Jim Potts Pleading For The Internet

Dec.
 1/08 Draft – Jim Potts’ Pleading                  1 
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1.0 Alberta’s laws are of no legal force over Jim Potts, his
property, over his Aboriginal people or over his
Aboriginal people’s property
1.1 Alberta’s laws were made applicable to Indians and Indian
Lands by s. 87 of the Indian Act, later called s. 88, little
changed since its adoption in 1951.
1951
General provincial laws applicable to Indians.
87. Subject to the terms of any treaty and any other Act of the Parliament of Canada,
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, except to the extent that such
laws are inconsistent with this Act or any order, rule, regulation or by-law made
thereunder, and except to the extent that such laws make provision for any matter for
which provision is made by or under this Act. 1951, c. 29, s. 87.
1985
88. Subject to the terms of any treaty and any other Act of the Parliament of Canada,
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, except to the extent that such
laws are inconsistent with this Act or any order, rule, regulation or by-law made
thereunder, and except to the extent that such laws make provision for any matter for
which provision is made by or under this Act. R.S., c.149, s.87.
2005
LEGAL RIGHTS
General provincial laws applicable to Indians
88. Subject to the terms of any treaty and any other Act of Parliament, 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, except to the extent that those laws are inconsistent
with this Act or the First Nations Fiscal and Statistical Management Act, or with any
order, rule, regulation or law of a band made under those Acts, and except to the
extent that those provincial laws make provision for any matter for which provision is
made by or under those Acts. R.S., 1985, c. I-5, s. 88; 2005, c. 9, s. 151.
Dec. 1/08 Draft – Jim Potts’ Pleading                  2 
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1.2 Canada has repeatedly been forbidden to delegate powers to
or trade powers with provincial legislatures.
Two well-known works, often cited by Canadian Courts deal thoroughly and
authoritatively with the problem of Parliamentary powers over Indians and Indian
Lands being delegated to a provincial legislature (in this case, Ontario). They are:
La Forest, Gerard V.
1975, Delegation of Legislative Power in Canada, McGill Law Journal, Vol. 21, p.
131
Lederman, William R.
1967 Some Forms and Limitations of Co-operative Federalism, Canadian Bar
Review, Vol. 45, p. 409-436
The most important court decisions, all forbidding such delegation of powers, are
summarized below:
Citizens’ and Queen Insurance Co. v. Parsons [1881] 4 S.C.R. 215

Supreme Court of Canada, Justice Gwynne, at p. 348
.. 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, and as the parliament cannot by Act or acquiescence transfer to the local
legislatures any subject placed by the B.N.A. Act under the exclusive control of
parliament, so neither can it take from the local legislatures any subject placed by the
same authority under their exclusive control. (p.348)
Attorney-General of British Columbia v. Attorney-General of Canada [1937] A.C.

377 (Natural Products Marketing Act Reference) at p.234:
…. 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.
(p.234) ...
Their Lordships appreciate the importance of the desired aim. Unless and until a
change is made in the respective legislative functions of Dominion and Province it
may well be that satisfactory results for both can only be obtained by co-operation.
But the legislation will have to be carefully framed, and will not be achieved by either
party leaving its own sphere and encroaching upon that of the other. (p. 239) ..
Attorney-General of Nova Scotia v. Attorney-General of Canada [1951] S.C.R. 31

Supreme Court of Canada
…. 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. It is part of that
protection that Parliament can legislate only on the subject matters referred to it by
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section 91 and that each Province can legislate exclusively on the subject matters
referred to it by section 92. ….
No power of delegation is expressed either in section 91 or in section 92, nor, indeed,
is there to be found the power of accepting delegation from one body to the other; and
I have no doubt that if it had been the intention to give such powers it would have
been expressed in clear and unequivocal language. Under the scheme of the British
North America Act there were to be, in the words of Lord Atkin in The Labour
Conventions Reference (1), "water-tight compartments which are an essential part of
the original structure."
Neither legislative bodies, federal or provincial, possess any portion of the powers
respectively vested in the other and they cannot receive it by delegation. (p.34)
...
The British North America Act divides legislative jurisdiction between the Parliament
of Canada and the Legislatures of the Provinces and there is no way in which these
bodies may agree to a different division. (p. 38)
…
The powers of Parliament and of the Legislatures strictly limited by the B.N.A. Act,
would thus be considerably enlarged, and I have no doubt that this cannot be done,
even with the joint consent of Parliament and of the Legislatures. It is a well settled
proposition of law that jurisdiction cannot be conferred by consent. None of these
bodies can be vested directly or indirectly with powers which have been denied them
by the B.N.A. Act, and which therefore are not within their constitutional jurisdiction.
(p.40) …
Lefroy in "Legislative Power in Canada" at page 242, expresses the view with which
I agree, that the Federal Parliament cannot amend the British North America Act, nor
either expressly or impliedly take away from, or give to, the provincial Legislatures a
power which the Imperial Act does, or does not give them; and he adds that the same
is the case, mutatis mutandis, with the Provincial Legislatures. ..... it has never been
held that the Parliament of Canada or any of the Legislatures can abdicate their
powers and invest for the purpose of legislation, bodies which by the very terms of
the B.N.A. Act are not empowered to accept such delegation, and to legislate on such
matters. (p.44)
… Legislative jurisdiction cannot be assumed or be given by consent. Had it been the

intention of the Imperial Parliament to give to one legislative body the right to
delegate to the other, the word 'exclusively' in both sections would have been omitted.
(p. 58)
The underlined portion of the above decision can be read as a prediction of the social
and economic chaos that has been caused by Parliament delegating of its powers over
Indians and Indian Lands to Provincial Legislatures. If Parliament had not granted the
Ontario Legislature the power to impose its mining laws on Indians and Indian Lands,
Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, and Platinex Inc.
v. Kitchenuhmaykoosib Inninuwug First Nation, would not have happened. In the
words of AG. British Columbia v. AG. Canada [1937], “satisfactory results for both
can only be obtained by co-operation”. Neither Ontario nor the mining companies
would have had to power to impose on Indians and Indian Lands, and certainly not
jail them for contempt of provincial legislation. Given the “exclusiveness”of plenary
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powers and the protection of Indians and Indian Lands provided by the Royal
Proclamation of December 6, 1869, such negotiations would probably resemble the
kind of federal-provincial negotiations that have become quite routine since 1951.
1.3 The proof that Canada has in fact delegated its for 91.24
powers over Indians and Indian Lands to Alberta, and has
abdicated its responsibility to protect them, is well
illustrated in R. v. Nayanookeesic, 2004 ONCJ 108 and R. v.
Nayanookeesic, 2005 CanLII 19782 (ON S.C.). As was the
case for the Nayanookeesic brothers, Jim Potts is compelled
by Canada’s delegation of its powers to Alberta to appear in
an Alberta, provincial court which lacks to power to uphold
or create a remedy based on his constitutional rights.
Wind Speaker, April 1, 2004

Federal Gun Legislation Shot Down in Court
Author: Barnsley, Paul
The two brothers, Mark and Leon Nayanookeesic of the Whitesand First Nation,
north of Thunder Bay, went out hunting with unregistered firearms and were charged
by Ontario Provincial Police in 2001 for hunting without a firearms possession and
acquisition licence. Justice Dianne Pettit Baig ruled on March 2 that asking the
Whitesand First Nation citizens to pay $80 for a firearms licence is unconstitutional,
because they have a constitutional Aboriginal right to hunt within their traditional
lands.
R. v. Nayanookeesic, 2004 ONCJ 108

[3] In today’s case, although it presents as a criminal case against the
Nayanookeesic brothers, very early on the defense served notice of a constitutional
issue and admitted all the facts that would support a conviction were the law to be
upheld. As a result of the constitutional issue and the argument with respect to the
validity of the legislation against these particular accused, the accused have been
found not guilty. 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. This is a
constitutional case which is very different from a criminal case where the Courts are
deciding that an accused has to have legal counsel for the case to proceed to a fair
trial. Not only is this a constitutional issue, but the Nayanookeesics are successful.
[4] The power of the Court in making a Fisher type order is that the Court can
stay the charges or not permit them to proceed if the accused do not have funded legal
counsel. That would not be much of a resolution in the case before the Court. For
example, had Mr. Schachter applied in advance for funding, which may have been a
possibility, if the courts had simply stayed the prosecution, nothing would have been
resolved. This litigation is of obvious interest to every member of the Whitesand
Band. The Nayanookeesics had to proceed with this litigation and they sought out and
found competent experienced counsel who conducted the litigation in an exemplary
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fashion. All of the work that I have seen that he has done, both written and oral, has
been impressive and it resulted in the decision favorable to the Nayanookeesics.
[5] This is essentially public interest litigation. There is case law to support the
proposition that the Courts can use costs to make Charter litigation accessible to
people. We generally see these arguments when people are advancing their
Charter rights, but this is a rights issue also. These are the rights of the First
Nation’s peoples to bring forward what they have been constitutionally
guaranteed.
[10] Each of the Nayanookeesics are charged separately so I have two informations
to work with. What I propose to do is to divide the costs and disbursements
equally between them, so long as everyone is in agreement. I am going to allow
the costs as claimed at the rate claimed, save and except for Mr. Berger’s report.
Each of the informations will state that costs are awarded in the amount of one
half of $42,079.00, which is $21,039.50, which includes the disbursements of
one half of $7,749.00, which is $3,874.50. With that endorsed on each
information, that gives the Nayanookeesics their fees plus disbursements, save
and except for the cost of Mr. Berger’s report. Thank you.
Released: July 5, 2004

Justice D. PETTIT BAIG
R. v. Nayanookeesic, 2005 CanLII 19782 (ON S.C.)

[1] Does a judge of the Ontario Court of Justice have jurisdiction to award costs
against the Crown in a case where a breach of an accused’s aboriginal rights is found
at trial, and if so, what are the parameters of this jurisdiction?
[23] Section 52(1) of the Constitution Act, 1982 confirms that the Constitution is
the supreme law in Canada, and that any law inconsistent with it is of no force and
effect, to the extent of the inconsistency.. This is the remedial section pertaining to
violations of aboriginal rights contained in Part II. Jurisdiction lies in the superior
court to grant a declaration of invalidity, and to deal with costs in accordance with the
superior court’s inherent jurisdiction. That was not done here.
[24] In my view, the trial judge had no jurisdiction to fashion a costs remedy by
analogy to section 24(1) when the breach of constitutional rights fell under Part II of
the Constitution Act, 1982. To do so, is contrary to the principles of statutory
interpretation. The tool kit available to judges as penalties and remedies in one part of
a statute should not be imported into another part absent clear legislative intention.
Such an approach amounts to judicial legislation. It is inconsistent with the structure
of the Constitution Act, 1982.
[41] The trial judge’s decision to award the respondents costs was based on her
finding that the case was a test case. At par. 47 of her judgment she concluded,
“…In light of my findings with respect to the legislation, [the respondents’] challenge
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was well founded and the law is clarified, which enures to the benefit of all
beneficiaries of the Robinson Superior Treaty and possibly to the beneficiaries of
other such treaties and, indeed, to all citizens of Canada. I therefore conclude that this
case is in the nature of a “test” case. The only difference is by whom the clarification
is requested. It is, I find, within the “special circumstances” as set out in Veri.”
[42] With respect, I cannot agree with this conclusion. It misapprehends the
distinction between a ruling and a declaration. In this case, the respondents proceeded
to trial in the Ontario Court of Justice and sought a ruling, claiming a breach of their
aboriginal rights guaranteed by the Constitution. To draw an analogy to the Cuddy
Chicks case, the trial court, which is provincially constituted, can make findings that
include breaches of Charter rights. This capacity is necessarily incidental to the
jurisdiction of the Ontario Court of Justice to try cases and fashion remedies for
Charter breaches under Part I of the Constitution Act, 1982. The power to grant
declaratory relief, however, is not available in the provincial court.
[43] Continuing the analogy in Cuddy Chicks, a ruling in the Ontario Court of
Justice is not entitled to curial deference. It is limited to the facts from which it arises.
It does not bind other courts. It does not have status as a precedent. Nor does it clarify
the law. The ruling simply determines the accused’s position in relation to the charge
before the court. A novel case, therefore, is not necessarily a test case.
[44] By contrast, 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. The inherent jurisdiction
of the superior court to award costs derives from the same history. By virtue of the
jurisdictional capacity of the superior court, findings of constitutional invalidity do
have status as precedent. For this reason, such declarations may constitute a “test
case.” By virtue of the principle of stare decisis, such rulings bind the courts below.
The inherent jurisdiction of the superior court to award costs, or alternatively a
statutory jurisdiction, such as found in the Criminal Code, permits it to augment a
constitutional declaration with an award of costs, as circumstances dictate.
[45] I conclude, therefore, that the trial judge erred in determining that the case
against the respondents was a test case, creating jurisdiction to award costs against the
Crown.
[46] In view of this conclusion, it is not necessary to deal with the question as to
whether a counsel fee can be read into an award of costs under section 809 of the
Criminal Code.
[47] The award of costs of March 2 and May 13, 2004 against the Crown in this
matter is therefore set aside.
Madam Justice Pierce

Released: May 24, 2005
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Soon after, Justice Pierce’s judgment was applied as case law:
R. v. D.L. (No. 2), 2005 ONCJ 344

Counsel also referred me to a recent decision in R v Nayanookeesic [2005] OJ No
2354 (Sup Crt) for the proposition that, regardless of whatever usual rule applies,
declarations of constitutional invalidity by the Superior Court are binding on the
lower courts. In that case the trial judge hearing a trial on a charge under section
91(1) of the Code for possessing a firearm without a license held that the licensing fee
requirement violated the accused’s treaty rights to hunt. She awarded costs against the
Crown. Her authority to do so was the sole issue on appeal. One possible basis for
authority was if it was a “test case”. In holding that the trial judge erred in
considering the case to be a test case, the court held in effect, that it could not have
been a test case because only Superior Courts have jurisdiction to hear test cases
involving declarations of constitutionality (para 42 –44). The Court added that “By
virtue of the principle of stare decisis, such rulings bind the courts below”.
1.4 Delegating power to provincial and municipal legislatures

while simultaneously abdicating responsibility for protecting
Indians and Indian Lands has been a Canadian executive
strategy since before Confederation.
The Pennefather Commission, led by Richard T. Pennefather, Superintendent General

of Indian Affairs, produced the Report of the Special Commissioners Appointed on
the 8th of September 1856, to Investigate Indian Affairs in Canada. The commissions
objectives were two fold, to investigate:
“the best means of securing the future progress and civilization of the Indian Tribes in
Canada”; and, “the best mode of so managing the Indian Properties as to secure its
full benefit to the Indians, without impeding the settlement of the country”.
Under the heading of Position of the Native Tribes in the Eye of the Law, the report
noted:
In 1840, the Attorney General gave it as his opinion,

1st. That Indians under the age of 21 years are minors in the eye of the law, beyond
that age they have the rights of other subjects.
2nd. That they are not incapable of making civil contracts.
3rdly. That they have legal capacity, either as plaintiffs or defendants.
At this time there was no legislative declaration bearing upon the subject matter of
these opinions, but the Canadian Parliament have from time to time provided for the
Indians as a class incapable in many respects of managing their own affairs. Indeed
the 20 Vic. c. 26 expressly acknowledges their inferiority in regard to their legal
rights and liabilities as compared with Her Majesty’s other subjects resident in this
Province, and provides means whereby they may be gradually enfranchised.
(Pennefather 1858:99)
In their recommendations, Pennefather and his colleagues advised a strategy of

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aggressive assimilation of Indians to the language and culture of English and French
citizens:
Great stress should be laid upon instruction either in French or English. It is true that
the Missionaries in the North-West districts urge the propriety of some instruction
being given in the native tongue, and no doubt it may facilitate the important object of
spreading Christianity among the adults. In our opinion however nothing will so pave
the way for the amalgamation of the Indian and white races, as the disuse among the
former of their peculiar dialects. So long as they continue to cling to them, they will
remain a distinct people dwelling apart in the midst of their White neigbours. …
Another point of vital importance to be kept steadily in view, is the gradual
destruction of the tribal organization. It has been proposed to substitute Municipal
Institutions, at once for it. (Pennefather 1858:152)
On March 14th 1879, Nicholas Flood Davin submitted the report he was
commissioned by Prime Minister John A. Macdonald to complete. Davin reported a
thorough research of “Industrial Schools for the education of Indians and
mixedbloods in the United States, and on the advisability of establishing similar
institutions in the North-West Territories of the Dominion” (Davin 1979:1). Davin
described the industrial school as “the principal feature of the policy known as
aggressive civilization”, inaugurated by President Grant in 1869 on recommendations
made by the Peace Commission. The latter commission had recommended that:
“the Indians should be consolidated on few reservations”; “provided with permanent

individual homes”; “the tribal relation should be abolished”; “lands should be allotted
in severalty not in common”; and, “that the Indian should speedily become a citizen
of the United States”. Davin’s reasons for a preference for a residential school over a
day school leaves little doubt that the intent of aggressive civilization is to wipe out
Aboriginal language and culture:
… it was found that the day-school did not work, because the influence of the
wigwam was stronger than the influence of the school. … The experience of the
United States is the same as our own as far as the adult Indian is concerned. Little can
be done with him. He can be taught to do a little at farming, and at stock-raising, and
to dress in a more civilized manner, but that is all. The child, again, who goes to a day
school learns little, and what he learns is soon forgotten, while his tastes are fashioned
at home, and his inherited aversion to toil is in no way combated. (Davin 1879:1-2)
Diamond Jenness, the Dominion Anthropologist, testified and submitted a single page
report, Plan for Liquidating Canada’s Indian Problem within 25 Years. As suggested
by the title, the objective of this plan, well received by the committee was “to abolish,
gradually but rapidly the separate political and social status of the Indians (and
Eskimos); to enfranchise them and merge them into the rest of the population on an
equal footing” (Jenness 1947).
Approximately twenty years after Jenness’ plan, Professor Harry Hawthorn and a
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team of his academic peers were hired to research and report on economic, political,
educational situations of contemporary Indians of Canada, making suggestions as to
the policies that might best be adopted. Hawthorn submitted his report in two
volumes in 1966 and 1967. At more than four-hundred-sixty pages in two volumes,
Hawthorn’s report was more detailed and delivered the same message as Jenness’ in a
kinder and a more gentle fashion. The sorry state of contemporary Aboriginals,
Hawthorn attributed to “general isolation, poverty, and backwardness which prevail
in most Canadian Indian communities”. Like his predecessors, Hawthorn saw ‘tribal
structure’ as a major obstacle to both desirable and inevitable assimilation:
3. Kinship Ties and Obligations

One of the most widely observed factors in economic development, generally held
to be negative in its effects, is the obligation of the individual to his kinship
group. In most tribal and peasant societies, a fairly wide kinship group is the basic
unit of organization, economic and otherwise. It defines the role and status of the
individual, and provides him with some degree of security; that is, in terms of a
right to minimum subsistence and other prerequisites in times of need. The mutual
ties of rights and obligations act as deterrents to economic advancement in an
industrial society. The individual’s mobility may be reduced, for one thing, as he
may be reluctant to sacrifice his security by moving to centres of job opportunity
elsewhere. Where an individual does advance himself, through wage employment
or successful entrepreneurship, the claims of his kinfolk may reduce his standard
of living and his capital. This sort of pattern is conspicuous and therefore easily
and frequently observed by outsiders. (Hawthorn 1966:121-122)
Hawthorn, like his predecessors characterized the legal relationship between

Aboriginals and the Crown as “due to the fact that they were waiting on the shore
when the White man first set foot on the northern half of this continent”
(Hawthorn 1966:396).
The Indian Act, [R.S., 1985, c. I-5], the modern version of this 19th century
statute, was described in a recent court decision quoting a number of the Crown’s
former ministers responsible:
[792] During the first phase of the trial, the plaintiffs called three former
Ministers of DIAND to testify. They also later called the former Prime Minister,
the Right Honourable Jean Chrétien, who was also a former DIAND Minister.
These witnesses all seemed to agree that the Indian Act is deficient and needs to
be either amended or scrapped entirely. Mr. Crombie, who was Minister from
September 1984 until June 1986, testified that the Act had no defenders. He
described it as oppressive, a "Denver boot," and a "colonial holdover" (transcript
volume 89, pp. 12499-12500). Mr. Munro, who served as Minister of DIAND
from 1980 until 1984, described the Indian Act as "abominable" and "archaic"
(transcript volume 92, p. 12959). Mr. Allmand, who served as Minister of
DIAND from 1976 until 1977 and was also a member of the Penner Committee,
testified that the Act is paternalistic and, because it was imposed unilaterally on
aboriginal people, an "abuse of power" (transcript volume 97, p. 13618). The
Right Honourable Mr. Chrétien testified that after the completion of the Indian
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Act consultations held in 1968, he offered to abolish the Act entirely. Aboriginal
people, however, did not want that and so he declined to press ahead
(transcript volume 296, pp. 38 and 50). The former Prime Minister still agreed
with a statement he made in November 1968 while in Kelowna, British Columbia
for Indian Act consultation meetings, describing the Act as an embarrassment
(transcript volume 296, pp. 40-41; S-848, tab 9, p. 61). Buffalo v. Canada, 2005
FC 1622
Warren Allmand, David Crombie and John Munro, notwithstanding their views of
the Indian Act, were the Ministers of Indian and Northern Affairs as well as
cabinet members when a shield (s. 67) was inserted into the Canadian Human
Rights Act in 1977, thus preventing Aboriginals from using the same tools as
other Canadians to remedy these abusive, archaic and abominable statutes. Munro
and Crombie were Ministers and cabinet members when Bill C-31 was drafted
and passed into law, trading previously explicit discriminatory statutes for secret
regulations imposing entitlement limits of blood quantum and unstated paternity.
Another recent example of a government using such limits can be found in Nazi
Germany’s Nuremberg Laws used to similarly limit Jewish citizen’s rights. That
history was fully appreciated by Judge F. Muldoon who wrote in his decision of
Sawridge Band v. Canada (T.D.), [1996] 1 F.C. 3:
Blood quantum" is a highly fascist and racist notion, and puts its practitioners on
the path of the Nazi Party led by the late, most unlamented Adolf Hitler. It will
bring heartache, for example, to the mother of children sired by different fathers,
say an Indian and a non-Indian, who may be required to go into exile rather than
to exile some of her children from their siblings.
1.5 Canada’s executive has used the unlimited discretionary

powers it created for itself in legislation presented to
parliament to prevent any judicial review of its treatment of
Indians and Indian Lands.
From 1869, until 1951, Canada’s federal executive was able to write whatever
legislation it needed in order to legally (as opposed to morally or fairly acquire
unlimited discretionary powers. In preparation for its annexation of Rupert’s Land,
John A. Macdonald’s government presented in 1868, its Act for the Gradual
Enfranchisement of Indians. This legislation was at first objected to by Senator
McCully (Senate Debates April 20, 1868:179):
Hon. Mr. McCully wished to express his strong disapprobation and objection to the
vast and dangerous powers, as he thought, which the bill gave to the head of the
Department, respecting the administration of the Indian lands and taking the functions
and powers of the ordinary tribunals of the country, which would be alike dangerous
and unwise, such as the arrest and imprisonment of trespassers, etc.. Such vast and
extraordinary powers were unheard of in any free and civilized country where British
laws were administered.
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Senator Ross responded on behalf of the governing Conservative party:
In the case of the Indians, who were infants in the eye of the law, some guardian had
to be appointed, and who so well suited and likely to act so fairly as the Government,
who could have no motive or inducement to do wrong between them and the public
domain.
However strongly felt Senator McCully’s objectives were, he and his fellow senators,
on June 9th 1869, approved the Act for the Gradual Enfranchisement of Indians, with
only one amendment (Debates of the Senate, 2nd Session, 1st Parliament, April 15 -
June 22, 1869:279) requiring the band of any Indian convicted of a crime to pay the
expenses of his incarceration. During passages of the bill, Senator McCully remarked
“the Indians of Nova Scotia had not advanced to that state of civilization to enable
them to inherit property”. Less than two weeks later, Royal Assent was given the bill
by the Governor-General. On December 17th, 1869 the Minister of Colonial Affairs
advised Governor General John Young that “Her Majesty will not be advised to
exercise Her power of disallowance with respect to the following Acts of the
Legislature of Canada” (Sessional Papers, 1st Parliament, 1870 Vol. VI, #39:1-2).
The list included the Act for the Gradual Enfranchisement of Indians, as well as An
Act for the Temporary Government of Rupert’s Land.
Harris, Walter
NAC, MG32, B24, Vol. 25, File 1-A-12E
p. 204 Leslie 1999
began duties in January 1950 confidential note to Norman Robertson, Clerk of Privy
Council, June 29, 1950 Indian Affairs Branch only had two policies:
To build schools
To enfranchise bands and turn the reserves into municipalities
p. 205 Leslie 1999
safeguard RC interests
p. 206
C. D. Howe, minister of trade, killed Indian vote to protect himself from local Indian
votes promoted by CCF. Harris circulated memo on gerrymandering important
ridings. NAC, MG32, Papers of the Hon. J.W. Pickerskill, B34, Vol. 24, File 1A, 12A
p. 206 Leslie 1999
NAC, MG32, Papers of the Hon. J. W. Pickersgill, B34, Vol. 24, File 1A, 12A,
‘Indian voting and Taxation’, Part I 1950 (May 11, 15, 1950) footnote 62 & 63 also
Howe’s fear of the CCF & Indians in Port Arthur
p. 207 Leslie 1999
Harris opposed review mechanism would detract from minister’s authority
Indian agents were opposed to advisory boards and a Permanent Parliamentary
committee, believing these institutions would attract Indian extremists and White
dogooders.
p. 209 Leslie 1999 footnote 73
If Indian bands were permitted to incorporate as municipalities they would fall within
provincial jurisdiction. How could federal government create municipal corporation
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and retain any authority or legislative jurisdiction over it?
p. 212 Leslie 1999
minister’s extensive powers to act unilaterally or to delegate his authority to branch
officials
Respecting Democratic Roles, Remarks of the Right Honourable Beverley

McLachlin, P.C. Conference on the Law and Parliament, Ottawa, Ontario, November
22, 2004
This basic model has been altered in two ways. First, there has been a great increase
in delegated legislation - broad laws passed by Parliament or the legislatures which
confer on the Executive the right to make subsidiary rules, or regulations, by order in
Council. Such laws in effect transfer the legislative power to the Executive branch.
This transfer is said to be justified on grounds that it is required to govern effectively
in the complex modern state.
The second change in the way the Executive functions is the practice of delegating of
Executive functions to administrative tribunals. Work formerly done by civil servants
under the direction of a minister answerable to Parliament, is assigned to independent
bodies set up for this purpose. This development is justified on the ground that it is
required for effective governance in the complex modern state. The result is that
modern governments, federal and provincial, discharge the majority of their functions
through a plethora of independent administrative tribunals like labour tribunals,
pension boards, licencing boards, immigration appeal boards and human rights
tribunals. These boards and tribunals are not answerable to Parliament, as are the civil
servants they replace. They are answerable only to the Courts, which may be asked to
rule on whether particular rulings are within the statutory powers of a board or
tribunal and conform to the principles of natural justice. (McLachlin 2005:6-7)
... the adoption of a constitutional bill of rights in the form of the Charter have
increased the importance of judicial functions. The result is that judicial branch of
governance in modern democracies is now more significant and more visible that it
was in 19th century British parliamentary democracy. (McLachlin 2005:9)
The Legislative and the Executive branches strive in good faith to discharge their role
in a manner that is consistent with our Constitution. They seek to bring forward laws
which do not impinge on the Charter, and to implement those laws without infringing
fundamental rights. (McLachlin 2005:10-12)
All but the Canadian Human Rights Commission (which only deals with
discrimination) are provincial entities which accept to jurisdiction -- no responsibility
for Aboriginals, in spite of them being subject to provincial laws. No shield or
jurisdiction argument can permit such a jurisdictional argument when an Aboriginal
person is physically present and subject to federal or provincial laws:
In 1985, the Crown’s Minister of Employment and Immigration claimed that refugees
as defined in Canada’s Immigration Act, 1976 were not entitled to the same rights
protected by the Charter for Canadians or legal immigrants. The Supreme Court of
Canada, at Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177,
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
disagreed:
Per Dickson C.J. and Lamer and Wilson JJ.: Appellants, in the determination of their
claims, are entitled to assert the protection of s. 7 of the Charter which guarantees
"everyone ... the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice".
The term "everyone" in s. 7 includes every person physically present in Canada and
by virtue of such presence amenable to Canadian law.
In spite of much debate as to the purpose of the s. 67 shield of the Indian Act
contained in the Canadian Human Rights Act, the shield’s impotence against any
rights protected by the Charter has been made clear by the Supreme Court since 1988
at Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, as explained by
LaForest, J. for a majority of the Supreme Court:
Any statute enacted by either Parliament or a Legislature which is inconsistent with

the Charter will be outside the power of (ultra vires) the enacting body and will be
invalid. It follows that any body exercising statutory authority, for example, the
Governor in Council or Lieutenant Governor in Council, ministers, officials,
municipalities, school boards, universities, administrative tribunals and police
officers, is also bound by the Charter. Action taken under statutory authority is valid
only if it is within the scope of that authority. Since neither Parliament nor a
Legislature can itself pass a law in breach of the Charter, neither body can authorize
action which would be in breach of the Charter. Thus, the limitations on statutory
authority which are imposed by the Charter will flow down the chain of statutory
authority and apply to regulations, by-laws, orders, decisions and all other action
(whether legislative, administrative or judicial) which depends for its validity on
statutory authority.
At Re Desjarlais, (1990) 12 C.H.R.R. D/466, the Federal Court of Appeal held that a
motion made by Piapot First Nation Chief and Council to dismiss Rose Desjarlais
from her position on the basis that she was too old, was not expressly or by
implication provided for by the Indian Act and was not a provision made under or
pursuant to that Act. More simply, wherever the Indian Act is silent, s. 67 cannot
apply.
Under a secretly regulated scheme of ‘entitlement’ to services that have long been
deemed ‘public’ by Canadian courts, access to education, health and social services
on reserves have been obstructed by the Crown under the authority of the Indian Act,
withholding funding to Indian band administrations to support persons not deemed
‘entitled’ by the Crown. During a series of challenges to such obstruction of ‘non
status’ children from attending reserve schools, the Canadian Human Rights Tribunal
refused to accept s. 67 as the shield claimed by the Crown. At Courtois v. Canada
(Department of Indian and Northern Affairs), 1990 CanLII 702 (C.H.R.T.), the
tribunal decided:
Because of its "almost constitutional" nature, and in order to maintain its purposes
and objects, the Canadian Human Rights Act "must be given such fair, large and
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
liberal interpretation as will best ensure the attainment of [its] objects." Consequently,
any exception to the application of this Act must be interpreted in a restrictive
manner. In other words, the respondent Department of Indian Affairs and Northern
Development cannot - solely under cover of section 67 of the Canadian Human
Rights Act - conclude that the Tribunal does not have jurisdiction in this matter
because the respondent acted under the authority of the Indian Act. In fact, it is the
opinion of the undersigned that in order for the respondent to take advantage of
section 67, it is necessary for the discriminatory acts or practices of which the
respondent is accused by the complainants to have been carried out under the
authority of the Indian Act and in accordance with the provisions of this same Act.
Consequently, it is clear that the respondent's preliminary objection cannot be
allowed, since before making a decision on section 67, the Tribunal was obliged to
examine the reasons for and origin of the discriminatory practices and/or acts of
which the respondent is accused, and then, to determine whether or not these acts and
practices were in accordance with the Act.
Both Re Desjarlais and Courtois v. Canada were used as case law at MacNutt v.
Shubenacadie Indian Band Council, 1995 CanLII 1164 (C.H.R.T.) and other similar
challenges where the Crown tried to invoke the CHRA s. 67 shield.
1.6 Only Canadian Parliament can make laws to govern the

lives of the defendant and his Aboriginal people. That power
may only be used for the purposes laid out in the Royal
Proclamation of December 6, 1869 and the Rupert’s Land &
North-Western Territory Order, 1870. Parliament cannot
delegate that power to Alberta to destroy the legal rights of
Aboriginals by imposing Alberta laws, nor can Parliament
abdicate its responsibility for respecting and protecting the
legal rights of the inhabitants of Rupert’s Land.
Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148
[55] It is, however, well established today that a statutory power to make
regulations is not unfettered. It is constrained by the policies and objectives inherent
in the enabling statute. 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. This
principle was cogently expressed in Padfield v. Minister of Agriculture, Fisheries and
Food, [1968] A.C. 997, and was recently approved by this Court in Oakwood
Development Ltd. v. Rural Municipality of St. François Xavier, 1985 CanLII 50
(S.C.C.), [1985] 2 S.C.R. 164. The roots of this principle stretch back beyond the date
of Confederation. In considering the exercise of a power of expropriation or
compulsory acquisition of property statutorily granted to a company Lord Cranworth
L.C. in Galloway v. City of London [1866], L.R. 1 H.L. 34, stated at p. 43:
The principle is this, that when persons embarking on great undertakings, for the
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
accomplishment of which those engaged in them have received authority from the
Legislature to take compulsorily the lands of others, making to the latter proper
compensation, the persons so authorized cannot be allowed to exercise the powers
conferred on them for any collateral object; that is, for any purposes except those for
which the Legislature has invested them with extraordinary powers.
Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3
S.C.R. 134:
[17] The section is one of the tools found in the Constitution that ensures the
proper functioning of Canada’s federal system. It grants to each level of government
sufficient operational space to govern without interference. It is founded upon the
concept that imposing a tax on a level of government may significantly harm the
ability of that government to exercise its constitutionally mandated governmental
functions. In M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), at p. 431,
Marshall C.J. explained this concept as follows:
That the power to tax involves the power to destroy; that the power to destroy may
defeat and render useless the power to create; that there is plain repugnance, in
conferring on one government a power to control the constitutional measures of
another, which other, with respect to those very measures, is declared to be supreme
over that which exerts the control, are propositions not to be denied.
2.0 Both the legal systems of Great Britain and Canada have
acknowledged obligations to incorporate and protect the
customary legal systems of the Blackfoot and other
Aboriginal nations of Rupert’s Land.
2.1 The Hudson's Bay Company had publicly acknowledged

Aboriginal ownership of the subject the territories where it
traded, even those where it allowed farming
Minutes of Evidence Taken before the Select Committee on the Hudson’s Bay
Company, February to March 1857, London, UK: House of Commons, Governor
George Simpson, Hudson’s Bay Company:
1159 Have you any legislative power? – No

1160 You cannot make laws in the territory? – We can make laws as far as regards
the management of our own affairs, which is the only case in which we have
occasion to make laws.
1161 As to the tenure of land, how is it regulated; what law is in force in the
territory? – The laws of England I would imagine.
1162 Up to what period? – Up to the present time.
1163 You spoke of a lease of 999 years; why is the land not given in free-hold? –
Our counsel in this country recommended that lease.
1164 Do you know why? – No.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
1747 What privileges or rights do the native Indians possess strictly applicable to
themselves? – They are perfectly at liberty to do what they please: we never
restrain Indians.
1748 Is there any difference between their position and that of the half-breeds? –
None at all. They hunt and fish, and live as they please. They look to us for
their supplies, and we study their comfort and convenience as much as
possible; we assist each other.
1749 You exercise no authority whatsoever over the Indian tribes? – None at all.
1750 If any tribe were pleased now to live as the tribes did live before the country
was opened up to Europeans; that is to say, not using any article of European
manufacture or trade, it would be in their power to do so? – Perfectly so; we
exercise no control over them.
1751 Do you mean, that possessing the right of soil over the whole of Rupert’s
Land, you do not consider that you possess any jurisdiction over the
inhabitants of that soil? – No, I am not aware that we do. We exercise none,
whatever right we possess under our charter.
1752 Then is it the case that you do not consider that the Indians are under your
jurisdiction when crimes are committed by the Indians upon the Whites? –
They are under our jurisdiction when crimes are committed upon Whites, but
not when committed upon each other; we do not meddle with their wars.
2.2 Canada's annexation of Rupert's Land was determined by

the British North America Act, 1867, s. 146, “on such terms
and conditions in each case as are in the addresses expressed
and as the Queen thinks fit to approve”.
Initially Canada proposed a text for the address that was far from clear or precise
“…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. [Journals of the House of Commons of the Dominion of
Canada from November 6, 1867 to May 22, 1868, Vol. I, p. 54]
That text was rejected by the Secretary for Colonial Affairs and Her Majesty’s
Government of Great Britain. The text finally accepted and included in the eventual
Rupert’s Land & North-Western Territory Order, 1870 was much simpler and clearer
… the legal rights of any Corporation, Company or individual shall be respected, and
placed under the protection of Courts of competent jurisdiction. [Journals of the
House of Commons of the Dominion of Canada from November 6, 1867 to May 22,
1868, Vol. I, p. 67]
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2.3 At the time of annexation of Rupert's Land, including the
territory that is the subject of the Alberta Crown's charges,
the defendant's ancestors were judicially noticed to be living
on their own lands under their own laws in peaceful
occupation with other fellow British subjects who were
living under English law.
Connolly v. Woolrich [1867], 11 L.C. Jur. 197
Held:
...
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 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;
.... 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." 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. The Crown has
not done so.
Johnston et al v. Connolly [1869], 17 R.J.R.Q. 266

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 finding. I believe the case of Plaintiff good, and that he has right to the
property claimed by him.
These judgments were widely reported during the period 1867 through 1870. In late
winter of 1869, Her Majesty's Government, in order to resolve deadlock on terms of
annexation between Canada and HBCo offered to place the matter before the
Judiciary Committee of the Privy Council:
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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 well recommend
Her Majesty to refer their rights for examination to the Judicial Committee of the
Privy Council, whose decision will form a basis for any future legislative or executive
actions which Her Majesty's Government may find necessary.
No. 21 Copy of a Letter from Sir Frederic Rogers, Bart., to the Right Hon. Sir
Stafford H. Northcote, M.P. 9, March 1869, in 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 by the Hudson's
Bay Company, and for the Admission thereof into the Dominion of Canada, Colonial
Office, 11 August 1869.
- both parties declined the offer and quickly agreed to the same terms both had
rejected earlier
Re Bethel v. Hildyard, 1888 had already been judged at the highest court in the
British Empire, based on Connolly v. Woolrich on February 15, 1888 some five
months before: per Stirling J (p.236-237)
... I ought perhaps, to refer to two cases which were cited in support of the contention
on behalf of the infant, viz., Johnson v. Johnson’s Administrator (1) and Connolly v.
Woolrich (2). Those decisions are not, of course, binding upon me, but they are
entitled to most respectful consideration, and in the absence of direct English
authority might have exercised a weighty influence upon my decision.
Ontario v. The Dominion of Canada and Quebec; In Re Indian Claims, [1895] 25 S.

C. R. 434
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 succesion, certain rules and laws
concerning the property, which was especially reserved for their own use. I forgot to
mention that, as another illus- tration 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.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
2.4 After Fort Garry was occupied in November 1869, by armed
inhabitants led by Louis Riel in Her Majesty's Government
of Great Britain issued a Royal Proclamation on December
6, 1869 reassuring all inhabitants, the vast majority of them
Aboriginal, as to the security of their property and other
civil rights
The Royal Proclamation was approved by Cabinet and issued by Earl Granville,
Secretary for Colonial Affairs to Lord Lisgar, Governor-General John Young, Her
Majesty's official representative in Canada. The Governor-General in term gave it to
Hector Langevin as Canada's representative. Hector Langevin, in the same manner as
the Royal Proclamation of 1763 arranged for its translation into French and Cree by
Fr. Jean Baptiste Thibault. Thibault was provided with 500 copies and sent
immediately to distribute them in the new territories, starting at Fort Garry and Red
River. These are all material facts made so by both British and Canadian Parliament.
This Royal Proclamation, along with attendant details were provided under oath to
and published in Report of the Select Committee on the Causes of the Difficulties in
the North-West Territory in 1869-70:100-102). An especially important paragraph in
that proclamation read:
…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.
2.5 Under orders from Her Majesty's Government of Great

Britain, upon his arrival at present day Thunder Bay,
Colonel Garnet Wolseley repeated assurances of Aboriginal
property and civil rights in a proclamation sent ahead of his
expedition
This proclamation issued by Wolseley was widely reported in Canadian and

American newspapers, reprinted in exactly the same words as it was also recorded by
Capt. Huyshe, one of Wolseley's officers and as it was also reported by Alexander
Begg in his published diaries of the time.
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.
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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.
Huyshe, G. L.
1871 The Red River Expedition, London, UK: Macmillan and Company
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
2.6 Rupert’s Land & North-Western Territory Order, 1870

affirmed the right of the defendant and his Aboriginal
people to continue to be governed by their own laws and to
retain their property.
The eventual order in council, the Rupert’s Land & North-Western Territory Order,
1870 must be read in conformity with Lord Mansfield's six principles enunciated in
Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045, especially that:
"Fifth - 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.”
The terms of Royal Proclamation of December 6, 1869 affirmed the rights of the
defendant’s Aboriginal people to continue to be governed by their own laws. The
authority which had issued the Royal Proclamation on December 6, 1869, Her
Majesty’s Cabinet further instructed Colonel Garnet Wolseley upon his arrival at
present day Thunder Bay to issue a second proclamation, repeating the assurance of
the first. This was done on the same day Her Majesty’s Cabinet issued the Rupert’s
Land & North-Western Territory Order, 1870.
2.7 Canada publicly acknowledged Aboriginal ownership as

well as Canada's obligation to respect Aboriginal civil rights
in the territories Canada annexed in 1870 and 1871
William McDougall, the first Lieutenant-Governor appointed by Canada declared so

in an interview published January 6, 1870 in the Toronto Daily Telegraph and several
other Canadian and American cities. Under the supervision of Simon James Dawson,
***, several agents of the Canadian government were sent among the Aboriginal
nations, including Grassy Narrows to reassure the Aboriginal nations that their
property and civil rights would be respected. This was done because of the great risk
to the Red River Expedition led by Colonel Garnet Wolseley through this territory
during the late spring and the summer of 1870. This is corroborated by the published
writings of Simon James Dawson, Colonel Garnet Wolseley and several of his
officers.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
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, 1869:
They 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 claim, they
have unquestionably some title. (Dawson 1869:27-28)
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.
In the following article of his trip, Wolseley wrote similarly of their expedition.
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
It would have been impossible to have carried out the measure in the face of their
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)
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2.8 Only Her Majesty’s Parliament of Great Britain had the
authority to reduce the rights and freedoms of the defendant
and his Aboriginal people or to introduce new policy. This it
chose not to do. When Her Majesty’s Parliament of Great
Britain passed the Canada Act, 1982, (in Canada, The
Constitution Act, 1982) it became impossible for any such
changes to be made by any Canadian parliament or
legislature.
The eventual order in council, the Rupert’s Land & North-Western Territory Order,
1870 must be read in conformity with Lord Mansfield's six principles enunciated in
Campbell v. Hall, [1774], 1 Cowp. 204, 98 E.R. 1045, especially that: "Sixth – he
cannot make any new change contrary to fundamental principles” The Rupert's Land
& Northwestern Territory, as a order subsequent to the Royal Proclamation of
December 6, 1869 cannot reduce the rights and freedoms of inhabitants nor introduce
new policy”.
Constitution Act, 1982

25. The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or other
rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal
Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of
Canada by way of land claims settlement.(15)
...
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed.
3.0 Canada’s treatment of Jim Potts, his people and other

Canadian Aboriginals is without firm legal foundation.
3.1 The federal government’s treatment of the defendant and

his Aboriginal people as wards and children in the eyes of
the law is a violation of important principles of British and
Canadian justice -- the separation of powers and the
independence of the judiciary.
Justice Brian Dickson characterized the separate branches of Canadian government
and their respective roles in the Supreme Courts judgment of Fraser v. P.S.S.R.B.,
[1985] 2 S.C.R. 455:
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
[39] .... 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.
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3

S.C.R. 3
[123] As I have mentioned, the concept of the institutional independence of the
judiciary was discussed in Valente. However, other than stating that institutional
independence is different from individual independence, the concept was left largely
undefined. In Beauregard this Court expanded the meaning of that term, once again
by contrasting it with individual independence. Individual independence was referred
to as the “historical core” of judicial independence, and was defined as “the complete
liberty of individual judges to hear and decide the cases that come before them” (p.
69). It is necessary for the fair and just adjudication of individual disputes. By
contrast, the institutional independence of the judiciary was said to arise out of the
position of the courts as organs of and protectors “of the Constitution and the
fundamental values embodied in it — rule of law, fundamental justice, equality,
preservation of the democratic process, to name perhaps the most important” (p. 70).
Institutional independence enables the courts to fulfill that second and distinctly
constitutional role. The determination by the executive of the federal government that
the defendant and her Aboriginal are not socially or legally competent was reached
without the fact finding of the court required to interpret and apply law. That
determination was adopted in conflict with the findings of a competent and
independent judiciary in Connolly v. Woolrich, [1867], upheld on appeal, later
approved and applied by the Judicial Committee of the Privy Council in Ontario v.
The Dominion of Canada and Quebec; In Re Indian Claims, [1895] 25 S. C. R. 434.
The determination by the executive of the federal government that the defendant and
her Aboriginal are not socially or legally competent was reached by a parliamentary
committee and first appeared in the Report of the Special Commissioners Appointed
on the 8th of September, 1856 to Investigate Indian Affairs in Canada, Toronto, ON:
Stewart Derbyshire & George Desbarats, Sessional Papers of the Province of Canada,
1858,
Appendix 21, at page 99:
In 1840, the Attorney General gave it as his opinion,

1st. That Indians under the age of 21 years are minors in the eye of the law, beyond
that age they have the rights of other subjects.
2nd. That they are not incapable of making civil contracts.
3rdly. That they have legal capacity, either as plaintiffs or defendants.
At this time there was no legislative declaration bearing upon the subject matter of
these opinions, but the Canadian Parliament have from time to time provided for the
Indians as a class incapable in many respects of managing their own affairs. Indeed
the 20 Vic. c. 26 expressly acknowledges their inferiority in regard to their legal
rights and liabilities as compared with Her Majesty’s other subjects resident in this
Province, and provides means whereby they may be gradually enfranchised.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
3.2 The federal government’s treatment of the defendant and

his Aboriginal people as wards and children in the eyes of
the law is based on the false assumption that St. Catharines
Milling & Lumber Company v. The Queen, [1888] 14 A.C. 46
was decided by the Judiciary Committee of the Privy
Council of Great Britain in a manner which legitimated
such a treatment.
Sidney L. Harring
White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence,
Toronto, ON: Osgoode Society for Canadian Legal History, University of Toronto
Press, 1998 p.143
Ontario had prevailed upon Edward Blake, perhaps the best lawyer in Canada, to
argue its position. The case was argued on 20 July 1888. Ontario won again, and the
legal views of Chancellor Boyd were substantially vindicated. The Privy Council,
however, did not accept his view that Indians had no property rights in their lands.
Without conceding that Boyd was wrong, Blake effectively conceded this point,
sensing that it was unacceptable to the law lords. Instead, he adopted a middle view
which he characterized as following from the general run of United States decisions:
Indians in Ontario – and Canada – had a legal right of occupancy but not ownership
of their lands. This usufructuary right was a significant right and more of an Indian
interest in their traditional lands than Ontario had argued for. But the important issue
was the province’s ownership of Indian lands through crown title. Blake recognized
that even the ‘middle position’ supported this result: if the crown had any legal right
to Indian lands, Ontario took it under the BNA Act. Undeveloped lands within the
boundaries of provinces belonged to the provinces, not to the national government.
Re Bethel v. Hildyard, 1888 had already been judged based on Connolly v. Woolrich
on February 15, 1888 some five months before, per Stirling J (p.236-237):
... I ought perhaps, to refer to two cases which were cited in support of the contention
on behalf of the infant, viz., Johnson v. Johnson’s Administrator (1) and Connolly v.
Woolrich (2). Those decisions are not, of course, binding upon me, but they are
entitled to most respectful consideration, and in the absence of direct English
authority might have exercised a weighty influence upon my decision.
Report from the Select Committee on the Hudson's Bay Company; together with the
proceedings of the committee, minutes of evidence, appendix and index. Ordered by
the House of Commons to be printed 31st of July and 11 August 1857.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
1093. What is the tenure of the land in the company's territory? -- 999 years.
1094. Is the right of the Indians to sufficient lands for their support recognized? --
They occupy lands wherever they please. The Indians have never been
required to pay for lands.
1161. As to the tenure of the land, how is it regulated; what law is enforced in the
territory? -- The law of England, I imagine.
1162. Up to a period? -- Up to the present time.
1163. You spoke of a release of 999 years; why is I am not given in freehold? – Our
council in this country recommended that policy.
1164. Do you know why? -- No.
1165. Who grants the lease? -- The Company; generally the governor of the district.
1166. Under the seal of the company? -- Under the seal of the company.
1749. Lord Stanley. ] You exercise no authority whatever the Indian tribes? - Not at
all.
1750. If any tribe were pleased now to live as the tribes did live before the country
was opened up to Europeans; that is to say, not using any article of European
manufacture or trade, it would be in their power to do so? -- Perfectly so; we
exercise no control over them.
1751. Mr. Bell ] do you mean that, possessing the right of soil over the whole of
Rupert's Land, you do not consider that you possess any jurisdiction over the
inhabitants of that soil? -- No, I am not aware that we do. We exercise none,
whatever right we possess under our charter.
1752. Then it is the case that you do not consider that the Indians are under your
jurisdiction when any crimes are committed by the Indians upon the Whites? –
They are under our jurisdiction when crimes are committed upon the Whites,
but not when committed upon each other; we do not meddle with their wars.
Report of the Select Committee of the Senate on the Subject of Rupert's Land, Red
River, and the North-West Territory, Together with the Minutes of Evidence, the
Senate, Ottawa, April 12, 1870 page 35
Thursday, 21st April, 1870

Charles Garrett, examined:
Q. What is your name, and where is your residence? A. My name is Charles Garrett,
I have recently come from Red River, where I have been living for upwards of 11
years. Previously, I resided in the neighborhood of Toronto and Lake Simcoe. I
lived in Canada from 1837 to 18 1859 I was engaged in farming most of the time,
but I kept at a hotel at Orillia for a while. I was brought up as a farmer.
Q. In what part of Red River have you been living? A. I have been living at a place
called Sturgeon Creek, on the Assiniboine, seven miles from the town of
Winnipeg, North Side.
Q. Have you any farm there? A. For the last eight years.
Q. What is the extent of your farm? A. I have only 25 acres under tillage; I had a
distillery there also.
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Q. How did you acquire your place? A. I bought it from a man who had received it in
return for certain services to the Hudson's Bay Company; I took a simple transfer
from the original proprietor.
Q. Do the Company sell lands now? A. They were selling them up to the time that
trouble broke out.
Q. Do they give titles, or merely give at lease? A. They give a lease for a 999 years.
Q. Do all the settlers get their land from the Company? A. Very many occupy them
by merely going upon them.
Letter from Sir Frederick Rogers, 9 in March 1869 Sir Stafford H. Northcote
Earl Granville has had under review the correspondents which has passed respecting
the proposed transfer to Canada of the jurisdiction and territorial rights of the
Hudson's Bay Company in North America. It is, in Lord Granville's opinion of very
great importance that this question should be settled on a permanent footing, and with
little delay. ..... 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 to their rights for examination to the
Judicial Committee of the Privy Council, whose decision will form the basis for any
future legislative or executive action which her Majesty's Government may find
necessary.
Letter to Sir Stafford and code, MP, Governor 15th of March 1869
We have the honor to acknowledge the receipt of a copy of certain resolutions
adopted by the Governor and Committee of the Hudson Bay Company on the 12th
instant, suggesting important modifications of the proposal of Lord Granville for the
transfer of Rupert's Land to Canada. We beg you will inform the committee that in
our opinion the proposal of Lord Granville is much more favorable to the Hudson's
Bay Company and the people have been led to expect. With great reluctance, we have
consented to recommend Lord Granville's proposal, if accepted by the company pure
et simple, but not otherwise, to the favorable consideration of the Canadian
government.
3.3 Canada's reduction of the property and civil rights of

Aboriginal individuals and nations is based on a reversible
error: the presentation of unqualified expert witnesses.
Maldonado v. Minister of Employment and Immigration [1980] 2 F.C. 302:

When a claimant swears to tell the truth, this creates a presumption that those
allegations are true, unless there is reason to doubt their truthfulness
Applied 205 times since 1996
Canada v. Benoit, [2003] FCA 236

[283] I accept Dr. von Gernet's opinion that the memory of all witnesses might not
accurately recall what was actually heard or seen. I agree that there should not be a
double standard invoked in evaluating evidence of oral tradition; that is, according to
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
the concept mentioned in Mitchell, evidence of oral tradition should be placed on an
"equal footing" with other forms of evidence.
[284] However, I caution that, in a trial, a witness is not to be judged by a sceptic, but
by a person willing to believe that a witness is telling the truth, and to maintain this
belief until some important definable reason is found for not doing so. This legal
principle is enunciated in Maldonado v. Minister of Employment and Immigration
[1980] 2 F.C. 302 at paragraph 5:
It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to
doubt the applicant's credibility concerning the sworn statements made by him
...When an applicant swears to the truth of certain allegations, this creates a
presumption that those allegations are true unless there be reason to doubt their
truthfulness.
Master Calum U.C. MacLeod of Ontario Superior Court, spoke to this issue in
Toronto (City) v. MFP Financial Services Ltd., [2002] CanLII 45516 (ON S.C.),
citing Sopinka’s The Law of Evidence in Canada, 2nd Edition, para. 11.5:
…… when the disposition or propensity of a person is proven by either expert

opinion or reputation evidence, the term “similar fact evidence” seems inappropriate.
Crown has been allowed present such reputation and expert opinion at most trials
without any experience of Aboriginal behaviour of any kind. (See example of
Alexander Von Gernet, p. 167)

Aboriginal individuals and nations is based on a reversible
error: the adoption of opinion evidence without presenting
the factual foundations upon which an opinion is based.
Enunciated by Judge John A. Boyd in R. v. St. Catharines Milling and Lumber

Company, [1885], 10 O.R. 196, denial of Aboriginal property rights and reducing
Aboriginal civil rights was justified by adopting the opinions of John Locke, Emer de
Vattel, William Penn and Chief Justice John Marshal of the US Supreme Court
without any factual foundation:
The colonial policy of Great Britain as it regards the claims and treatment of the
aboriginal populations in America, has been from the first uniform and well-defined.
Indian peoples were found scattered wide-cast over the continent, having, as a
characteristic, no fixed abodes, but moving as the exigencies of living demanded. As
heathens and barbarians it was not thought that they had any proprietary title to the
soil, nor any such claim thereto as to interfere with the plantations, and the general
prosecution of colonization.
This judgment was upheld by the Supreme Court of Canada, in St. Catharines Milling
and Lumber Company v. R, [1887], 13 S.C.R. 577, the majority holding that:
It is a rule of the common law that property is the creature of the law and only
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
continues to exist while the law that creates and regulates it subsists. The Indians had
no rules or regulations which could be considered laws.
Unlike Monk’s judgment, no Aboriginal people were represented at these trials, no
defense of their property rights was made.
R. v. Abbey, [1982] 2 S.C.R. 24:

“before any weight can be given to expert opinion evidence, the facts upon which the
opinion is based must be found to exist”.

Aboriginal individuals and nations is also based on a
reversible error: allowing testimony as to the character of
Aboriginal individuals and nations without the longstanding
requirement of presenting similar facts, in order that a
balance between relevance and probity on one hand and
prejudice on the other may be determined by the judge or
jury.
103 trials since 1982 referring to ‘nomads’: 31 ‘nomads’, chapter of Hell’s Angels, a
criminal organization; 28 ‘nomads’ homeless, usually urban; and, 44 ‘nomads’,
Aboriginals. Stereotype of Aboriginal ‘nomad’ not supported with similar facts of
similar acts to prove beyond coincidence that such character exists in fact. Without
the similar facts, impossible for judge to balance probative value against prejudicial
effect, as per Makin v. Attorney-General for New South Wales, [1894] A.C. 57;
Director of Public Prosecutions v. Boardman, [1975] A.C. 421; R. v. B. (C.R.),
[1990] 1 S.C.R. 717; R. v. Arp, [1998] 3 S.C.R. 339; R. v. Handy, [2002] 2 S.C.R.
908
4.0 The legal system of the defendant, an Aboriginal

inhabitant of the territory formerly known as Rupert’s
Land meets the Supreme Court of Canada’s requirement
that it “be framed in terms cognizable to the Canadian
legal and constitutional structure”, and is as a result fully
able to maintain the rule of law.
4.1 The Aboriginal customary legal systems of Rupert's Land

and other territories protected by Great Britain were for
centuries and continue to be compatible with Canadian
sovereignty and the Canadian legal system
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in his judgment of R. v. Van der Peet, [1996] 2 SCR 507, at paragraph 49, Lamer CJ
applied the advice of Dickson and La Forest but, with a note of caution:
In Sparrow, supra, Dickson C.J. and La Forest J. held, at p. 1112, that it is "crucial to
be sensitive to the aboriginal perspective itself on the meaning of the rights at stake".
It must also be recognized, however, that that perspective must be framed in terms
cognizable to the Canadian legal and constitutional structure. As has already been
noted, one of the fundamental purposes of s. 35(1) is the reconciliation of the
preexistence of distinctive aboriginal societies with the assertion of Crown
sovereignty. [emphasis added by this author]
The defendant’s Aboriginal people have shared peaceful occupation with English law
based societies for more than three hundred years without any of the violence which
characterized relations among European nations. That fact was unanimously agreed
upon by all parties during the June 6, 1869 debates which preceded the Royal
Proclamation of December 6, 1869; Rupert’s Land & North-Western Territory Order,
1870; and Canada’s annexation of Rupert’s Land.
4.2 Canadian Aboriginal customary legal systems have

traditionally achieved Canadian standards of the rule of
law, separation of powers, independent judiciary and have
surpassed Canadian standards of protecting human rights
and individual freedoms.
Re Manitoba Language Rights, [1985] 1 S.C.R. 721

62. ... The "rule of law" is a highly textured expression ... conveying, for example, a
sense of orderliness, of subjection to known legal rules and of executive
accountability to legal authority.
Dr. Raz has said: " `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).
Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854

10. One of the defining features of the Canadian Constitution, in my opinion, is the
separation of powers. This point was made by Dickson C.J. in Fraser v. Public
Service Staff Relations Board, 1985 CanLII 14 (S.C.C.), [1985] 2 S.C.R. 455, at pp.
469-70, where he explained 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.
With numerous examples drawn from the personal experiences of Elder-experts and
Dr. John S, Murdoch, it can be well demonstrated that Aboriginal customary legal
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
systems easily meet Canadian standards. The important difference with Canadian
norms is that these powers are carried out voluntarily or determined by consensus.
Individuals who repeatedly break custom are locked out or are abandoned rather than
locked up or pursued. Human rights and freedoms are protected by customs which
prevent interference. After accepting and cooperating with important public goals,
individuals in Aboriginal customary legal systems are free to make the kind of
personal choices that are protected by the Canadian and provincial charters.
4.3 There is already a body of common law used by Canadian

courts rules for giving judicial notice to the Aboriginal
customs which maintain the rule of law and protect
individual freedoms to Canadian standards are found in
Halsbury's Laws of England; Angu v. Atta [1916]; and, the
approach of the International Court of Justice, recently
applied by Canada’s Supreme Court, sixteen times since R.
v. Hape, [2007] S.C.C. 26
Halsbury’s Laws of England, 4th Edition, previously used in the BC Supreme Court,
in Prince & Julian v. HTMQ et al, [2000] BCSC 1066:
[42] As to the manner of proof of custom, Professor Zlotkin’s article, supra, states:
Halsbury’s Laws of England (4th) states 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”.
Angu v. Atta [1916] Gold Coast Privy Council Judgments, 1874-1928, 43, 44 (PC):
As is the case with all customary law, it has 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.”
R. v. Hape, [2007] S.C.C. 26:

46. Sovereign equality remains a cornerstone of the international legal system. Its
foundational principles – including non-intervention and respect for the territorial
sovereignty of foreign states – cannot be regarded as anything less than firmly
established rules of customary international law, as the International Court of Justice
held when it recognized non-intervention as a customary principle in the Case
concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. United States of America), [1986] I.C.J. Rep. 14, at pp. 106. As the
International Court of Justice noted on that occasion, the status of these principles as
international customs is supported by both state practice and opinio juris, the two
necessary elements of customary international law.
With numerous examples drawn from the personal experiences of Elder-experts and
Dr. John S, Murdoch, it can be well demonstrated that Aboriginal customary legal
systems are remarkably uniform and predictable throughout Rupert’s Land, especially
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 
the among the Algonquian nations of the Canadian Boreal forest. Similarly, following
the above approaches, presenting the necessary proof of practices since time
immemorial and the sense of justice (opinio juris) will pose no challenge to judicial
notice of the Aboriginal customs engaged by the action against Jim Potts.
4.4 Within a treaty of peace and friendship or contract for

implementing constitutional accords among Alberta,
Canada and Jim Potts’ nation, there are appropriate means
for accommodating Alberta’s important objectives , such as,
safety, or environmental management.
5.0 Relief sought.

5.1 Appointment of an amicus curiae to assist the defendant.
The federal and provincial executives have created a very complicated regime beyond
the skill of most Canadian lawyers. This is very much in evidence in Jim Potts’
efforts to find legal representation. The intimate knowledge and experience with both
Canadian and Aboriginal systems has been found in the expert witness, Dr. John S.
Murdoch. His assistance, that of Blackfoot elder-experts, combined with the help of
an amicus curiae familiar with Alberta Civil Procedure should assure Jim Potts a fair
trail.
5.2 Move the trial to the Alberta Court of Queen’s Bench

The Alberta Court of Queen’s Bench, according to the Royal Proclamation,
December 6, 1869, Wolseley’s Proclamation of 1870 and the Rupert’s Land &
Northwestern Territory Order, 1870 is the court of competent jurisdiction for
protecting Jim Potts’ legal rights. The Alberta Provincial Court does not have the
authority to remedy infringement of Jim Potts’ constitutional rights, both as an
Aboriginal and as an inhabitant of Rupert’s Land.

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Dec.

Citizens’ and Queen Insurance Co. v. Parsons [1881] 4 S.C.R. 215

Attorney-General of British Columbia v. Attorney-General of Canada [1937] A.C.

Attorney-General of Nova Scotia v. Attorney-General of Canada [1951] S.C.R. 31

…. The constitution of Canada does not belong either to Parliament or to the

… Legislative jurisdiction cannot be assumed or be given by consent. Had it been the

Wind Speaker, April 1, 2004

R. v. Nayanookeesic, 2004 ONCJ 108

Released: July 5, 2004

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

[44] By contrast, a declaration of constitutional invalidity, as contemplated by s.

Madam Justice Pierce

R. v. D.L. (No. 2), 2005 ONCJ 344

1.4 Delegating power to provincial and municipal legislatures

The Pennefather Commission, led by Richard T. Pennefather, Superintendent General

In 1840, the Attorney General gave it as his opinion,

In their recommendations, Pennefather and his colleagues advised a strategy of

“the Indians should be consolidated on few reservations”; “provided with permanent

3. Kinship Ties and Obligations

Hawthorn, like his predecessors characterized the legal relationship between

1.5 Canada’s executive has used the unlimited discretionary

Senator Ross responded on behalf of the governing Conservative party:

Respecting Democratic Roles, Remarks of the Right Honourable Beverley

Any statute enacted by either Parliament or a Legislature which is inconsistent with

1.6 Only Canadian Parliament can make laws to govern the

2.1 The Hudson's Bay Company had publicly acknowledged

1159 Have you any legislative power? – No

2.2 Canada's annexation of Rupert's Land was determined by

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

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

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

2.5 Under orders from Her Majesty's Government of Great

This proclamation issued by Wolseley was widely reported in Canadian and

2.6 Rupert’s Land & North-Western Territory Order, 1870

2.7 Canada publicly acknowledged Aboriginal ownership as

William McDougall, the first Lieutenant-Governor appointed by Canada declared so

They are sufficiently organized, numerous and warlike to be dangerous if disposed to

Constitution Act, 1982

3.0 Canada’s treatment of Jim Potts, his people and other

3.1 The federal government’s treatment of the defendant and

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3

In 1840, the Attorney General gave it as his opinion,

3.2 The federal government’s treatment of the defendant and

Thursday, 21st April, 1870

3.3 Canada's reduction of the property and civil rights of

Maldonado v. Minister of Employment and Immigration [1980] 2 F.C. 302:

Canada v. Benoit, [2003] FCA 236

…… when the disposition or propensity of a person is proven by either expert

3.4 Canada's reduction of the property and civil rights of

Enunciated by Judge John A. Boyd in R. v. St. Catharines Milling and Lumber

R. v. Abbey, [1982] 2 S.C.R. 24:

3.5 Canada's reduction of the property and civil rights of

4.0 The legal system of the defendant, an Aboriginal

4.1 The Aboriginal customary legal systems of Rupert's Land

4.2 Canadian Aboriginal customary legal systems have

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

Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854

There is in Canada a separation of powers among the three branches of government

4.3 There is already a body of common law used by Canadian

R. v. Hape, [2007] S.C.C. 26:

4.4 Within a treaty of peace and friendship or contract for

5.0 Relief sought.

5.2 Move the trial to the Alberta Court of Queen’s Bench