Final Brief 2009-08-15 Generic

Docket:

IN THE PROVINCIAL COURT OF <PROVINCE> <COURT LOCATION>

BETWEEN:

HER MAJESTY THE QUEEN

v.

<DEFENDANT> _____________________________________________________________

BRIEF OF LAW OF THE DEFENCE

FOR <DEFENDANT> [BRIEF ON THE ISSUES: CONSTITUTION, LAW AND FACT]

_____________________________________________________________ SUBMITTED BY: <Defendant> TO:

<Crown Prosecutor>, <Crown Prosecutor’s Address>, <Crown Prosecutor’s Address>, <Crown Prosecutor’s Address>, Tel. <Crown Prosecutor’s Telephone> Fax <Crown Prosecutor’s Fax>

<Defendant> Docket:

BriefofLawofDefense 2

Table of Contents

Page

PART I: INTRODUCTION 4 PART II: ISSUES 4 PART III: LAW & ARGUMENT 5 III(a): Should <Province> be regulating Indians and Lands

Reserved for Indians? 5

<Province> laws prior to Kruger et al v. The Queen, 1977 5 <Province> laws as a result of Kruger et al v. The Queen, 1977 5 <Province> laws as a result of the Charter of Rights and Freedoms in the Constitution Act, 1982 5 <Province> laws as a result of the Charter of Rights and Freedoms and the Sparrow Test 7 <Province> laws ‘ex proprio vigore’ as a result of the Charter of Rights and Freedoms and the Sparrow Test 7 <Province> laws by referential incorporation as a result of the Charter of Rights and Freedoms and the Sparrow Test 10 <Province> laws applied either ex proprio vigore or by referential incorporation fail the Sparrow Test of justification and as a result are of no force or effect by the operation of s. 52 of the Constitution Act, 1982 12 <Province> laws applied either ex proprio vigore or by referential incorporation involve an unconstitutional delegation of legislative power 12

III(b): Did Great Britain and Canada, in fact, promise to respect

and protect <Defendant>’s right to live under <1st Nation> laws on <1st Nation> lands? 18

Annexation of Rupert’s Land was prescribed by the British North America Act, 1867, s. 146 and both Royal Proclamations 18

<Defendant> Docket:


Connolly v. Woolrich, [1867], in a court of competent jurisdiction, found Aboriginals living under own laws on own land 21 The Royal Proclamation that Her Majesty’s Government of Great Britain issued on December 6, 1869 was interpreted and applied in R. c. Caron, 2008 ABPC 232 25 Given the historical context, the Royal Proclamation of December 6, 1869 is a constitutional document 29 The Government and Parliament of Canada may only use the plenary powers of the Constitution Act, 1867, s. 91(24) to keep the promise contained in the Address to the Queen, accepted in April 1868 and contained in the Royal Proclamation, December 6, 1869 35

III(c): Was the Aboriginal customary legal system of the <1st Nation> compatible with British sovereignty and is it Now compatible with Canadian sovereignty? 41

The inhabitants of Rupert’s Land lived in a community organized well before the union with Canada. It was a joint occupation where the rule of law was a bijural order 41 In spite of misunderstandings, the Aboriginal customary legal system continues to be compatible with the Canadian legal system 49

PART IV: RELIEF REQUESTED 52

<Defendant> is entitled to the same relief as given in R. c. Caron, 2008 ABPC 232 52

PART V: APPENDICES 51

(a) List of Authorities 56

(b) List of Aboriginal Experts 68 (c) Resumé – Dr. John S. Murdoch 69

<Defendant> Docket:


PART I: INTRODUCTION

1. <Defendant> is a member of the <1st Nation> of <region and province>, which is a signatory to <Treaty>, a solemn agreement made between the Crown and various First Nations in Rupert’s Land, later known as the North-Western Territory, <after creation or extension of province>.

2. <Identification of the defendant with the charges, the province’s statutes, date of incident and any other identifying details>.

3. This brief is intended as an overview of the specific arguments of fact and law the defense intends to raise at trial.

4. Dr. John S. Murdoch has prepared this brief for <defendant> to present along with a Notice of Constitutional Question, and his (Dr. Murdoch’s) expert report.

PART II: ISSUES

5. The position taken by <defendant> is essentially that both Her Majesty’s Government of Great Britain and the Government of Canada promised to respect and protect his right to live under <1st Nation> laws on <1st Nation> lands, at peace with other British (now Canadian) subjects living under English law. With the annexation of Rupert’s Land to Canada in 1870, <defendant> believes that promise became part of the Constitution, the supreme law of Canada. While <defendant> and <his/her> <1st Nation> view <Treaty> as a solemn contract signed to implement a bijural order, a joint occupation, today Canada and <province> seem to ignore any such obligation. The issues then, for this Honourable Court are these:

a) Should <province> be regulating Indians and Lands Reserved for Indians?

b) Did Great Britain and Canada, in fact, promise to respect and protect <defendant>’s right to live under <1st Nation> laws on <1st Nation> lands?

c) Was the Aboriginal customary legal system of the <1st Nation> compatible with British sovereignty and is it now compatible with Canadian sovereignty?

6. If the answer to a) is ‘no’, and the answers to b) and c) are ‘yes’, then <defendant> should be acquitted of all charges for the reason that the <province> laws under which <he/she> was charged are neither justified nor valid.

<Defendant> Docket:


PART III: LAW & ARGUMENT

III(a): Should <Province> be regulating Indians and Lands Reserved for Indians?

<Province> laws prior to Kruger et al v. The Queen, 1977

7. Prior to 1951, in Manitoba, Saskatchewan, Alberta and the Territories, it was possible for the Superintendent General of Indian Affairs to declare that provincial game laws applied to Indians (see Indian Act, 1927, s. 69).

Indian Act, R.S., c. 81, s. 1, s. 69 TAB059

8. After the addition of a referential clause to the Indian Act, 1951, all provincial laws of general application were held to apply, including provincial game laws. This clause of referential delegation was originally s. 87, (see Indian Act, 1951, c. 29, s. 1), but in subsequent versions of the Indian Act, became s.88 (see Indian Act, R.S., c.149, s.1, s.88 [1970]; see Indian Act, R.S., c. I-6, s. 1, s.88 [1982]; and, Indian Act, R.S.C. 1985, c. I-5, s.88). Different exceptions have been made with each amendment of the Indian Act, however, the delegating clause has remained virtually unchanged since 1951: “all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province.”

Indian Act, 1951, c. 29, s. 1 TAB059 Indian Act, R.S., c.149, s.1 TAB062 Indian Act, R.S., c. I-6, s. 1 TAB061

Indian Act, R.S.C. 1985, c. I-5 TAB063

<Province> laws as a result of Kruger et al v. The Queen, 1977

9. In 1977, writing for a unified Supreme Court, Dickson J authoritatively explained two foundations, either of which made provincial laws applicable to Indians or Lands Reserved for Indians: 1) ex proprio vigore - where the provincial law was a law of general application, in that it had “a uniform territorial operation”, and, was “not aimed at Indians” (see Kruger et al v. the Queen 1978 at p.105-106); and, 2) referential incorporation - where the provincial laws was referentially incorporated. Dickinson J found that the defendants had the burden of demonstrating “inconsistency or duplication with the Indian Act or any order, rule, regulation or by-law made thereunder” (see Kruger et al v. the Queen 1978 at p.111-112).

Kruger and al. v. The Queen, [1978] 1 S.C.R. 104 TAB071

<Defendant> Docket:


<Province> laws as a result of the Charter of Rights and Freedoms in The Constitution Act, 1982

10. The entrenchment of the Charter of Rights and Freedoms in The Constitution Act, 1982, required that all statutes, regulations and exercises of public power be justified, in order that “the rights and freedoms set out in it [are] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. (see The Constitution Act, 1982, s. 1). Using Dickson CJ’s indices: ex proprio vigore and by referential incorporation, Peter W. Hogg in his authoritative and serialized work, Constitutional Law of Canada, has provided constantly updated explanations of the manner in which these two indices are applied in an evolving body of common law (see Hogg 2008:27.2 Provincial Legislative Power and 27.3 Section 88 of the Indian Act, respectively). Another commonly used authority, The Annotated Indian Act and Aboriginal Constitutional Provisions, describes the application of the Indian Act. This work was originally produced annually, beginning in 1984, by Donna Lea Hawley, but starting in 1995 by Shin Imai (see Imai: 2009). Each edition contains a section, Legal Rights, 88, General provincial laws applicable to Indians.

Constitution Act, 1982 TAB035 Hogg, Peter W. 2008; Constitutional Law of Canada, Toronto, ON: Carswell TAB052

Imai, Shin; 2009; The 2009 Annotated Indian Act and Aboriginal Constitutional Provisions, Toronto, ON: Thomson Carswell TAB057

11. In Simon v. The Queen, [1985] 2 S.C.R. 387, Dickson CJ determined, “... it was not

necessary to consider s. 35 of the Constitution Act, 1982 since s. 88 of the Indian Act covered the present situation and provided the necessary protection for the appellant”. In his ruling Dickson CJ wrote “In my view, s. 88 of the Indian Act covers the present situation and provides the necessary protection to the appellant, Simon. As a result, it is not necessary for the determination of this appeal to consider s. 35(1) of the Constitution Act, 1982.” (see Simon v. The Queen, [1985] 2 S.C.R. 387 at para 61)

Simon v. The Queen, [1985] 2 S.C.R. 387 TAB141 Constitution Act, 1982 TAB035

12. In R. v. Oakes, [1986] 1 SCR 103, Dickson CJ did develop a justification test for

Canadian individual rights, later called the Oakes Test, involving three main steps: 1) identification of the protected freedom or right; 2) identification of a legislative objective important enough to justify infringing the identified protected freedom or right; and, 3) justification of infringing the identified protected freedom or right, including minimal impairment and proportionality between the objective and the resulting impairment. (see R. v. Oakes, [1986] 1 SCR 103 at para 69-70; and, Oakes Test, as described by the University of Waterloo, Political Science Department).

R. v. Oakes, [1986] 1 SCR 103 TAB120 Oakes Test, University of Waterloo, Political Science Department,

http://politicalscience.uwaterloo.ca/courses/292/Spring2007/OAKESTEST.pdf TAB088

<Defendant> Docket:


<Province> laws as a result of the Charter of Rights and Freedoms and the Sparrow Test

13. Four years after the Oakes Test, in R. v. Sparrow, [1990] 1 S.C.R. 1075, Dickson CJ and La Forest J explained the purpose of s. 35(1) of the Charter of Rights and Freedoms this way: “The strong representations of native associations and other groups concerned with the welfare of Canada's aboriginal peoples made the adoption of s. 35(1) possible and it is important to note that the provision applies to the Indians, the Inuit and the Métis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords aboriginal peoples constitutional protection against provincial legislative power”. (R. v. Sparrow, [1990] 1 S.C.R. 1075 at p.32-33). The Supreme Court of Canada called for a “generous, liberal interpretation”, adding that a freedom or right protected by s. 35(1) is “not subject to s. 1 of the Canadian Charter of Rights and Freedoms” (see p.4. R. v. Sparrow, [1990] 1 S.C.R. 1075). “Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1).”

R. v. Sparrow, [1990] 1 S.C.R. 1075 TAB122 Constitution Act, 1982 TAB035

14. The elements of the Sparrow Test, enunciated by Dickson CJ and La Forest in R. v.

Sparrow, [1990] 1 S.C.R. 1075 (see p. 5-7), were most clearly expressed in R. v. Van der Peet, [1996] 2 S.C.R. 507. L'Heureux-Dubé J explained “three steps: (1) the assessment and definition of an existing aboriginal right (including extinguishment); (2) the establishment of a prima facie infringement of such right; and, (3) the justification of the infringement.” (see R. v. Van der Peet, [1996] 2 S.C.R. 507, at p.9).

R. v. Sparrow, [1990] 1 S.C.R. 1075 TAB122 R. v. Van der Peet, [1996] 2 S.C.R. 507 TAB124

<Province> laws ‘ex proprio vigore’ as a result of the Charter of Rights and Freedoms and the Sparrow Test

15. In <defendant>’s case, when applying <Province> laws ‘ex proprio vigore’, that is of their own force, the first step in conducting the Sparrow Test is “the assessment and definition of an existing aboriginal right.” Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (see para 57) and <a provincial statute that mentions Aboriginal rights>, leave no doubt that <defendants>’s rights to hunt, fish and trap, still exist, and have not been extinguished by legislation with “a clear and plain intention.” These rights therefore qualify as existing Aboriginal rights (see R. v. Sparrow, [1990] 1 S.C.R. 1075 at p.3).

<Defendant> Docket:


Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 TAB082

Hunting, Fishing and Trapping Heritage Act, S.A. 2008, c. H-15.5 TAB055 R. v. Sparrow, [1990] 1 S.C.R. 1075 TAB122

16. Secondly, there is no doubt that <province>, by this action has interfered with this

right and that a “prima facie infringement” of <defendant>’s right to hunt has occurred. This step of the Sparrow Test is most clearly laid out in R. v. Nikal, [1996] 1 S.C.R. 1013, where it was determined that “aboriginal rights include the right to determine when fishing will occur and the method and manner of fishing” (see R. v. Nikal, [1996] 1 S.C.R. 1013 at para 106). Any interference by <province> laws with timing, method and manner of an aboriginal right to hunt, fish or trap, as is the case here, amounts to prima facie infringement.

R. v. Nikal, [1996] 1 S.C.R. 1013 TAB119

17. Thirdly, the burden of proof of justification shifts to the Crown, to prove that: there is a valid objective; the honour of the Crown has been upheld in dealings with aboriginal peoples; and, there has been as little infringement as possible in order to achieve the desired objective, (see R. v. Nikal, [1996] 1 S.C.R. 1013 at p.60-61). Certainly there is a valid objective, as “the justification of conservation and resource management, however, is uncontroversial” (see R. v. Sparrow, [1990] 1 S.C.R. 1075 at p.6).

R. v. Nikal, [1996] 1 S.C.R. 1013 TAB119 R. v. Sparrow, [1990] 1 S.C.R. 1075 TAB122

18. Continuing to the third stage, the Crown must justify its infringement of

<defendant>’s Aboriginal rights to hunt, fish or trap, by presenting evidence to prove the honour of the Crown was upheld in its dealings with Aboriginal peoples; and, there has been as little infringement as possible in order to affect the desired objective, (see R. v. Nikal, [1996] 1 S.C.R. 1013 at p.60-61). Neither in publicly available information, nor in testimony at trial has the Crown ever offered evidence to prove the honour of the Crown was upheld in its dealings with Aboriginal peoples; or, that there has been as little infringement as possible with the timing, method and manner of <defendant>’s Aboriginal right to hunt, fish or trap, in order to achieve the conservation and resource management desired by the Crown.

R. v. Nikal, [1996] 1 S.C.R. 1013 TAB119

19. Evidence of consultation (see R. v. Gladstone, [1996] 2 S.C.R. 723 at para 55) or

evidence of accommodation (see Multani v. Commission Scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256 at para 52 and 155) would satisfy the Crown’s burden of justifying its infringement of <defendant>’s Aboriginal rights by achieving minimal impairment.

R. v. Gladstone, [1996] 2 S.C.R. 723 TAB108 Multani v. Commission Scolaire Marguerite Bourgeoys, [2006] 1 S.C.R. 256 TAB085

<Defendant> Docket:


20. It has happened often since R. v. Sparrow, [1990] 1 S.C.R. 1075 (see p.6) that “the evidence and testimony presented in this case was insufficient for the Court to determine whether the government's regulatory scheme was justified” (see R. v. Gladstone, [1996] 2 S.C.R. 723 at p.13; also, R. v. Van der Peet, [1996] 2 S.C.R. 507 at p.18; R. v. Badger, [1996] 1 S.C.R. 771 at p.7; R. v. Adams, [1996] 3 S.C.R. 101 at para 56; R. v. Côté, [1996] 3 S.C.R. 139, at para 82; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672 at para 43; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 at para 23; R. v. Sundown, [1999] 1 S.C.R. 393 at para 48; R. v. Marshall, [1999] 3 S.C.R. 533 at para 28; R. v. Nikal, [1996] 1 S.C.R. 1013 at para 111; R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 at para 63).

R. v. Sparrow, [1990] 1 S.C.R. 1075 TAB122 R. v. Gladstone, [1996] 2 S.C.R. 723 TAB108

R. v. Van der Peet, [1996] 2 S.C.R. 507 TAB124 R. v. Badger, [1996] 1 S.C.R. 771 TAB103 R. v. Adams, [1996] 3 S.C.R. 101 TAB102

R. v. Côté, [1996] 3 S.C.R. 139 TAB107 R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672 TAB115

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 TAB082

R. v. Sundown, [1999] 1 S.C.R. 393 TAB123 R. v. Marshall, [1999] 3 S.C.R. 533 TAB111

R. v. Nikal, [1996] 1 S.C.R. 1013 TAB119 R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 TAB121

21. The Crown has not presented any evidence that might demonstrate that its approach

is the most rational, least interfering way of regulating the timing, method and manner of <defendant>’s Aboriginal right to hunt, fish or trap. The laws under which <defendant> has been charged, fail the Sparrow Test of justified infringement of Aboriginal rights protected by s. 35(1) of Canada’s Constitution. Accordingly, The <province> laws under which <defendant> has been charged, applied ex proprio vigore, are of “no force or effect by the operation of s. 52 of the Constitution Act, 1982”. As the Supreme Court explained in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p.3, “Section 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years. In a case where constitutional manner and form requirements have not been complied with, the consequence of such non-compliance continues to be invalidity. The words "of no force or effect" mean that a law thus inconsistent with the Constitution has no force or effect because it is invalid.” The reasons are the same as those enunciated by Lamer CJ in R. v. Adams, [1996] 3 S.C.R. 101, “that this right was not extinguished by a "clear and plain intention" of the Government, that the Quebec Fishery Regulations constitute a prima facie infringement of that right, and that such a restriction is not justified under the Sparrow Test” (see R. v. Adams, [1996] 3 S.C.R. 101 at para 67).

<Defendant> Docket:


Constitution Act, 1982 TAB035 Re Manitoba Language Rights, [1985] 1 S.C.R. 721 TAB129

R. v. Adams, [1996] 3 S.C.R. 101 TAB102

<Province> laws by referential incorporation as a result of the Charter of Rights and Freedoms and the Sparrow Test

22. Having established that <province> laws are of no legal force ex proprio vigore because their prima facie infringement of <defendant>’s existing Aboriginal rights to hunt, fish and trap cannot be justified, it remains now to be determined whether <Province> laws can be justified when applied by the referential incorporation affected by s.88 of the Indian Act, R.S.C. 1985, c. I-5. The first two steps of the Sparrow Test have already been proven, the third step remains with the burden of evidence carried by the Crown to prove that referential incorporation of the subject <Province> laws is justified. As before, at this third stage, the Crown must first prove that the referential incorporation affected by s.88 of the Indian Act, has “a valid objective”.

Indian Act, R.S.C. 1985, c. I-5 TAB063

23. In an article, aptly entitled, Still Crazy After All These Years: Section 88 of the Indian Act at Fifty, Law professor, Kerry Wilkins noted “we know very little about the reasons for s. 88’s enactment; when introduced, it attracted almost no scrutiny from the public, in Parliament, or even in Cabinet. In the years since, we have paid dearly for that inattention. By happenstance, it has managed to fulfill its original mandate to protect Aboriginal peoples’ treaty rights from the impact of standards enacted provincially. In almost every other respect, however, s. 88 has given rise to confusion and to controversy, frustrating courts’ efforts to apply it coherently, thwarting Aboriginal peoples’ (and others’) attempts to tell what mainstream law prescribes, and complicating otherwise routine tasks of enforcement and administration.” (see Wilkins 2000:1) This problem of vagueness surrounding “the reasons for s. 88’s enactment” had already been noted by law professor Doug Sanders (see Sanders 1984:453-454) and by professor Leroy Little Bear, (see Little Bear 1986:13). Professor Little Bear was unable to find any clear statement of s.88’s objective, in spite of an exhaustive review of: the Special Joint Committee of the Senate and the House of Commons Appointed to Examine and Consider the Indian Act, Vol. I, II, III, established to review the Indian Act, Chapter 98, R.S.C., 1927 and to propose amendments. Professor Little Bear also reviewed earlier versions of the Indian Act, as early as 1886, without finding any similar section.

Wilkins, Kerry; 2000; Still Crazy After All These Years: Section 88 of the Indian Act at Fifty, Alberta Law Review, Vol. 38, No. 2, p. 458 TAB152

Sanders, Douglas; 1984; The Application of Provincial Laws, Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, Bradford W. Morse, ed., Ottawa, ON:

Carleton University Press TAB140

<Defendant> Docket:


Little Bear, Leroy; 1986; The Impact of s. 88 of the Indian Act on Application of Provincial Laws to Indians, submitted to Professor Robb, Edmonton, AB: University of

Alberta TAB080 Canada; 1946; Special Joint Committee of the Senate and the House of Commons

Appointed to Examine and Consider the Indian Act, (1946) Proceedings, Vol. I, Report 1-21, Ottawa, ON: King's Printer TAB024

Canada; 1947; Special Joint Committee of the Senate and the House of Commons Appointed to Examine and Consider the Indian Act, (1947) Interim Report, Vol. II,

Report 23-40, Ottawa, ON: King's Printer TAB025 Canada; 1948; Special Joint Committee of the Senate and the House of Commons

Appointed to Examine and Consider the Indian Act, (1948) Minutes of Proceedings and Evidence, Vol. III, Report 1-5, Ottawa, ON: King's Printer TAB026

24. The Crown has failed to meet its burden of presenting a valid objective for s. 88 of

the Indian Act, R.S.C. 1985, c. I-5. The lack of an apparent objective has created an discretion that is not prescribed by law or regulations. This same lack of an apparent valid objective was addressed in R. v. Adams, [1996] 3 S.C.R. 101 at para 54: “... In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfill their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow Test.”

Indian Act, R.S.C. 1985, c. I-5 TAB063 R. v. Adams, [1996] 3 S.C.R. 101 TAB102

25. Evidence of consultation (see R. v. Gladstone, [1996] 2 S.C.R. 723 at para 55) or

evidence of accommodation (see Multani v. Commission Scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256 at para 52 and 155) would satisfy the Crown’s burden of justifying its infringement of <defendant>’s Aboriginal rights by achieving minimal impairment. In the “absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives” is also fatal to the Crown meeting its evidentiary burden to prove minimal impairment as a result of prior consultation or accommodation. Without specific guidance to those who enforce <province>’s laws by referential incorporation, it is impossible to predict how enforcement officers will use their public power. In a similar test of justification Sopinka J commented in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 at para “A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. .... Generality and imprecision of language may fail to confine the invasion of a Charter right within reasonable limits. In this sense vagueness is an aspect of overbreadth.” The

<Defendant> Docket:


creation of discretion that is not prescribed, together with the generality and imprecision of s. 88 of the Indian Act, R.S.C. 1985, c. I-5, will be fatal to any <province> law applied by referential incorporation when reviewed according to the Sparrow Test.

R. v. Gladstone, [1996] 2 S.C.R. 723 TAB108 Multani v. Commission Scolaire Marguerite Bourgeoys, [2006] 1 S.C.R. 256 TAB085

Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 TAB091 Indian Act, R.S.C. 1985, c. I-5 TAB063

<Province> laws applied either ex proprio vigore or by referential incorporation fail the Sparrow Test of justification and as a result are of no force or effect by the operation of s. 52 of the Constitution Act, 1982

26. Whether applied ex proprio vigore, that is by their own force, or by referential incorporation by Indian Act, R.S.C. 1985, c. I-5, s. 88, the <province> laws under which <defendant> was charged are of “no force or effect by the operation of s. 52 of the Constitution Act, 1982” because their infringement of <defendant>‘s Aboriginal rights to hunt, fish or trap cannot be justified.

Indian Act, R.S.C. 1985, c. I-5, TAB063 Constitution Act, 1982 TAB035

<Province> laws applied either ex proprio vigore or by referential incorporation involve an unconstitutional delegation of legislative power

27. The highest courts have repeatedly since 1880, forbidden Parliament and provincial legislatures from exchanging or delegating the exclusive plenary powers respectively granted in the Constitution Act (British North America Act), 1867 (see s. 91 and s. 92). In Citizens’ and Queen Insurance Co. v. Parsons [1880] 4 S.C.R. 215, at p. 348, Gwynne J, advised that “.. no act of the Dominion parliament can give to the local legislatures jurisdiction over any subject which, by the B.N.A. Act, is placed exclusively under the control of parliament.” At St. Catharines Milling and Lumber Company v. R, [1887], 13 S.C.R. 577 at para 637, Strong J declared “that Parliament has no power to divest the Dominion in favour of the Provinces of a legislative power conferred on it by the British North America Act is, I think, clear”. In Attorney-General of British Columbia v. Attorney-General of Canada [1937] A.C. 377 (Natural Products Marketing Act Reference) at para 234, the Judicial Committee of the Privy Council ruled that, “the question of co-operation with the Dominion has been considered in City of Montreal v. Montreal Street Ry. (1), and the inference to be drawn is that although co-operation is possible each legislative body must keep strictly to its own sphere”.

Constitution Act, 1867 TAB034 Citizens’ and Queen Insurance Co. v. Parsons [1880] 4 S.C.R. 215 TAB030

St. Catharines Milling and Lumber Company v. R, [1887], 13 S.C.R. 577 TAB142 Attorney-General of British Columbia v. Attorney-General of Canada [1937] A.C. 377

(Natural Products Marketing Act Reference) TAB007

<Defendant> Docket:


Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 TAB008

28. The most authoritative writer on the subject of delegation between federal and

provincial legislatures is probably former Supreme Court Justice Gerard V. La Forest. According to La Forest, the issue was very much settled in Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 (see La Forest 1975:135-142). This was an appeal from the Supreme Court of Nova Scotia on a reference regarding the validity of a Nova Scotia statute, the Delegation of Legislative Jurisdiction Act, proposed by Nova Scotia to exchange respective powers to legislate for employment and retail sales taxes. Nova Scotia’s highest court found this statute ‘ultra vires’, that is, beyond the powers given to Nova Scotia in the Canadian constitution. In Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31, the Supreme Court of Canada affirmed the judgment of the Supreme Court of Nova Scotia. La Forest explains that the Supreme Court of Canada’s reasons were two fold: “if a power of delegation had been intended, it would have been expressly given”; and, “each [legislature] was sovereign within its sphere, but delegation involves subordination to the delegator ... interdelegation between the federal Parliament and provincial legislatures, therefore, appears impossible”(La Forest 1975:135-137).

La Forest, Gerard V.; 1975; Delegation of Legislative Power in Canada, McGill Law Journal, Vol. 21, p. 131 TAB072


29. Peter W. Hogg, explains that federal and provincial legislatures may not “directly

delegate their respective legislative powers to each other,“ but, may delegate the administration of otherwise validly enacted laws to a subordinate agency that is established by validly enacted legislation of the receiving jurisdiction” (see Hogg 1992:14). The advantages of administrative delegation are, for example, a national statute regulating trucking could incorporate provincial statutes by making reference to them. This incorporation by reference avoids duplication or confusion between legislatures by having to repeat each of the other participating legislatures’ statutes. The most common power-sharing device between Canadian legislatures has become the accord. A very recent example is the Agreement on Internal Trade, signed in 1994. Its main objective is to remove or prevent trade barriers between provinces and territories by developing practices for power sharing between Canadian legislatures and executives. This accord touches a wide range of plenary powers, both federal and provincial, such as: procurement, investment, labour mobility, consumer standards, agricultural and food goods, alcoholic beverages, natural resources, communications, transportation and environmental protection. The various legislatures work out a common agreement upon the principles or values that need to be respected in order to achieve some shared purpose. Then each legislature incorporates this agreement as the principles or values of enabling legislation, delegating prescribed administrative powers to implement the national agreement, for example, delegating powers to a federal labour mobility coordinator.

<Defendant> Docket:


Hogg, Peter; 1992; Constitutional Law of Canada, 4th Edition, Toronto, ON: Carswell TAB053

Lederman. William R.; 1967; Some Forms and Limitations of Co-operative Federalism, Canadian Bar Review, Vol. 45, p. 409-436 TAB073

Canada; 1995; Agreement on Internal Trade, 1995, Ottawa, ON: Industry Canada TAB027

30. Professor William Lederman provided a clear definition of the difference between

administrative and legislative delegation in his analysis of Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31: “The administrative type of inter-governmental delegation involves the federal Parliament attempting to invest provincial officials with power and responsibility to apply federal laws, and this may at times include wide regulation-making powers for the provincial officials in part of. an exclusive federal legislative field. .... the Supreme Court of Canada has ruled that legislative delegation is invalid and that administrative delegation is valid.” (see Lederman 1967:418-419) .. ” It is important to note that the delegating legislature still controls the laws applied by the inferior provincial officials, for example, the enforcement of gun laws created and maintained by Parliament are applied by an assortment of federal and provincial police officers. On the other hand, the invalid “legislative type involves the federal Parliament attempting to delegate directly to a provincial legislature power to make laws respecting some portion of an exclusive federal category of power, or vice versa. (see Lederman 1967:418-419). As noted by Rand J, this is not really delegation at all:

“Subordination implies duty ... a duty to act either by enacting or by exercising a conferred discretion not, at the particular time, to act, rests upon the delegate.” According to Rand J, delegating legislative power “does no more than to proffer authority to be exercised by the delegate solely of its own volition and, for its own purposes, as a discretionary privilege. [see Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 at p.386].

Lederman. William R.; 1967; Some Forms and Limitations of Co-operative Federalism, Canadian Bar Review, Vol. 45, p. 409-436 at p. 418-419 TAB073


31. In P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392, the Supreme Court

of Canada found that “No question of disruption of constitutive provincial features or frustration of provincial powers arises: both legislatures have recognized the value of a single body to carry out one joint, though limited, administration of trade. At any time the Province could withdraw the whole or any part of its authority. The delegation of was, then, effective.” (see P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392, at p.415). Therefore Parliament’s Agricultural Products Marketing Act of 1949 involved administrative, not invalid legislative delegation. The Supreme Court of Canada found in Coughlin v. Ontario Highway Transport Board et al., [1968] S.C.R. 569, that Parliament’s Motor Vehicle Transport Act had “the effect of relinquishing all federal control over the licensing of a connecting

<Defendant> Docket:


undertaking” (see Coughlin v. Ontario Highway Transport Board et al., [1968] S.C.R. 569, at p.588) -- therefore the Motor Vehicle Transport Act amounted to invalid legislative delegation.

P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392 TAB092 Coughlin v. Ontario Highway Transport Board et al., [1968] S.C.R. 569 TAB036

32. In determining whether s.88 of the Indian Act is administrative or legislative

delegation, three characteristics clearly stand out. First, there is no federal law or statute for a provincial enforcement officer to apply. The provincial enforcement officer is expected by both Parliament and the provincial legislature to apply a provincial law. Secondly, Parliament could not withdraw the whole or any part of its authority. This is especially true in that Parliament had never developed the apparatus to regulate Aboriginal hunting, fishing and trapping. “It is true that delegation in its proper sense involves the power to take back jurisdiction, but this is always difficult, particularly where administrative machinery has been developed” (see La Forest 1975:145). Thirdly, as noted by Rand J, Parliament, by enacting s. 88 of the Indian Act, “does no more than to proffer authority to be exercised by the delegate [<province>] solely of its own volition and, for its own purposes, as a discretionary privilege.” (see Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 at p.386). Clearly, Indian Act, R.S.C. 1985, c. I-5, s. 88, affects an invalid legislative delegation of the exclusive powers of Parliament to a province.

Indian Act, R.S.C. 1985, c. I-5, s. 88 TAB063 La Forest, Gerard V.; 1975; Delegation of Legislative Power in Canada, McGill Law

Journal, Vol. 21, p. 131 TAB072 Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31

TAB008

33. There is a fourth indicator that <province> laws applied either ex proprio vigore or by referential incorporation involve an unconstitutional delegation of legislative power. <defendant>’s situation and thousands of other Aboriginals in similar situations would be much clearer if Parliament in addition to maintaining its legislative powers over Aboriginal hunting, fishing and trapping, also conferred jurisdiction to superior courts as it did for election petitions, by its Dominion Controverted Elections Act, 1874. Parliament’s constitutional power to confer jurisdiction for the property and civil rights matters subject to Parliament’s exclusive plenary powers was affirmed in Valin v. Langlois, [1879], 3 S.C.R. 1. In a subsequent ruling, Ritchie CJ noted: “the Dominion Parliament would only have the right to interfere with property and civil rights in so far as such interference may be necessary for the purpose of legislating generally and effectually in relation to matters confided to the parliament of Canada (see Citizens’ and The Queen Insurance Cos. v. Parsons, [1881] 4 S.C.R. 215 at p.243). Valin v. Langlois, [1879], 3 S.C.R. 1 was the first decision of the Supreme Court of Canada reviewed by the Judiciary Committee of the Privy Council and it was approved in Valin v. Langlois, [1879] 5 App. Cases. 115.

<Defendant> Docket:


Valin v. Langlois, [1879], 3 S.C.R. 1 TAB151 Citizens’ and The Queen Insurance Cos. v. Parsons, [1881] 4 S.C.R. 215 TAB030

Valin v. Langlois, [1879] 5 App. Cases. 115 TAB152

34. If Parliament had conferred jurisdiction for Aboriginal property and civil rights matters as clearly as it did for elections, neither <defendant> nor any other Aboriginal would, as he is now, be seeking justice in provincial courts that have not been conferred with jurisdiction over a subject matter that is the exclusive domain of Parliament -- Aboriginal property and civil rights. This problem is well illustrated in the legal difficulties of two brothers Mark and Leon Nayanookeesic, Aboriginals of White Sands First Nation on the Lake Nipigon. The brothers had been ticketed by Ontario Provincial Police for not having gun licenses. At their trial, R. v. Nayanookeesic, [2004] ONCJ 108, Pettit Baig J found “They were out on the land with their guns without licenses for their guns. The law that made that illegal was found to be unconstitutional. ... Not only is this a constitutional issue, but the Nayanookeesics are successful. (see R. v. Nayanookeesic, [2004] ONCJ 108 at para 3). Pettit Baig J concluded “Not only has there been extensive involvement on behalf of Mr. Schachter, there has been extensive documentation and paperwork, and as I have said, there have been oral presentations, all of high calibre. I have commented already on the character and importance of this litigation, as I did in my decision on the 2nd of March. I have also commented on the value of the litigation to the First Nation’s people, as has Mr. Berger, and the results achieved speak for themselves” (see R. v. Nayanookeesic, [2004] ONCJ 108 at para 9), and awarded costs against the Crown (see R. v. Nayanookeesic, [2004] ONCJ 108 at para 10).

R. v. Nayanookeesic, [2004] ONCJ 108 TAB117

35. Without raising the issue of the Nayanookeesics’ Aboriginal rights, the Crown was able to appeal Pettit Baig J’s verdict, solely on the basis of the provincial court’s authority or competence. In R. v. Nayanookeesic, [2005] CanLII 19782 (ON S.C.), Justice H. P. Pierce reversed Pettit Baig J’s 2004 judgment writing, “a declaration of constitutional invalidity, as contemplated by s. 52(2) of the Constitution Act, 1982, is not available in the provincial court. By practice and jurisdiction, it is only available in the superior courts, which are also known as section 96 courts under the Canadian Constitution.” (see R. v. Nayanookeesic, 2005 CanLII 19782 (ON S.C.) at para 44). The Nayanookeesic brothers in the end paid for two trials, notwithstanding their proof to an independent judiciary that they were innocent of the charges against them. Under a proper delegation of administrative not legislative power, a provincial or federal peace officer would have applied federal, (not provincial) laws, justified with valid objectives, laws that upheld the honour of the Crown, and laws that, by consultation and reasonable accommodation, were designed to impair as little as possible Aboriginal rights to hunt. Such an enactment of Parliament, properly constructed, would have conferred a jurisdiction upon a court of competent jurisdiction, such as a superior court, in their case, the Ontario Superior Court.

R. v. Nayanookeesic, [2005] CanLII 19782 (ON S.C.) TAB118

<Defendant> Docket:


Constitution Act, 1982 TAB035

36. Accordingly, <defendant>’s Aboriginal rights to hunt, fish or trap should have been regulated by a proper delegation of administrative not legislative power. A provincial or federal peace officer should have applied justified federal laws with valid objectives, that upheld the honour of the Crown, that, by consultation and reasonable accommodation were designed to impair <his/her> Aboriginal rights to hunt, fish or trap as little as possible. Contained in such an enactment of Parliament should have been a conferral of jurisdiction upon a court of competent jurisdiction, such as a superior court, in <defendant>’s case, to the <Province’s Superior Court>.

37. Applied ex proprio vigore, the <province> statutes pursuant to which <defendant> was charged, constitute a prima facie infringement of Aboriginal rights that cannot be justified under the Sparrow Test. Applied by referential incorporation, according to Indian Act, R.S.C. 1985, c. I-5, s. 88, the <province> statutes pursuant to which <defendant> was charged, constitute a prima facie infringement of Aboriginal rights that cannot be justified under the Sparrow Test. Finally, the Indian Act, R.S.C. 1985, c. I-5, s. 88, affects an invalid delegation of the exclusive legislative powers of Parliament to a province. For all of these reasons, the <province> laws pursuant to which <defendant> has been charged are of no legal force or effect by the operation of s. 52 of the Constitution Act, 1982.

Indian Act, R.S.C. 1985, c. I-5 TAB063 Constitution Act, 1982 TAB035

38. In summary, <defendant>’s Aboriginal rights to hunt, fish or trap should have been

regulated by a proper delegation of administrative not legislative power. A provincial or federal peace officer should have applied federal laws with valid objectives, that upheld the honour of the Crown, and that, by consultation and reasonable accommodation were designed to impair as little as possible, <his/her> Aboriginal rights to hunt, fish or trap. Contained in such an enactment of Parliament should have been a conferral of jurisdiction upon a court of competent jurisdiction, such as a superior court, in <defendant>’s case, to the <Province’s Superior Court>.

39. Applied ex proprio vigore, or by referential incorporation, according to Indian Act,

R.S.C. 1985, c. I-5, s. 88, the <province> statutes pursuant to which <defendant> was charged, constitute a prima facie infringement of <defendant>’s rights, and that cannot be justified under the Sparrow Test. Finally, the Indian Act, R.S.C. 1985, c. I-5, s. 88, affects an invalid delegation of the exclusive legislative powers of Parliament to a province. For all of these reasons, the <province> laws pursuant to which <defendant> has been charged are of no legal force or effect by the operation of s. 52 of the Constitution Act, 1982.

Indian Act, R.S.C. 1985, c. I-5 TAB063 Constitution Act, 1982 TAB035

<Defendant> Docket:


III(b): Did Great Britain and Canada, in fact, promise to respect and protect <Defendant>’s right to live under <1st Nation> laws on <1st Nation> lands?

Annexation of Rupert’s Land and the North-Western Territory was prescribed by the Constitution Act, 1867, s. 146

40. The terms by which Rupert's Land and the North-Western Territory became part of Canada were prescribed in s. 146 of the Constitution Act, 1867 (British North America Act). Those terms were, “It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, ... on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. Step one was an Address from the Houses of the Parliament of Canada, the House of Commons and the Senate. The Terms and Conditions had to be included in the Address and approved of in advance by the Queen and had to be in conformity with the Constitution Act, 1867. Step two, the Queen would issue an Order in Council which would include additional provisions. Step three, the provisions of the Order in Council would automatically become part of the Constitution Act, 1867 as if it had been had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.


41. December 7, 1867, an Address was proposed before the Canadian House of

Commons as required for the transfer of Rupert’s Land and the North-Western Territory: “…the legal rights of any Corporation, Company or individual within the same, will be respected, and that in the case of difference of opinion as to the extent, nature or value of these rights, the same shall be submitted to judicial decision, or be determined by mutual agreement between the Government of Canada and the parties interested; such an agreement to have no effect or validity until first sanctioned by the Parliament of Canada.” [see Journals of the House of Commons of the Dominion of Canada from November 6, 1867 to May 22, 1868, Vol. I, p. 54]. This Address was not accepted by the Queen.

Journals of the House of Commons of the Dominion of Canada from November 6, 1867

to May 22, 1868, Vol. I, p. 54 TAB066

42. A second Address was presented on December 12, 1867 by the Canadian House of Commons: “… the legal rights of any Corporation, Company or individual shall be respected, and placed under the protection of Courts of competent jurisdiction. [see Journals of the House of Commons of the Dominion of Canada from November 6, 1867 to May 22, 1868, Vol. I, p. 67]. This second Address was formally accepted in

<Defendant> Docket:


a letter written by C. B. Adderley, Under-Secretary for the Colonies, April 22, 1868. Adderley added, "They desire, however, to pay due regard to the interests of Her Majesty's subjects already concerned in the territory; and with that view they will be prepared to make provision for any reasonable terms which may be agreed upon with the Hudson's Bay Company." (see Letter No. 5, p.22, Canada (Rupert's Land), Copy or Extracts of Correspondence between the Colonial Office, the Government of the Canadian Dominion, and the Hudson's Bay Company, relating to the Surrender of Rupert's Land..)


to May 22, 1868, Vol. I TAB066 Letter No. 5, p.22, Canada (Rupert's Land), Copy or Extracts of Correspondence between

the Colonial Office, the Government of the Canadian Dominion, and the Hudson's Bay Company, relating to the Surrender of Rupert's Land TAB076

43. By the Deed of Surrender, Rupert's Land Act, 1868, (31-32 Victoria, c. 105.) (see

Kennedy 1930:639-640), passed by Britain’s Parliament, July 31 of 1868, the Hudson’s Bay Company transferred all of its interests in Rupert’s Land and the North-West Territory to the British Imperial government. The Hudson's Bay Company surrendered its Charter and its interests in the subject territories to Her Majesty's Government of Great Britain, and began negotiations with Canada as to their worth. Canada continued to argue it's existing ownership of the territories by right of discovery of unoccupied lands, allegedly a right inherited from Great Britain and having been ceded by France. The Hudson's Bay Company claimed no territory but wanted to be compensated for improvements such as roads, bridges, telegraph lines, and loss of trade income.

Rupert's Land Act, 1868, (31-32 Victoria, c. 105.), An Act for enabling Her Majesty to

accept a Surrender upon Terms of the Lands, Privileges, and Rights of "The Governor and Company of Adventurers of England trading into Hudson's Bay," and

for admitting the same into the Dominion of Canada. [31st July, 1868], Document CLXXIV, p.639-640, Statutes, Treaties and Documents of the Canadian

Constitution, 1713 - 1929, W. P. M. Kennedy, ed., Second Edition, Revised and Enlarged, Toronto, ON: Oxford University Press 1930 TAB139

Canada (Rupert's Land), Copy or Extracts of Correspondence between the Colonial Office, the Government of the Canadian Dominion, and the Hudson's Bay

Company, relating to the Surrender of Rupert's Land TAB022

44. After a year of fractious negotiations that accomplished little agreement, Secretary of Colonial Affairs, Earl Granville finally issued both parties an ultimatum to accept the agreement that had been put before them months earlier (see Letter from Sir Frederic Rogers, Bart., to the Right Hon. Sir Stafford H. Northcote, M.P., 9 March 1869). Granville warned “If this be rejected, either on behalf of the Company or on behalf of the Dominion, his Lordship considers that his next step must be to procure an authoritative decision as to the rights of the Crown and the Company, and with this object he will recommend Her Majesty to refer their rights for examination to

<Defendant> Docket:


the Judicial Committee of the Privy Council, whose decision will form a basis for any future legislative or executive action which Her Majesty's Government may find necessary.” (see Letter from Sir Frederic Rogers, Bart., to the Right Hon. Sir Stafford H. Northcote, M.P., 9 March 1869). In spite of months of acrimonious debates over title to land and what gold might be found, both Canada and the Hudson’s Bay Company quickly accepted those same terms that Earl Granville, Colonial Secretary, had put before them months earlier, including: “1. The Hudson's Bay Company to surrender to Her Majesty all the rights of

government, property, &c., in Rupert's Land, which are specified in 31 & 32 Vict. c. 105, s. 4, and also all similar rights in any other part of British North America, not comprised in Rupert's Land, Canada, or British Columbia.

… 2. Canada is to pay the Company 300,000L when Rupert's Land is transferred to

the Dominion of Canada; … 8. All titles to land, up to the 8th March 1869, conferred by the Company are to

be confirmed. … 10. Canada is to take over the materials of the electric telegraph at cost price; such

price including transport, but not including interest for money, and subject to a deduction for ascertained deterioration.

… 11. The Company's claim to land under agreement of Messrs. Vankoughnet &

Hopkins to be withdrawn.” On March 9, 1869 Sir Stafford H. Northcote accepted on behalf of the Hudson’s Bay Company. George Etienne Cartier and William McDougall accepted for Canada soon after.

Letter from Sir Frederic Rogers, Bart., to the Right Hon. Sir Stafford H. Northcote, M.P.,

9 March 1869." Letter No. 21, p.40-4, Canada (Rupert's Land), Copy or Extracts of Correspondence between the Colonial Office, the Government of the Canadian

Dominion, and the Hudson's Bay Company, relating to the Surrender of Rupert's Land TAB075

45. Canada did not acquire Rupert's Land and the North-Western Territories through a

purchase from the Hudson's Bay Company. Responsibility for protection of these territories was transferred to the Parliament of Canada, according to s.146 of the Constitution Act, 1867, a statute of the Imperial Parliament of Great Britain, "on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve". The Address accepted by Her Majesty April, 22 1868, "That in the event of your Majesty’s Government agreeing to transfer to Canada the jurisdiction and control over the said region, the Government and Parliament of Canada will be ready to provide that the legal rights of any corporation, company or individual within the same shall be respected, and placed under the protection of Courts of competent jurisdiction.” are identical to the terms in the order in council prescribed by s. 146 of the Constitution Act for annexing Rupert’s Land and the North-Western Territory, June 23, 1870 (see Annex A,

<Defendant> Docket:


p.647-648 of Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the Union, 1870, at the Court at Windsor, the 23rd day of June, 1870, Kennedy 1930:644 ). [Emphasis added] This was a transfer of jurisdiction and control, not title or ownership of the soil.


Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the Union, 1870, CLXXVI, p.644, Statutes, Treaties and Documents

of the Canadian Constitution, 1713 - 1929, W. P. M. Kennedy, ed., Second Edition, Revised and Enlarged, Toronto, ON: Oxford Universiy Press 1930 TAB090

Connolly v. Woolrich, [1867], in a court of competent jurisdiction, found Aboriginals living under own laws on own land

46. There was a very obvious reason why neither the Hudson’s Bay Company nor the

Canadian Government wanted to have the issue of property rights before the Judicial Committee of the Privy Council. In 1867, a Quebec superior court judge, Samuel Cornwalis Monk, presided over an action between the Aboriginal sons and daughters of a Scottish fur trader, William Connolly, and the children of Connolly’s subsequent marriage to a European, Julia Woolrich, of Montreal. The issues in this action were substantial and real. Connolly was quite wealthy and the losing descendants were to be declared 'bastards', not legitimate heirs. In his decision (see Connolly v. Woolwich (1) 11 L.C. Jur. 197), Monk J discredited the Hudson’s Bay Company’s territorial claims and applied Blackstone’s (see Blackstone 1916 Vol.I Book1:§ 144), and Mansfield’s doctrine of continuity (see Lord Mansfield’s Judgment in Campbell v. Hall, [1774], in Kennedy 1930:91) in an authoritative manner than would have been fatal to Canadian Government claims based on discovery doctrine. During the time that the Hudson’s Bay Company and the Canadian Government were being forced into terms by Earl Granville, Connolly v. Woolwich (1) 11 L.C. Jur. 197 was midway through an appeal. A few months later Monk J’s decision was confirmed (see Johnstone et al v. Connolly [1869], 17 R.J.R.Q. at p.243).

Connolly v. Woolwich (1) 11 L.C. Jur. 197 TAB031

Blackstone, William and Jones, William Carey; 1916; Commentaries on the Laws of England, Vol. I, Book I, San Franciso, CA: Bancroft-Whitney Company, 1916

TAB014 Johnstone et al v. Connolly [1869], 17 R.J.R.Q. TAB065

47. Monk J's judgment, reported as, Connolly v. Woolwich (1) 11 L.C. Jur. 197 ---, held

that: "1. That though the Hudson's Bay Company's Charter is of doubtful validity, yet, if valid, the chartered limits of the company did not extend westward beyond navigable waters of the rivers flowing into the Bay; 2.That the English Common law prevailing in the Hudson's Bay territories, did not apply to natives who were joint occupants of the territories; nor did it supersede or abrogate even within the limits of the Charter, the laws, usages, and customs of the aborigines; 3. That no

<Defendant> Docket:


other portions of the English Common Law than that introduced by King Charles' Charter obtains in Hudson's Bay Territories; 4. That the English law was not introduced into the North West territories by the cession by France to England, nor by royal Proclamations subsequent to that date."


48. Monk J cited the Royal Proclamation of October 7, 1763 (see Connolly v.

Woolwich (1) 11 L.C. Jur. 197 at p.96); and, English common law on marriages out of country as "Blackstone, vol. 2, page 296. Am. Ed. 1843." (see p.131). In rejecting the defendant's argument that English law prevailed in Rupert's Land and the North-Western Territories, Monk J cited British Imperial doctrine of continuity, identical to that enunciated earlier by Mansfied, "... the whole of their institutions were also liable to be new modelled and reformed by the general superintending power of the legislature in the mother country, and even this doctrine would apply only to newly discovered and uninhabited regions. But, in both cases under consideration, the discoverers and first settlers found these wild regions occupied and held by numerous and powerful tribes of Indians; by aboriginal nations, who had been in possession of these countries for ages" (see Connolly v. Woolwich (1) 11 L.C. Jur. 197 p. 84)

Royal Proclamation, October 7, 1763, Papers Relative to the Province of Quebec,

Ordered to Be Printed 21st April 1791, at p.8 TAB138 Connolly v. Woolwich (1) 11 L.C. Jur. 197 TAB031

Blackstone, William and Jones, William Carey; 1916; Commentaries on the Laws of England by Sir William Blackstone, edited by William Carey Jones, Vol. II, San

Francisco, CA: Bancroft-Whitney TAB015

49. Monk J described the legal context of the territories in this manner - "But admitting, for the purpose of conceding to the Defendant all that can be granted, that, in 1803, the Athabaska district was included within the western limits of the Hudson Bay territories, still that portion of the Common Law of England which would prevail there, had a very restricted application; it could be administered and enforced only among, and in favour of, and against those "who belonged to the Company or were living under them." (see at Connolly v. Woolwich (1) 11 L.C. Jur. 197 p.80) It did not apply to the Indians, nor were the native laws or customs abolished or modified, and this is unquestionably true in regard to their civil rights. It is easy to conceive, in the case of joint occupation of extensive countries by Europeans and native nations or tribes, that two different systems of civil and even criminal law may prevail. History is full of such instances, and the dominions of the British Crown exhibit cases of that kind. The Charter did introduce the English law, but did not, at the same time, make it applicable generally or indiscriminately; it did not abrogate the Indian laws and usages."


<Defendant> Docket:


50. Monk J dismissed any notion that English law had somehow displaced Aboriginal law with his remarks, "This pretension of the Defendant, therefore, that, to the exclusion of the laws and customs of the natives, the common law of England prevailed at Rat River in 1803, or at any subsequent period, must be overruled, and in doing so the Court may remark that it was not competent in any case for Mr. Connolly to carry with him this common law of England to Rat River in his knap- sack, and much less could he bring back to Lower Canada the law of repudiation in a bark canoe." (see Connolly v. Woolrich [1867] 11 L.C. Jur. 197 at p. 91) Monk J's judgment was rendered, July 9, 1867, and was immediately appealed. However, the appeal court found, "Judgment has passed in the Superior Court in favor of Respondent, and, upon the present appeal, I have to confirm that judgment, unless certified of their being error in it. Instead of being erroneous, it seems to be a correct judgment, in all its leading and material fin[d]ing." (see Johnstone et al v. Connolly [1869], 17 R.J.R.Q. at p.243)

Connolly v. Woolrich [1867] 11 L.C. Jur. 197 TAB031

Johnstone et al v. Connolly [1869], 17 R.J.R.Q. TAB065

51. Monk J's decision was not appealed further, however it was widely reported throughout North America and the British Empire (see Jurist [London] 1867, Vol. 11; Canada Law Journal 1868, Vol. 4, p.57-58). In fact, February 1, 1888, less than five months before it ruled in St. Catharines Milling and Lumber Company v. The Queen [1888], 14 A.C. 46, the Judicial Committee of the Privy Council considered Connolly v. Woolrich in its judgment of Bethel v. Hildyard [1888] 38 Ch D 220, noting "Then there is the case of Connolly v. Woolrich 11 Low. Can. Jur. 197 (1867). Connolly, a Christian, who never lost his domicil of birth in Lower Canada, went to and did reside in the North-West Territories for thirty years, and there married an Indian woman of the Cree Indians, who were pagans, and the Court held that the marriage was valid notwithstanding the assumed existence of polygamy, and divorce at will obtained." (see p. 225-226). Finally, it was determined that Connolly v. Woolrich was determined not to be relevant in Re Bethel v. Hildyard, because it was "not determined in accordance with English law and ha[d] no bearing upon this case." (see p.230), and, "is of no authority in this country. It was decided upon the old French and Canon laws. The 'necessity' there was shewn to be absolute, as there was no minister nearer than 3000 miles away" (see Bethel v. Hildyard [1888] 38 Ch D 220 at p.231)

Review of Connolly v. Woolrich [1867], Jurist [London] 1867, Vol. 11 TAB032

Review of Connolly v. Woolrich [1867], Canada Law Journal 1868, Vol. 4, p.57-58 TAB033

Bethel v. Hildyard [1888] 38 Ch D 220 TAB013 St. Catharines Milling and Lumber Company v. The Queen [1888], 14 A.C. 46 TAB143


52. In the Supreme Court of Canada, in Ontario v. The Dominion of Canada and Quebec; In Re Indian Claims, [1895] 25 S. C. R. 434 at p.422, Girouard Q.C. for

<Defendant> Docket:


the respondent, the province of Quebec, commented, "I forgot, when dealing with the legal status of the Indians, taken as nations and not as individuals, to say that the laws passed by these Indian nations had been recognized by the courts of our own country as binding upon themselves. Take the case of marriage; take Connolly v. Woolwich (1) 11 L.C. Jur. 197., which says that the marriage of a white man to an Indian, according to their own laws, was a valid marriage ; and they have certain rules and laws of succession, certain rules and laws concerning the property, which was especially reserved for their own use. I forgot to mention that, as another illustration of the proposition I laid down at the beginning, that those Indians, as nations, must not be looked upon as a big corporation or company; but must be looked upon as a nation, having a political economy in the country.”

Ontario v. The Dominion of Canada and Quebec; In Re Indian Claims, [1895] 25 S. C.

R. 434 TAB089

53. In Kenward v Kenward [1950] 2 All ER 297, the Judiciary Committee of the Privy Council found that “The marriage is valid by the law of her country and should also for many purposes be regarded as valid here. It should not be treated as altogether invalid simply because it is potentially polygamous. If he has children by her, they should be regarded as legitimate; and if he during her life time without dissolving the marriage, should come to England and go through a form of marriage here with another woman, the second marriage would be a nullity, because no one here can take to himself a second wife during the lifetime of the first; Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197, set out in a note to Sir Eric Beckett's valuable article in Law Quarterly Review, Vol. 48, p. 369.. " (see Kenward v Kenward [1950] 2 All ER 297at p. 145-146)

Kenward v Kenward [1950] 2 All ER 297 TAB069


54. Connolly v. Woolrich has been applied in Canadian courts in Fraser v. Pouliot et al, [1884], 13 R.L.O.S. 1; Fraser v. Pouliot et al, [1885], 13 R.L.O.S. 520; R. v. Nan-e-quis-a-ka, [1889], 1 Terr.L.R. 211(also reported: 1 (No. 2) N.W.T.R. 21); Robb v. Robb et al. [1891], 20 O.R. 591; R. v. Bear's Shin Bone [1899], 4 Terr. L.R. 173 (N.W.T.S.C.), as per R. v. Nan-e-quis-a-ka; Re Noah Estate, [1961] NWT Court; Ex Parte Cote, [1971], 22 D.L.R. (3d) 353; Keddie v. Currie, 1991 CanLII 5731 (BC C.A.); Casimel v. Insurance Corp. of British Columbia, [1993] BC C.A.; Baker v. Saskatchewan Government Insurance, 1998 CanLII 13383 (SK Q.B.); Prince & Julian v. HMTQ et al, 2000 BCSC 1066; Campbell et al v. AG BC/AG Cda & Nisga'a Nation et al, 2000 BCSC 1123; Prince & Julian v. HMTQ et al, 2000 BCSC 1066 (CanLII); Queen v. Drew et al, 2003 NLSCTD 105 (CanLII); R. v. Morris and Olsen, 2004 BCCA 121 (CanLII)

Connolly v. Woolrich [1867] 11 L.C. Jur. 197 TAB031 Fraser v. Pouliot et al, [1884], 13 R.L.O.S. 1 TAB046

Fraser v. Pouliot et al, [1885], 13 R.L.O.S. 520 TAB047

<Defendant> Docket:


R. v. Nan-e-quis-a-ka, [1889], 1 Terr.L.R. 211 TAB116 Robb v. Robb et al. [1891], 20 O.R. 591 TAB134

R. v. Bear's Shin Bone [1899], 4 Terr. L.R. 173 (N.W.T.S.C.) TAB104 Re Noah Estate, [1961] NWT Court TAB130

Ex Parte Cote, [1971], 22 D.L.R. (3d) 353 TAB044 Keddie v. Currie, 1991 CanLII 5731 (BC C.A.) TAB068

Casimel v. Insurance Corp. of British Columbia, [1993] BC C.A. TAB029 Baker v. Saskatchewan Government Insurance, 1998 CanLII 13383 (SK Q.B.) TAB009

Prince & Julian v. HMTQ et al, 2000 BCSC 1066 TAB098 Queen v. Drew et al, 2003 NLSCTD 105 (CanLII) TAB099 R. v. Morris and Olsen, 2004 BCCA 121 (CanLII) TAB113

The Royal Proclamation that Her Majesty’s Government of Great Britain issued on December 6, 1869 was interpreted and applied in R. c. Caron, 2008 ABPC 232 55. On September 8, 1869, in Johnstone et al v. Connolly [1869], 17 R.J.R.Q. 266,

Monk J’s judgment in Connolly v. Woolrich, [1867] was upheld and his judgment reasons affirmed while peace and good order at Red River began to deteriorate. On November 2, 1869, Louis Riel and a group of armed men occupied Fort Garry. William McDougall, the appointed Lieutenant Governor, had been refused permission by the occupiers to enter Rupert’s Land. Prime Minister John A. Macdonald advised Her Majesty’s Government that Canada was only willing to accept annexation of Rupert’s Land “in a state of tranquility.” (see Letter Sir John Young to Earl Granville, 30th November 1869). On the eve of removing all of its troops from Canada under terms of a treaty with the United States, Her Majesty’s Government was not prepared to put down a rebellion with force. Thus, Her Majesty’s Government did what it had done in very similar conditions in 1763. It issued a Royal Proclamation on December 6, 1869. This Royal Proclamation was carefully examined, very recently by Alberta Provincial Court Judge L. J. Wenden in R. c. Caron, 2008 ABPC 232.

Johnstone et al v. Connolly [1869], 17 R.J.R.Q. 266 TAB065

Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197 TAB031 Letter Sir John Young to Earl Granville, 30th November 1869, p.139-140,

Correspondence and Papers Connected with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional

Papers (No. 12) TAB077 Royal Proclamation, December 6, 1869, p. 43-44, Correspondence and Papers Connected

with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional Papers (No. 12) TAB137

R. c. Caron, 2008 ABPC 232 TAB100

<Defendant> Docket:


56. In R. c. Caron, 2008 ABPC 232, Gilles Caron, an Edmonton truck driver sought a declaration under the Constitution Act, s. 52 that the Legislature of the Province of Alberta must adopt in French and apply in French, all laws and regulations of the Province of Alberta beginning with those pursuant to which Gilles Caron was alleged to have breached - Traffic Safety Act; Use of Highways and Rules of the Road Regulations; Provincial Court Act; Constitutional Notice Regulation A.R. 102/99. Alberta Provincial Court Judge L. J. Wenden in R. c. Caron, 2008 ABPC 232 after a careful examination of the evidence presented arrived at the conclusion: [573] À mon avis, l’article trois empiète sur les droits linguistiques de l’accusé M. Caron. Sa langue maternelle est le français, il est francophone. Par conséquent, ses droits linguistiques ont été violés. [translation … 573. In my opinion, section three is encroaching on the language rights of the accused Mr. Caron. His language is French, He is a Francophone. Therefore, his linguistic rights have been violated.]

R. c. Caron, 2008 ABPC 232 TAB100 Royal Proclamation, December 6, 1869, p. 43-44, Correspondence and

Papers Connected with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional Papers

(No. 12) TAB137

57. [424] Quand je considère l’ensemble de la preuve, j’accepte la thèse de la défense selon laquelle le gouverneur-général avait la capacité et l’autorisation d’émettre la proclamation et que celle-ci avait force de loi.

[translation … 424. When I consider the whole proof, I accept the thesis of the defense according to which the Governor-General had the authority and the approval to issue the proclamation and that this one had force of law.]


58. [430] Cela ne laisse aucun doute que la proclamation englobe plus que la seule population de la colonie de la rivière Rouge.

[translation … 430. It leaves no doubt that the proclamation includes more than just the population of the colony of the Red river.] [434] Je suis satisfait que la proclamation vise la Terre de Rupert et le Nord-Ouest. [translation … 434. I am satisfied that the proclamation encompasses Rupert’s Land and the North-Western Territory.]


<Defendant> Docket:


59. [435] Il n’y a aucun doute que la proclamation provient de la Reine :

[translation … 435. There is no doubt that the proclamation comes from the Queen.]


60. [444] Le cinquième paragraphe est le pivot de la thèse de la défense. Selon cette dernière, ce paragraphe reconnaît le fait que les habitants de la Terre de Rupert avaient une vie communautaire bien organisée avant l’union avec le Canada. Ils avaient acquis des droits et des privilèges civils et religieux et le cinquième paragraphe assurait la reconnaissance et le respect constant des droits et privilèges de l’union avec le Canada :

[translation … 444. The fifth paragraph is the backbone of the defense’s thesis. According to this last, this paragraph acknowledges the fact that the inhabitants of Rupert’s Land had life in a community organized well before the union with Canada. They had acquired rights, civil and religious privileges and the fifth paragraph assured recognition and constant respect for rights and privileges upon union with Canada:]

« (5) By Her Majesty’s authority I do therefore assure you, that on the Union with Canada all your civil and religions rights and privileges will be respected, your properties secured to you, and that your Country will be governed, as in the past, under British laws, and in the spirit of British justice. »


61. [448] Selon moi, le mot « droits » (rights) ne peut pas être interprété seul, c’est-à-dire sans les mots « tous vos » (all your). Ce ne sont pas les droits au sens abstrait qui sont garantis. Les mots « tous vos » nuancent le mot « droits », et reconnaissent « tous vos droits civils » obtenus et exercés par les habitants avant l’union avec le Canada.

[translation ….448. According to me, the word "rights " cannot be interpreted alone, that is to say without words “all your”. These are not rights in the abstract sense, which are guaranteed. The words "all" qualified the word "rights" and recognize "all your civil rights" obtained and exercised by the people before the union with Canada.]


62. [561] En conséquence, à mon avis, il était nécessaire que la proclamation soit constitutionnelle pour apaiser les Métis, en leur donnant plus de certitude. Une garantie politique peut être annulée plus facilement qu’une garantie constitutionnelle. Avec la conciliation des Métis, la possession paisible exigée par

<Defendant> Docket:


le Canada devenait possible. Tous les dispositifs visaient à assurer le succès du processus de transfert. Selon moi, étant donné le contexte historique, la proclamation est un document constitutionnel.

[translation … 561. Accordingly, in my opinion, it was necessary that the proclamation be constitutional to appease Métis by providing them with greater certainty. A political guarantee can be reversed more easily than a constitutional guarantee. With the reassurance of the Métis, the peaceful possession required by Canada became possible. All measures were designed to ensure the success of the annexation. In my view, given the historical context, the proclamation is a constitutional document.]


63. Wenden J deduced from the Royal Proclamation of December 6, 1869, that:

1) the Governor-General had the authority and the approval to issue the proclamation and that this one had force of law; that the proclamation includes more than just the population of the colony of the Red river; that proclamation encompasses Rupert’s Land and the North-Western Territory; that the proclamation comes from the Queen; that the inhabitants of Rupert’s Land had life in a community organized well before the union with Canada; they had acquired rights, civil and religious privileges and the fifth paragraph assured recognition and constant respect for rights and privileges upon union with Canada; the proclamation provided a constitutional guarantee; and, the proclamation is a constitutional document. For the same reasons, the Royal Proclamation of December 6, 1869 provides <defendant> a constitutional guarantee of Aboriginal rights to hunt, fish and trap, according to the fashion practiced by <his/her> people before the annexation of Rupert’s Land to Canada.


64. At issue here is the right of <defendant> to be free of <province>’s regulation of

<his/her> hunting, fishing and trapping activities. This right to be free of <province> laws, asserted by <defendant> was well described in the Supreme Court of Canada by Rand J In re. Storgoff, [1944] S.C.R. 526, at page 578: “We speak of a right in the individual to personal liberty, of a right to the issue of the writ of habeas and a right to be discharged from illegal detention. The basis for asserting freedom from restraint, whether conceived to be the creation of law or to be the result of an original absence of any warrant under law to interfere with liberty, is postulated as 'a primary right in the juridical system by which we are governed. In that sense, the positive law, in its relation to individual liberty, creates the justification for encroachments upon it. What is important here is the remedial civil right to protection against any other than those legal encroachments and the procedure by which it is enforced; and, within limits, that is what is furnished by the law of habeas. It is not, however, the abstract right to be free that is in question but the right to be free from the particular process. <defendant> asks that

<Defendant> Docket:


<his/her> rights to hunt, fish and trap be regulated by the constitutionally protected Aboriginal laws that create those rights and that he be free of the unconstitutional <province> laws that have been imposed. [emphasis added]

In re. Storgoff, [1944] S.C.R. 526 TAB058

Given the historical context, the Royal Proclamation of December 6, 1869 is a constitutional document

65. At the time of Rupert’s Land’s annexation to Canada, <defendant>’s Aboriginal

people were participants in a bijural occupation as described by Hudson’s Bay Company George Simpson in his sworn testimony before a Special Committee of British Parliament in 1857 (see Report from the Select Committee on the Hudson's Bay Company) and as described by Monk J in his authoritative judgment of Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197. Inhabitants of Rupert’s Land had a choice of living according to English laws, as many persons of mixed European and Aboriginal ancestry did choose to do as employees of the Hudson’s Bay Company; or, inhabitants of Rupert’s Land had a choice of living according to Aboriginal law, as many persons of mixed European and Aboriginal ancestry did choose to do by living with Aboriginal nations, for example as a result of marriage or adoption. It is that bijural community organization that the Royal Proclamation of December 6, 1869 guarantees. Any disputes arising in such a bijural community should be resolved, as promised “in the spirit of British justice” and “under the protection of a court of competent jurisdiction” (see respectively, Royal Proclamation, December 6, 1869; and, Address to the Queen, accepted April 1868). Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197 provides an instructive example.

Report from the Select Committee on the Hudson's Bay Company together with the

proceedings of the committee, minutes of evidence, appendix and index, etc. Britain. Parliament. House of Commons. Select Committee on the Hudson's Bay Company, [London : HMSO, 1858], Ordered, by The House of Commons, to be

Printed, 31 July and 11 August 1857 , Parliament of Great Britain TAB133 Royal Proclamation, December 6, 1869, p. 43-44, Correspondence and Papers

Connected with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional Papers (No.

12) TAB137 Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197 TAB031

66. According to the sworn testimony of Prime Minister John A. Macdonald, “The

proclamation I speak of is that of 6th December, 1869 .... I do not remember that there was any other communication from the Colonial Office authorizing the proclamation, than the telegram of the 25th November, 1869, from Lord Granville to the Governor General. ... The proclamation, as first issued, was transmitted for dissemination in the North West through the Very Revd. Mr. Thibault. It was printed in English, French and Cree, at Ottawa and sent by him. .... The

<Defendant> Docket:


Government was informed that, though Mr. Thibault was allowed access to the Territory, he was deprived of the proclamation given him, and that they were not published.” (see Report of the Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70, p.100-101). Donald A. Smith arrived soon after Father Thibault. During his speech to an open air meeting, Smith read only a passage from the proclamation. (see Morton 1956:92). After Smith departed Red River, according to the Prime Minister, Bishop Alexandre Taché assumed responsibility for publication of the Royal Proclamation (see Report of the Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70, p.100-102). The Bishop did not publish the Royal Proclamation.

Report of the Select Committee on the Causes of the Difficulties in the North-West

Territory in 1869-70, Journals of the House of Commons of the Dominion of Canada from the 26th March to the 26th May, 1874 ... being the 1st session of the 3rd Parliament of Canada, session 1874, Ottawa : Hunter, Rose, [1874] TAB133

Morton, W. L.; 1956; Alexander Begg’s Red River Journal and Other Papers Relative to the Red River Resistance of 1869-1870, Toronto, ON: Champlain Society TAB084

67. While William McDougall waited outside Rupert’s Land, he was interviewed by

news correspondent, John Robertson-Ross in St. Paul, Minneapolis, for an article printed in the Daily Telegraph of Toronto, January 6, 1870. Robertson-Ross asked McDougall, “Are all the Indians loyal?” McDougall replied, “Yes, all the Indian tribes are loyal and would at a moment’s warning take up arms in defense of the British Government. They know full well that if ever annexation took place their chances would be small.” Robertson-Ross then asked McDougall, “You intended, did you not, to recognize the Indian claims?” To which McDougall replied, “Certainly. I intended to look on the Indians as owners of the land, and would treat for it with them as such.” Robertson-Ross asked McDougall, “Did they [Americans] dread an Indian uprising?” McDougall answered, “Yes. They knew well that the Indians have been always decently treated by the British Government and that if any trouble did ensue, their chances would not be very good. They swore, knowing this, that if Americans had to suffer our party should be cleaned out first.” Robertson-Ross’ interview with McDougall was widely published in eastern North American newspapers.

Daily Telegraph of Toronto, January 6, 1870 TAB037

68. Simon James Dawson, a civil engineer for the Dominion government was very

familiar with the route of Colonel Garnet Wolseley’s expedition to Red River. In a 1869 report the previous year, Dawson had reported, “They [Aboriginals] are sufficiently organized, numerous and warlike to be dangerous if disposed to hostility; and, standing as they do in the gateway to the territories of the North-West, it is of the highest importance to cultivate amicable relations with them. ... They would be kept keenly alive to any imagined slight in opening a highway, without regard to them, through a territory of which they believe themselves to be sole lords and masters and to which, if a lengthened period of occupation can give

<Defendant> Docket:


claim, they have unquestionably some title.” (Dawson 1869:27-28). A year after Wolseley’s expedition was completed, Dawson commented in an 1870 report, “It was at this time apprehended that the insurgents at Red River might endeavour to tamper with the Saulteaux Indians, a tribe which occupies the country about Fort Frances and the Lake of the Woods in formidable numbers, and in order to establish and keep up friendly relations with these Indians, by direction of the Government, I sent instructions to keep a trusty agent at Fort William, to proceed to Fort Frances where had long resided, and enter into communication with the chiefs and leading men of the tribe. A copy of these instructions is hereunto annexed.” (see Report of Mr. S. J. Dawson, upon the Red River Expedition of 1870, p.3)

Dawson, Simon James; 1869; Report on the Line of Route between Lake Superior and the

Red River Settlement, by S. J. Dawson, Esq., Civil Engineer, Ottawa, ON: House of Commons TAB039

Report of Mr. S. J. Dawson, upon the Red River Expedition of 1870, Sessional Papers (No. 47), Ottawa, ON: House of Commons TAB040

69. Colonel Wolseley’s Standing Orders for the Red River Expeditionary Force, from

Toronto, 14th May, 1870, cautioned his officers: “35. All officers belonging to this Force will be most careful in impressing upon those under their command the great necessity there is for cultivating the good will of the Indians and others employed as voyageurs. Colonel Wolseley will punish with the utmost severity any one who ill treats them. The same rule applies to all Indians who may be met on the line of route. It must be remembered that the Government has made a treaty with them securing the right of way through their country; all are therefore bound to protect them from injury, and it is of special importance that our intercourse with them should be of the utmost friendly nature.” (see Standing Orders for the Red River Expeditionary Force, The War Office to Lieutenant-General the Honourable James Lindsay, 24 March, 1870, Great Britain. War Office, [London : s.n., 1870?]) Along with his standing orders, Colonel Wolseley was also advised that the Deputy Minister of Militia and Defence would ensure negotiations with Rainy Lake Indians took place. (see Letter from Deputy Minister of Militia to the Military Secretary, April 19, 1870, Standing Orders for the Red River Expeditionary Force, p.11-13)

Standing Orders for the Red River Expeditionary Force, The War Office to Lieutenant-

General the Honourable James Lindsay, 24 March, 1870, Great Britain. War Office, [London : s.n., 1870?], Parliament of Great Britain TAB144

70. In British Parliament on February 10, 1870 in the House of Commons, the Under

Secretary in answer to a question on the unrest at Red River, commented, “We have every reason to believe that this armed rising was principally caused by misapprehension as to the intentions of the Canadian Government.” On May 20, 1870, in the British House of Commons, MP Robert Fowler commented, “he must commence by expressing his belief that the inhabitants of the Settlement had good reason to complain that their rights as British subjects had not been properly respected when the territory was transferred to Canada.” On July 4, 1870, in the

<Defendant> Docket:


House of Lords, the Secretary of Colonial Affairs, Earl Granville assured the House of Commons, “.... It was too late now to question the legality of the transfer of the territory to the Dominion, and that arrangement was only made after long negotiation. The object of the military expedition which had started was not to conquer a rebellion, but for the purpose of securing that state of order which he trusted the expedition would find prevailing; and with regard to the Dominion Government, he would only say that, while he certainly could not defend certain of its acts to which the noble Marquess had referred, he was bound to say that ever since that time it had acted with singular judgment, caution, and moderation, and in perfect accord with Her Majesty's Government.”

Parliament of Great Britain - House of Commons Debates, 10, February 1870, vol 199

cc118-9 TAB095 Parliament of Great Britain - House of Commons Debates, 20 May 1870 vol 201

cc1088-94 1088 TAB094 Parliament of Great Britain - House of Lords Debates, 4 July 1870 vol 202 cc1331-6

1331 TAB096

71. After his return to England, Colonel Garnet Wolseley wrote of his experiences Blackwood’s Edinburgh Magazine. He remarked, “It would have been impossible to have carried out the measure in the face of their [Aboriginal] opposition, so it became necessary to soothe their alarm by fair promises; no coercion was to be attempted, and the troops, for the protection of law and order. In fact, they were going there, more in the capacity of police than of soldiers.” [p.714] “... As they [the Aboriginals of NW Ontario] are all armed and capable of great endurance, and as the country generally is a network of lakes, where they can go in any direction for hundreds of miles in their light canoes, they might cause endless trouble and great loss to any military force seeming to push its way through the country without their permission.” [p. 718]

Wolseley, Garnet Joseph; 1870; Narrative of the Red River Expedition: By an Officer of

the Expeditionary Force, Part I, Blackwood’s Edinburgh Magazine, Vol. 108, July – December, 1870, p.704 – 718 TAB153

72. While still in the presence of and under the command of Lieutenant-General

Lindsay, Colonel Garnet Wolseley issued a proclamation assuring the inhabitants of the peaceful nature of his mission and the security of the inhabitants’ property and civil rights. According to one of his Francophone officers, (see Sulte 1871:29 translation – “he, Lieut-General Lindsay landed in Thunder Bay June 29, ran staggered positions to Lake Shebandowan, descended by the Kaministiquia and took the route to Toronto on July 4, after giving various orders to the commander of the expedition”). Colonel Wolseley also maintained constant communications with Her Majesty’s Government - “arrangements were made with the Hudson’s Bay Company to place Indians with light canoes at different points, and by them the mails were regularly forwarded during August and September.” (see Irvine 1871:9) Colonel Wolseley was under the control of Governor-General John Young, through

<Defendant> Docket:


Lt. Gen. Lindsay, with arrangements to communicate regularly with him en route. (see Expeditionary Force to Red River - Instructions for the Guidance of Colonel Wolseley, #15 and #16, p.22). Wolseley was also accompanied by Lt. Col. McNeill, the Governor-General’s Military Secretary, in order that the Governor-General be able to communicate regularly with Colonial Secretary Earl Granville. (see Expeditionary Force to Red River - Instructions for the Guidance of Colonel Wolseley, p. 27-28)

Sulte, Benjamin; 1871; L’Expedition Militaire de Manitoba 1870, Montreal, QC: Eusebe

Senecal Imprimeur, Editeur TAB123 Irvine, M. Bell; 1871; Report of the Red River Expedition of 1870, London, UK: W.

Harrison & Sons TAB064

73. Colonel Wolseley’s proclamation, in more direct language, contained the same assurances as Her Majesty’s Royal Proclamation, December 6, 1869. Lt. Gen. James Lindsay was still present, supervising Col. Wolseley and under the control of the Queen’s representative in Canada, Governor-General John Young. Therefore, it must be assumed that Wolseley’s proclamation was also issued under instructions from the Colonial Secretary and Her Majesty’s Government. Wolseley’s proclamation read as follows:

“To the Loyal Inhabitants of Manitoba Her Majesty’s Government having determined upon stationing some troops among you, I have been instructed by the Lieutenant-General Commanding in British North America to proceed to Fort Garry with the force under my command. Our mission is one of peace and the sole object of the expedition is to secure Her Majesty’s sovereign authority – Courts of Law such as are common to every portion of Her Majesty’s Empire will be duly established and Justice will be impartially administered to all races and to all classes. The Loyal Indians or Half Breeds being as dear to our Queen as any other Loyal Subjects. The force I have the honour of commanding will enter your Province representing no party either in Religion or Politics, and will offer equal protection to the lives and property of all races and all creeds. [emphasis added] The strictest order and discipline will be maintained and private property will be carefully respected. All supplies furnished to the troops will be duly paid for – should any one consider himself injured by any individual attached to the force his grievances shall be promptly enquired into. All loyal people are earnestly invited to aid me in carrying out the above mentioned subjects. G. J. Wolseley Colonel Commanding Red River Force Port Arthur’s Landing 30th June 1870” (see Morton 1956:392; Huyshe 1871:89; Begg:1871:383)

<Defendant> Docket:


Morton, W. L.; 1956; Alexander Begg’s Red River Journal and Other Papers Relative to the Red River Resistance of 1869-1870, Toronto, ON: Champlain

Society TAB084 Huyshe, G. L.; 1871; The Red River Expedition, London, UK: Macmillan and

Company TAB056 Begg, Alexander; 1871; The Creation of Manitoba; or, A History of the Red River

Troubles, Toronto, ON: A. H. Hovey TAB012

74. Any doubt that Colonel Wolseley’s proclamation was instructed by Her Majesty’s Government is removed by a letter from Wolseley’s commanding officer, Lt.-Gen. James Lindsay to Bishop Alexandre Taché. Written July 11th, 1870 from Clifton House near Niagara Falls, residence of the Governor-General John Young, the letter asks Bishop Taché to erase a paragraph in the proclamation before issuing it. “I have the honor to request that before issuing it, you will have the goodness to erase the paragraph in which English translation commences with the words 'Courts of Law, --' and terminates with those of 'Her loyal subjects' -- legal affairs being altogether within the functions of the civil authorities.” (see Begg 1871:384). However, as Alexander Begg witnessed, Wolseley’s proclamation was issued in Red River, unchanged, July 23, 1870 (see Morton 1956:392)

Begg, Alexander; 1871; The Creation of Manitoba; or, A History of the Red River

Troubles, Toronto, ON: A. H. Hovey TAB012 Butler, William Francis; 1872; The Great Lone Land: A Narrative of Travel and Adventure in the North-West of America, London, UK: Sampson Low, Marston

Low & Searle TAB019 Morton, W. L.; 1956; Alexander Begg’s Red River Journal and Other Papers Relative to

the Red River Resistance of 1869-1870, Toronto, ON: Champlain Society TAB084

75. Colonel Wolseley’s proclamation met the same fate in Donald A. Smith’s and Bishop Taché’s hands as had the Royal Proclamation of December 6, 1869. Both were suppressed. However, Colonel Wolseley had already sent Captain William Francis Butler, secretly through Chicago, St. Paul, Minnesota and Pembina, North Dakota into Red River, “for the purpose of finding out how matters really stood there, and then to come and meet me [Wolseley] when I had made about half the distance to Fort Garry.” (see Wolseley 1904 Vol.II:201-202; Sulte 1871:34; Butler 1872:113-143;) Captain Butler succeeded very well in his mission. During his brief stay at the Red River, Butler met with Hudson’s Bay Governor, John McTavish. With McTavish’s copy of Wolseley’s proclamation and with the assistance of Louis Riel and the New Nation Press, Wolseley’s proclamation was not only widely published in the Red River, it was also published in many North American newspapers as well. (see Morton 1956:392; Sulte 1871:34; Letter Cartier to Tache 1870)

Wolseley, Garnet Joseph; 1904; The Story of a Soldier’s Life, Vol. II, Toronto, ON: The

Book Supply Company TAB154 Butler, William Francis; 1872; The Great Lone Land: A Narrative of Travel and

<Defendant> Docket:


Adventure in the North-West of America, London, UK: Sampson Low, Marston Low & Searle TAB019

Letter Cartier to Tache, Montreal, 2nd November 1870, p.46, Appendix (No. 6), Report of the Select Committee on the Causes of the Difficulties in the North-West

Territory in 1869-70, Journals of the House of Commons of the Dominion of Canada from the 26th March to the 26th May, 1874 ... being the 1st session of the 3rd Parliament of Canada, session 1874, Ottawa : Hunter, Rose, [1874] TAB074

76. Colonel Wolseley’s proclamation was effective. Not a shot was fired. Louis Riel

escaped just ahead of the arrival of the soldiers on Tuesday August 23, 1870, (see Begg 1871:389; Wolseley 1904 Vol. II:216-222). A few days later, on Friday September 2, 1870, Lieutenant-Governor Archibald arrived. (Begg & Nursey 1879:14)

Begg, Alexander; 1871; The Creation of Manitoba; or, A History of the Red River

Troubles, Toronto, ON: A. H. Hovey TAB012 Wolseley, Garnet Joseph; 1904; The Story of a Soldier’s Life, Vol. II, Toronto, ON: The

Book Supply Company TAB154

The Government and Parliament of Canada may only use the plenary powers of the Constitution Act, 1867, s. 91(24) to keep the promise contained in the Address to the Queen, accepted in April 1868 and contained in the Royal Proclamation, December 6, 1869

77. The promise contained in the Address (see Journals of the House of Commons of

the Dominion of Canada from November 6, 1867 to May 22, 1868, Vol. I), “That in the event of your Majesty’s Government agreeing to transfer to Canada the jurisdiction and control over the said region, the Government and Parliament of Canada will be ready to provide that the legal rights of any corporation, company or individual within the same shall be respected, and placed under the protection of Courts of competent jurisdiction.” [emphasis added] under the terms of the Constitution Act, 1867, s. 146 became automatically part of the Constitution Act, 1867 “as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.” [emphasis added]


to May 22, 1868, Vol. I TAB066 Constitution Act, 1867 TAB034

78. The promise contained in the Royal Proclamation, December 6, 1869, “…By Her

Majesty’s authority I do therefore assure you, that on the Union with Canada all your civil and religious rights and privileges will be respected, your properties secured to you, and that your Country will be governed, as in the past, under British laws and in the spirit of British justice.” [emphasis added], authoritatively interpreted by Sir William Blackstone (see Blackstone Vol. I, 1916:§

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144. c.; Lord Mansfield (see Kennedy 1930:90-91); and Samuel C. Monk (see Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197 at p.132), and the principles of the doctrine of continuity expressed by the Queen, that underpin the order-in-council, the Rupert’s Land & North-Western Territory Order, 1870, which according to the Constitution Act, 1867, s. 146 became automatically part of the Constitution Act, 1867 “as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.”

Royal Proclamation, December 6, 1869, p. 43-44, Correspondence and Papers Connected

with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional Papers (No. 12) TAB137

Blackstone, William and Jones, William Carey; 1916; Commentaries on the Laws of England by Sir William Blackstone, edited by William Carey Jones, Vol. I (Books I

& II), San Francisco, CA: Bancroft-Whitney TAB014 Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045 in Kennedy, William Paul McClure; 1930; Statutes, Treaties and Documents of the Canadian Constitution,

1713-1929, Edited by W.P.M. Kennedy; 2nd Edition, Revised & Enlarged, Toronto, ON: Oxford University Press TAB021

Connolly v. Woolrich [1867] 11 Lower Canada Jurist 197 TAB031 79 Broken down into its two components, the doctrine of continuity in British and

Canadian common law has come to ensure, 1) that the inhabitants of Rupert’s Land and the North Western Territory “continue to be governed by their own laws” (see Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045 at p.91) and, 2) that “a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law… will be… held in check closely” (see Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399 at p.402-403). The latter check against a tendency to render Aboriginal legal behaviour conceptually in terms of English law, has since Guerin v. The Queen, [1984] 2 S.C.R. 335 been referred to as respecting the ‘sui generis’ nature of Aboriginal legal behaviour. In Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC C.A.) at para. 689, Lambert J noted that “.... the meaning of sui generis is that the thing so described is in a class or category of its own. It does not mean that the class or category is in any respect inferior to or lesser than any other class or category.”

Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045 in Kennedy, William Paul

McClure; 1930; Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929, Edited by W.P.M. Kennedy; 2nd Edition, Revised & Enlarged, Toronto, ON:

Oxford University Press TAB021 Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399 TAB005

Guerin v. The Queen, [1984] 2 S.C.R. 335 TAB049 Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC C.A.) TAB042

80. Two of the six principles of the doctrine of continuity declared by Lord Mansfield

are especially important to correctly applying the doctrine of continuity to the

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Constitution Act, 1867, s. 91(24). The first of those deals with the continuity or survival of an Aboriginal legal system, “The fifth is that the laws of a conquered country continue in force until they are altered by the conqueror. The absurd exception as to pagans mentioned in Calvin's Case (1) shows the universality and antiquity of the maxim. For that distinction could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Crusades. In the present case the capitulation expressly provides and agrees that they shall continue to be governed by their own laws, until His Majesty's further pleasure be known.” (see Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045). These principles and the doctrine of continuity of which they are part, were authoritatively applied to Aboriginal rights by Lamer CJ in the Supreme Court of Canada’s judgment of R. v. Van der Peet, [1996] 2 S.C.R. 507. In addition to Mansfield’s, among Lamer CJ’s authorities for his application of the doctrine of continuity were: Sir William Blackstone, Commentaries on the Laws of England (1769), vol. 2, at p. 51, Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820), at p. 119, and Sir William Searle Holdsworth, A History of English Law (1938), vol. 11, at pp. 3-274, ”in the context of Canadian aboriginal law,” Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (1983), Kent McNeil, Common Law Aboriginal Title (1989), Mark Walters’, British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia (1992), 17 Queen's Law Journal, p.350. Mark Walters article is especially relevant to this case as it illustrates the proper application of the doctrine of continuity, using Monk J’s judgment in Connolly v. Woolrich [1867], 11 L.C. Jur. 197 as a detailed and correct example. (see Walters 1992:379). Lamer CJ’s instructions are clear, “British sovereignty would be regarded as having recognized and affirmed practices, traditions and customs which are sufficiently significant and fundamental to the culture and social organization of aboriginal people. This idea relates to the "doctrine of continuity,” founded in British imperial constitutional law, to the effect that when new territory is acquired the lex loci of organized societies, here the aboriginal societies, continues at common law.” (see R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 3).

Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045 TAB021 Connolly v. Woolrich [1867], 11 L.C. Jur. 197 TAB031

Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313 TAB020 Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC C.A.) TAB042

R. v. Côté, [1996] 3 S.C.R. 139 TAB107 Mitchell v. M.N.R., [2001] 1 S.C.R. 911 TAB083

R. v. Marshall (S.F.), 2002 NSSC 57 TAB110 Queen v. Drew et al, 2003 NLSCTD 105 TAB099

R. c. Caron, 2008 ABPC 232 TAB100 81. The second of the six principles declared by Lord Mansfield, especially important

to correctly applying the doctrine of continuity to the Constitution Act, 1867, s. 91(24), involves the correct interpretation and application of the surviving Aboriginal legal system, “The sixth and last proposition is that, if the King (and

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when I say the King, I always mean the King without the concurrence of Parliament) has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles.” This sixth principle was authoritatively applied in the Judicial Committee of the Privy Council’s judgment in Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399, at p.403, where the judges found that “... there is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.” Accordingly, the doctrine of continuity assures not only the survival of the legal system, but as well a judicial rendering of it conceptually in terms appropriate to the Aboriginal perspective, that is, sui generis. (see Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC); Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313; Davey et al. v. Isaac et al., 1974 CanLII 40 (ON C.A.); Guerin v. The Queen, [1984] 2 S.C.R. 335; Pasco v. Canadian National Railway Company, 1989 CanLII 249 (BC C.A.); Roberts v. Canada, [1989] 1 S.C.R. 322; Jules v. Harper Ranch Ltd., 1989 CanLII 2877 (BC S.C.); Delgamuukw v. British Columbia, 1991 CanLII 2372 (BC S.C.); Blueberry River Indian Band v. Canada (DIAND) ( C.A. ), 1993 CanLII 2932 (F.C.A.); Regina v. N.T.C. Smokehouse Ltd., 1993 CanLII 4521 (BC C.A.); and, Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC C.A.))

Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399 TAB005

Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC) TAB006

Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313 TAB020 Davey et al. v. Isaac et al., 1974 CanLII 40 (ON C.A.) TAB038

Guerin v. The Queen, [1984] 2 S.C.R. 335 TAB049 Pasco v. Canadian National Railway Company, 1989 CanLII 249 (BC C.A.) TAB097

Roberts v. Canada, [1989] 1 S.C.R. 322 TAB136 Jules v. Harper Ranch Ltd., 1989 CanLII 2877 (BC S.C.) TAB067

Delgamuukw v. British Columbia, 1991 CanLII 2372 (BC S.C.) TAB041 Blueberry River Indian Band v. Canada (DIAND) ( C.A. ), 1993 CanLII 2932 (F.C.A.)

TAB016 R. v. N.T.C. Smokehouse Ltd., 1993 CanLII 4521 (BC C.A.) TAB115

Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC C.A.) TAB042 Hughes v. The Governor And Co. of Adventurers of England Trading Into Hudson's Bay,

1998 CanLII 1676 (BC S.C.) TAB054 Mitchell v. M.N.R., [2001] 1 S.C.R. 911 TAB083 R. v. Bernard, 2003 NBCA 55 (CanLII) TAB105

82. In order to determine the correct purpose for the plenary powers of Parliament

under s. 91(24) Indians and Lands Reserved for Indians in Canada’s constitution, it is necessary to combine the pieces, hereto identified: 1) the Government of Canada and Parliament are responsible for respecting the legal rights of every individual and placing them under the protection of courts of competent jurisdiction. 2) the

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inhabitants’ legal rights are to be protected through the survival of the inhabitants’ Aboriginal legal system, interpreted and applied sui generis, that is according to the inhabitants’ Aboriginal perspective. 3) only British Parliament could alter the terms expressed in the Royal Proclamation of December 6, 1869 because The Queen, that is, Her Majesty’s Government had exhausted her power in issuing the latter proclamation. 4) As a result, neither the Rupert’s Land and North-Western Territory Order, 1870, nor any subsequent use of public power by Her Majesty’s Government could alter the terms proclaimed in 1869. For example, Her Majesty’s Government did not have the authority to give Royal Assent to a statute enacted by the Parliament of Canada, if that statute was not consistent with the aforementioned promises.

83. The remarks of Chief Justice Rinfret of the Supreme Court of Canada in Attorney-

General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 are very relevant here on the issue of Parliament delegating its plenary powers under s. 91(24) to the provincial legislature of <province>. In deciding on the constitutionality of a similar delegation of plenary powers for employment (provincial) and taxation (federal), Rinfret CJ rejected such delegation because, “The constitution of Canada does not belong either to Parliament or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled.” Rinfret CJ commented further that, “It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92.” (see Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 at p.34).

Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31

TAB008 Constitution Act, 1867 TAB034

84. The respect and protection promised by the Government and Parliament of Canada

is completely incompatible with any delegation of the plenary power of s. 91(24). As it has done for other federal responsibilities, such as elections (see Valin v. Langlois, [1879], 3 S.C.R. 1; and, Valin v. Langlois, [1879] 5 App. Cases. 115), Parliament must assign jurisdiction for interpreting, applying and as noted in the Address, protecting the legal rights of the Aboriginal inhabitants of Rupert’s Land and the North-Western Territory, within the meaning of Constitution Act, 1867, s. 91(24).

Valin v. Langlois, [1879], 3 S.C.R. 1 TAB151 Valin v. Langlois, [1879] 5 App. Cases. 115 TAB150

Constitution Act, 1867 TAB034 85 The phrase “your Country will be governed, as in the past, under British laws, and

in the spirit of British justice” in the Royal Proclamation of December 6, 1869, can only mean that any doctrine used to interpret the meaning of Constitution Act, 1867,

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s. 91(24) Indians and Lands Reserved for Indians must conform to British laws, and in the spirit of British justice. For example, in Galloway v. City of London [1866], L.R. 1 H.L. 34, Lord Cranworth L.C. of the Judicial Committee of the Privy Council commented, “Sometimes called the ‘doctrine of improper purposes’ this principle has been applied to curtail the actions of legislatures and executives which have used powers granted, for example to expropriate land, for very different purposes than what the same powers were assigned.

Royal Proclamation of December 6, 1869 TAB137

Constitution Act, 1867 TAB034 Galloway v. City of London [1866], L.R. 1 H.L. 34 TAB048

86. In resolving a dispute over funding of separate schools in Ontario, the Supreme

Court of Canada determined that “A power to regulate is not a power to prohibit. It cannot be used to frustrate the very legislative scheme under which the power is conferred.” (see Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, para 55). More simply, <province>’s powers over environment protection and natural resources cannot be used in such a manner that they prohibit or frustrate 91(24) Indians and Lands Reserved for Indians.

Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R.

1148 TAB131 87. The Crown may try to argue de facto doctrine, doctrine of necessity, res judicata or

mistake of law; however, in a unanimous judgment, very relevant to the rights of <defendant>, the Supreme Court of Canada has already determined that none of these doctrines can give effect to unconstitutional laws (see Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at para. 80, 105, and 111 respectively). As for the doctrine of state necessity, at para 106, the Supreme Court declared: “In every case in which the doctrine of state necessity has been applied it has been either the executive or the legislative branch of government which has responded to the necessitous circumstances, later to have its actions tested in the courts. This fact does not, however, detract from the general relevance of these cases in demonstrating that the courts will not allow the Constitution to be used to create chaos and disorder.” Given the progress of <defendant>’s court case, the state of Aboriginal human rights in Canada (see Stavenhagen 2005) and the descriptions of the Indian Act provided in Buffalo v. Canada, [2005] FC 1622, by former ministers responsible for implementing the Indian Act, a valid use of the doctrine of state necessity could not be claimed here.

Re Manitoba Language Rights, [1985] 1 S.C.R. 721 TAB129

Stavenhagen, Rodolfo; 2005; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People - Mission to Canada,

E/CN.4/2005/88/Add.3, December 2, 2004, United Nations Commission on Human Rights, 61st Session TAB145

Buffalo v. Canada, [2005] FC 1622 TAB017

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III(c): Was the Aboriginal customary legal system of the <1st Nation> compatible with British sovereignty and is it now compatible with Canadian sovereignty?

The inhabitants of Rupert’s Land and the North-Western Territory lived in a community organized well before the union with Canada. It was a joint occupation where the rule of law was a bijural order 88. Aboriginals could have prevented Europeans from living on their lands but chose

instead to share. Europeans could have imposed European laws upon Aboriginals but chose not to. This bargain was very much present in Governor George Simpson’s testimony before a special committee of British Parliament, when he testified on March 2, 1857 about the Company’s control over the Aboriginals of Rupert’s Land. Simpson replied, “They are perfectly at liberty to do what they please: we never restrain Indians”. Governor Simpson was asked, “You exercise no authority whatsoever over the Indian tribes?” to which he responded, “None at all.” (see United Kingdom Parliament 1857:1748-1751)

United Kingdom, Parliament; 1857; Minutes of Evidence Taken before the Select

Committee on the Hudson’s Bay Company, February to March 1857, London, UK: Her Majesty’s Government, House of Commons TAB149

89. Both Aboriginal and European populations relied much more on leadership,

reasonable expectations, and ways of doing things that took into account vast geography and diverse populations. Even those persons allegedly living under English law, relied more on customs of reasonable behaviour than on enforcement of statutes. (see Knafla 2005:13; and, Baker 1999:244). In fact, as noted from his research of Hudson’s Bay Company records of Rupert’s Land, Baker wrote “... that the Company held only three known formal trials over a period of nearly 120 years suggests that it had neither the need nor the desire to establish a permanent judicature for Rupert’s Land,” (see Baker 1999:214-215). The bijural order accomplished by this Aboriginal and European agreement to share the same space and not impose on each other was endogenous, preserved by a common value for positive relations. This bijural, peaceful order was navigated by leadership. It was not an exogenous order imposed by threats or use of coercive force.

Knafla, Louis A.; 2005; Introduction: Laws and Societies in the Anglo-Canadian North-

West Frontier and Prairie Provinces, 1670-1940, Laws and Societies in the Canadian Prairie West, 1670-1940, Louis A. Knafla and Jonathan Swainger, eds., Vancouver, BC:

UBC Press TAB070 Baker, Howard Robert; 1999; Creating Order in the Wilderness: Transplanting the

English Law to Rupert's Land, 1835-51, Law and History Review, Vol. 17, No. 2, p. 209-246 TAB010

90. This was the social order which Monk J recognized in Connolly v. Woolrich [1867],

11 L.C. Jur. 197, at page 88, when he wrote, “It has been truly observed that,

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agreeably to this rule, the North American Indians would have been entitled to have excluded the British fur-traders from their hunting grounds; and, not having done so, the latter must be considered as having been admitted to a joint occupation of the territory, and this to have become invested with a similar right of excluding strangers from such portions of the country as their own industrial operations pervade.” The resulting endogenous order, called usually spontaneous or customary order was maintained long after the annexation of Rupert’s Land and the North-Western Territory. In 1873, the North West Mounted Police joined this customary order, too few to use coercive force, but dressed in traditional British colours, were ideally situated to play roles as referees between the many occupying nations. (see Butler 1871 and Robertson-Ross 1873).

Connolly v. Woolrich [1867], 11 L.C. Jur. 197 TAB031

Butler, William Francis; 1871; Butler’s Report 1871 of His Journey from Fort Garry to Rocky Mountain House and Back during the Winter of 1870-1871, Ottawa, ON: Times

Printing and Publishing Company TAB018 Roberston-Ross, Patrick; 1873; Reconnaissance of the North West Provinces and Indian

Territories of the Dominion of Canada, and Narrative of Journey across the Continent through Canadian Territory to British Columbia and Vancouver Island, Sessional Papers

(No. 9) A.1873, CVII to CXXVII, Ottawa, ON: Parliament of Canada TAB135 91. Aboriginal ‘rights’ are created by customs, not statutes. Customs create a

spontaneous order that owes its effect to each member of a family or band synchronizing his or her behaviour to those nearest so as to cause or be affected by as few collisions as possible. The activities and the changes in the direction of the group are the result of leadership, public opinion, and reliance on mutual assistance.

R. v. Van der Peet, [1996] 2 S.C.R. 507 TAB124

Murdoch, John Stewart; 2009; Expert Report TAB086 Aboriginal Expert Testimony (see witness list) TAB001

92. An Aboriginal ‘right’ to sovereignty or self-government was created by the

‘custom’ of joint occupation which Monk J noted in Connolly v. Woolrich [1867], 11 L.C. Jur. 197. An Aboriginal ‘right’ to sovereignty was created by Aboriginal and European leadership, informed by public opinion, choosing courses of action that promoted peaceful relations and the likelihood of one nation (European or Aboriginal) supporting the other in times of need. There were no statutes but the customary peace and loyalty between European and Aboriginal nations was notorious, especially in Rupert’s Land and the North-Western Territory (see Expert Report of Dr. John S. Murdoch and Aboriginal Expert Witness List).


Murdoch, John Stewart; 2009; Expert Report TAB086 Aboriginal Expert Testimony (see witness list) TAB001

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93. An Aboriginal customary approach to social organization prefers designing pathways of acceptable, congenial ways of doing things that are amenable to positive public opinion as well as to mutual assistance as needed. Customary legal systems are concerned with ‘how’ more than ‘what’ makes for correct or proper behaviour. (see Expert Report of Dr. John S. Murdoch and Aboriginal Expert Witness List)

Murdoch, John Stewart; 2009; Expert Report TAB086

Aboriginal Expert Testimony (see witness list) TAB001 94. The test for establishing an Aboriginal ‘right’ declared by Lamer CJ in R. v. Van

der Peet, [1996] 2 S.C.R. 507 has proven awkward (see R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 at para 43-44). There is no word in many Aboriginal languages for ‘right’ that adequately conveys the meaning intended under Canadian statutory law. Proving a ‘right’ entails proving entitlement to the coercive force of government to block or reduce the effect of interference with the practice of a basic freedom -- such as freedom of thought, freedom of expression, freedom of religious belief or practice, freedom of choice of place of residence, freedom to make personal decisions about one’s body, etc. .


R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 TAB121 95. The problem posed is that choosing the term ‘rights’ to discuss the infringement of

Aboriginal freedoms, predisposes the debate or inquiry to “a tendency, operating at times unconsciously, to render that [right] conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.” (see Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399 at p.402-404). As a direct result of framing enquiry as identifying ‘rights’ makes incorporation of an Aboriginal perspective very difficult if not often impossible. The doctrine of continuity promised Aboriginal people is meaningless if it does not incorporate an Aboriginal perspective, that is, if the application of the doctrine is not sui generis.

Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399 TAB005

96. To adequately incorporate an Aboriginal perspective, enquiry and debate must

focus on customary not statutory protection of Aboriginal freedoms. Francesco Parisi’s authoritative definition of ‘custom’ identifies “two elements [that] are generally required for the finding of customary law: 1) the practice should emerge out of the spontaneous and uncoerced behaviour of various members of a group, and 2) the parties involved must subjectively believe in the obligatory or necessary nature of the emerging practice (opinio iuris).” (see Parisi 2001:7-8).

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Parisi, Francesco; 2001; The Formation of Customary Law, 96th Annual Conference of the American Political Science Association, Washington, D.C., August 31 - September 3,

2000 TAB093 97. Unfortunately, customs in general, Aboriginal customs in particular, are not often

and not well presented in Canadian courts. For example, in Thomas v. Norris, 1992 CanLII 354 (BC S.C.), “... the plaintiff says that he was falsely imprisoned in the House for four days. During this time he was forced to go through the initiation ceremonies, or tradition, required in order to become a spirit dancer of the House. He was assaulted, battered and wrongfully confined, and as a result he suffered injuries and required hospitalization.” (see Thomas v. Norris, 1992 CanLII 354 (BC S.C.) at p.3) In fact, the alleged Aboriginal ‘custom’ was instigated by a disgruntled common-law wife “because of the plaintiff's marital and other problems” (see Thomas v. Norris, 1992 CanLII 354 (BC S.C.) at p.14). Judge S. W. Hood, of the BC Supreme Court, in rendering his judgment commented, “Expert testimony was not called on behalf of the defendants with regard to spirit dancing.” (see Thomas v. Norris, 1992 CanLII 354 (BC S.C.) at p.35). Essentially, the judgment was that the private rights of the Charter of Rights and Freedoms trumped the Aboriginal rights of the Charter. Hood J determined that “His [the plaintiff’s] freedoms and rights are not "subject to the collective rights of the aboriginal nation to which he belongs." (see Thomas v. Norris, 1992 CanLII 354 (BC S.C.) at p.52)

Parisi, Francesco; 2001; The Formation of Customary Law, 96th Annual Conference of

the American Political Science Association, Washington, D.C., August 31 - September 3, 2000 TAB093

Thomas v. Norris, 1992 CanLII 354 (BC S.C.) TAB148 98. This defense of an ‘Aborginal right’ should have failed because the customs which

created the ‘right’ were not proven to exist. By Hood J’s own admission, no evidence was presented to prove: either a practice that had emerged “out of the spontaneous and uncoerced behaviour of various members of a group;” or, whether the customs were attended by a belief “in the obligatory or necessary nature of the emerging practice (opinio iuris).” (see Parisi 2001:7-8). Simply, if private rights are claimed, they should be tested by Canadian laws; however, if Aboriginal rights are claimed, those claiming them should be required to prove the existence of the customs that created them.

Parisi, Francesco; 2001; The Formation of Customary Law, 96th Annual Conference of

the American Political Science Association, Washington, D.C., August 31 - September 3, 2000 TAB093

99. Recently, the Supreme Court of Canada, narrowly upheld an Aboriginal right, based

on evidence of its practice. The issues included an Aboriginal “Tsartlip’s right to hunt at night with the aid of illuminating devices”. (see R. v. Morris, [2006] 2 S.C.R. 915). The recognition of the ‘right’ was uncontroversial; however, the practice of the right was believed by some of the judges to be dangerous and

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lacking in internal limits. McLachlin CJ and Fish J in a minority and dissenting opinion found, “... that the treaty right to hunt is subject to an internal limitation which excludes dangerous hunting. We further conclude that hunting at night with a firearm, as trial courts across the country have held, is hazardous and validly prohibited on that ground by provincial legislation of general application. In the result, we find that a provincial ban on night hunting with a firearm does not affect the appellants’ treaty right to hunt.” (see R. v. Morris, [2006] 2 S.C.R. 915 at para 64)

R. v. Morris, [2006] 2 S.C.R. 915 TAB114

100 This Aboriginal ‘right’ should have been presented as a creation of a custom of

hunting at night. The claimants would have borne the burden of proof of both elements: 1) a practice that had emerged “out of the spontaneous and uncoerced behaviour of various members of a group;” and, 2) a belief “in the obligatory or necessary nature of the emerging practice (opinio iuris). The second element would certainly have included obligations to and the necessity of paying heed to such internal limits as religious beliefs, conservation, safety, etc.. Presented as a right, instead of as the creation of a custom, the court did not require opinio juris. It was not presented and the judges were left believing it was missing. The hunting, fishing and trapping customs practiced by <defendant> and <his/her> Aboriginal people, in fact, pay very close attention to such internal limits as religious beliefs, conservation, safety, etc.. (see Aboriginal Expert Testimony (see witness list)).

R. v. Morris, [2006] 2 S.C.R. 915 TAB114

Parisi, Francesco; 2001; The Formation of Customary Law, 96th Annual Conference of the American Political Science Association, Washington, D.C., August 31 - September 3,

2000 TAB093 Aboriginal Expert Testimony (see witness list) TAB001

101. ‘Internal control’ is an integral part of authentic customs. For example, according to

Aboriginal custom, regardless of time or season, a hunter or group of hunters would first ask permission or at least speak to the traditional leader responsible and knowledgeable of the area to be hunted. This now often includes the non-Aboriginal upon whose ranch the hunting is to take place. As a result of everyone practicing the custom -- the whereabouts of all hunters is known and communicated. In addition, hunters learn as a result of being apprenticed to respected hunters. Careless or unsafe hunters do not escape humour, mockery and other sanctions from peers. Examining ‘rights’ in Canadian courts, rather than customs, has caused the omission of important information as to practices and attendant values.

Aboriginal Expert Testimony (see witness list) TAB001

102. Dangerous or antisocial behaviour is sanctioned by Aboriginal custom, not by

locking the offender up, but rather by locking the offender ‘out’. Depending on the severity of the offending behaviour a person breaking custom will be snubbed,

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ignored, mocked, criticized, or in extreme cases, even banished. Every aspect of Aboriginal life is regulated by custom. Knowledge of and justice according to custom are readily available to all, unfettered by cost.

Aboriginal Expert Testimony (see witness list) TAB001

103. Referred to as leges non scriptae, Sir William Blackstone noted in his 18th century,

Commentaries on the Laws of England, that customs “receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” (see Halsbury & Jones 1916:75.1). In his authoritative work, Judicial Recognition of Aboriginal Customary Law in Canada, Selected Marriage and Adoption Cases, cited in Prince & Julian v. HMTQ et al, [2000] BCSC 1066 at para. 42, Professor Norman Zlotkin quoted Halsbury’s Laws of England, 4th Edition: “.... that, in proving custom, ‘the usual course taken is to call persons of middle or old age to state that in their times. . .the custom has always prevailed’”.

Blackstone, William and Jones, William Carey; 1916; Commentaries on the Laws of

England by Sir William Blackstone, edited by William Carey Jones, Vol. I (Books I & II), San Francisco, CA: Bancroft-Whitney TAB014

Zlotkin, Norman K.; 1984; Judicial Recognition of Aboriginal Customary Law in Canada, Selected Marriage and Adoption Cases, Canadian Native Law Reporter, 1984,

Vol. 4, p.1-17 TAB155 Halsbury, Hardinge Stanley Giffard, Earl of; 1907; The Laws of England: Being and

Complete Statement of the Whole Law of England, 4th Edition, London, UK: Butterworth TAB050

Prince & Julian v. HMTQ et al, [2000] BCSC 1066 TAB098 104. A. St, John Hannigan noted that in the Privy Councils judgment of Bongay v.

Macauley, 1 W.A.C.A., p. 225, a Sierra Leonean case, Kingdon, C.J., refers at page 229, to the dictum of the Privy Council in the Nigerian case of Eleko v. The Officer Administering the Government of Nigeria & anor. [1931], A.C., 662, at p. 673, “It is the assent of the native community that gives a custom its validity and, therefore, barbarous or mild, it must be shown to be recognized by the community whose conduct it is supposed to regulate”. (Hannigan 1958:112).

Hannigan , A. St. J. J.; 1958; Native Custom, Its Similarity to English Conventional

Custom and Its Mode of Proof, Journal of African Law, Vol. 2, No. 2, (Summer, 1958), p. 101-115 TAB051

Eleko v. The Officer Administering the Government of Nigeria & anor. [1931], A.C., 662 TAB043

105. The same approach was used by the Judicial Committee of the Privy Council when

interpreting and applying African Aboriginal customary. In Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC), at p.1-2, Sir Arthur Channel, writing for the court, stated, “As is the case with all customary law, it has

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to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the courts, become so notorious that the courts will take judicial notice of them.”

Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC)

TAB006 106. The eminent legal scholar Anthony Nicholas Allott wrote extensively on British

Imperial traditions of recognizing Aboriginal customary legal systems, especially in Africa. According to Allott, in Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC), the Judicial Committee of the Privy Council established two rules: that Native customary law is to be proved by witnesses; and, “that a particular custom may become so notorious by frequent proof in the courts that the courts will take judicial notice of it.” (see Allott 1957:248). According to Allott, “Custom = practice, is what people do; law = norm, is what people ought to do. By what mysterious process does the normal become the normative? Not every practice engenders a norm; not all custom “is” law. Custom then is a material source of law; it is part of the raw material out of which a customary origin, and not a custom. But custom has a sustaining role as well as a creative one: if a customary norm ceases to be sustained by the habitual practice of the people, it will fall into desuetude or change its legal character.” (see Allott 1977:5)

Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC)

TAB006 Allott, Anthony Nicholas; 1957; The Judicial Ascertainment of Customary Law in British

Africa, Modern Law Review, Vol. 20, p.244 TAB003

Allott, Anthony Nicholas; 1977; The People as Law-Makers: Custom, Practice, and Public Opinion as Sources of Law in Africa and England, Journal of African

Law, Vol. 21, p.1 TAB004 107. The International Court of Justice in the Hague enunciated such principles in its

judgment of North Sea Continental Shelf Judgment, [1969] I.C.J. Reports. They are well described by Judge Kotaro Tanaka: “The formation of a customary law in a given society, be it municipal or international, is a complex psychological and sociological process, and therefore, it is not an easy matter to decide. The first factor of customary law, which can be called its corpus, constitutes a usage or a continuous repetition of the same kind of acts; in customary international law State practice is required. It represents a quantitative factor of customary law. The second factor of customary law, which can be called its animus, constitutes opinio juris sive necessitatis by which a simple usage can be transformed into a custom with the binding power. It represents a qualitative factor of customary law.” (Tanaka 1968:175)

North Sea Continental Shelf Judgment, [1969] I.C.J. Reports TAB087

Tanaka, Kotaro; 1968; Dissenting Opinion of Judge Tanaka, Federal Republic of Germany v. Denmark, North Sea Continental Shelf Cases, International Court of Justice,

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The Hague, Netherlands, North Sea Continental Shelf Judgment, [1969] I.C.J. Reports TAB147

108. In Case concerning Military and Paramilitary Activities In and Against Nicaragua

(Nicaragua v. United States of America), [1986] I.C.J. Rep. 14, at para. 207, the International Court of Justice declared the criteria upon which it based judicial notice of custom: “a settled practice ... and... opinio juris sive necessitatis ... evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” The Supreme Court of Canada applied this jurisprudence of the International Court of Justice, recently in R. v. Hape, [2007] S.C.C. 26 at para. 46. A clear definition, effective both domestically and internationally was required by the RCMP in order to gather evidence in a drug laundering investigation where some of the evidence was off shore where the Canadian Constitution did not apply but international custom did. By carefully observing international custom the RCMP were able to submit at a Canadian trial, evidence that had been lawfully gathered offshore.

Case concerning Military and Paramilitary Activities In and Against Nicaragua

(Nicaragua v. United States of America), [1986] I.C.J. Rep. 14 TAB028 R. v. Hape, [2007] S.C.C. 26 TAB109

109. Most of the evidence required for proving the existence of a custom must come

from experts. For experts, various courts have turned mainly to the Aboriginal community itself: in Re Beaulieu, [1969] NWTC the chief and councillors of the Dogrib Band, as well as the parish priest; in Re Deborah, [1972] NWTC, Ernest Lyall, married to an Inuit woman and over forty years in the area; in R. v. Williams, [1921] BCSC from Mr. Halliday, the local Indian agent, and Mrs. Cook, an Indian interpreter, born and raised at Alert Bay; in Connolly v. Woolrich [1867], 11 L.C. Jur. 197, Mr. Justice Monk consulted several history books. Clearly, witnesses are expected to have experience of the facts upon which they are offering an opinion. This is consistent with present Canadian common law on qualifications of an expert witness (see R. v. Abbey, [1982] 2 S.C.R. 24 at p.46; and, R. v. Mohan, [1994] 2 S.C.R. 9 at p.21).

Re Beaulieu, [1969] NWTC TAB127 Re Deborah, [1972] NWTC TAB128

R. v. Williams, [1921] BCSC TAB125 Connolly v. Woolrich [1867], 11 L.C. Jur. 197 TAB031

R. v. Abbey, [1982] 2 S.C.R. 24 TAB101 R. v. Mohan, [1994] 2 S.C.R. 9 TAB112

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In spite of misunderstandings, the Aboriginal customary legal system continues to be compatible with the Canadian legal system 110. Customary laws in general, and the customs of <defendant>’s <1st Nation> people

in particular, continue to satisfy fundamental Canadian legal principals as they once did those of Great Britain. This can be demonstrated using Professor Joseph Raz’ definition of the rule of law found authoritative by the Supreme Court of Canada (see Raz 1979:212-213 in Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at p.62), “The rule of law' means literally what it says: the rule of the law.... It has two aspects: (1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it" (The Authority of Law (1979), at pp. 212 13). In an Aboriginal customary legal system, there is only one communications network as opposed to one for the public, another for officers of the court, another for legislators, another for enforcement officers, etc.. Furthermore, in an egalitarian society reliant on leadership rather than authority, knowledge of the law is readily available to all. Aboriginal customs are taught to all ages, integrated with the activities to which they relate. Most often, those acting as teachers, law professors, lawyers and judges are family members or at least, persons well known and fully accessible. The established practices and the belief that this practice is rendered obligatory are taught together, hands on, in the context where they have meaning.

Raz, Joseph; 1979; The Authority of Law, Oxford, Clarendon Press TAB126

Re Manitoba Language Rights, [1985] 1 S.C.R. 721 TAB129 111. Separation of powers according to Chief Justice Brian Dickson in Fraser v.

P.S.S.R.B., [1985] 2 S.C.R. 455 at para. 39, means that “there is in Canada a separation of powers among the three branches of government -- the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.” In an Aboriginal customary order, rather than these important separations being maintained by coercive force, they are more often maintained by the withdrawal of public support. A reliance upon leadership rather than on authority means that any leader acting as an executive who attempts to act as the creator or final arbiter of the law may find himself suddenly with no followers, the subject of humour, criticism or mockery depending on the severity of his trespass. Respected elders acting as judges render definitions and applications of custom that are anticipated to be independent and fair. The judicial power of such elders is directly related to their ability to intuit and articulate judgments that will generally be regarded as independent and fair. A partial elder is simply ignored and not asked to exercise judicial powers. Law making or custom innovation powers are wielded by the community at large. Aided by a single communications network and motivated by a constant desire to be able to rely upon each other, customs evolve from within the community. Sometimes customs come from dreams, sometimes from efforts to resolve differences or remedy breaches in relationships. The authors are usually

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persons looked to for insight and innovation. But, the distinction as a custom, critically depends upon community assent and habitual use.

Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 TAB045

Aboriginal Expert Testimony (see witness list) TAB001 112. Paraphrasing eminent legal scholar Lon L. Fuller, Professor Barry McLeod-

Cullinane describes the conditions which give rise to, maintain and revise customs, “First, the relationship of reciprocity out of which the duty arises must result from a voluntary agreement between the parties affected; they themselves ‘create’ the duty. Second, the reciprocal performances must in some sense be equal in value.” Because it is nonsensical to consider equality as exact identity some common unit of measurement, into which differences can be subsumed, is necessary. And, “[t]hird, the relationships within the society must be sufficiently fluid so that the same duty you owe me today, I may owe you tomorrow in other words, the relationship of duty must in theory and in practice be reversible.” (see McLeod-Cullinane 1995:6)

McLeod-Cullinane, Barry; 1995; Lon L. Fuller and the Enterprise of Law, Legal Notes

No. 22, London, UK: Libertarian Alliance TAB081 113. The judicial review required to keep the use of public power accountable to

community standards of fair and reasonable as well as a policing of the community are both accomplished in an Aboriginal customary system through public opinion. Public opinion acts as a constant governor over public power and public behaviour. In the words of Julius E. Lips, author of Naskapi Law, “.. public opinion is a powerful force here, because the Indian cannot leave his tribe and lose himself in some other community as the white man often does when he moves to another city or state. The Indian cannot give up his hunting grounds, and should he attempt to escape unfavorable public opinion, he would starve. In these woods where the individual must turn to neighbors in time of need, as in the case of sickness, bad hunting luck, or unfavorable weather conditions, not only the security of his possessions but his very life depends on the attitude of the community towards the individual. ... public opinion can enforce law, by active or passive means. Its principal effect is, however, the prevention of legal infractions. It is preventative rather than punitive.” (see Lips 1937:223)

Lips, Julius E.; 1937; Public Opinion and Mutual Assistance among the Montagnais-Naskapi, American Anthropologist, New Series, Vol. 39, No. 2, p. 222-228 TAB078

Lips, Julius E.; 1947; Naskapi Law (Lake St. John and Lake Mistassini Bands) Law and Order in a Hunting Society, Transactions of the American Philosophical Society, New

Series, Vol. 37, No. 4, p. 379-492 TAB079 114. The Aboriginal communities that Julius Lips described no longer exist entirely as

he described them. North West River (Shesheshit), Lac St. Jean (Mashteuiatsh), Rupert House (Waskaganish), Chibougamau and Mistassini are all accessible by

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road, telephones, satellite television and the internet. However, the out migration from these communities is insignificant and the Aboriginal language prevails. While physically, today it is much easier to leave these communities than it was during Julius Lips’ fieldwork, the vast majority of Aboriginal community members prefer not to. In <defendant>’s community, especially because of unemployment and housing shortages, many community members actually have moved away; but, roads, telephones, and the internet are used in order to maintain a virtual community that is at least as composed as in the days when Aboriginal villages only existed in summer. In spite of, at times, intense infringements of a right to exist as a physical community, <defendant>’s community and other Aboriginal communities have survived along with their customary legal systems.

Murdoch, John Stewart; 2009; Expert Report TAB086

Lips, Julius E.; 1937; Public Opinion and Mutual Assistance among the Montagnais-Naskapi, American Anthropologist, New Series, Vol. 39, No. 2, p. 222-228 TAB078

Aboriginal Expert Testimony (see witness list) TAB001 115. The only constitutional means available to <province> to pursue its natural

resource, conservation and safety objectives is through the bijural order found to exist by Monk J (see Connolly v. Woolrich [1867] 11 L.C. Jur. 197 at p.88) and promised protection by both the Dominion of Canada and Her Majesty’s Government of Great Britain. In a treaty or constitutional accord, <province> should agree with <defendant>’s <1st Nation> on sharing responsibilities and resources. Such an accord must not place <defendant> or any other member of the <1st Nation> under <province> laws and must make them accountable to <1st Nation> customs. Any breaches of <1st Nation> custom should be dealt with, initially by a <1st Nation> tribunal. If <defendant> or <province> were to disagree with such a <1st Nation> adjudication of <his/her> alleged breach, it should be appealed to the Alberta Court of Queen’s Bench, the court which the Crown and Parliament should have delegated jurisdiction according to Valin v. Langlois, [1879] 5 App. Cases. 115. The <Province’s Superior Court>. should also have been so delegated in accordance with the Address of Canadian Parliament accepted by Her Majesty’s Government in April 1868 and by virtue of the jurisdictional capacity of the superior court found in the Constitution Act, 1867, s. 96, (see R. v. Nayanookeesic, 2005 CanLII 19782 (ON S.C.)).


Valin v. Langlois, [1879] 5 App. Cases. 115 TAB150 Constitution Act, 1867 TAB034

Address of the House of Commons and the Senate of Canada, December 17, 1867 to Her Majesty’s Government TAB002

R. v. Nayanookeesic, 2005 CanLII 19782 (ON S.C.) TAB118

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PART IV: RELIEF REQUESTED <Defendant> is entitled to the same relief as given in R. c. Caron, 2008 ABPC 232 116. [568] Donc, en tant que juge de la Cour provinciale, je n’ai pas la juridiction

d’octroyer des déclarations générales en vertu de l’article 52 de la Loi Constitutionnelle de 1982. [translation .... 568. Therefore, as judge of the Provincial Court, I have no jurisdiction to grant a general declarations by virtue of section 52 of the Constitution Act, 1982.]

[569] Dans l’arrêt R. c. Big M Drug Mart Ltd., [1985] 1 R.C.S. 295, la Cour

suprême a statué sur le paragraphe 24(1) de la Charte dans le contexte où il y a une contestation basée sur l’inconstitutionnalité d’une loi. [translation ... 569. in the case, R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295, the Supreme Court ruled on paragraph 24(1) of the Charter in the event that there is a protest based on the unconstitutional character of a law.]


R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295 TAB106 117. [570] Le juge Dickson a dit :

« 37. Le paragraphe 24(1) prévoit un redressement pour les personnes, aussi bien physiques que morales, qui ont été victimes d'une atteinte aux droits qui leurs sont garantis par la Charte. Toutefois, il ne s'agit pas là du seul recours qui s'offre face à une loi inconstitutionnelle. Lorsque, comme c'est le cas en l'espèce, la contestation est fondée sur l'inconstitutionnalité d'une loi, il n'est pas nécessaire de recourir à l'art. 24 et l'effet particulier qu'elle a sur l'auteur de la contestation est sans importance. … 39. Tout accusé, que ce soit une personne morale ou une personne physique, peut contester une accusation criminelle en faisant valoir que la loi en vertu de laquelle l'accusation est portée est inconstitutionnelle. Big M soutient que la loi en vertu de laquelle elle est accusée est incompatible avec l'al. 2a) de la Charte et qu'elle est inopérante en vertu de l'art. 52 de la Loi constitutionnelle de 1982. … 46 L'appelante ne tient pas compte du fait que les cours provinciales ont toujours eu la possibilité de déclarer une loi invalide dans des affaires criminelles. Nul ne peut être reconnu coupable d'infraction à une loi invalide. »


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R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295 TAB106 118. [translation .... 570. The judge Dickson said:]

37. Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant. ....

39. Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect. ....

46. The appellant overlooks the fact that it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute. (see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295


Constitution Act, 1982 TAB035 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 TAB106

119. [571] Selon moi, j’ai la compétence pour rendre une déclaration limitée que le

Traffic Safety Act est inopérant relativement aux infractions alléguées à cette Loi et aux Use of Highways and Rules of the Road Regulations qui sont actuellement devant la Cour. [translation ... 571. According to me, I have the authority to make a limited declaration that the Traffic Safety Act is inoperative in relation to alleged breaches of this Act and the Use of Highways and Rules of the Road Regulations which are currently before the Court.]


120. [574] Alors le paragraphe 34(2) des Use of Highways and Rules of The Road

Regulations du Traffic Safety Act relatif à l’infraction actuellement devant cette Cour est inopérant. [translation ..... 574. Accordingly paragraph 34(2) of the Use of Highways and Rules of The Road Regulations of the Traffic Safety Act relative to the infraction actually before this Court is inoperative.]

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[575] Je déclare M. Caron non-coupable. [translation ..... 575. I declare Mr. Caron not guilty.]


121. In the case of <defendant>, <his/her> constitutionally protected right to hunt, fish or

trap according to the customs of <his/her> <1st Nation> has been infringed. Based on the foregoing, and the evidence and further argument to be heard at trial, the Defence respectfully requests that this Honourable Court determine that: the <province> statutes under which <defendant> has been charged are unconstitutional; that, as ruled by the Supreme Court of Canada, “no one may be convicted of an offence under an invalid statute,” (see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295); and, that <defendant> is not guilty as charged.

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 TAB106

ALL OF WHICH is respectfully submitted this <date of submission of this brief>

____________________________________ <defendant>

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PART V: APPENDICES

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PART V(a): List of Authorities

TAB No: Description: TAB001 Aboriginal Expert Testimony (see witness list)

TAB002 Address of the House of Commons and the Senate of Canada, December 17, 1867 to Her Majesty’s Government http://www.canadiana.org/view/9_07171_1/0085

TAB003 Allott, Anthony Nicholas; 1957; The Judicial Ascertainment of Customary Law in British Africa, Modern Law Review, Vol. 20, p.244

TAB004 Allott, Anthony Nicholas; 1977; The People as Law-Makers: Custom, Practice, and Public Opinion as Sources of Law in Africa and England, Journal of African Law, Vol. 21, p.1

TAB005 Amodu Tijani v. Secretary, Southern Nigeria, [1921] 2 A.C. 399

TAB006 Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC)

TAB007 Attorney General of British Columbia v. Attorney General of Canada [1937], A.C. 377 (Natural Resources Marketing Act Reference)

TAB008 Attorney-General of Nova Scotia v. Attorney-General of Canada [1950] S.C.R. 31 http://www.canlii.org/en/ca/scc/doc/1950/1950canlii26/1950canlii26.html

TAB009 Baker v. Saskatchewan Government Insurance, 1998 CanLII 13383 (SK Q.B.) http://www.canlii.org/en/sk/skqb/doc/1998/1998canlii13383/1998canlii13383.html

TAB010 Baker, Howard Robert; 1999; Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835-51, Law and History Review, Vol. 17, No. 2, p. 209-246 http://www.historycooperative.org/journals/lhr/17.2/baker.html

TAB011 Beckett, Eric; 1868; Review of Connolly v. Woolwich (1) 11 L.C. Jur. 197, Law Quarterly Review, Vol. 48, p. 369

TAB012 Begg, Alexander; 1871; The Creation of Manitoba; or, A History of the Red River Troubles, Toronto, ON: A. H. Hovey http://www.archive.org/details/creationmanitob00begggoog

TAB013 Bethel v. Hildyard [1888] 38 Ch D 220

TAB014 Blackstone, William and Jones, William Carey; 1916; Commentaries on the Laws of England by Sir William Blackstone, edited by William Carey Jones, Vol. I (Books I & II), San Francisco, CA: Bancroft-Whitney http://www.archive.org/details/commentariesonl01jonegoog

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TAB015 Blackstone, William and Jones, William Carey; 1916; Commentaries on the Laws of England by Sir William Blackstone, edited by William Carey Jones, Vol. II, San Francisco, CA: Bancroft-Whitney http://www.archive.org/details/commentarieslaws02blac

TAB016 Blueberry River Indian Band v. Canada (DIAND) ( C.A. ), 1993 CanLII 2932 (F.C.A.) http://www.canlii.org/en/ca/fca/doc/1993/1993canlii2932/1993canlii2932.html

TAB017 Buffalo v. Canada, [2005] FC 1622 http://www.canlii.org/en/ca/fct/doc/2005/2005fc1622/2005fc1622.html

TAB018 Butler, William Francis; 1871; Butler’s Report 1871 of His Journey from Fort Garry to Rocky Mountain House and Back during the Winter of 1870-1871, Ottawa, ON: Times Printing and Publishing Company http://peel.library.ualberta.ca/bibliography/615.html

TAB019 Butler, William Francis; 1872; The Great Lone Land: A Narrative of Travel and Adventure in the North-West of America, London, UK: Sampson Low, Marston Low & Searle http://peel.library.ualberta.ca/bibliography/638.html

TAB020 Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313 http://www.canlii.org/en/ca/scc/doc/1973/1973canlii4/1973canlii4.html

TAB021 Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045 in Kennedy, William Paul McClure; 1930; Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929, Edited by W.P.M. Kennedy; 2nd Edition, Revised & Enlarged, Toronto, ON: Oxford University Press http://www.hyperlynxreview.com/campbell.pdf

TAB022 Canada (Rupert's Land), Copy or Extracts of Correspondence between the Colonial Office, the Government of the Canadian Dominion, and the Hudson's Bay Company, relating to the Surrender of Rupert's Land http://www.canadiana.org/ECO/ItemRecord/30656?id=f7c1581fedae51b2

TAB023 Canada Act, 1982 http://www.solon.org/Constitutions/Canada/English/Canada_Act_1982.html

TAB024 Canada; 1946; Special Joint Committee of the Senate and the House of Commons Appointed to Examine and Consider the Indian Act, (1946) Proceedings, Vol. I, Report 1-21, Ottawa, ON: King's Printer TAB45

TAB025 Canada; 1947; Special Joint Committee of the Senate and the House of Commons Appointed to Examine and Consider the Indian Act, (1947) Interim Report, Vol. II, Report 23-40, Ottawa, ON: King's Printer TAB46

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TAB026 Canada; 1948; Special Joint Committee of the Senate and the House of Commons Appointed to Examine and Consider the Indian Act, (1948) Minutes of Proceedings and Evidence, Vol. III, Report 1-5, Ottawa, ON: King's Printer TAB47

TAB027 Canada; 1995; Agreement on Internal Trade, 1995, Ottawa, ON: Industry Canada http://www.ait-aci.ca/en/ait/AIT%20Original%20with%20signatures.pdf

TAB028 Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14 http://www.icj-cij.org/docket/files/70/6503.pdf

TAB029 Casimel v. Insurance Corp. of British Columbia, [1993] BC C.A. http://www.canlii.org/en/bc/bcca/doc/1993/1993canlii1258/1993canlii1258.html

TAB030 Citizens' and Queen Insurance Co. v. Parsons [1880] 4 S.C.R. 215 http://www.canlii.org/en/ca/scc/doc/1880/1880canlii6/1880canlii6.html

TAB031 Connolly v. Woolrich [1867] 11 L.C. Jur. 197 http://library2.usask.ca/native/cnlc/vol01/070.html

TAB032 Connolly v. Woolwich (1) 11 L.C. Jur. 197, Jurist [London] 1867, Vol. 11 TAB033 Connolly v. Woolwich (1) 11 L.C. Jur. 197, Review of Canada Law Journal

1868, Vol. 4, p.57-58 TAB034 Constitution Act, 1867

http://www.canlii.org/en/ca/const/const1867.html TAB035 Constitution Act, 1982

http://www.canlii.org/en/ca/const/const1982.html TAB036 Coughlin v. Ontario Highway Transport Board et al., [1968] S.C.R. 569

http://www.canlii.org/en/ca/scc/doc/1968/1968canlii2/1968canlii2.html

TAB037 Daily Telegraph of Toronto, January 6, 1870 TAB038 Davey et al. v. Isaac et al., 1974 CanLII 40 (ON C.A.)

http://www.canlii.org/en/on/onca/doc/1974/1974canlii40/1974canlii40.html

TAB039 Dawson, Simon James; 1869; Report on the Line of Route between Lake Superior and the Red River Settlement, by S. J. Dawson, Esq., Civil Engineer, Ottawa, ON: House of Commons http://peel.library.ualberta.ca/bibliography/481.html

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TAB040 Dawson, Simon James, Report of Mr. S. J. Dawson, upon the Red River Expedition of 1870, Sessional Papers (No. 47), Ottawa, ON: House of Commons http://peel.library.ualberta.ca/bibliography/559.html

TAB041 Delgamuukw v. British Columbia, 1991 CanLII 2372 (BC S.C.) http://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2372/1991canlii2372.html

TAB042 Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC C.A.) http://www.canlii.org/en/bc/bcca/doc/1993/1993canlii4516/1993canlii4516.html

TAB043 Eleko v. The Officer Administering the Government of Nigeria & anor. [1931], A.C., 662

TAB044 Ex Parte Cote, [1971], 22 D.L.R. (3d) 353 http://library2.usask.ca/native/cnlc/vol07/195.html

TAB045 Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 http://www.canlii.org/en/ca/scc/doc/1985/1985canlii14/1985canlii14.html

TAB046 Fraser v. Pouliot et al, [1884], 13 R.L.O.S. 1 http://library2.usask.ca/native/cnlc/vol02/124.html

TAB047 Fraser v. Pouliot et al, [1885], 13 R.L.O.S. 520 http://library2.usask.ca/native/cnlc/vol02/163.html

TAB048 Galloway v. City of London [1866], L.R. 1 H.L. 34 TAB049 Guerin v. The Queen, [1984] 2 S.C.R. 335


TAB050 Halsbury, Hardinge Stanley Giffard, Earl of; 1907; The Laws of England: Being and Complete Statement of the Whole Law of England, 4th Edition, London, UK: Butterworth

TAB051 Hannigan , A. St. J. J.; 1958; Native Custom, Its Similarity to English Conventional Custom and Its Mode of Proof, Journal of African Law, Vol. 2, No. 2, (Summer, 1958), p. 101-115

TAB052 Hogg, Peter W. 2008; Constitutional Law of Canada, Toronto, ON: Carswell TAB8

TAB053 Hogg, Peter; 1992; Constitutional Law of Canada, 4th Edition, Toronto, ON: Carswell

TAB054 Hughes v. The Governor And Co. of Adventurers of England Trading Into Hudson's Bay, 1998 CanLII 1676 (BC S.C.)

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http://www.canlii.org/en/bc/bcsc/doc/1998/1998canlii1676/1998canlii1676.html

TAB055 Hunting, Fishing and Trapping Heritage Act, S.A. 2008, c. H-15.5 http://www.canlii.org/en/ab/laws/stat/sa-2008-c-h-15.5/latest/

TAB056 Huyshe, Gordon Lightfoot; 1871; The Red River Expedition, London, UK: Macmillan and Company http://peel.library.ualberta.ca/bibliography/575.html

TAB057 Imai, Shin; 2009; The 2009 Annotated Indian Act and Aboriginal Constitutional Provisions, Toronto, ON: Thomson Carswell

TAB058 In re. Storgoff, [1944] S.C.R. 526 http://csc.lexum.umontreal.ca/en/1945/1945rcs0-526/1945rcs0-526.html

TAB059 Indian Act, 1951, c. 29, s. 1 http://epe.lac-bac.gc.ca/100/205/301/ic/cdc/aboriginaldocs/m-stat.htm

TAB060 Indian Act, R.S., c. 81, s. 1, s. 69 http://epe.lac-bac.gc.ca/100/205/301/ic/cdc/aboriginaldocs/m-stat.htm

TAB061 Indian Act, R.S., c. I-6, s. 1 http://epe.lac-bac.gc.ca/100/205/301/ic/cdc/aboriginaldocs/m-stat.htm

TAB062 Indian Act, R.S., c.149, s.1 http://epe.lac-bac.gc.ca/100/205/301/ic/cdc/aboriginaldocs/m-stat.htm

TAB063 Indian Act, R.S.C. 1985, c. I-5 http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/

TAB064 Irvine, M. Bell; 1871; Report of the Red River Expedition of 1870, London, UK: W. Harrison & Sons http://peel.library.ualberta.ca/bibliography/576.html

TAB065 Johnstone et al v. Connolly [1869], 17 R.J.R.Q. http://library2.usask.ca/native/cnlc/vol01/151.html

TAB066 Journals of the House of Commons of the Dominion of Canada from November 6, 1867 to May 22, 1868, Vol. I http://www.canadiana.org/ECO/ItemRecord/9_07154_1?id=9fbb893d7dec5052

TAB067 Jules v. Harper Ranch Ltd., 1989 CanLII 2877 (BC S.C.) http://www.canlii.org/en/bc/bcsc/doc/1989/1989canlii2877/1989canlii2877.html

TAB068 Keddie v. Currie, 1991 CanLII 5731 (BC C.A.) http://www.canlii.org/en/bc/bcca/doc/1991/1991canlii5731/1991canlii5731.html

TAB069 Kenward v Kenward [1950] 2 All ER 297

<Defendant> Docket:


TAB070 Knafla, Louis A.; 2005; Introduction: Laws and Societies in the Anglo-Canadian North-West Frontier and Prairie Provinces, 1670-1940, Laws and Societies in the Canadian Prairie West, 1670-1940, Louis A. Knafla and Jonathan Swainger, eds., Vancouver, BC: UBC Press http://books.google.com/books?id=cotGfIfq-nEC&pg=PA57&lpg=PA57&dq=Knafla,+Louis+A.&source=bl&ots=M-b9zwmTxl&sig=6N9nN25OzFPLt3CJZ5EAeZMtxUE&hl=en&ei=GGl6SuXNK8eBtge1jZnzAQ&sa=X&oi=book_result&ct=result&resnum=4#v=onepage&q=introduction&f=false

TAB071 Kruger and al. v. The Queen, [1978] 1 S.C.R. 104 http://www.canlii.org/en/ca/scc/doc/1977/1977canlii3/1977canlii3.html

TAB072 La Forest, Gerard V.; 1975; Delegation of Legislative Power in Canada, McGill Law Journal, Vol. 21, p. 131

TAB073 Lederman. William R.; 1967; Some Forms and Limitations of Co-operative Federalism, Canadian Bar Review, Vol. 45, p. 409-436

TAB074 Letter Cartier to Tache, Montreal, 2nd November 1870, p.46, Appendix (No. 6), Report of the Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70, Journals of the House of Commons of the Dominion of Canada from the 26th March to the 26th May, 1874 ... being the 1st session of the 3rd Parliament of Canada, session 1874, Ottawa : Hunter, Rose, [1874] http://www.canadiana.org/view/9_07171_8/0524

TAB075 Letter from Sir Frederic Rogers, Bart., to the Right Hon. Sir Stafford H. Northcote, M.P., 9 March 1869." Letter No. 21, p.40-4, Canada (Rupert's Land), Copy or Extracts of Correspondence between the Colonial Office, the Government of the Canadian Dominion, and the Hudson's Bay Company, relating to the Surrender of Rupert's Land http://www.canadiana.org/ECO/ItemRecord/30656?id=b038c61e099269f6

TAB076 Letter No. 5, p.22, Canada (Rupert's Land), Copy or Extracts of Correspondence between the Colonial Office, the Government of the Canadian Dominion, and the Hudson's Bay Company, relating to the Surrender of Rupert's Land http://www.canadiana.org/ECO/ItemRecord/30656?id=b038c61e099269f6

TAB077 Letter Sir John Young to Earl Granville, 30th November 1869, p.139-140, Correspondence and Papers Connected with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional Papers (No. 12) http://www.canadiana.org/view/32294/0158

TAB078 Lips, Julius E.; 1937; Public Opinion and Mutual Assistance among the Montagnais-Naskapi, American Anthropologist, New Series, Vol. 39, No. 2, p. 222-228

<Defendant> Docket:


TAB079 Lips, Julius E.; 1947; Naskapi Law (Lake St. John and Lake Mistassini Bands) Law and Order in a Hunting Society, Transactions of the American Philosophical Society, New Series, Vol. 37, No. 4, p. 379-492

TAB080 Little Bear, Leroy; 1986; The Impact of s. 88 of the Indian Act on Application of Provincial Laws to Indians, submitted to Professor Robb, Edmonton, AB: University of Alberta

TAB081 McLeod-Cullinane, Barry; 1995; Lon L. Fuller and the Enterprise of Law, Legal Notes No. 22, London, UK: Libertarian Alliance http://www.libertarian.co.uk/lapubs/legan/legan022.pdf

TAB082 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 http://www.canlii.org/en/ca/scc/doc/2005/2005scc69/2005scc69.html

TAB083 Mitchell v. M.N.R., [2001] 1 S.C.R. 911 http://www.canlii.org/en/ca/scc/doc/2001/2001scc33/2001scc33.html

TAB084 Morton, W. L.; 1956; Alexander Begg’s Red River Journal and Other Papers Relative to the Red River Resistance of 1869-1870, Toronto, ON: Champlain Society http://link.library.utoronto.ca/champlain/item_record.cfm?lang=eng&searchtype=Bibrecord&startrow=1&Limit=All&query=9_96843&Idno=9_96843

TAB085 Multani v. Commission Scolaire Marguerite Bourgeoys, [2006] 1 S.C.R. 256 http://www.canlii.org/en/ca/scc/doc/2006/2006scc6/2006scc6.html

TAB086 Murdoch, John Stewart; 2009; Expert Report TAB087 North Sea Continental Shelf Judgment, [1969] I.C.J. Reports

http://www.icj-cij.org/docket/files/52/5561.pdf

TAB088 Oakes Test, University of Waterloo, Political Science Department http://politicalscience.uwaterloo.ca/courses/292/Spring2007/OAKESTEST.pdf

TAB089 Ontario v. The Dominion of Canada and Quebec; In Re Indian Claims, [1895] 25 S. C. R. 434 http://library2.usask.ca/native/cnlc/vol03/365.html

TAB090 Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the Union, 1870, Statutes, Treaties and Documents of the Canadian Constitution, 1713 - 1929, W. P. M. Kennedy, ed., Second Edition, Revised and Enlarged, Toronto, ON: Oxford Universiy Press 1930 http://www.canadiana.org/view/9_03428/23

TAB091 Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 http://www.canlii.org/en/ca/scc/doc/1991/1991canlii60/1991canlii60.html

TAB092 P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392

<Defendant> Docket:



TAB093 Parisi, Francesco; 2001; The Formation of Customary Law, 96th Annual Conference of the American Political Science Association, Washington, D.C., August 31 - September 3, 2000 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=262032

TAB094 Parliament of Great Britain - House of Commons Debates, 20 May 1870 vol 201 cc1088-94 1088 http://hansard.millbanksystems.com/commons/1870/may/05/question-7#S3V0201P0_18700505_HOC_22

TAB095 Parliament of Great Britain - House of Commons Debates, 10, February 1870, vol 199 cc118-9 http://hansard.millbanksystems.com/lords/1870/feb/14/british-colonies-observations

TAB096 Parliament of Great Britain - House of Lords Debates, 4 July 1870 vol 202 cc1331-6 1331 http://hansard.millbanksystems.com/lords/1870/jul/04/motion-for-papers#S3V0202P0_18700704_HOL_10

TAB097 Pasco v. Canadian National Railway Company, 1989 CanLII 249 (BC C.A.) http://www.canlii.org/en/bc/bcca/doc/1989/1989canlii249/1989canlii249.html

TAB098 Prince & Julian v. HMTQ et al, [2000] BCSC 1066 http://www.canlii.org/en/bc/bcsc/doc/2000/2000bcsc1066/2000bcsc1066.html

TAB099 Queen v. Drew et al, 2003 NLSCTD 105 http://www.canlii.org/en/nl/nlsctd/doc/2003/2003nlsctd105/2003nlsctd105.html

TAB100 R. c. Caron, 2008 ABPC 232 http://www.canlii.org/fr/ab/abpc/doc/2008/2008abpc232/2008abpc232.html

TAB101 R. v. Abbey, [1982] 2 S.C.R. 24 http://www.canlii.org/en/ca/scc/doc/1982/1982canlii25/1982canlii25.html

TAB102 R. v. Adams, [1996] 3 S.C.R. 101 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii169/1996canlii169.html

TAB103 R. v. Badger, [1996] 1 S.C.R. 771 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii236/1996canlii236.html

TAB104 R. v. Bear's Shin Bone [1899], 4 Terr. L.R. 173 (N.W.T.S.C.)

<Defendant> Docket:


http://library2.usask.ca/native/cnlc/vol03/513.html TAB105 R. v. Bernard, 2003 NBCA 55 (CanLII)

http://www.canlii.org/en/nb/nbca/doc/2003/2003nbca55/2003nbca55.html

TAB106 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 http://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html

TAB107 R. v. Côté, [1996] 3 S.C.R. 139 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii170/1996canlii170.html

TAB108 R. v. Gladstone, [1996] 2 S.C.R. 723 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii160/1996canlii160.html

TAB109 R. v. Hape, [2007] S.C.C. 26 http://www.canlii.org/en/ca/scc/doc/2007/2007scc26/2007scc26.html

TAB110 R. v. Marshall (S.F.), 2002 NSSC 57 http://www.canlii.org/en/ns/nssc/doc/2002/2002nssc57/2002nssc57.html

TAB111 R. v. Marshall, [1999] 3 S.C.R. 533 http://www.canlii.org/en/ca/scc/doc/1999/1999canlii666/1999canlii666.html

TAB112 R. v. Mohan, [1994] 2 S.C.R. 9 http://www.canlii.org/en/ca/scc/doc/1994/1994canlii80/1994canlii80.html

TAB113 R. v. Morris and Olsen, 2004 BCCA 121 (CanLII) http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca121/2004bcca121.html

TAB114 R. v. Morris, [2006] 2 S.C.R. 915 http://www.canlii.org/en/ca/scc/doc/2006/2006scc59/2006scc59.html

TAB115 R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii159/1996canlii159.html

TAB116 R. v. Nan-e-quis-a-ka, [1889], 1 Terr.L.R. 211 http://library2.usask.ca/native/cnlc/vol02/368.html

TAB117 R. v. Nayanookeesic, [2004] ONCJ 108 http://www.canlii.org/en/on/oncj/doc/2004/2004oncj108/2004oncj108.html

<Defendant> Docket:


TAB118 R. v. Nayanookeesic, [2005] CanLII 19782 (ON S.C.) http://www.canlii.org/en/on/onsc/doc/2005/2005canlii19782/2005canlii19782.html

TAB119 R. v. Nikal, [1996] 1 S.C.R. 1013 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii245/1996canlii245.html

TAB120 R. v. Oakes, [1986] 1 SCR 103 http://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html

TAB121 R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 http://www.canlii.org/en/ca/scc/doc/2006/2006scc54/2006scc54.html

TAB122 R. v. Sparrow, [1990] 1 S.C.R. 1075 http://www.canlii.org/en/ca/scc/doc/1990/1990canlii104/1990canlii104.html

TAB123 R. v. Sundown, [1999] 1 S.C.R. 393 http://www.canlii.org/en/ca/scc/doc/1999/1999canlii673/1999canlii673.html

TAB124 R. v. Van der Peet, [1996] 2 S.C.R. 507 http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html

TAB125 R. v. Williams, [1921] BCSC

TAB126 Raz, Joseph; 1979; The Authority of Law, Oxford, Clarendon Press TAB127 Re Beaulieu, [1969] NWTC

http://library2.usask.ca/native/cnlc/vol06/022.html TAB128 Re Deborah, [1972] NWTC

http://library2.usask.ca/native/cnlc/vol07/462.html TAB129 Re Manitoba Language Rights, [1985] 1 S.C.R. 721


TAB130 Re Noah Estate, [1961] NWT Court http://library2.usask.ca/native/cnlc/vol06/120.html

TAB131 Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 http://www.canlii.org/en/ca/scc/doc/1987/1987canlii65/1987canlii65.html

TAB132 Report from the Select Committee on the Hudson's Bay Company together with the proceedings of the committee, minutes of evidence, appendix and index, etc. Britain. Parliament. House of Commons. Select Committee on the

<Defendant> Docket:


Hudson's Bay Company, [London : HMSO, 1858], Ordered, by The House of Commons, to be Printed, 31 July and 11 August 1857 , Parliament of Great Britain

TAB133 Report of the Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70, Journals of the House of Commons of the Dominion of Canada from the 26th March to the 26th May, 1874 ... being the 1st session of the 3rd Parliament of Canada, session 1874, Ottawa : Hunter, Rose, [1874] http://www.canadiana.org/view/9_07171_8/0478

TAB134 Robb v. Robb et al. [1891], 20 O.R. 591 http://library2.usask.ca/native/cnlc/vol03/613.html

TAB135 Roberston-Ross, Patrick; 1873; Reconnaissance of the North West Provinces and Indian Territories of the Dominion of Canada, and Narrative of Journey across the Continent through Canadian Territory to British Columbia and Vancouver Island, Sessional Papers (No. 9) A.1873, CVII to CXXVII, Ottawa, ON: Parliament of Canada http://peel.library.ualberta.ca/bibliography/648.html

TAB136 Roberts v. Canada, [1989] 1 S.C.R. 322 TAB137 Royal Proclamation, December 6, 1869, p. 43-44, Correspondence and Papers

Connected with Recent Disturbances in the North-West Territories, Printed by Order of Parliament, Ottawa: I. B. Taylor, 1870, Sessional Papers (No. 12) http://www.canadiana.org/view/30620/0055

TAB138 Royal Proclamation, October 7, 1763 http://www.canadiana.org/ECO/ItemRecord/9_03424?id=5d23f28ce050f030

TAB139 Rupert's Land Act, 1868, (31-32 Victoria, c. 105.), An Act for enabling Her Majesty to accept a Surrender upon Terms of the Lands, Privileges, and Rights of "The Governor and Company of Adventurers of England trading into Hudson's Bay," and for admitting the same into the Dominion of Canada. [31st July, 1868], Document CLXXIV, p.639-640, Statutes, Treaties and Documents of the Canadian Constitution, 1713 - 1929, W. P. M. Kennedy, ed., Second Edition, Revised and Enlarged, Toronto, ON: Oxford Universiy Press 1930 http://www.canadiana.org/view/9_03428/668

TAB140 Sanders, Douglas; 1984; The Application of Provincial Laws, Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, Bradford W. Morse, ed., Ottawa, ON: Carleton University Press

TAB141 Simon v. The Queen, [1985] 2 S.C.R. 387 http://www.canlii.org/en/ca/scc/doc/1985/1985canlii11/1985canlii11.html

TAB142 St. Catharines Milling and Lumber Company v. R. [1887], 13 S.C.R. 577

<Defendant> Docket:


http://library2.usask.ca/native/cnlc/vol02/441.html TAB143 St. Catharines Milling and Lumber Company v. The Queen [1888], 14 A.C.

46 http://library2.usask.ca/native/cnlc/vol02/541.html

TAB144 Standing Orders for the Red River Expeditionary Force, The War Office to Lieutenant-General the Honourable James Lindsay, 24 March, 1870, Great Britain. War Office, [London : s.n., 1870?], Parliament of Great Britain http://www.canadiana.org/ECO/ItemRecord/91209?id=60d562424561d7ba

TAB145 Stavenhagen, Rodolfo; 2005; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People - Mission to Canada, E/CN.4/2005/88/Add.3, December 2, 2004, United Nations Commission on Human Rights, 61st Session http://daccessdds.un.org/doc/UNDOC/GEN/G05/100/26/PDF/G0510026.pdf?OpenElement

TAB146 Sulte, Benjamin; 1871; L’Expedition Militaire de Manitoba 1870, Montreal, QC: Eusebe Senecal Imprimeur, Editeur http://peel.library.ualberta.ca/bibliography/597.html

TAB147 Tanaka, Kotaro; 1968; Dissenting Opinion of Judge Tanaka, Federal Republic of Germany v. Denmark, North Sea Continental Shelf Cases, International Court of Justice, The Hague, Netherlands, North Sea Continental Shelf Judgment, [1969] I.C.J. Reports http://www.icj-cij.org/docket/files/52/5579.pdf?PHPSESSID=761987e8644a2c04b38773c36ae55282

TAB148 Thomas v. Norris, 1992 CanLII 354 (BC S.C.) http://www.canlii.org/en/bc/bcsc/doc/1992/1992canlii354/1992canlii354.html

TAB149 United Kingdom, Parliament; 1857; Minutes of Evidence Taken before the Select Committee on the Hudson’s Bay Company, February to March 1857, London, UK: Her Majesty’s Government, House of Commons http://www.canadiana.org/ECO/ItemRecord/37934?id=71811591b594624e

TAB150 Valin v. Langlois, [1879] 5 App. Cases. 115

TAB151 Valin v. Langlois, [1879], 3 S.C.R. 1 TAB152 Wilkins, Kerry; 2000; Still Crazy After All These Years: Section 88 of the

Indian Act at Fifty, Alberta Law Review, Vol. 38, No. 2, p. 458 TAB153 Wolseley, Garnet Joseph; 1870; Narrative of the Red River Expedition: By an

Officer of the Expeditionary Force, Part I, Blackwood’s Edinburgh Magazine, Vol. 108, July – December, 1870, p.704 – 718

TAB154 Wolseley, Garnet Joseph; 1904; The Story of a Soldier’s Life, Vol. II, Toronto, ON: The Book Supply Company

<Defendant> Docket:


TAB155 Zlotkin, Norman K.; 1984; Judicial Recognition of Aboriginal Customary Law in Canada, Selected Marriage and Adoption Cases, Canadian Native Law Reporter, 1984, Vol. 4, p.1-17

PART V(b): Aboriginal Expert Witness List:

The following <1st Nation> elders are highly qualified by training and experience to provide evidence, particularly on arguments 91, 92, 93, 100, 101, 102, 111, and 114

<Elder/Expert> <Elder/Expert> <Elder/Expert>

<Defendant> Docket:


PART V(b): Resumé JOHN MURDOCH, B.Ed., M.Ed., MA, Ph.D. Permanent: P.O. Box 180, Waskaganish, Quebec J0M 1R0 Telephone: (819) 895-8798 Cell: (819) 895-4005 E-Mail: [email protected] _______________________________________________________________________ Special Skills:

◊ Languages: Mother tongue: English; good working knowledge of French and

Cree. ◊ Airline Transport Rating and ownership of an all weather aircraft providing 24

hour accessibility and willingness to travel, as well as flexibility in undertaking projects across Canada.

◊ Québec Class 3 Truck Drivers Permit ACADEMIC QUALIFICATIONS Master of Native American Studies - University of Lethbridge, Alberta, completed December 2007. Doctor of Philosophy, Education - University of Manitoba 1986, Anthropology - McMaster University, 1983. Master of Education - University of Manitoba, 1981. Bachelor of Education - University of Saskatchewan, 1978. Ontario Elementary Teacher’s Certificate - Lakeshore Teachers’ College, Toronto, Ontario, 1968. Saskatchewan Teacher’s Certificate - April 2002. Manitoba Teacher’s Certificate - April 2002. Quebec Teacher’s Certificate – April 2003. SELECTED CAREER ACHIEVEMENTS (partial list) EDUCATION:

◊ Successfully established and presently operating a federally incorporated training/education company - TAIGA EDUCATIONAL ASSOCIATES INC. and ASHIGAN RESEARCH INC. Responsible for day-do-day operations and management of a diverse range of projects including:

<Defendant> Docket:


- Research the history and implications of a band membership code, making

recommendations to Siksika Blackfoot Nation. - Researched historical resources available to defend Aboriginal title and

drafted position paper for the Cree Nation of Washaw Sibi - Developed, arranged first and second year high school accreditation for an

Alternative Education Program based on traditional Cree knowledge and skills; participated as teacher and pedagogical leader.

- Developed and arranged high school and college accreditation for a Cree Science & Technology Program in consultation with the Cree Trappers’ Association and Québec’s Minister of education.

- Developed a full text database for Cree Language curriculum materials using the Internet, as well as preparing literature to support the Cree as a Language Instruction Program (a bilingual/bi- cultural model) for a community public school.

- Pioneered and delivered Tourism training to 21 Cree and Ojibways from Northern Manitoba, Ontario and Quebec at a 5-star fishing lodge in Northern Manitoba; training consisted of general tourism orientation combined with skills training for specific roles (i.e. guides, cooks, hospitality workers and managers); delivered similar training to 24 Ojibway students within their home community of Webequie, ON.

- Strategically planned and negotiated funding for a pilot training project - Cree Traditional Pursuits for the Cree Trappers Association of the James Bay Territory; delivered training involving 150 students (all of which successfully completed training, while many continued training at their own initiative upon project completion).

◊ Appointed by the Executive Committee of the CREE SCHOOL BOARD to

revitalize curriculum development efforts in support of Cree Programs; subsequently expanded project scope to include most professional services in support of Cree Programs (1981-1985).

◊ As Freelance Consultant for the GRAND COUNCIL OF THE CREES/CREE

REGIONAL AUTHORITY, played instrumental role in the research, proposal preparation/presentation and establishment of the Cree Educational Institute allowing support for Cree control of the educational agenda (approved in 1986 by the Council of Chiefs).

◊ During the period of 1971-1986, worked extensively on a diverse range of Native

Language Education research and development projects, prepared and presented numerous papers and publications, conducted workshops, developed educational materials, secured funding and sponsorship and actively participated as Operations/Project Manager on an on-going basis for the Cree Way Project. Overall, significantly contributed to the improvement in communications with students and optimization of quality of classroom programs.

<Defendant> Docket:


BUSINESS:

◊ Developed operations and maintenance control manuals for a mutli-engine IFR air service - TAIGA AIR, based at Waskaganish. Attained operating certificate and Airline Transport Rating upon approval by Transport Canada (this required appropriate flying qualifications and experience). Provide high standard of air transport and trucking services to the local community. Flew over 5,500 flights primarily in the eastern James Bay area (1996-present).

◊ Founder and Operator of a thriving general store, providing employment within

the community; accomplished without grants or other funding (1992-present). EDUCATIONAL EXPERIENCE 2004-2008:

Graduate Student: Native American Studies, University of Lethbridge, Lethbridge, AB

Researcher for: James Bay Eyou School, Chisasibi, QC Kainai Nation Police Commission, Stand Off, AB Crees of Washaw Sibi, Amos, QC Crees of Waskaganish First Nation, Waskaganish, QC Siksika Nation, Siksika, AB School Principal (August – October 2008) at Wabaseemong School, Whitedog, Ontario

2001-2003:

Teacher - Grades 11/12 (History, Economics, etc.) École Wiinibekuu School, Waskaganish, James Bay, QC

Teacher – Alternative Education Program (Grades 8/9) École Wiinibekuu School, Waskaganish, James Bay, QC

1989-present:

Educational Consultant TAIGA EDUCATIONAL ASSOCIATES INC., Waskaganish, QC

<Defendant> Docket:


1977-1981 & 1987-1989:

Guidance Counsellor - Waskaganish School (1987-1989) Program Manager / Program Developer - Student Services (1977- 1981) CREE SCHOOL BOARD, James Bay Territory, QC

1985-1986 & 1980:

Freelance Consultant NUNASI (Inuit Development Corporation), James Bay Territory, QC GRAND COUNCIL OF THE CREES/CREE REGIONAL AUTHORITY, James Bay Territory, QC

1977-1978:

Instructor of Teacher Training Courses for Saskatchewan Indians EDIND 367 Curriculum Development - UNIVERSITY OF SASKATCHEWAN, Saskatoon, SK EDIND 457 Curriculum Development - UNIVERSITY OF SASKATCHEWAN - La Ronge Indian Reserve for the Northern Teacher Education Program (NORTEP), Saskatoon, SK EDIND 457 Curriculum Development - UNIVERSITY OF SASKATCHEWAN, Saskatoon, SK

1973-1977:

Principal / Teacher WASKAGANISH INDIAN SCHOOL, James Bay, QC

1970-1973:

Principal / Teacher WEMINDJI INDIAN SCHOOL, Wemindji, James Bay, QC

1968-1970:

Teacher - Grades 4/5 MOOSE FACTORY ISLAND INDIAN SCHOOL, Moose Factory, James Bay, ON

ADDITIONAL EXPERIENCE 1989-2000, Waskaganish, QC

Operations Manager / Maintenance Co-ordinator / Chief Pilot - TAIGA AIR, a

<Defendant> Docket:


multi-engine IFR air services bases at Waskaganish, James Bay, Québec Founder / Operations Manager - DEPANNEUR MAAMPT CONVENIENCE STORE

2008 - present, Waskaganish, QC

Assisting various Aboriginal persons organize a defense

~ Additional Information and Professional References Available Upon Request.

Publications1970 VoicesintheWind,ajuniorelementarylevelreader,MooseFactory,ON:

MooseFactoryIslandSchoolBoard,46pp.

1971 TheRoleandEffectofNorthernSchoolAdministration,deliveredtoaseminaroncross‐culturalpsychology,(Dr.JohnBerry,Queen’sUniversityatKingston).

AroundWemindjiinEnglish,aprimarylevelreader,Wemindji,QC:WemindjiIndianDaySchool,16pp.

[AroundWemindji],aprimarylevelreaderinCree,Wemindji,QC:WemindjiIndianDaySchool,16pp.

1972 ANewDirection,apaperdeliveredattheAmericanAnthropologySociety’sSymposiumonEducation,‘BiculturalEducationofCanadianEskimosandIndians’,Montreal,April1972.

[Gomokshet],anelementarylevelreaderinCree,Wemindji,QC:WemindjiIndianDaySchool,24pp.

TheOldWay,anprimarylevelreaderinEnglish,Wemindji,QC:WemindjiIndianDaySchool,39pp.;reprintedin1974,atWaskaganish,QC:CreeWayProject.

1973 [GettingReadyToRead–Primer],aprimarylevelreaderinCree,Waskaganish,QC:CreeWayProject,41pp.

[ThisIsJimmy–Books1‐4],fourprimarylevelreadersinCree,Waskaganish,QC:CreeWayProject,24pp.each;reprintedin1983,Ottawa,ON:NortextInformationDesignLtd.,fortheJamesBayCreeCulturalEducationalFoundation.

<Defendant> Docket:


[ThisIsJimmy–PupilActivitiesBooks1‐4],fourprimarylevelworkbooksinCree,Waskaganish,QC:CreeWayProject,24pp.each

WhentheSunWasYoung,intermediatereaderinEnglish,Waskaganish,QC:CreeWayProject,36pp.;reprintedin1983,Ottawa,ON:NortextInformationDesignLtd.,fortheJamesBayCreeCulturalEducationalFoundation

WhentheSunWasYoung‐Workbook,intermediatereaderinEnglish,Waskaganish,QC:CreeWayProject,18pp.

Tabajimo–Teacher’sGuidetoEasternCreeFolklore,Waskaganish,QC:CreeWayProject,44pp.

1974 PhotographicHoldingsoftheHudson’sBayCompanyArchives,Waskaganish,QC:CreeWayProject,17pp.

CreeMath:Size&Shape,aprimerinCreemathematicalconcepts,researchedandcompiledincollaborationwithDr.PeterDenny,UniversityofWesternOntario;Waskaganish,QC:CreeWayProject,6pp.

StoriesofLongAgo,anintermediatelevelreaderinEnglish,writtenandillustratedincollaborationwithAnnieWhiskeychanandBobbieEsau;Waskaganish,QC:CreeWayProject,16pp.

StoriesofLongAgo‐Workbook,anintermediatelevelworkbookinEnglish,writtenandillustratedincollaborationwithAnnieWhiskeychanandBobbieEsau;Waskaganish,QC:CreeWayProject,16pp.

MoreStoriesofLongAgo,anintermediatelevelreaderinEnglish,writtenandillustratedincollaborationwithAnnieWhiskeychanandBobbieEsau;Waskaganish,QC:CreeWayProject,25pp.

MoreStoriesofLongAgo‐Workbook,anintermediatelevelworkbookinEnglish,writtenandillustratedincollaborationwithAnnieWhiskeychanandBobbieEsau;Waskaganish,QC:CreeWayProject,16pp.

TheMatrixofEducationforEasternCreeChildren,writtenforpresentationattheAlgonquianConference,GreenBay,Wisconsin

Amerindianization:theInstitutionandtheHappening,presentedattheannualmeetingoftheCanadianEthnologySociety,LavalUniversity,Levis,QC;publishedbyNationalMuseumsofCanada,CanadianEthnologyServicePaper#17,reprintedinTheNorthian1977.

ASurveyofIndianEducationResearchMaterials,24pp.manuscript.

OldPhotographsfromCreeCountry:ABiliographyofRelatedHoldingsofthePublicArchivesofCanada,Waskaganish,QC:CreeWayProject,21pp..

<Defendant> Docket:


1975 FantasyandtheDevelopmentofaSymbolicModeofThought,16pp.,manuscript.

TwoNotionsofReality,22pp.,manuscript.

TheImportanceofCreeInitiativesinEducationalandCulturalDevelopmentintheEasternJamesBayRegion,presentedattheSymposiumonJamesBay,Montreal,sponsoredbytheJamesBayDevelopmentCorporation,andtheJamesBayEnergyCorporation,May1976.

FormalEducationintheEasternJamesBayRegion,apreliminaryoverview,preparedtoassistNationalFilmBoardofCanada’sdocumentaryfilmoneducationintheregion.

AnOldDilemma:ASuitableDesignforNativeEducationintheSouthPacific,14pp.manuscript.

AReportonSystemandOperationProblemsofEasternJamesBaySchools,presentedatajointmeetingoftheGrandCounciloftheCreesandIndian&NorthernAffairs,Vald’Or,Quebec,January1976.

1977 BibliographyonAlgonquianNarration,Waskaganish,QC:CreeWayProject,ii+30pp.

BibliographyonAlgonquianToponomy,Waskaganish,QC:CreeWayProject,ii+7pp.

BibliographyonAlgonquianLandTenure,Waskaganish,QC:CreeWayProject,ii+12pp.

CourseOutlineK‐7:ForUseonEasternJamesBay,Waskaganish,QC:CreeWayProject,24pp.

TheRobertT.BellCollectionofAlgonquianFolklore,anannotatedbibliographyofthefolkloremanuscriptsoftheRobertT.BellCollection,PublicArchivesofCanada,69pp.manuscript.

ABibliographyontheChipewyanPeople,PrinceAlbert,SK:Indian&NorthernAffairs,42pp.

1978 IndiansofSaskatchewaninPhotographs,PrinceAlbert,SK:Indian&NorthernAffairs,85pp.

RupertHouseLongAgo–1867,filmstrip,Waskaganish,QC:CreeofWaskaganishFirstNation

RupertHouseLongAgo–1867,intermediatelevelreader,Waskaganish,QC:CreeofWaskaganishFirstNation;reprintedin1983,Ottawa,ON:NortextInformationDesignLtd.,fortheJamesBayCreeCulturalEducationalFoundation.

<Defendant> Docket:


ReturnoftheBeaver,filmstrip,Waskaganish,QC:CreeofWaskaganishFirstNation

ReturnoftheBeaver,intermediatelevelreader,Waskaganish,QC:CreeofWaskaganishFirstNation;reprintedin1983,Ottawa,ON:NortextInformationDesignLtd.,fortheJamesBayCreeCulturalEducationalFoundation

CanoeFactory,filmstrip,Waskaganish,QC:CreeofWaskaganishFirstNation

CanoeFactory,intermediatelevelreader,Waskaganish,QC:CreeofWaskaganishFirstNation;reprintedin1983,Ottawa,ON:NortextInformationDesignLtd.,fortheJamesBayCreeCulturalEducationalFoundation

1979 ModelsandStrategiesforIndianStudentResidenceProgramDevelopmentintheJamesBayTerritory,11pp.,manuscript.

1980 CreeStudentsinPostSecondaryEducation:FactorsofCultureandPersonality,13pp.manuscript.

TheCreeReport,theFinalReportontheInvestigationofIndianStudentProblems,commissionedbyandsubmittedtoNorthernCollege,Timmins,Ontario,18pp.manuscript.

FortGeorgeIndianStudentResidence:AModelforDiscussionandRemedialAction,18pp.manuscript.

ASocialCriticismoftheEducationalFoundationsofEducationfortheCreesofNorthernQuebec,11pp.manuscript.

TheSpreadofCreeLiteracySince1840:ItsSurvivalandTreatmentbyFormalEducation,33pp.manuscript.

EvolutionoftheSyllabicCharactersforUsewithAlgonquianLanguages,17pp.manuscript.

SomeIdentifyingFeaturesofEarlyTextsinCreeSyllabicCharacters,17pp.manuscript.

AlgonquianLanguageTextsinSyllabicCharacters,103pp.manuscript.

ThirdWorldEducation:TheFactorofAdaptiveCulture,16pp.manuscript

JamesEvans,Innovator,66pp.manuscript.

<Defendant> Docket:


1981 Syllabics:ASuccessfulEducationalInnovation,343pp.Med.Thesis,defendedandunconditionallyacceptedbytheUniversityofManitoba,March3,1981.

CreeLiteracyinFormalEducation:AProbleminEducationalInnovation,apaperpresentedatthe13thAlgonquianConference,October1981,O.I.S.E.,Toronto,Publishedin1982,Papersofthe13thAlgonquianConference,WilliamCowan,ed.

EthnorelativisminCreeCurriculumDevelopment,apaperpresentedatthesymposiumentitled,“PerspectivesonMulticulturalisminCanada:AnInvitationalSymposium”,Queen’sUniversityatKingston,Ontario,November7‐11,1981.PublishedinMulticulturalisminCanada:SocialandEducationalPerspectives,JohnBerryandRonaldSamuda,eds.Toronto:Allyn&Bacon

1982 TheImplicationswhichAdaptiveStrategiesHaveforCurriculum:CertainCulturallyPersistentBehavioursandEarlyDevelopmentofaCognitiveStyle,16pp.manuscript.

TheImplicationswhichAdaptiveStrategiesHaveforCurriculum:TheAspectsofCreeCognitiveStyleandCurriculumDesign,14pp.manuscript

OrthographiesandEcologicalAdaptations,15pp.manuscript

AnEthnorelativeApproachtoCreeLanguageArtsCurriculum:BasicPrinciplesofDesign,15pp.manuscript

InterimReport:ProjectASTIC(AlgonquianSyllabicTextsinCanada)preparedforsubmissiontoSSHRC.

1983 LeModedeConnaissancedesCrisetl’elaborationd’unprogrammescolaire,RecherchesAmerindiennesauQuebec,Vol.XIII,No.2,p.115‐123

AdaptiveStrategiesandIndigenousLanguageDevelopment:TheCaseofCanadianHunterGatherers,presentedatthe53rdAnnualCongressoftheAustralianandNewZealandAssociationfortheAdvancementofScience(ANZAAS),Perth,WestAustralia

TheSocialWorldoftheHunterGathererCreeChild,32pp.manuscript

TheCognitiveWorldoftheHunterGathererCreeChild,38pp.manuscript

TheInuitStandardOrthographyfortheCanadianEasternArctic:AStudyofIndigenousCulturalSurvivalwithinNationStates,28pp.manuscript

1984 ABibliographyofAlgonquianSyllabicTextsinCanadianRepositories,114pp.Ottawa:NortextInformationDesignLtd.

<Defendant> Docket:


1985 TheAspectofHunterGathererCognitiveStyleintheLinguisticEffortsofCertainNorthAmericanIndigenousPeople,InternationalJournalofAmericanLinguistics,Vol.51,No.4,p.518‐521

ANewBeginning:ACreeCultureProgram&CourseOutline–ElementaryLevels,Waskaganish:CreePrograms,CreeSchoolBoard.

TheSpreadofNativeLiteracy,EducationManitoba,October1985,Vol.13,No.2,p.9‐11

ASyllabaryoranAlphabet:AChoiceBetweenPhonemicDifferentiationorEconomy,PromotingNativeWritingSystemsinCanada,BarbaraBurnabyed.,Toronto:O.I.S.E.Press,p.127‐136.

1986 ABibliographyofInuktitutSyllabicTextsinCanadianRepositories,manuscript.

AdaptationofFormalEducationtoIndigenousCognition:TheCaseofEasternCree,apaperdeliveredtotheNATOConferenceonIndigenousCognition,Queen’sUniversityatKingston,publishedin,IndigenousCognition:FunctioninginCulturalContext,JohnW.Berry,S.H.Irvine,E.B.Hunt,eds.,NATO,MartinusNijhoftPublishers

TheLegacyofDressUpCreek:FormalEducationforNorthernAlgonquianHunters,274pp.Phd.ThesisacceptedunconditionallybytheUniversityofManitoba,July1986.

1987 ABibliographyofDeneSyllabicTextsinCanadianRepositories,manuscript.

1988 AnHistoricalView,areportonproblemsaffectingtheachievementofthestudentsservedbytheCreeSchoolBoard,presentedtotheCouncilofCommissioners,February1988.

AnPlanforRemedialAction,areportonremedialactionstotreatproblemsaffectingtheachievementofthestudentsservedbytheCreeSchoolBoard,presentedtotheCouncilofCommissioners,April1988.

1989 ABibliographyofAlgonquianRomanOrthographyTextsinCanadianRepositories,manuscript

1996 TaigaAir–MultiEngineIFROperationsManual,submittedtoTransportCanadaaspartofthelicensingrequirementsforTaigaAir,Waskaganish,Quebec

1998 CreeScience&TechnologyProgram,aC.G.E.P.levelprogramdesignedforChiefMalcolmDiamondMemorialTrainingCentreundersupervisionofHeritageCollege,Hull,Quebec

<Defendant> Docket:


2002 CreeTrappersAssociation‐CreeScience&TechnologyProgram–WorkingDocument,developedfortheCreeTrappersAssociation,acompletehighschoolprogram

2004 CreeScience&TechnologyProgram,developedfortheCreeTrappersAssociationandtheCreeSchoolBoard’sAdultEducationServices,acompletehighschoolprogram,followedbytwoyearsofcollege

ChallengingtheCrown’sExpertWitnesses,apaperpresentedatthe36thAlgonquianConference,Madison,Wisconsin,October30,2004

AboriginalOralTraditionsAretheTargetoftheCrown’sUseofRacistSocialDoctrines,FirstNationsStrategicBulletin,Vol.2,Issue11,December2004,p.6‐9

2005 StudyofHistoryandImplicationsoftheSiksikaNationBandMembershipCode,areportofresearchconductedforSiksikaNation(Alberta),BandMembershipTribunal,workingdraftcompletedMarch31,2005,finalreportdueJune30,2005

2007 ResearchingandAssertingAboriginalRightsinRupert’sLand,viii+245pp.343pp.MAThesis,defendedandunconditionallyacceptedbytheUniversityofLethbridge,December14,2007.

2008 ReportonTraining,ApprenticeshipandAccreditationinCertifiedTrades,areportofresearchconductedfortheCreesofWaskaganishFirstNation(Quebec),April2008.

WhereHaveAlltheWorkersGone?aDVDreportintendedforanAboriginalcommunityaudience,explainingthecurrentproblemsandpotentialsolutionstotraining,apprenticeshipandaccreditationinprovinciallycertifiedtrades,May2008

ResearchingandAssertingAboriginalRightsinRupert’sLand,MAThesisinNativeAmericanStudies,UniversityofLethbridge,Alberta,completedunderDr.LeroyLittleBearandsuccessfullydefendedDecember17,2008