil Of The Luck Lord double album of 31 songs is dedicated to the public disclosure that the government of Canada was determined to bring about the silencing of the drum. Toward that end, there are no drums on any of the songs, except the last song that offers a spirit of hope.
In Canada, the Canadian Government had its Indian Affairs department implement a policy to exterminate the Indian from Aboriginals in a cruel, inhumane, cultural genocide. It was a systemic abuse by the Canadian government committed by Canada’s residential school education system. They took Aboriginal children far away from their families, banned the use of their language and culture, forcing them to assimilate within a non-Aboriginal existence.
Far away from their families for 10 months at a time while school was in session, the children were subjected to vicious violence and sexual exploitation by priests and teachers who were pedophiles, sadists and racists. Under the appearance of educating children, the churches and the departments of education used the laws of Canada to harm Aboriginal children so that generations were physically, emotionally, psychologically, spiritually and mentally abused, scarred and injured.
Children and grand-children could not speak with their parents and grand-parents because the children and grand-children could only speak English while the parents and grand-parents could only speak an Aboriginal language.
When victims reported the atrocities they suffered, they were ignored. When they ran away or ran home from the residential schools or when their families tried to disappear with them and hide from the church operated, government residential schools, the RCMP tracked them down and returned them to the residential schools full of pedophiles, sadists and racists who implemented the government of Canada’s systemic extermination of the Indian in the Aboriginals for the purpose of committing a cultural genocide.
Generations lost who they were as Canadian society viewed Aboriginals with stereotypical images, dance, diets from fishing, hunting and bannock, dress tied to ritual dances and head dresses and bead making. Aboriginal languages and culture became endangered.
While Aboriginals tried to sweat together, to remind their spirits that material things are not of the spirit, Canadian society pursued more material possessions and sang a national anthem with the words of “our home and native land”. But the words of our national anthem ought to begin with, “Oh Canada, our home on Aboriginal land”, a possession Aboriginals considered to be something that could not be owned, such as the air or the water or the species of the Earth that we take ownership of for the purpose of economy. Many of our Aboriginals never did sign legal land treaties but that has not prevented land from being taken from them, followed by their forced removal to reservations near or far from their homelands.
Though our generation of Canadians did not perpetrate these crimes, our parents and grand-parents were either wilfully blind or oblivious to what was being done by our government to an identifiable minority within our society. Aboriginals were an identifiable minority confined by Canada’s Department of Indian Affairs to isolated Indian Reserves with whom Canadian society rarely interacted at the time. The designated Indian Reserves had living conditions equivalent to those found in the third world on a par with the poorest of the poor, rampant tuberculosis, high child mortality rates, high incarceration rates. Indian Affairs was the tip of the sword for the Canadian government’s residential schools program.
It was Indian Affairs overseeing education among the residential schools full of pedophiles, sadists and racists who implemented the government of Canada’s systemic extermination of the Indian in the Aboriginals for the purpose of committing a cultural genocide, an ethnocide.
It would not be until 1960 that Aboriginals were allowed to vote in Canada. It would not be until the late 1990s that the scope of what was done to Canada’s Aboriginals during the residential schools program would begin to be disclosed and to enlighten a shocked Canadian public.
While the Canadian government has now apologized for the means that it used to implement its assimilation policy for the systemic extermination of the Indian in the Aboriginals for the purpose of committing a cultural genocide, the “truth” continues to be revised by branches and arms of government, government departments, churches, priests, nuns, teachers, health workers, police and perpetrators. As a consequence, the reports issued for the Truth and Reconciliation conferences may be doctored to spin a tale that is less horrific, less terrifying, less nightmarish, less inhumane. They revise historical fact in order to mask the cruel and unusual methods employed and implemented under the rule of Canadian laws.
When speaking out against abuse fell on deaf ears, over time the Aboriginals began to use silence as a means of voicing their disapproval whenever they were “consulted” by government. When it was too late to make a difference for the lives that were injured, government wanted to know Aboriginal choices before government implemented what it had already decided before any consultation. When the Aboriginals reacted to “consultation” with silence, silence was heard but government became confused by it and did not know how to react to it.
Among Aboriginal communities, silence means disapproval. When Aboriginals don’t say a word, they voice their silence with disapproving looks, gestures and by walking quietly out of the room. “I Don’t Say A Word” is what I heard in the silence among our Aboriginals. It is a silence implemented after the voices of victims of residential schools were ignored and fell on deaf ears plugged by visual, identifiable discrimination.
Canada’s Aboriginals voiced their opinions during the repatriation of our Constitution and disapproved of the Canadian government’s intent to place their rights within our Canadian Charter of Rights and Freedoms. In order to not lose their rights, they chose to leave many of their rights outside the Canadian Charter of Rights and Freedoms within our Constitution Act 1982.
Canada’s Aboriginals have noticed that rights evolve over time and though they recognized new rights, they also value the rights preserved by their ancestors for time immemorial so that they could maintain a way of life and a unique identity among diverse identities in a changing world.
The world is richer, kinder, more environmentally friendly with the knowledge that Canada's Aboriginals have to offer all. The failure of the government of Canada's assimilation policy that was enforced by laws, police, teachers, churches, pedophiles, sadists and racists also failed to exterminate the Indian from Aboriginals despite a cruel, inhumane, cultural genocide that was a crime against humanity. That government of Canada failure is a victory to the spirit of Canada's Aboriginals.
Those who lived, survived a myriad of injuries far greater than anyone ought to bear. Those who did not, may perhaps have their stories told by others. Our Aboriginals will not perish from Canada or the Earth.
Their knowledge will survive. Their new generations of children can hope for a better future than their parents and grand-parents. Their resilient spirit used silence to speak when verbal words remained unheard.
The “Curse The Evil Of The Luck Lord” album was not recorded in a professional recording studio. It is being released “as is” without the support of the Canada Council, The Foundation To Assist Canadian Talent On Record (FACTOR) and the Alberta Foundation for the Arts, all of whom have chosen not to support the release of this album for decades. In an effort to annoy those government arms that purport to maintain a standard for Canadian artists, I have dug up the oldest, most unpolished recordings of these songs I could find. That allowed me the opportunity to make a statement about the cultural genocide that took place in Canada from 1928. “I Don’t Say A Word” is that statement. Its cover has a spelling error as a mutiny of gov’t standards.
There are no words to describe personal humiliation, degradation and loss of dignity. No words describe atrocities committed under the authority of laws enacted by one’s government whose purpose is to harm an identifiable ethnic group of its people. Canadians have seen the stereotypical drunken Indian; however, not many Canadians understand the abuse that innocent Aboriginal children suffered in the residential schools. What coping mechanisms would the adult you use, if it had happened to the child you?
There was nobody who could help them, not even their parents who were overpowered by those who enforced the government’s rule of law. It was those unjust, unconstitutional laws that made a crime against humanity possible. There is no compensation, no retribution, no reconciliation that can un-humiliate the humiliated, un-degrade the degraded, dignify those who have had it stripped away, return the innocence of youth, wash away the memories of pain and suffering or forgive what is unforgivable.
Even if the truth were not elusive, could it restore hope in the adult former residential school children who survived to contemplate their past from the perspective of time?
The courts must be vigilant in preventing politicians from enacting laws that allow opportunities for crimes against humanity. Without shame or remorse, our system of checks and balances failed miserably. It could happen again unless we exercise a duty of care that ought to have prevented past Canadian crimes against humanity. Followed by hollow, insincere apologies to Aboriginal victims of residential schools, more is needed to restore the cultures that were unjustly targeted.
I Don’t Say A Word’s Cover has Two Eyes, a Nose, Mouth & A Child’s Spelling Game:
As a game for children, the album cover of “I Don’t Say A Word” is designed to contain a face & misspelled word. Find the word with the error. Then determine what the word ought to be and what it is supposed to say. The child’s spelling game is a reminder that it was the Aboriginal children that the government of Canada targeted to remove the Indian from the Aboriginals. By targeting children, time was as much of a weapon as discriminatory laws implementing racist legal authority throughout a multi-generational conspiracy. The conspiracy was designed to be a crime against humanity against all Aboriginals in Canada. At its conclusion, Aboriginal cultures and languages would have been extinct. The residential schools program was eventually discredited and stopped because of victims who spoke out against it for the sake of the children.