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Metis aboriginal title Bell, Catherine Edith 1989-12-31

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METIS ABORIGINAL TITLE by CATHERINE EDITH BELL B.A., The University of Regina, 1982 L.L.B., The University of Saskatchewan, 1985 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS IN THE FACULTY OF GRADUATE STUDIES Department of Law We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October, 1989 (g> Catherine Edith Bell, 1989 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date 5#. f?8? DE-6 (2/88) ii ABSTRACT This thesis is a legal analysis of the origin and persistence of Metis aboriginal title as an independent legal right. The popular doctrine of aboriginal title is rejected in favour of the natural rights of the Metis and first principles of aboriginal title. A theory of Metis title is developed through the examination of: 1. the inclusion of Metis peoples in s.35(2) of the Constitutional Act. 1982; 2. jurisdiction over Metis claims; 3. natural rights of indigenous peoples and the recognition of natural rights in domestic and international positive law; 4. natural rights of the Metis Nation of Manitoba; and 5. the persistence of Metis title in the face of unilateral and consensual acts of extinguishment. The examination of natural rights reveals an increased importance of natural theories in aboriginal title cases. These theories provide the basis upon which Metis claims to title can be linked to aboriginal title claims and doctrines of extinguishment can be re-examined. iii TABLE OF CONTENTS TITLE i ABSTRACT ii TABLE OP CONTENTS iii - vi ACKNOWLEDGEMENT viCHAPTER 1 - IDENTIFICATION OF THE METIS PEOPLE 1 Introduction 1 I The Impact of the Phrase "Aboriginal Peoples" 3 1. The Significance of the Term "Peoples" 3 (a) Collective Beneficiaries 3 (b) Definition of the word "Peoples" 9 (c) Temporal Considerations 17 2. Who is an Aboriginal and What is an Aboriginal Group? 19 3. Summary 24 II Who are the Metis? 5 1. The Comparative Approach 26 2. Historical, Political, and Legal Usage of the Term "Metis" 34 3. Resolution of the Definition Debate 39 III Standing to Sue 42 1. Introduction2. Standing 4 Endnotes 49-59 CHAPTER 2 - JURISDICTION OVER METIS CLAIMS 60 I Are the Metis s. 91(24) Indians? 6II Lands Reserved For Indians 69 III Jurisdiction and the Question of Aboriginal Title 74 iv 1. Land Claims Negotiations 74 2. Land Claims Litigation 8 Endnotes 85-91 CHAPTER 3 - A NATURAL THEORY OF ABORIGINAL TITLE 92 Introduction 9I Introduction to the Natural Law Tradition 94 1. A General Survey of Basic Principles 94 2. A Natural Interpretation of Property Rights 105 (a) Historical Views 10(b) Contemporary Views 111 (c) Fundamental Property Rights 113 II Natural Law and the Origin of Aboriginal Title 114 1. Natural Law and the Law of Nations 114 2. Natural Law and Theories of Acquisition 119 3. Natural Law and British Jurisprudence 128 4. Natural Law and British Practice 134 5. Concluding Remarks 138 III Natural Law and the Common Law Doctrine of Aboriginal Title 140 1. The American Doctrine 141 2. The Commonwealth Doctrine 154 3. Canadian Decisions 156 IV Summary of a Natural Law Theory on Aboriginal Title 172 Endnotes 6 - 193 CHAPTER 4 - NATURAL RIGHTS OF THE METIS NATION OF MANITOBA 194 IntroductionV I Positivist Arguments For and Against Metis Title 196 1. Share in Aboriginal Ancestry 197 2. Recognition of Metis Title 202 3. Arguments Against Metis Title 205 II Natural Rights of the Manitoba Metis 215 1. Proof of Title 212. Identifiable Group 221 (a) Aboriginality(b) The Metis People 229 3. Original or Prescriptive Rights 240 (a) Rights of the Cree, Assiniboine and Saulteaux 241 (b) Hudson's Bay Company Title 247 (c) Title in the Crown 256 (d) Conclusion 268 4. Metis Territory 9 III Summary of a Natural Theory on Metis Title 271 Endnotes 275 - 289 Appendix to Chapter 4 - Historical Outline 290 - 284 CHAPTER 5 - PERSISTENCE OF METIS TITLE 296 Introduction 29I The Question of Unilateral Extinguishment 299 1. Common Law 292. Natural Law Analysis 302 II The Persistence of Metis Rights 308 1. Defence to Unilateral Extinguishment 308 2. Defences to Consensual Extinguishment 319 vi (a) Freedom of Choice 322 (b) Violation of the Agreement Reached 324 (c) Immoral Exercise of Discretion 333 III Translation into Domestic Positive Law 334 1. Breach of Fiduciary Obligation 335 2. Breach of Agreement 336 3. Constitutional Competence 338 IV The Hard Case 339 Endnotes 342 - 350 BIBLIOGRAPHY 351 - 360 vii ACKNOWLEDGEMENT The author gratefully acknowledges the assistance and advice of Professors Douglas Sanders and Michael Jackson. Special thanks to Douglas Sanders for his time and efforts. The author also thanks the Federal Department of Justice for its financial support of this project. Loving appreciation to Robert and Geraldine Bell for their continuous encouragement and support. 1 CHAPTER 1 IDENTIFICATION OF THE METIS PEOPLE Introduction Throughout the course of Canadian history various terms have been adopted to refer to Canada's native population including Indians, status Indians, non-status Indians, treaty Indians, non-treaty Indians, Inuit, Metis, half-breeds, registered Indians, non-registered Indians and urban Indians. This fragmentation is partially due to the introduction of legal and administrative definitions for various native groups through federal Indian legislation and assistance programs which essentially created four legal categories of native people: status Indians, non-status Indians, Inuit and half-breeds (now commonly referred to as "Metis.") Further divisions have been created by the denial of federal responsibility for Metis and non-status Indians, the uniting of these groups into national and provincial organizations for the purpose of achieving social and economic goals common to both groups as disadvantaged aboriginal populations, attempts by provincial governments (namely Alberta and Saskatchewan) to establish programs in response to the exclusion of these groups from federal jurisdiction, and the movement back to segregation of Metis and non-status Indian issues after the recognition of Metis as a distinct aboriginal people in s. 35(2) of the Constitution Act, 1982.1 As a result of these developments, the identification of Indians, Metis and non-status Indians has become a complicated exercise. 2 The most recent legal definition of aboriginal peoples is found in s. 35 of the Constitution which states: 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. 35(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada. Unfortunately, this fairly simple division creates numerous definition problems as the selection of identifying criteria is left open for debate. The resolution of this debate is significant because it will specify the class of persons to whom sections 25 and 35 of the Constitution will apply. The debate is of particular importance to Metis and non-status Indians who through the process of political policy and legal definition have been excluded from federal schemes designed to benefit Indian peoples and who, until recently, have been denied recognition as an aboriginal people. Section 35 is the logical basis from which to formulate a definition of the Metis as it contains the first national legal usage of the term "Metis" as an aboriginal people. Certain elements in s.35 may help in the definition process including the description of Metis as "aboriginals" and the collective reference to Metis "peoples." However, one is still left with a definition which lacks sufficient criteria to identify the Metis as a distinct group. Within the context of s. 35, two different approaches may be adopted to develop further identification criteria. The term "Metis" may be defined with reference to the inclusion of the term "Inuit" and "Indian" in s. 35(2) or in accordance with its unique meaning and history. 3 I The Impact of the Phrase "Aboriginal Peoples" 1. The Significance of the Term "Peoples" (a) Collective Beneficiaries It has been suggested that the inclusion of the word "peoples" in s. 35 reflects the collective nature of aboriginal rights.2 This interpretation fails to account for the difficulty of proving that all aboriginal rights are collective and that the phrase "collective rights" has come to be used in two different ways. Although the courts have ruled on the collective nature of specific aboriginal rights, there has not been a judicial determination on whether an individual has aboriginal rights by reason of being aboriginal or because she is a member in an aboriginal collective. For example, aboriginal title is treated as a collective right vested in a group and claims to title can only be advanced by an organized group of aboriginal people.3 On the other hand, the court recognizes the legal entitlement of an individual aboriginal to seek judicial enforcement of aboriginal rights depending on the aboriginal right at issue. For example, an individual aboriginal may seek to enforce an aboriginal right to hunt or fish.4 It is true one can say the right accrues by virtue of membership in a collectivity, but is equally true that the individual, and not the group, exercises the right. Further difficulty arises from the fact that "collective" or "group" rights is used in political and legal terminology in two different ways. The phrase refers to rights which only group members have that are exercised by individuals, such as the right 4 to hunt and fish. It also refers to rights of a collectivity as a collectivity such as the rights to self-government, an economic base and linguistic survival. The matter is further complicated by the Supreme Court's classification of aboriginal rights as pre-existing.5 Douglas Sanders suggests that the implications of this characterization is to recognize "Indian rights based on the pre-contact Indian legal order."6 Consequently the classification of "existing aboriginal and treaty rights" as collective or individual or both may depend upon the treatment of that right by the Indian community within which it was created.7 It is beyond the scope of this thesis to provide a detailed analysis of collective rights and their application to aboriginal rights. The point is that one can not assume that the word "peoples" is included in s.35 only to clarify that the rights involved are collective or group rights. Rather, this may place unnecessary restrictions on the content of, and entitlement to, "existing aboriginal and treaty rights." The better interpretation is to view the term "peoples" as describing the collective nature of the beneficiaries of s. 35 and not the collective nature of their rights. As discussed below, the reference to "aboriginal peoples" instead of a single aboriginal "people" may simply reflect the governments' new recognition of distinct aboriginal groups in accordance with their own terminology. According to this interpretation, the existing aboriginal and treaty rights of the aboriginal peoples; whether collective, individual or a combination of both, are recognized and affirmed by s. 35. 5 If one accepts the above argument, there are two possible ways to read s. 35(2). The first assumes that there are three distinct aboriginal peoples in Canada - the Indian, Inuit, and Metis. The second assumes that "peoples" refers to numerous smaller aboriginal collectivities constituting the three broader named groups. That is, the aboriginal peoples of Canada are the Indian peoples, Inuit peoples, and Metis peoples of Canada. There are several reasons why the second interpretation is preferable to the first including: 1. Groups which identify as Inuit, Indian and Metis view themselves as distinct from other self-identifying groups of Inuit, Indian and Metis; 2. Contemporary aboriginal collectivities organized for social, political or legal reasons may draw their membership from two or more of the named groups in s.35(2) and therefore will not fall within any particular named group; and 3. Cultural, social and political differences among aboriginal groups result in the law treating them as distinct peoples. The first point is illustrated by the definition of "aboriginal people" adopted by the Joint Council of the National Indian Brotherhood in the Declaration of First Nations: "Aboriginal people" means the First Nations or Tribes of Indians in Canada and each Nation having the right to define its own citizenship.8 This viewpoint is expressed in the title of the national status Indian organization (The Assembly of First Nations), Indian literature and government literature.9 Similarly, the Inuit 6 peoples of Canada are viewed as a distinct group, but a group composed of various tribes or bands.10 Among the Metis, there is disagreement whether the Metis are a single people or several peoples. However, it is clear that a variety of mixed blood aboriginal collectivities identify as a Metis people. This is reflected in the following statement by a New Brunswick member of the Native Council of Canada: There is no one exclusive Metis People in Canada, anymore than there is no one exclusive Indian people in Canada. The Metis of eastern Canada and northern Canada are as distinct from the Red River Metis as any two peoples can be. Yet all are distinct from Indian communities by ancestry, by choice, and their self-identification as Metis. As early as 1650, a distinct Metis community developed in LeHeve, Nova Scotia, separate from Acadians and Mic Mac Indians. All Metis are aboriginal people. All have Indian ancestry.11 An example of the second point are the Metis people living on the settlements in northern Alberta. The Metis Betterment Act which established the provincial settlement scheme defines "Metis" on a racial basis as persons with a minimum of 1/4 Indian blood who are not status or treaty Indians as defined by the Indian Act.12 The definition reflects the fact that the persons for whom the settlements were created were not a single people that could trace its origins to a distinct Indian or Metis people. Rather many (and perhaps the majority) were Indians who surrendered their treaty rights or were struck from government band lists.13 The creation of this group of self-identifying and legally recognized "people" resulted from the political unification of individuals from distinct cultural groups who were facing similar problems created by poverty, homelessness, disease and hunger and were seeking similar economic and social goals. United under the Metis 7 Association of Alberta, they successfully lobbied for the creation of the Metis Settlements.14 In the proposed Metis Settlements Act, the Metis are moving away from a racial definition and have proposed that "Metis" be defined as "an individual of aboriginal ancestry who identifies with Metis history and culture."15 Although this suggests affiliation with a single Metis people, it does not change the original composition of the group or assist us in the process of defining who the Metis people are. It is generally agreed among academics that s. 35 entrenches aboriginal rights as they existed at April 17, 1982 but there is some disagreement whether the section applies to extinguished, restricted and future rights.16 It is clear that up to April 17, 1982 Canadian law recognized Indian tribes as distinct societies and responded to them as separate groups. This approach is not only reflected in aboriginal title cases,17 but also in historical legal documents. The historical treatment of Indians as distinct peoples is illustrated by Douglas Sanders in his discussion of the extent of recognition by Canadian law of legal orders established by Indian societies prior to European settlement: The Royal Proclamation of 1763 referred to the "several nations as tribes of Indians with whom we are connected, and who live under our protection. . ." The treaties were made between representatives of the Crown and leaders representing Indian tribal groups. Indian legislation and the reserve system involved the formal definition of groups of Indians as bands that had certain rights of self-government on band-reserve land. Native people argue that one of their aboriginal rights is a right to continue as self-governing communities.18 This legal treatment of Indian societies as distinct peoples, coupled with the focus on self-government for Indian and Inuit communities at the First Ministers Conferences on aboriginal 8 matters, provides further support for the argument that "peoples" refers to smaller aboriginal collectivities of the three named aboriginal groups in 35(2). At this point one might argue that s. 35(2) refers to a single Metis people, but numerous distinct Indian and Inuit peoples. To argue otherwise is to distort the factual history of the Metis and the emergence of the Metis as a distinct society in Western Canada. The first objection to this suggestion is it stretches the plain reading of s. 35 and is grammatically incorrect. Read properly, the words "Indian, Inuit and Metis" are coordinate modifiers of the word "peoples." However, it is trite to base a legal argument on a grammatical error. Rather, the resolution of this problem may depend on the following: 1. The definition of the word "people." Is the word people synonymous to "state" or is it something less? 2. The temporal nature of the word people. Does it refer to distinct historical groups or does it encompass contemporary self-identifying collectivities? 3. The approach adopted in selecting identifying criteria for the three named groups in s. 35(2). Item 3 above is discussed in detail below. For now, let us concentrate on the potential limits placed on the terms "Indian", "Inuit", and "Metis" by virtue of their association with the word "peoples." The question which is of key importance to the Metis is whether the term "people" is equivalent to the term "state". If yes, some certainty or criteria for defining the Metis is made possible. 9 (b) Definition of the Word "Peoples" Publicists in international law have used the terms "nation" and "state" interchangeably to refer to those communities recognized as states by the international community. Understood in this sense, international law identifies four fundamental requirements for a state to be recognized as a legal entity, namely: a permanent population, a defined territory, a government and the ability to enter international relations.19 Some publicists would add that the nation must also be a recognized member of the family of nations. Others would dilute the criteria by arguing that the first three elements are requisite elements of the fourth rather than treating the fourth element separately.21 Regardless of how these debates are resolved, only one Metis group can meet the criteria - descendants of the Red River Metis who in the late 18th century emerged as a distinct national group. Traditionalists will argue that mixed blood populations originated in Eastern Canada from the time of first contact between Indians and Europeans, but only in the North West did a distinct political and national consciousness develop among the mixed blood population. Some argue this consciousness is attributable to the geographic and social isolation of the Metis populations in the North West brought about by the discouragement of settlement and the control of the fur trade.22 Others argue that Metis nationalism was fostered by the North West Company in order to protect its economic interest in the West.23 Whatever its source, it manifested itself in the social and political unification of various Metis collectivities in what was then known as Ruperts Land to oppose 10 Canadian expansions into the North West and to constitute a distinct people commonly referred to as the Metis Nation. From the mid-sixteenth century until the early nineteenth century diverse Metis communities were forming in Western Canada. The population consisted of two fairly distinct groups "the French Metis" or Bois Brules, whose paternal language was French, and the English Metis, whose paternal language was English." Among these groups distinct lifestyles developed including provisional bands of Metis who hunted buffalo and after the hunt returned to permanent sites in the Red River region, trappers, farmers, fisherman, voyageurs, interpreters and freighters.25 Although it is clear that a definite political and social organization evolved around the buffalo hunt, the diverse elements of the population did not crystallize into a united people until the early nineteenth century. It is difficult to pinpoint the exact date the Metis Nation came into being. The development of their political consciousness as a people can be traced from their initial unification in 1816 at the Battle of Seven Oaks to resist the establishment of the Selkirk Settlement, to the establishment of a provisional government in 1869 which negotiated what is now known as Manitoba into Canadian Confederation.26 Although Lord Selkirk was successful in establishing his white settlement, by 1871 the population of the Red River consisted of 5,720 French speaking Metis, 4,080 English speaking Metis and 1600 white settlers.27 After the creation of Manitoba a significant number of Metis migrated west and north-west into what is now Saskatchewan and part of Alberta. Distinct Metis communities with their own political organization developed once again. However, prosperity was short lived. The Metis, white settlers and Indians were threatened by poverty, an influx of settlers and government imposed changes to the existing land holding system. Numerous petitions were sent to Ottawa from various communities seeking a redress of grievances. Although sufficient compromises were made to satisfy the predominantly white communities (such as St. Albert), Metis concerns remained unresolved. Once again, the Metis political consciousness was displayed in the formation of a provisional government and a resistance to the Canadian government. This time, the Metis were deprived of the opportunity to negotiate their rights and the scrip system adopted in Manitoba was extended to Alberta and Saskatchewan to satisfy Metis claims.29 Keeping this description of the Metis Nation in mind do they fit the aforementioned criteria of a state? It is undisputed that in 1871 the predominant population in Manitoba was Metis and that historical populations can also be traced to specific geographical areas in Alberta and Saskatchewan. Although one could take issue with the legitimacy, efficiency and recognition of the government established in Saskatchewan under Louis Riel in 1885 (and thus exclude these areas from the defined territories of the Metis Nation) strong arguments can be advanced in recognition of the historic Metis population in Manitoba constituting a recognized state in international law. Problems may be encountered in defining Metis territory if emphasis is placed on the method of land use. If one takes into consideration land uses ranging from freighting to hunting to cultivation, the extent of the Metis 12 homeland is vast. On the other hand, if emphasis is placed on cultivation, the area is significantly reduced. These problems are discussed in chapter 4 of this thesis. At this juncture it is sufficient to establish that the Metis Nation existed within a specific territory the definition of which may vary depending on the criteria adopted. This is not an unusual issue in international law which is often concerned with boundary identification. Stable state boundaries are a recent development. Arguably the issue is not one of stable boundaries so much as the existence of a territory that can be identified as Metis. The main argument against the international status of the historic Metis Nation is the illegitimacy of Riel's government. According to this argument, the proper governing body in the Red River Settlement from 1835 until Canada assumed jurisdiction over the Metis in 1870 was the Council of Assiniboia established by the Hudson's Bay Company.30 Whether Riel's provisional government is defended on the basis of the failure of the Council to effectively represent the Red River population or an inherent right to aboriginal sovereignty and voluntary surrender of aboriginal lands,31 it is clear that it was the representatives of Riel's provisional government that negotiated the terms of the Manitoba  Act with Ottawa.32 The Act was "endorsed by the provisional legislature in the Red River, enacted by the Parliament of Canada and confirmed by Imperial legislature."33 Metis nationalists would argue that they had a choice to either accept offers of annexation to the United States or to strike a deal with Canada in which a level of Metis autonomy could be maintained. In this sense, the Metis nation was capable of, and 13 did conduct, international relations with other nations. The form of government envisioned by the Metis Nation was a non-ethnic provincial government forming a component part of a federated state. By virtue of the population, the Metis would hold the majority of the seats in the newly created province of Manitoba. However, the massive influx of settlers soon resulted in the Metis becoming a minority in their homeland and control in the local legislature was lost. The claim of aboriginal peoples to recognition as states is based in the legal order established by Indian societies prior to European contact; the suggestion in early United States decisions that at the time of British Colonial expansion in North America, Indian tribes were recognized by the British as sovereign nations capable of entering international relations; international law publicists and decisions challenging the legal and political assumptions upon which the denial of Indian sovereignty is based; and treaty practice in North America and international treaty practice. In order for all tribes to meet the criteria of statehood, the basis for comparison in determining the existence of a government must be something other than a western model of government. Further, the attributes of a tribal government and its ability to conduct international relations will vary depending upon the terms of the various treaties entered with the British and Canadian governments.34 Given these limitations, numerous self-identifying Indian peoples could be excluded from s. 35(2) if the term "peoples" is equated with the term states. However, most would easily meet the contemporary definition of "nationhood" which 14 differs from statehood in that nations do not require unification of the collectivity under a government. The use of the term "people" in international law suggests that a "people" need not meet the formal criteria of a state. Debate over the meaning of this term was raised by its use in various United Nations documents upholding the right to "self-determination of peoples" and the increasing activity of the United Nations aimed at putting an end to colonial domination.35 To date the principle of self-determination has not been applied to aboriginal groups whose territories lie within the jurisdiction of recognized members of the Untied Nations. However, in 1975 the International Court of Justice gave an advisory opinion on the Western Sahara which attributed this right to a nomadic population with little in the way of a western style government. Although the tribes were not held out to meet the formal requirements of a nation, they were held to have sufficient social and political organization to require voluntary surrender of their lands and to exercise a right of self-determination. Further, traditional arguments used to deny aboriginal sovereignty were clearly rejected.36 International organizations of indigenous peoples have focused on the question of self-determination but have not resolved the issue of what constitutes a people. Some indigenous groups have argued that "people" are distinguished from minorities in that the former are constituted of "persons who accepted incorporation into existing states" but "peoples were collective entities requiring self-determination."37 The distinction is of little assistance in establishing identifying criteria. Rather than resolve the issue, 15 the participants at a 1977 United Nations Non-Governmental Organization Conference on Discrimination Against Indigenous Populations adopted the formal requirements of statehood for the purpose of identifying indigenous nations, but also declared that groups not meeting the criteria were proper subjects of international law entitled to the same rights as nations if they are "identifiable groups having bonds of language, heritage, tradition or other common identity." The International Commission of Jurists has proposed a definition of people based on the following criteria: 1. a common history; 2. racial or ethnic ties; 3. cultural or linguistic ties; 4. religious or ideological ties; 5. a common territory or geographical location; 6. a common economic base; and 7. a sufficient number of people.39 This definition accords with the social-science criteria of nationhood which emphasizes a psychological bond joining a people and differentiating them from others, an aversion to being ruled by others, common ideology, common institutions and customs, and a sense of homogeneity.40 A collectivity may be a state or nation but not a people. For example, Canada is a state but its population does not constitute a single "people" given criteria one to four above. The impact of adopting this definition is to expand the parameters of s. 35(2) to include aboriginal groups that do not meet the formal criteria of a state. For the Metis, this would mean that it would not be necessary for a group identifying as Metis people to establish a link to the Metis Nation. An example of such a group would be the Metis in Grande Cache, Alberta. These people trace their origins to "Iroquois-Cree and White-Cree marriages between fur company men and Cree women."41 There are several reasons why the broader interpretation of "peoples" is preferable despite the arguments of Metis nationalists. The first, and most obvious in light of the above discussion is that the adoption of the formal requirements statehood or nationhood may result in the exclusion of self-identifying aboriginal peoples from the scope of s. 35(2). The second is that the inclusion of the term nation in the constitution would have been totally unacceptable because of Quebec's position and the rejection of "two nations" as a description of Canada. Further, the federal and provincial governments initially rejected aboriginal sovereignty and are still debating the meaning of self-government and its application to aboriginal groups.42 If Indian "nations" or "peoples" is interpreted in the manner suggested by the International Commission of Jurists, the term is given meaning without denying self-identification or admitting aboriginal sovereignty. Finally, Canadian courts have treated aboriginal groups as distinct cultural groups but not as independent self-governing societies. The federal and provincial governments did not intend to give aboriginals additional rights under the constitution than those they have by virtue of legislation, treaties or common law and thus they would not intentionally acknowledge their national status.43 17 The difficulties faced by contemporary Indian collectivities and groups purporting to represent the Metis are not overcome by this conclusion. Although the Metis on Alberta settlements can establish a common history of poverty and deprivation, they have difficulty establishing a common history as a "people." A similar problem is faced by Indian bands on the prairies which are recognized as existing aboriginal collectivities by the Indian Act, but are constituted by descendants from more than one Indian tribe.44 Given the emphasis on registered bands in self-government negotiations, the argument can be made that "peoples" should simply refer to identifiable collectivities having a common bond based on some, but not necessarily all, of the criteria enumerated by the International Commission of Jurists. The advantage of this approach is it is broad enough to encompass all self-identifying aboriginal groups without conferring rights that they would not otherwise have as only "existing aboriginal and treaty rights" are recognized and affirmed. Whether there is sufficient bonding to create entitlement to a collective right would be left as a question of fact for the courts depending on the right asserted. Accepting this approach "peoples" would simply be a body of persons united into a community for whatever reason. (c) Temporal Consideration The issue of whether "peoples" refers to historical or contemporary groups is significant for two reasons. First, an individual may not be associated with an ongoing collectivity but may be able to establish descent from a historical aboriginal collectivity. Second, contemporary aboriginal groups may not be 18 able to trace a link to a single historical "people" or they may have difficulty showing they have sufficient coherence and permanence to constitute a contemporary people. Rules of statutory interpretation are of little assistance in this regard. On the one hand, constitutional documents are to be defined broadly so that they are flexible enough to adapt to the times. On the other hand, one can argue there is no need for flexibility because Inuit, Indians and Metis are historically identifiable people.45 The obvious problem with the second argument is it freezes aboriginal collectivities at a particular point in history and denies them the ability to reformulate for the purpose of achieving specific political, economic and social goals. This problem is of particular importance to the Metis who may experience difficulties establishing a contemporary collective identify for the numerous reasons set out in sections III and IV of this chapter. This problem was briefly mentioned by Mr. Justice 0'Sullivan in his dissenting opinion in Dumont v. A.G. of Canada where he stated that s. 35(2) recognizes the Metis as an aboriginal people and "[it] must be noted that the existence of the Metis people is asserted in the Constitution as of the present, not simply as of the past."46 By this statement 0'Sullivan suggests the term "people" is to be given both contemporary and historical significance. Regardless of whether 0'Sullivan's views are accepted, peoples must refer to one of two possible groups -descendants of historic aboriginal collectivities or peoples associated with contemporary aboriginal collectivities. 19 2. Who Is An Aboriginal and What is an Aboriginal Group? The shorter Oxford Dictionary defines "Aborigines", "Indians" and "Natives" as follows: Aborigines: Usually explained as from the beginning, but this is not certain; inhabitants of a country; specifically the natives as opposed to the colonists, 1789. Indian: Belonging or relating to the original inhabitants of America and the West Indies, 1618. Native: Of indigenous origin, production as growth 1555; of or belonging to the natives of a particular place, 1796.47 These terms have been used interchangeably and conjunctively, in common and legal use, to refer to the original race which inhabited to Canada as distinct from European colonists. Used in this way the term "aborigine" is a generic racial term and an aborigine is a descendant of the indigenous inhabitants of Canada. However, over time the terms "aboriginal" and "Indian" have taken on non-racial dimensions. As discussed below, many persons of non-native origin or mixed native and non-native origins have been drawn into the federally recognized Indian bands and other contemporary collectivities. If the term "peoples" is to be given any contemporary significance, then the broader named group of "aboriginal people", necessarily takes on non-racial dimensions. How then do we determine if a group qualifies as "aboriginal"? Arguably the core of the group must be descendants of the original native inhabitants of Canada. The racial boundaries of the group may be expanded by a variety of means including legislated definitions, native customary law (eg. marriage and adoption) and recognition of self-identifying members by particular aboriginal communities. Professor Slattery suggests that additional factors 20 to consider in the classification of a group of people as aboriginal include: 1. the self-identity of its members, as shown in their actions and statements; 2. the culture and way of life of the group; 3. the existence of group norms or customs similar to that of other aboriginal people; and 4. the genetic composition of the group.49 Although Slattery's criteria are useful in attempting to define an aboriginal group, the author submits that caution must be exercised in placing too much emphasis on factors (2) and (3) at this stage in the definition process. Problems arise from the tendency of non-natives to hold a static view of aboriginal culture by freezing it at a particular historic moment. This perspective is described by Sally Weaver as the "hydraulic Indian" view.50 The Indian or native person is a cylinder which, at some undefined point in history is full to the top with Indian culture. As time passes, a group adopts certain aspects of European culture and the level of "Indianness" is dropped to the point that the cylinder is almost empty. The native group is then accused of having "spurious ethnicity" and is no longer considered aboriginal.51 This view is even more restrictive when combined with the tendency of non-natives to assume one culture or custom is more aboriginal than another by an ethnocentric comparison to their own white culture or customs. These perspectives are adopted in arguments raised by opponents of Metis aboriginal rights. Emphasizing the European tendencies of the Metis of Ruperts Land in the 1870s and comparing 21 their lifestyle to the agricultural and nomadic tribes of the plains, Thomas Flanagan argues it is difficult to show that the Metis are a distinct aboriginal people.52 Flanagan describes the Metis as follows: Now the Metis of Ruperts' Land were vastly different from the Indians. They did not exist in a natural economy of hunting, fishing and food gathering. They were from the start part of the commercial economy of the fur trade. Some were long term employees of the companies. Others worked intermittently on the cart trains and boat brigades. Many hunted buffalo, but not in a subsistance fashion . . . The way of life of most was much closer to that of their paternal white ancestors than to that of their maternal Indian forebears. Their religion was Protestant or Catholic Christianity. Many were familiar with and used in their life, white political institutions such as written law, courts, magistrates, elections, representative assemblies and committees . . . He continues: There were some mixed blood people who had Indian wives, lived with Indian bands, and were scarcely distinguishable from Indians ... To the extent that the Metis lead a truly aboriginal life, they were not distinct from the Indians; and to the extent that they were distinct from the Indians, their way of life was not aboriginal.53 Similar arguments are raised by Brian Schwartz in his consideration of whether the Metis are Indians within s. 91(24) of the British North America Act. 1867 (B.N.A. Act).54 Schwartz argues that those Metis who identified as Indians and lived among Indians should be considered Indians under s. 91(24). He distinguishes these Metis from the Red River Metis described above. Of them he states: The characterization of the Metis as an aboriginal people is etymologically dubious. The Metis are certainly indigenous to North America - they came into being as a distinct people on this continent. But they are not aboriginal in the same sense as the Indian and Inuit; they were not here from the beginning, but instead they developed when a large number of Europeans came to Canada in connection with the fur trade.55 The difficulty with these arguments is the assumption that there is a single aboriginal way of life and the treatment of the Red River Metis culture without reference to its native origins. Extremely different pictures of the Metis culture emerge if one emphasizes their maternal native ancestry; Metis arts and crafts; the introduction of unleavened bread (bannock); the dependence of the community on the buffalo hunt, hunting and fishing; and the adoption of the dances of the plains Indians in the Red River Jig.56 Like other aboriginal groups, the Metis combined the culture of their native ancestors with that of the European colonizers in order to survive political, social and economic changes introduced by the 'whiteman1. The main distinction between the Metis culture and other aboriginal cultures is the historic and contemporary Metis culture descends from the native and European cultures in a hereditary sense. As an illustration of this point consider the Cherokee Nation as it existed in the State of Georgia in the early-to-mid nineteenth century. Prior to the jurisdictional and territorial fights between the Cherokee and the State of Georgia, the Cherokees lived undisturbed within their historic territory governed by their own laws, usages and customs. However, European contact resulted in the adoption of certain aspects of the European culture into the Cherokee way of life which, in the words of the United States Supreme Court, "lead the Cherokees to a greater degree of civilization."57 A bill presented to the Supreme Court by counsel for the Cherokees described the Cherokee culture in part as follows: 23 They have established a constitution and form of government, the leading features of which they have borrowed from that of the United States; dividing their government into three separate departments, legislative, executive and judicial. In conformity with this constitution, these departments have all been organized. They have formed a code of laws, civil and criminal, adapted to their situation; have erected courts to expound and apply those laws, and organized an executive to carry them into effect. They have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state and become agriculturalists, mechanics and herdsmen; and under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States.58 The aboriginal and treaty rights of the Cherokee were argued before the United States Supreme Court again in 1832.59 Eventually the Cherokee Nation was destroyed and displaced. Not once did the Court, or opponents of the Cherokee, take issue with the assertion that they were an aboriginal people despite their surrender of the nomadic hunting lifestyle traditionally associated with native cultures and the adoption of European cultural institutions. More modern examples of cultural blending are seen among tribes such as the West Coast Squamish who rely on real estate as a significant contribution to their economic base and the Hobbema in Alberta who are the beneficiaries of oil and gas development on their lands. It is ludicrous to suggest these people are not aboriginal because they have satellite T.V., drive Ford trucks, send their children to accredited provincial schools and have expanded or replaced their historic economic base. As Professor Slattery implies in his suggested criteria, it is misleading to speak of a single contemporary or historic aboriginal lifestyle or culture among aboriginal groups. A comparison of aboriginal groups across Canada from the West Coast Haida, through the Plains Cree, to the Mic Macs of the East coast illustrates the diversity of historic aboriginal cultures in areas such as religion, economic development and political organization. Although one might find several common features among groups within close geographic proximity, similarities are less frequent as the geographical distance between groups increases and the topography of the earth changes.60 Given the diversity among historical aboriginal groups and the inevitability of the commingling of the aboriginal and colonizing cultures, it is difficult to identify a single common factor linking aborigines together as a group other than the ability to trace the descendency of the core of the group to indigenous inhabitants of Canada through maternal or paternal lines. Consequently it is more appropriate to consider culture, custom and lifestyle when defining composite groups of aboriginals than in the definition of the term "aboriginal." Even then, the emphasis given to these factors will vary in accordance with the cultural evolution of a particular aboriginal group. Ultimately, this may mean that traditional and contemporary cultures, customs and lifestyles become more important when defining entitlement to, and the content of, aboriginal rights than determining whether a group is "aboriginal." 3. Summary In short, the impact of the phrase "aboriginal peoples" on the definition of its composite groups is: 1. the term people implies a collectivity of persons united together into an identifiable community; 2. identification as an Indian, Inuit or Metis under s. 35(2) is dependent on descent from a historical aboriginal collectivity or association with, and acceptance by, a contemporary aboriginal collectivity; 3. the collectivity must be a racial group to the extent that the core of the group must be descendants of the original inhabitants of Canada; and 4. the racial boundaries and unification of the group may be defined in numerous different ways including legislation (eg. Metis Betterment Act and the Indian  Act) , native customary law and membership criteria of specific aboriginal groups.61 II Who Are the Metis? The criteria established by an examination of the phrase "aboriginal peoples" is useful to determine the minimum standards that must be met by a group purporting to be "Metis," but is not specific enough to define the Metis as a distinct aboriginal group. Within the context of s. 35, two approaches may be adopted to delineate more identification criteria. The first approach is to define the Metis by process of elimination. If an aboriginal group fits the criteria in section II, but does not fall within the definition of Inuit or Indian, the group is Metis if it identifies as Metis. The second approach is to treat each term separately according to its own use, rather than to adopt a "catch all" definition in fear of inadvertently excluding an aboriginal group from constitutional protection. The numerous problems associated with defining the terms "Indian", "Inuit" and "Metis"; the 26 political histories of each term; and the unresolved political and legal debates concerning their meaning suggests that the only feasible way to define these groups is by defining each group without reference to the other categories of aboriginal peoples. 1. The Comparative Approach Prior to the definition of aboriginal peoples in s. 35(2), four main categories of aboriginal peoples were commonly used in legal and political spheres. These categories are status Indians, non-status Indians, Inuit and Metis. Non-status Indians are not specifically recognized as aboriginal peoples in s. 35(2). Consequently, in order for them to receive constitutional protection, they must fall within one of the three named groups. The central issue debated among groups purporting to represent the Metis is whether non-status persons of mixed origins can properly be identified as Metis if they have no connection with the Metis Nation. Essential to this debate is the scope of the term "Indian" in s. 35(2). If "Indian" refers to the same class of persons referred to in s. 91(24) of the B.N.A. Act. a narrow definition of Metis peoples focusing on a common political, national and historic background may not affect the constitutional recognition of non-status Indians. Although the term "Indian" has been interpreted to refer only to Indian Act Indians,62 this position has been subject to strong criticism63 and cannot be applied to s.91(24) in the face of the Eskimo decision.64 The Eskimo decision held that Eskimo peoples are s. 91(24) Indians even though they are not included as Indians in post-confederation Indian legislation. The term "Indian" in s. 91(24) was interpreted 27 to include "all present and future aboriginal native subjects of the proposed confederation of British North America".65 The reasoning adopted in the Eskimo case can be applied to non-status Indians who were never registered under the Indian Act, were enfranchised, were excluded from treaties, never signed treaties or are descendants of the above as long as their ancestors were recognized by the fathers of Confederation as aborigines living within the territories to be included in the proposed confederation of British North America. The fact that Parliament has chosen not to exercise its jurisdiction over these people and has excluded them from the definition of "Indian" in an independent legislative regime does not mean they cease to exist as s. 91(24) Indians. Parliament cannot control or alter the constitutional definition of the term through legislation.66 If one accepts the argument that s. 35(2) of the Constitution  Act must be read independent of s. 91(24) of the B.N.A. Act, or that the term "Indian" refers only to a recognizable Indian group, the definition of the term "Metis" peoples takes on greater significance. There are several reasons why s. 35(2) should be read independently of s. 91(24) including: 1. The inclusion of the Inuit peoples in s. 35(2) suggests that the term "Indian" is not being used simply in its meaning in s. 91(24). 2. The functions of the two sections are separate. Section 91(24) centralizes control over Indian affairs by placing Indians and lands reserved for Indians under the jurisdiction of the federal government. Section 35 of the Constitution Act is not concerned with jurisdictional 28 issues but with giving constitutional recognition to aboriginal and treaty rights by limiting the abilities of federal and provincial governments to impair existing rights. Section 35(2) simply defines the class of persons to whom sections 25 and 35 apply. 3. Although the Native Council of Canada argued that the constitutional provision defining aboriginal peoples should reflect what was intended at the time of Confederation by providing a more explicit definition of who is an Indian, post 1982 activity suggests that this was not the approach taken.67 The federal government has not changed its position on the issue of jurisdiction and some Metis organizations and leaders representing the Metis continue to press for constitutional amendments to deal with jurisdictions and responsibility.68 4. The wording of the two sections is different. Although there are strong arguments that the word "Indian" in s. 91(24) means "aboriginal" and includes all full and mixed blood persons of aboriginal descent, there are several opposing opinions and the matter has not been resolved by the courts. If s. 91(24) and 35(2) were intended to be read together, the use of the word "Indian" instead of the word "aboriginal" in s. 35(2) would have helped to eliminate confusion. If the "Indians" referred to in s. 35(2) are not s. 91(24) Indians who are they? One could argue they are identifiable groups of status Indians who fall within the Indian Act definition of "Indian." If this is so, defining "Metis" as requiring some link to the Metis Nation could result in excluding a large number of native persons from s. 35(2). However, this interpretation is questionable because it allows Parliament to act beyond its competence to define terms in the constitution. Since the proclamation of the Constitution, the membership criteria of the Indian Act has been changed to include Indian women who had previously lost status through marriage. If "Indians" in s. 35(2) are only Indian Act Indians, Parliament might arguably have unilaterally amended the Constitution by amending its legislation. The alternative argument is "Indians" might mean Indians as defined from time to time by Parliament.69 The courts are unlikely to foreclose Parliament's options by limiting the term to Indian Act Indians. It is also clear from the context of the negotiations leading to the inclusion of s. 35 in the Constitution that this interpretation was not intended. During that time there was political concern with sexual discrimination in the Indian Act and proposals were being made for reworking the Indian Act membership system. Although there had been a little litigation on the application of aboriginal and treaty rights to non-status Indians,70 a pattern of decisions had developed which failed to differentiate between status and non-status Indians when determining the validity of provincial laws of general application. The issue was one of federal occupation of the field.71 However, the question of differentiation has re-emerged after the proclamation of the constitution in Dick v. The Queen which made it clear provincial hunting laws only applied to Indians because of the wording of s. 88 of the Indian Act.72 The main argument in support of a narrow definition of "Indian" is the differentiation between Indians and Inuit in s. 35(2). However, if one considers the political activity leading to the inclusion of section 35 in the Constitution, the inclusion of the term "Inuit" in s. 35(2) need not result in a restricted interpretation of the word "Indian." The federal government was lobbied by three independent national aboriginal organizations to protect aboriginal and treaty rights in the new Constitution - the Assembly of First Nations (A.F.N.) representing status Indians, the Native Council of Canada (N.C.C.) representing Metis peoples and non-status Indians (including the Metis Association of the North West Territories) and the Inuit communities of the North represented by the Inuit Tapirisat and the Inuit Committee on National Issues (I.C.N.I.). If s. 35 is viewed as a political response to these three independent organizations, the specification of Inuit peoples can be viewed as both a matter of political expediency and recognition of a distinct aboriginal people in accordance with their own terminology. This sophisticated distinction was not appreciated by the Fathers of Confederation and their historical counterparts who lumped "Indian-Esquimauxs" together with Indian nations in their usage of the terms "Savages" and "Indians."73 The willingness of the federal government to recognize a distinction between these two aboriginal groups may simply mean the term "Indian" in s. 35(2) does not include the Inuit. Whether the term "Indian" includes status Indians has never been an issue. If one accepts that section 35(2) need not be analyzed by an "either-or" logic (that is either it encompasses Indians referred to in s. 91(24) or it does not) then 31 those persons who do not fall under a narrow definition of "Metis" peoples can logically be included in the reference to "Indians." Who are the Metis People in this context? Why have they been given specific recognition in s. 35(2)? The "Metis" may be referred to in s. 35(2) as a matter of political expediency and recognition as an aboriginal group. The definition section was inserted primarily to satisfy the claims of the Metis to recognition as a distinct aboriginal people. The inclusion was made without making a previous determination of whether the Metis actually had aboriginal and treaty rights.74 Further, the decision was made without determining who the Metis are. This latter point is illustrated by the subsequent debates at the First Ministers conferences on the question of Metis identity.75 There are several broad choices from which to choose a definition for the term "Metis." Among these are: 1. anyone of mixed Indian/non-Indian blood who is not a status Indian; 2. a person who identifies as Metis and is accepted by a successor community of the Metis Nation; 3. a person who identifies as Metis and is accepted by a self-identifying Metis community; 4. persons who took, or were entitled to take half-breed grants under the Manitoba Act or Dominion Lands Act and their descendants;76 and 5. descendants of persons excluded from the Indian Act regime by virtue of a way of life criteria. Given the political nature of s. 35(2), one could argue that the Metis people are those persons intended to be encompassed by the term when the N.C.C. negotiated this term into the Constitution. This definition would include populations distinct from the Metis Nation who identify themselves as "Metis" rather than as "Indians." Some of these persons whose ancestors did not live an Indian way of life may not fall within the parameters of s. 91(24) and thus specific mention is necessary to ensure the application of sections 25 and 35 to this group.77 This position has not been accepted by all persons who identify themselves as Metis. In March, 1983 the Metis organizations in Saskatchewan, Alberta and Manitoba split from the N.C.C. and formed the Metis National Council (M.N.C.). According to the M.N.C. the Metis are the "Metis Nation" defined as: All persons who can show they are descendants of persons considered Metis under the 1870 Manitoba Act, all persons who can show they are descendants of persons considered as Metis under the Dominion Lands Act of 1879 and 1883; and all other persons who can produce proof of aboriginal ancestry and who have been accepted as Metis by the Metis community.78 The M.N.C. was allowed representation in the constitutional conferences and the debate surrounding the identification of Metis peoples remains unresolved. Caution must be observed in placing too much emphasis on the role of the N.C.C. without taking into consideration some of their political and economic concerns. Prior to 1982 the N.C.C. received funding on behalf of Metis and non-status Indians for certain political, legal, economic and social activities. A large portion of its membership was composed of non-status Indian women who would ultimately be returned to status. If the N.C.C. recognized a narrow definition of Metis people and their need for special representation, their effectiveness as a lobbying group could be marginalized and their funding base reduced. The First ministers conferences illustrate there was no specific definition of Metis at the time s. 35(2) was negotiated and after that time it was contrary to the N.C.C.'s political and financial interests to agree to a narrow definition of Metis peoples. Further, a narrow definition could potentially affect the constitutional rights of its non-status membership. By this discussion it is not the author's intention to down-play the achievements of the N.C.C. or their importance in representing Canada's non-status Indians, but simply to address some of the political realities which have created the identification problems associated with the term "Metis." Because of these considerations, the intentions of the N.C.C. during negotiations can not be determinative. The above interrelated analysis of the terms used in s. 35(2) does little to assist in the definition process as we are still left with numerous variables. However, the analysis is useful because it illustrates non-status Indians fall within the term "Indians." This means the central issue is not whether non-status Indians will be inadvertently excluded from s. 35(2) if a narrow definition of Metis is adopted. Consequently, the most logical approach to determining the identification of the Metis is to look at the unique history and use of the term as well as the views of the Metis community. 2. Historical. Political and Legal Usage of the Term "Metis" Basic to an understanding of the difficulties associated with defining the term "Metis" is an understanding of the history and use of the term. The word "metis" is a French word meaning "mixed" and was first used to refer to the French speaking half-breeds of the Red River settlement and surrounding areas.79 Initially the term was used to refer to the French and Cree speaking descendants of the French-Catholic Red River Metis as distinct from the descendants of English speaking half-breeds or "country born," who lived a more agrarian lifestyle and identified themselves as Protestant and British. Later, both native and non-native scholars writing histories on the Red River area used the term collectively to refer to French and English speaking half-breeds who emerged as a distinct cultural group in the West and spoke of themselves as the "New Nation." By the 1970's the term extended beyond its religious, geographic and linguistic boundaries to encompass "any person of mixed Indian-white blood who identified him or herself and was identified by others as neither Indian or white, even though he or • 81 she might have no provable link to the historic Red River Metis." The identification was a negative identification used interchangeably with the word "half-breed." They were Metis or 82 half-breed because they were not somebody else. More recent historical works focusing on ethnic origins and changing dimensions of Metis identity use the term to refer to those individuals, frequently of mixed Indian, Western, European and other ancestry, who are in the St. Lawrence - Great Lakes trading system, including its extension to the Pacific and Arctic coasts and chose to see themselves in various collectivities as distinct from 83 members of the 'white1 community. Some suggest that the contemporary usage should be extended to Of persons of mixed metis/Indian ancestry. 35 The lack of consensus on the use of the term is illustrated in an article on Metis history by Jennifer Brown in The Canadian Encyclopedia. Cautioning that there is no agreement among writers concerning who the Metis are, she argues that distinctions must be made based on the context in which the term is used. It is important to define specific meanings for the terms as used in this discussion, while cautioning that writers, past and present, have not achieved consensus on the matter. Written with a small "m",metis is an old French word meaning "mixed", and it is used here in a general sense for people of dual Indian-white ancestry. Capitalized, Metis is not a generic term for all persons of this biracial descent but refers to a distinctive sociocultural heritage, a means of ethnic self-identification, and sometimes apolitical and legal category, more or less narrowly defined . . . This complexity arises from the fact that biological race mixture (Fr, metissage) by itself does not determine a persons social, ethnic or political identity.85 This same differentiation has been adopted by the Metis National Council. In its opening statement to the United Nations working group in August 1984 in Geneva it suggested that "metis" written with a small "m" be used as a racial term for any person of mixed Indian-European ancestry, and written with a capital "M" be used to refer to the Metis Nation. For the remainder of this thesis this differentiated spelling will be adopted in the same way with the addition that the term "Metis" in quotation marks refers to the term as it appears in S.35(2). The use of the term "non-status Indians" will refer to those non-status aboriginals who do not identify as metis. A consideration of the legal and common use of the term helps to understand how some of the confusion arose. The only legal definition of Metis is in the Metis Betterment Act which adopts a racial view for the purpose of defining Metis persons within the boundaries of the province of Alberta. This is somewhat ironic in that the only "status" Metis are not descendants by the Metis nation. Although the federal government has not legislated with respect to Metis peoples, it has legislated with respect to half-breeds. In the Manitoba Act of 1870 and the Dominion Lands Acts of 1879 and 1883, the federal government granted lands to half-breeds. Subsequent federal legislation and subordinate legislation provided for the distribution of land grants and scrip to the half-breed people to satisfy claims existing in connection with the extinguishment of Indian title. This procedure coincided with the extension of treaty making to the western prairies. For the purpose of treaty entitlement, a distinction was drawn between Indians and half-breeds on a lifestyle, self-identification and group identification basis. Those living the lifestyle of Indians and associated with Indian tribes were allowed to take treaty. The others were given scrip.88 A review of the historical development of the Indian Act reveals that this same group of people were intentionally excluded from benefits received by Indian peoples pursuant to the Indian 89 Act. The term "half-breed" in this context can be used interchangeably with the term "Metis." The relationship between the Manitoba Act. Dominion Lands Act and Indian Act definitions of "half-breed" has lead Douglas Sanders to suggest that the only logical legal definition of "Metis" would be the descendants of those persons who took scrip and are excluded from status by the • 90 i •  • # i Indian Act. William Pentney would extend this definition to include descendants of persons entitled to receive scrip.91 Non-status Indians emerged slowly as a group through intermarriage of Indians and non-Indians. Non-status Indians was not a category that was expected to perpetuate itself. Rather, these individuals were expected to assimilate and lose identification as an Indian. Further confusion arose when mixed blood status Indians were given the option to surrender their treaty rights and take scrip.92 Eventually, popular usage came to equate Metis and non-status Indians on the prairies. This equating of the two categories also occurred in federal funding and non status Indian membership was accepted into Metis provincial organizations in order to achieve economic, social and political goals.93 The contemporary usage of the term Metis has been adopted by the N.C.C. They argue that Metis people include "both blood relatives of the Red River Metis and completely distinct Metis populations which pre-and-post date both the history and the people of the Red River." They contend the term "Metis" in s. 35(2) of the Constitution refers to their constituents who identify themselves as metis and were never included in treaty, or were excluded from treaty as half-breed, or were refused scrip on a residency basis or are descendants of the above.95 The M.N.C. have rejected both the contemporary and traditional usage of the term Metis and have adopted a definition consistent with the legislative and political activity of the federal government with respect to half-breeds living in Ruperts Land and the Northwest Territories. The M.N.C. define the Metis as follows: 38 1. The Metis are: - an aboriginal people distinct from Indian and Inuit; - descendants of the historic Metis who evolved in what is now Western Canada as a people with a common political will; - descendants of those aboriginals who have been absorbed by the historic Metis. 2. The Metis community comprises members of the above who share a common cultural identity and political will.96 The provincial organizations comprising the M.N.C. adopt similar definitions but also accept non-status Indians who have been accepted as members of the provincial organization. For example, when the Alberta Metis Association was founded in 1932 it offered membership to anyone of native ancestry.97 As recent as 1987, any person of native ancestry could be a member so long as a member of the Association was willing to take a sworn statement that the applicant was a metis. In Manitoba, the Manitoba Metis Federation was started because of a split between status and non status Indians. Their constitution provided that a non-registered person of Indian descent could become a metis member of the Federation. A non-native person could also be a member provided he or she was married to a metis.99 It is likely this flexibility within the membership criteria of the prairie political organizations that is the reason behind the self-identification element in the M.N.C. definition of the Metis Nation. 39 The result is today "metis" can be defined in many different ways. A metis person is described as a person of mixed-blood, one who considers herself a metis, a non-status Indian, one who received land scrip or money scrip, one who is identified with a group that identifies as metis and a non-native married to a metis.100 None of the definitions standing alone is satisfactory to all persons who identify themselves as metis. These potential usages and definitions have created the identity debate and have resulted in major divisions in native political organizations. 3. Resolution of the Definition Debate Given the complexity of the definition debate is it possible to define the term "Metis" in s. 35(2)? This could depend on the view of ethnicity adopted by the interpreter of s. 35(2) and the willingness of the governments and metis organizations to accept varying definitions of the term "Metis" for constitutional and other purposes. If s. 35(2) refers to the metis ethnic identity and if we accept the proposition that ethnicity is an ongoing process defining its boundaries in response to and in the context of social change, culture bearing collectivities with a common history, such as the descendents of the Metis Nation, will not necessarily have to be equated to the ethnic group referred to in s. 35(2). Joe Sawchuk argues that the contemporary concept of metis is a drastic reformulation of the criteria that once identified the Metis Nation. However, if one views ethnicity as primarily political in nature reformulating itself in response to many cultural stimuli, the emphasis on different identifying criteria by different metis organizations can be easily understood. 40 Sawchuk contends that ethnic consciousness is more than recognition of cultural phenomena, it is a political assertion to defend predominantly economic interests of a collectivity. Consequently, ethnic identity is always in a state of flux and responds to the political climate of a given period.101 The fact that the two national metis organizations cannot agree on who is or is not a metis does not mean a contemporary metis ethnic identity does not exist. It may mean that these political organizations have adopted identification criteria that further their political and economic goals. An example of this phenomena can be seen in the New Brunswick Association of Metis and Non-Status Indians. In the 1600s there was a significant amount of mixing between the French and Indian families in Acadia and New France, but a distinct cultural group did not emerge and their offspring were not classified as a • • 102 distinct race. Research conducted by the New Brunswick Association supports these facts. Clem Chartier suggests this research represents a "conscious attempt" by "maritime organizations to distance themselves from any possible negative impact which may result from being identified as half-breeds or • 103 • • • Metis." Chartier argues that the tune of the provincial organization changed. After Constitutional recognition of the Metis as a distinct aboriginal people, focus was shifted to metis origins and racial criteria.104 If the existence of more than one metis people is accepted, there will be some individuals of Indian descent who are not metis and do not have Indian status. The "Metis" in s. 35(2) will have to be one of two possible groups: 41 1. The descendants of the historic Metis Nation. 2. People associated with ongoing metis collectivities. A refusal to select identifying criteria by freezing cultural idioms at a given point in history allows the interpreter of s. 35(2) to define "Metis" for constitutional purposes as small "m" metis. This interpretation makes sense in the context of the political activity surrounding the negotiation of s. 35 into the Constitution. The result is the constitutional term "Metis" does not refer to a homogeneous cultural group but a large and varied population characterized by aboriginal ancestry. This conclusion should not be surprising as the term "Indian" clearly encompasses a variety of Indian nations with different political, cultural and historical backgrounds. The common factor shared by all of these groups is their aboriginal ancestry. This interpretation also avoids unilateral application of a legal definition and allows for self identification. So when does the distinction between small "m" metis and the Metis Nation become significant? It is significant in the context of entitlement to specific aboriginal rights such as a land base and the right to self-government. In this context the question is not so much one of definition but entitlement and standing. Membership criteria will vary depending on regional, historical, cultural and political differences and the nature of the claim asserted. The demands of the membership will vary depending on these differences and their history of dealings with the federal and provincial governments. Consequently, it may be impossible to design a single system of compensation for all metis claims which recognizes their diversity or resolve their grievances with a 42 single court action and at the same time upholds the unique identity of the Metis Nation. Ill Standing to Sue 1. Introduction The membership criteria and definition of a metis group will affect the basis upon which claims to aboriginal title are made and the form of compensation sought. Groups which have a difficult time establishing historical occupation of a defined territory may shift their focus to the mode of extinguishment adopted by the federal government creating a natural dividing line between those metis who took scrip and those who accepted treaty. On the other hand, persons living within the same geographic boundaries and joined together in pursuit of the same goals may select identifying criteria focused more on a contemporary solution than a common history. For example, the definition of "Metis" in the proposed Dene/Metis land claim settlement has racial, geographical, self-identification and group identification criteria and clearly includes persons who may have had treaty, scrip or other claims against the federal government. Those metis who took scrip may organize into distinct groups based on claims to Metis nationality, claims to monetary compensation as opposed to the creation of a land base and membership in a group occupying a contemporary land base. Whether the claims of these groups are resolved by judicial determination or land claims settlement, the group asserting the right will concern itself with the constitutional protection of those rights. The necessity of the groups to create a plaintiff 43 recognizable in law is one more reason why a broad interpretation of the word "Metis" in s. 35(2) is desirable. Recognizing the diversity among self-identifying metis groups and the reformulation of groups for the purposes of asserting various claims, this thesis will address the claim to aboriginal title by descendants of the Metis inhabiting Manitoba prior to 1870 and their descendants (Manitoba Metis). Where appropriate, reference will be made to other metis groups to illustrate particular points. Keeping this in mind, the following analysis of standing will focus on the Manitoba Metis. 2. Standing In Calder v. A.G. of B.C. Mr. Justice Judson summarized aboriginal title as follows: . . . when the settlers came, the Indians were there, organized in societies and occupying lands as their forefathers had done for centuries. This is what Indian title means...106 This description of title has since been confirmed by the Supreme Court of Canada and forms the basis for the assertion that aboriginal title is a collective right.107 Although the question of criteria for proof of title is the subject of debate, academic and judicial opinion agree that parties asserting a claim to title must constitute an organized group of native people. In his article "Understanding Aboriginal Rights", Professor Slattery explains this criterion as follows: This criterion excludes claims advanced by individuals. Aboriginal title is a collective right vested in a group. It should be noted that this does not mean that individual members of a native group cannot hold legally enforceable rights to share in a group's collective title under the rules in force within the group. Such rights are not, however, aboriginal title in the strict sense. The criterion also disqualifies collections of people who lack sufficient coherence, permanence or self identification to qualify as an organized group. But these requirements must be applied flexibly, in light of the varying levels of organization found in aboriginal societies. A similar view is adopted by Mr. Justice Steele who states the following on the question of standing in the Bear Island case: It is trite law that aboriginal rights pre-date any treaty or setting up of reserves. Hence if there are persons who are recognized by native Indian groups as being Indians and members of their group, but who are not able to be registered under the [Indian] Act, then there must be a method whereby their rights can be asserted. . . The only way this can be done is by allowing a representative action on behalf of the band... Whether there is a band, and who its members are, is a matter to • . . . 110 be determined in the action upon the evidence. The requirement that the plaintiff(s) represent an organized group of native people could result in a bar to a claim to aboriginal title by descendants of the Red River Metis given the problems associated with defining a contemporary metis identity and allegations that the Metis Nation died with Louis Riel. This point is illustrated in the recent decision of Dumont et al v A.G. of Canada.111 This was not an aboriginal title case but a case concerned with the constitutional validity of orders-in-council and Acts of Parliament purportedly passed in accordance with sections 31 and 32 of the Manitoba Act of 1870. The individual plaintiffs claimed to be descendants of persons referred to as "half-breeds" in the Manitoba Act and the corporate plaintiffs (Manitoba Metis Federation Inc. and the N.C.C. Inc.) purported to represent the interest of "all other descendants of Metis persons entitled to land and other rights under Section 31 and 32 of the Manitoba Act of 1870."112 45 At the trial level, an application was made by the Attorney General of Canada to strike out the statement of claim on the grounds that the plaintiffs lacked standing in a public interest suit. The court held for the plaintiffs on the following grounds: 1. the court has jurisdiction to grant a declatory order providing a real issue concerning the relative issues of each has been raised; 2. the real issues in the action are whether the Manitoba Act promised a Metis reserve and whether the alleged measures taken to extinguish Metis title were unconstitutional; 3. the practical effect of finding for the plaintiffs would be support in their land claim negotiations; 4. the legislation in question refers to a specific group or class represented by the plaintiffs; and 5. there is a current violation of the plaintiffs' rights relating to the Metis reserve. This case was successfully appealed by the Attorney General. Speaking for the Court of Appeal, Mr. Justice Twaddle held that the declaration of invalidity would not serve the intended purpose of deciding an issue essential to the land claims negotiations as the legal basis of a land claim was a matter of "great uncertainty" and the federal government would also be influenced by social, political and historical considerations.113 Justice Twaddle also stated that the plaintiffs' assertion of a community of interest in land was not alleged in the statement of claim and was not supported by the Manitoba Act which granted individual, rather than collective, rights. For the purpose of the appeal he assumes that "all half-breeds of 1870 were 'Metis'; that the Metis of 1870 were a distinct people; and that all of their descendants are included within the undefined group of persons constitutionally recognized today as 'the Metis people*."115 As discussed, the first two assumptions made by Mr. Justice Twaddle are currently challenged and are not statements of fact but issues to be resolved. The decision is currently under appeal. Although the question of standing is not directly raised by Justice Twaddle, the dissenting opinion of Mr. Justice O'Sullivan notes that it is difficult for the courts and lawyers to understand what the rights of a "people" can mean and how they are asserted. Accepting that s. 35(2) recognizes the Metis as aboriginal people and rejecting the argument that the section is meaningless because the Metis have no rights, he argues that "it is impossible in our jurisprudence to have rights without a remedy and the rights of the Metis people must be capable of being asserted by somebody."116 He emphasizes that the constitution recognizes the Metis as a people of the "present" and not the "past."117 Treating their land rights as collective rights, he concludes that the "plaintiffs are suitable persons to assert the claims of the half-breed people" and comments on the need for the development of "a rule of law to make 118 possible a legal solution to minority claims." The Dumont decision is significant because it rejects reliance on the Manitoba Act to assert a collective claim to aboriginal title. If it is upheld, some other source may have to be established. Further, certain factual assumptions were made to permit standing by the plaintiffs in the action. In the event of 47 an aboriginal title case, the assumptions would be issues of dispute. The inability of self-identifying metis to agree on a definition of "Metis peoples," the non-existence of an organization purporting to represent only descendants of the Red River Metis (to the exclusion of non-status Indians and other metis accepted by the organization), the scattering of the Metis population across Canada, the difficulty in establishing an ongoing Metis collectivity since 1870 and a static view of aboriginal culture are all reasons that can be employed to deny sufficient coherence, permanence of self-identification to qualify as an organized group. The coherence of the plaintiff group should not be a bar to recovery but is more properly taken into consideration when determining the mode of compensation. Like other aboriginal groups who have been dispossessed of their lands, the Metis of the Red River can not show a continual link to a given territory to the exclusion of others up to the present day. Assuming dispossession was involuntary, illegal or wrongful in some other way, it is only just that the criterion for entitlement be determined as at the date of dispossession rather than the present day. Assuming an aboriginal group existed at the time of dispossession but lacks sufficient coherence to be called a group today, a land settlement for an existing group of descendants may not be appropriate. Rather, compensation may be in the form of cash payments or individual land grants coupled with cultural centres and scholarships to compensate for destroying the collective identity of the group. If a claim can not be brought because an existing collectivity can not be identified, the result is to deny the legal enforceability of the rights of an individual members of a group 48 to share in a group's collective title. The relationship between the identification of the group and the mode of compensation is illustrated through contemporary examples of land claims agreements and settlement schemes discussed in the conclusion of this thesis. i 49 CHAPTER 1 ENDNOTES 1. Canada Act. 1982 (U.K.), 1982, c.ll. 2. W.F. Pentney, The Aboriginal Provisions in the Constitution  Act. 1982 ( Saskatoon: Native Law Centre, University of Saskatchewan, 1987) at 100; 45-51. 3. See, for example, A.G. of Ontario v. Bear Island Foundation (1984) 15 D.L.R. (4th) 321 at 330 (Ont. H.C.J.) ; Hamlet of  Baker Lake v. Min. of Indian Affairs and Northern Development (1979) 107 D.L.R. (3d) 513 at 542-543 (F.C.T.D.); B. Slattery, "Understanding Aboriginal Rights" (1987) 66 Canadian Bar  Review 727 at 756-7. 4. See, for example, R. v. Simon (1985) 24 D.L.R. 390 (S.C.C.); Sparrow v. Regina (1987) 2 W.W.R. 577 (B.C.C.A.). But see A.G. of Ontario v. Bear Island, id., which refers to aboriginal rights as communal rights. This interpretation arises from a view that aboriginal rights are synonymous to, or are in some way derived from aboriginal title. Similar views are given by Slattery, id. at 744. 5. Guerin v. R. [1984] 2 S.C.R. 335. 6. D. Sanders, "Pre-Existing Rights: The Aboriginal Peoples of Canada" (Vancouver: University of British Columbia, Faculty of Law, 1988), 35, photocopied, 1. 7. For an interesting discussion on different classes of aboriginal rights see D. Ahenakew, "Aboriginal Title and Aboriginal Rights: The Impossible and Unnecessary Task of Identification and Definition" in The Quest for Justice, eds. M. Boldt, J.A. Long and L. Little Bear (Toronto: University of Toronto Press, 1985) 24 at 25-26. 8. Reprinted in The Quest for Justice, id. at 359. 9. See, for example, D. Opekokew, The First Nations: Indian  Government and the Canadian Confederation (Regina: Federation of Saskatchewan Indians, 1980); Ahenakew, supra. note 7; Report of the Special Committee on Indian Self-Government in 50 Canada, by Keith Penner, Chairman (Ottawa: Queen's Printer for Canada, 1983) . 10. T. Berger, Northern Frontier Northern Homeland (Vancouver: Douglas and Mclntyre Ltd., 1988) at 40-41. 11. R.E. Gaffney, G.P. Gould and A.J. Semple, Broken Promises: The  Aboriginal Constitutional Conferences (New Brunswick: New Brunswick Association of Metis and Non-Status Indians, 1984) at 62. 12. The Metis Betterment Act. R.S.A. 1980, c. M-14, s.2(a). 13. D. Sanders, "A Legal Analysis of the Ewing Commission and the Metis Colony System in Alberta," Paper prepared for the Metis Association of Alberta (Edmonton: April 4, 1978) Photocopied, at 19. 14. For a discussion on the history of the Metis settlements see, for example, Metis Association of Alberta, P. Sawchuk and T. Ferguson, Metis Land Rights in Alberta: A Political History (Edmonton: Metis Assoc. of Alberta, 1981) at 187-214; Alberta Federation of Metis Settlement Associations, Metisism: A  Canadian Identity (Edmonton: Alberta Federation of Metis Settlement Associations, 1982) at 5-11; D. Purich, The Metis (Toronto: James Lorimer and Company, Publishers, 1988) at 133-150. 15. Bill 64, Metis Settlements Act. 3d. Sess., 21st Leg. Alta., 1988 s. 1(1) h. 16. For a summary of academic opinion see W.F. Pentney, supra, note 2 at 182-188. 17. Aboriginal title is treated as a communal right of a tribe of Indians. See, Calder v. A.G.B.C. [1973] R.C.S. 313 and supra. note 3. 18. D. Sanders, "Prior Claims: Aboriginal People in the Constitution of Canada" in Canada and the New Constitution:  The Unfinished Agenda,, Vol. I, eds. S.M. Beck and I. Bernier (Montreal: Institute for Research on Public Policy, 1983) at 241. 51 19. L. Oppenheim, International Law. 18th ed. (London: Longman's, Green and Co., 1963) at 136; Draft Declaration of Principles  for the Defence of the Indigenous Nations and Peoples of the  Western Hemisphere, article 1, printed in National Lawyers Guild, ed. Rethinking Indian Law (New Haven: Advocate Press, 1982) 137-138; F. Snow, International Law (Washington, Gov't Printing Office, 1985) at 19. 20. See discussion in M.F. Lindley, The Acquisition and Government  of Backward Territory in International Law (Longman's, Green & Co. Ltd., 1926; reprint, New York: Negro University Press, 1969) at 19. 21. See, for example, R. Coulter, "Contemporary Indian Sovereignty" in Rethinking Indian Law, supra. note 19 at 117. 22. See, for example, D. Redbird, We are Metis: A Metis View of  the Development of a Native Canadian People (Willowdale: Ontario Metis and Non-Status Indian Association, 1980) at 5; Tremaudan, A.H., Hold Your Heads High: History of the Metis  Nation in Western Canada, trans. E. Maguet (Winnipeg: Pemmican Publications, 1982) at 8. 23. See, for example, G. Stanley, The Birth of Western Canada (Great Britain: Longmans, Green and Co. Ltd., 1936; reprint, Toronto: University of Toronto Press, 1960) at 11; A.S. Morton, "The New Nation: The Metis" in The Other Natives, vol. 1., eds. A. Lussier and D.B. Sealey (Winnipeg: Manitoba Metis Federation Press and Editions Bois-Brules, 1978) at 28. 24. Tremaudan, id. 25. For a discussion of the various lifestyles among the Metis see, for example Sealey, D.B. and Lussier, S., The Metis:  Canada's Forgotten People (Winnipeg: Manitoba Metis Federation Press, 1975) at 17-30; M. Giraud, The Metis in the Canadian  West, trans, G. Woodock (Edmonton: University of Alberta Press, 1986); E. Pelletier, A Social History of the Manitoba  Metis: The Development and Loss of Aboriginal Rights (Winnipeg: Manitoba Metis Federation 1987). This subject is discussed in further detail in chapter 4 of this thesis. 26. See, for example, Stanley, supra. note 23 at 107-125; Diary kept by the Reverend Father N.J. Ritchot when negotiating the entry of Ruperts Land into Confederation in 1870, trans. Berlitz Translation Service, Public Archives of Canada, Ottawa, photocopied 14; D. Sanders, "Metis Rights in the Prairie Provinces and the Northwest Territories: A Legal 52 Interpretation" in The Forgotten People: Metis and Non-Status  Land Claims in Alberta by H. Daniels (Ottawa: Native Council of Canada, 1979) at 10. There is some disagreement on whether Ritchot went beyond his delegated powers during the course of the negotiations. The development of the Metis as a distinct society and the negotiations leading to Manitoba joining confederation are discussed further in Chapter 4 of this thesis. 27. D. Sanders, id. at 8. 28. See, for example, discussion of early Metis settlement in Prince Albert, White Fish Lake, St. Albert, Lac la Biche, Lac St. Anne and St. Laurent (Batoche) in Stanley, supra. note 23 at 178-192; Tremaudan, supra. note 22 at 112-114; Metis Association of Alberta, supra. note 14 at 14-16; Sealey and Lussier, supra. note 25 at 91-109; 29. The sources on Metis history in the North West Territories are numerous. See, for example, Stanley, supra note 23 at 243-265 and 295-326; Sealey and Lussier, supra. note 25 at 111-132; Tremaudan, supra. note 22 at 112-159. Thomas Flanagan challenges the reasons for the 1885 insurrection arguing that the Metis wanted money, not land, and violence was not necessary to resolve Metis grievances. See, T. Flanagan, Riel  and the Rebellion: 1885 Reconsidered (Saskatoon: Western Producer Prairie Books, 1983) at 14-74. 30. See, for example, Flanagan id., at 80-81; 31. Arguments for the legitimacy of the provisional government are outlined in chapter 4 of this thesis. 32. Manitoba Act. S.C. 1870, c. 3; see also, supra. note 26. 33. Sanders, supra.. note 26. 34. These issues are discussed in further detail in Chapter 3. 35. See, for example Declaration on the Granting of Independence  to Colonial Countries and Territories. 1960. article 2 ; International Covenant on Civil and Political Rights, article I (1) ; International Covenant on Economic. Social and Cultural  Rights. article I (1) all reprinted in UNIFO, International 53 Human Rights Instruments of the United Nations 1948 - 1982 (Pleasantville: UNIFO Publishers, Ltd., 1983). 36. Western Sahara (1975) I.C.J. Reports 6. 37. M. Davies, "Aboriginal Rights in International Law: Human Rights", Chapter 13 in Aboriginal Peoples and the Law: Indian.  Metis and Inuit Rights in Canada by B.W. Morse (Ottawa: Carleton University Press, 1985) at 756. 38. Article 2, Draft Declaration of Principles for the Defence of  Indigenous Nations and Peoples of the Western Hemisphere. supra. note 19. 39. Indian law Resource Centre, Indian Rights - Human Rights:  Handbook for Indians on International Human Rights Complaint  Procedures (Washington D.C. : Indian Law Resource Centre, 1984) at 14. 40. M. Boldt and J.A. Long, "Tribal Traditions and European -Western Political Ideologies : The Dilemma of Canada's Native Indians", in The Quest for Justice, supra. note 7 at 344. 41. Metis Assoc. of Alberta, supra. note 14 at 16-17; see also 216-222. 42. See for example, D. Sanders, supra. note 18 at 263-267; R. Romanow, "Aboriginal Rights in the Constitutional Process" in The Quest For Justice, supra. note 7 at 73-82; R. Dalon, "An Alberta Perspective on Aboriginal Peoples and the Constitution" in The Quest for Justice supra. note 7 at 107-112. 43. See, for example, Dalon, id. at 96 and 105; Sanders, id at 236; and for a discussion on various academic views see Pentney, supra. note 2 at 181-188. 44. It is not unusual for tribes of different origins or registered Indian bands to be reorganized into a single band for administrative or other reasons. An example is the Saddle Lake Band in Alberta which was reorganized into a single band to facilitate the payment of annuities. 54 45. P. Hogg, Constitutional Law of Canada. (2d) (Toronto: Carswell, 1985) at 340-342; 657-659. 46. Dumont et al v. A.G. of Canada (17 June 1988) Winnipeg 152/87 at p 6-7 (C.A.) dissenting opinion. 47. Shorter Oxford English Dictionary. 3d, Vols. I and II (Oxford: Clarendon Press, 1975) at 67, 1055 and 1386. 48. See, for example, Re Eskimo [1939] S.C.R. 104 at 118 per Kerwin J; at 119 and 121 per Canon J. where the term "Indians" in s. 91(24) of the British North America Act. 1867 is defined as "all present and future aboriginal native subjects of the proposed confederation ...11 and R. v. Gueriny supraf note 5 at 376 per Dickson J. who with the concurrence of three other judges states the Crown's fiduciary relationship to Indian peoples has its "roots in the concept of aboriginal, native or Indian title." 49. Supra, note 3 at 757. 50. S. Weaver, "Federal Difficulties with Aboriginal Rights Demands" in The Quest for Justice, supra. note 7 at 146. 51. Id. at 146-147. 52. T. Flanagan, "The Case Against Metis Aboriginal Rights" (1983) IX Canadian Public Policy 314. 53. Id. at 321-322. 54. British North America Act. 1867, 30 & 31 Vict., c. 3. 55. B. Schwartz, First Principles: Constitutional Reform with  Respect to the Aboriginal People of Canada. 1982-84 (Kingston: Queens University Institute of Intergovernmental Relations, 1985) at 228. 56. See, for example, descriptions in B. Sealey, "One Plus One Equals One" in The Other Natives. supra. note 23 at 7-8; Purich, supra. note 14 at 10-12. E. Pelletier, supra. note 25 at 15-90. 55 57. Cherokee Nation v. Georgia. 8 L. ed. 25 (1831) at 26-27. 58. Id. at 27. 59. Worcester v. Georgia, 8 L. ed. 483 (1832). 60. See, for example, discussions of Canadian aboriginal cultures D. Jenness, The Indians of Canada. 7th ed. (Toronto: University of Toronto Press, 1977). 61. Indian Act. R.S.C. 1979, c. 1-6, s. 2(1). 62. R. v. Laprise [1978] 6 W.W. R. 85 (Sk. C.A.). 63. See, for example, Sanders, supra. note 26 at 20; A. Jordan, "Who Is An Indian?" [1977] 1 C.N.L.R. 22. 64. Re Eskimo, supra. note 48. Despite the Eskimo decision, the federal government has argued that 91(24) only applies to status Indians. See for example H. Daniels, "Legal Basis of Metis Claims: An Interview with Doug Sanders" in The  Forgotten People: Metis and Non-Status Land Claims in  Alberta. supra. note 26 at 94 and Chapter 2 of this thesis. 65. Id. 66. K. Lysyk, "The Unique Constitutional Position of the Indians" (1967) 45 Canadian Bar Review 513 at 515. 67. H. Daniels, We Are The New Nation. (Ottawa: Native Council of Canada, 1978) at 7-8. 68. C. Chartier, In the Best Interest of the Metis Child (Saskatoon: University of Saskatchewan Native Law Centre, 1988) at 46-49 and 31-32. 69. K. McNeil, "The Constitutional Act, 1982, Sections 25 and 35" [1988] 1 C.N.L.R. 1 at 4. 70. See, for example, R. v. Pritchard (1972) 9 C.C.C. (2d) 488 (SK. D.C); R. V. Generaux [1982] 3 C.N.L.R. 95 (SK.P.C); R.  v. Laprise, supra note 62. 56 71. Sanders, supra. note 18 at 257. 72. Dick V. R. (1985) 2 S.C.R. 309. 73. Re. Eskimo, supra, note 48. 74. See, for example, Sanders, supra. note 18 at 232 regarding the political atmosphere in which s. 35 came into being; Schwartz, supra. note 55 at 288. 75. See, for example, Chartier, supraf note 68 at 21; D. Sanders, "An Uncertain Path: The Aboriginal Constitutional Conferences" at 69; Metis National Council, Statement on Metis Self  Identity. Paper presented at the "Federal-Provincial Meeting of Ministers on Aboriginal Constitutional Matters", Toronto, Ontario, 13-14 February, Doc. 830-143/016; Gaffney, supra. note 11 at 22-25. 76. Manitoba Act, S.C. 1870, c. 3; Dominion Lands Acts. 1879, 42 Vict., c. 31; 1883, 46 Vict., c. 17. 77. For a more detailed discussion on whether Metis are s. 91(24) Indians see Chapter 2. 78. Purich, supra. note 14 at 13; Metis National Council, supra. note 75. 79. Redbird, supra note 22 at 1; Metis Association of Alberta, supra. note 14 at 2. 80. See, for example, J. Peterson and J. Brown, eds., The New  Peoples: Being and Becoming Metis in North America (Winnipeg: University of Manitoba Press, 1985) at 5; T. Berger, Fragile  Freedoms: Human Rights and Dissention in Canada (Toronto: Irwin Publishing Inc., 1982) at 33; J. E. Foster", The Metis: The People and the Term" (1978) 3 Prairie Forum 79 at 86-87. 81. Pentney, supra. note 2 at 96. 82. Metis Assoc. of Alberta, supra, note 14 at 10. 57 83. J.E. Foster, "Some Questions and Perspectives on the Problem of Metis Roots," in The New Peoples: Being and Becoming Metis  in North America, supra. note 80 at 73. 84. M. Dunn, Access to Survival: A Perspective on Aboriginal Self  Government for the Constituency of the Native Council of  Canada. Aboriginal Peoples and Constitutional Reform Series (Kingston: Queens University Institute of Intergovernmental Affairs, 1986) at 6. 85. J. Brown, "Metis," The Canadian Encyclopedia. vol. 2 (Edmonton: Hurtig, 1985) at 1124. 86. Metis National Council, The Metis Nation. Paper presented to the "United Nations Working Group on Indigenous Populations," August 1984 quoted in Peterson and Brown, supra. note 80 at 6. 87. There are numerous references on the question of scrip distribution. See, for example, N.O. Cote, "Grants to the Half-Breeds of the Province of Manitoba and Northwest Territories" (Department of the Interior, 1929) P.A.C. RG 15 Vol. 227; Metis Assoc. of Alberta, supra. note 14 at 118-151; D.N. Sprague "Government Lawlessness in the Administration of Scrip" (1980) 10 Manitoba Law Journal (no. 4) 415; Sanders, supra. note 26 at 9-19. The scrip system is discussed in Chapter 5. 88. See, for example, A. Morris, The Treaties of Canada with the  Indians of Manitoba and the Northwest Territories (Toronto: Bedford, Clarke and Co., 1880) at 294-195; Chapter 5. 89. See, for example, the Indian Act. 1876, 39 Vict., c. 18, s. 3(c); 1951, s. 12(l)a. 90. Sanders, supra. note 18 at 254. 91. Pentney, supra. note 2 at 97. 92. See, for example, R. v. Thomas (1891) 2 Ex. Ch. 607; Indian  Act. 1879, s. 3(e); Sanders, supra. note 13 at 11-16; chapter 5 of this thesis. 93 . Chartier, supra. note 68 at 3-4. 58 94. Dunn, supra. note 84 at 5-6. 95. Id. at 5-8. 96. Chartier, supra, note 68 at 22-23. 97. M. Dobbin, The One-and-a-Half Men: The Story of Jim Brady and  Malcolm Norris (Vancouver: Newstar Books, 1981) at 61. 98. Purich, supra. note 14 at 14. 99. A. Lussier, "The Metis: Contemporary Problem of Identity" in The Other Natives. Vol. 2 (Winnipeg: Manitoba Metis Federation Press and Editions Bois Brules, 1978) at 190-191; Manitoba Federation Inc., Manitoba Metis Rights Position Paper presented at the "Manitoba, 11 March 1983 at 11; J. Sawchuk, The Metis of Manitoba: Reformulation of An Ethnic Identity (Toronto: Peter Martin Assoc. Ltd., 1978) at 48. Lussier, id. at 191. Sawchuk, supra. note 99 at 12-13. J. Brown, supra. note 85 at 1125. Chartier, supra. note 68 at 16. Id. at 23. Dene/Metis Comprehensive Land Claim Agreement in Principle (Ottawa: Department of Indian Affairs and Northern Development, 1988) sections 3.1.9, 4.1 and 4.2. 106. Supra. note 17 at 328. 107. R. v. Guerin. supra, note 5 at 376. 100. 101. 102. 103. 104 . 105. 108. See, for example, supra. note 3. 59 109. Slattery, supra r note 3. 110. Supra. note 3, at 332. 111. Suprar note 46. 112. Dumont et al v. A.G. Can, and A.G. Man. (1987) 48 Man. R. (2d) 4 at 4 (Q.B.). 113. Supra. note 46 at 15-16 per Twaddle J. 114. Id. at 9-10. 115. Id. at 7. 116. Id. at 6 per O'Sullivan J. 117. Id. at 7. 118. Id. at 14. 60 CHAPTER 2 Jurisdiction Over Metis Claims I Are Metis s. 91(24) Indians? Section 91(24) of the BNA Act provides that the federal government has jurisdiction over "Indians and lands reserved for Indians." Although the federal government has generally limited the exercise of its jurisdiction to status Indians living on reserves, it is clear that the reference to Indians in s. 91(24) encompasses a larger group of aboriginal peoples than those included under the federal Indian Act regime. Whether federal jurisdiction extends to the metis is a question which interpretation, historical evidence, pre-and-post confederation statutes and political practice can be used persuasively to support two contradictory conclusions - the metis are s. 91(24) Indians or only those metis who lived the way of life of the Indians are s. 91(24) Indians. In their attempts to address this issue, academics adopt the approach taken by the Supreme Court of Canada in the Re. Eskimo 1 decision. In this decision historical evidence including official documents, government documents and published texts (which might be expected to be known to the fathers of confederation) were relied upon to conclude that Hudson's Bay Company officials, and Canadian and English parliamentarians regarded Eskimos as Indians at the time of confederation. All of the judges placed emphasis on ajCensus taken by the Hudsons Bay Committee contained in an 1857 Report to the Select Committee of the House of Commons. This 61 census listed "Esquimaux" peoples in enumeration of Indians and listed whites and half-breeds together in a separate category. Brian Schwartz argues that the exclusion of half-breeds from the Indian category and the oral testimony given to the select committee is evidence that the terms "half-breed" and "Indians" were used historically to characterize two distinct groups of 2 people. He argues that his position is consistent with the claim of the M.N.C. and a number of historians who trace Metis nationalism to the Red River area. He concludes that the "development of distinctive behaviour and ethnic self-consciousness among the half-breeds would have been a matter of which a Hudson's 3 Bay Governor would be well aware." On the other hand, Clem Chartier points out ambiguities in the Report and selects passages from the oral testimony of Hudson Bay officials to support an argument that half-breeds were included under the term Indians. Recognizing that the evidence in the Eskimo case is not concerned with metis issues and is capable of supporting opposite conclusions, Chartier argues that other sources must be consulted to determine the intention of parliament. Additional historical evidence cited by the author includes the 1837 Select Committee Report on Aborigines which distinguishes half-breeds from Indians but also includes them under the term "Indian", reports and correspondence which identify half-breeds as part of the tribe with whom they reside, and statements in Parliament concerning the renewal of the Hudson Bay Company's trading license which by their content logically include a reference to half-breeds. He concludes that the weight of historical evidence favours the inclusion of half-breeds in s. 62 91(24).5 The weakness of Chartier's analysis lies in his failure to address the emergence of the Metis Nation as a distinct socio economic cultural group who identified themselves as separate from both Indian and white society,6 historical evidence that suggests only those persons of mixed ancestry who lived like Indians were treated as Indians for legal purposes,7 and further evidence that those mixed bloods who did not live as Indians may have been viewed by Parliament as having no greater rights than the original white settlers in Ruperts Land (Manitoba) and the Northwest Territories (including Saskatchewan and Alberta).8 Viewed in this broader historical context, Chartier's evidence may also support the view that the half-breeds, and in particular the Metis Nation, were seen as a distinct people except for the limited purpose of allowing those who lived like Indians to be treated as Indians. Chartier addresses the argument that the Metis were a distinct people in a later publication entitled "In the Best Interest of the Metis Child." He points out that the distinctiveness of Metis culture can not be raised against the Metis as there is no such thing as a single distinct Indian people. He argues: While it is true that the Metis developed as a distinct aboriginal people, it is also true that the Inuit were distinct aboriginal peoples as well. In fact, it is beyond debate that there is a distinctiveness among the different nations or tribes of peoples commonly referred to as Indians. The Metis did develop into a distinct nation, vis-a-vis the Cree nation and the Ojibway nation. Basically, this can be characterized as a new nation or group affiliation of aboriginal/native/Indian peoples.9 In support of this argument, Chartier refers to correspondence to Nor'Wester William McGillivray referring to Cuthbert Grant, leader of the Metis against the development of the Selkirk colony and employee of the North West Company: 63 Nor'Wester William McGillivray admitted in a letter of 14 Mar 1818 that Grant and the others were linked to the N.W.C. by occupation and kinship. "Yet", he emphasized, "they one and all look upon themselves as members of an independent tribe of natives, entitled to a property in the soil, to a flag of their own, and to protection from the British government." Further, it was well proved "that the half-breeds under the denominations of bois-brules and metifs [alternate form of Metis] have formed a separate and distinct tribe of Indians for a considerable time back.10 Although the Eskimo decision did not consider pre-confederation statutes, subsequent case law has held that they are relevant to the interpretation of the B.N.A. Act.11 Chartier argues that the inclusion of half-breeds in the definition of "Indians" in pre-confederation legislation and the practice of the federal government to include them in treaty is further evidence that they were viewed by the government as Indians.12 Of particular interest are An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, 13 & 14 Vict. (1850) and An Act to Encourage the Gradual Civilization of the Indian Tribes in the Province and to Amend the Laws Respecting Indians 20 Vict. (1857). Section 5 of the 1850 legislation defines "Indians" as follows: . that the following classes of persons are and shall be considered as Indians belonging to the Tribe or Body of Indians interested in such lands: First - All persons of Indian blood, reputed to belong to a particular Body or Tribe of Indians interested in such lands, and their descendants. Secondly - All persons intermarried with any such Indians and residing amongst them, and the descendants of all such persons. Thirdly -All persons residing among such Indians, whose parents on either side were on are Indians of such Body or Tribe, or entitled to be considered as such: And Fourthly - All persons adopted in infancy by any such Indians, and residing in the Village or upon the lands of such tribe or Body of Indians, and their descendants. In 1851, the definition was changed to exclude non-Indian males married to Indian women and their descendants.13 The emphasis 64 on patrilineal descent continues under the federal Indian regime but is modified by the passing of Bill C - 31 which reinstated Indian women who lost status through marriage. The 1851 definition was carried into An Act Respecting Indians and Indian Lands. 31 Vict. (1868) Cap. 14 and An Act Providing for the Organization of the Department of Secretary of State of Canada and for the Management of Indian and Ordinance Lands. 31 Vict. (1868) Cap. 42 with minor modifications. A slightly different definition is found in the Act For Gradual Civilization of Indian Tribes, supra. Section one provides the following persons are to be covered: . . . shall apply only to Indians or persons of Indian blood or intermarried with Indians, who shall be acknowledged as members of Indian Tribes or Bands . . . ; and such persons and such persons only shall be deemed Indians within the meaning of any provision of the said Act or of any other Act or Law in force in any part of this Province by which any legal distinction is made between the rights and liabilities of Indians and those of Her Majesty's other Canadian subjects. The problem with relying on these statutes is they can also be used to support the argument that not all half-breeds were considered Indians because the half-breeds referred to in the legislation are reputed to belong to a particular tribe and are living among them. The term is not a racial term, but one that depends on an Indian way of life and familial and cultural ties. This argument gains greater force if one considers Alexander Morris' account of the negotiations of the numbered treaties shortly after Confederation. He states that only those half-breeds who lived as Indians could declare themselves as Indians and take treaty.15 Consequently without considering further archival evidence, arguments based on pre-confederation evidence are equally persuasive to support two opposite conclusions. 65 The resolution to the agreements may depend upon the weight given to post-confederation legislation, practice and case law. The importance placed by the judges in the Eskimo case on contemporaneous historical evidence to derive a historical definition of the term "Indian" in s. 91(24) suggests that the term is limited historically in its scope and the later in time the evidence, the less relevant it is. If, on the other hand, one places more emphasis on the finding that Indians are all aborigines within the territories to be included in confederation, a broader construction of s. 91(24) may be possible and later evidence may become more relevant. The question is not so much whether half-breeds were called "Indians", but whether they were considered an aboriginal people^ The strongest argument for metis being considered aboriginals lies in the recognition of the half-breed claim to Indian title in the Manitoba Act of 1870 and the Dominion Lands Acts of 1879 and 1883 and their ability to take treaty.16 At the time of the transfer of Manitoba to Canada, there were at least four distinct half-breed populations who lived in Manitoba: those who lived with the Indians, those of who had permanent homes close to the trading post and adopted the way of life of the white settlers; those who were semi-settled and lived by the buffalo hunt and freighting; and those who were semi-settled and lived by hunting, trapping and the buffalo hunt.17 The latter two groups joined together under the leadership of Louis Riel and opposed the transfer of Manitoba to Canada without protection of certain rights including provincehood and participation in government. This group is referred to by historians as the Metis Nation. Although the question of the negotiation of a protection to aboriginal rights in land is a matter of academic dispute, the negotiations clearly resulted in a grant of land to all half-breed people in Manitoba who did not take treaty in satisfaction of their claims to title. When Canada extended its territories to include the Northwest Territories, similar provisions were included in the Dominion Lands Act of 1879 and 1883. The system of distribution through the provision of scrip redeemable in land or money developed pursuant to those provisions were initially limited in their scope but were eventually extended to all half-breeds within Manitoba and the Northwest. Those who lived as Indians were given the option to take treaty or scrip. Later, those who accepted treaty and fell under the Indian Act regime were given the option to opt out of treaty and take scrip. Those who received scrip remained outside 18 • the provisions of the Indian Act and treaties. The recognition of Indian title in the above legislation coupled with the option given to half-breeds to take treaty is consistent with the view that they were considered an aboriginal people by the government at the time of confederation. Schwartz argues that s. 31 of the Manitoba Act does little to help resolve the issue. He states: The opening words of s. 31, taken at face value, provide some support for the inclusion of the Metis within s. 91(24). Having "Indian title", however, is not necessarily the same thing as being an Indian. It is necessary to examine the purposes of assigning jurisdiction over "Indian" to the federal level of government. The same s. 31 that refers to "Indian" title of half-breeds also contemplates extinguishing it. That done, there would be no need for Parliament to retain jurisdiction over Metis and Metis lands.19 67 The inherent weakness of Schwartz's argument is he fails to consider that the federal government continued to exercise jurisdiction over the metis after 1870. They legislated metis rights to land, money scrip and land scrip by statute and orders-m-council until as late as 1921. In December of 1895 the federal government established a reserve for metis people along similar lines of the prairie Indian reserves except control and management of the lands was given to the Roman Catholic church.21 The reserve lasted approximately 10 years and was opened for settlement in 1905. Since then, the federal government has signed land claims agreements with metis people in the Northwest Territories. They also provide limited financial support to metis and non-status Indians through funding of political organizations; grants for education, housing and business ventures; and core funding for the Urban Indian-metis friendship centres.22 The system adopted by the federal government can also support the argument that reference to Indian title in the above legislation was simply a matter of political expediency. The Metis were viewed by the federal government as having the same rights as other original white settlers who were also entitled to receive scrip.23 Their claim arises from being original settlers whose land holdings were threatened by government plans for settlement. This argument gains further support when one considers that the practice of the federal government towards Indians was to reserve lands for their use as collectivities and not to extinguish claims by individual allotments.24 Several points can be raised in response to this argument including: 1. The Metis Nation understood they were to be granted land as individuals, but the land granted was to be assembled into Metis townships or reserves;25 2. Individual grants were consistent with the government's Indian policy of "civilizing" so the system can not be taken as evidence that the metis are not Indians; 3. The government was likely influenced by the policy of the United States government at the time to breakdown tribal organizations through individual land allotments; 4. The fact that scrip was available to original white settlers does not mean the metis are not Indians, it means the system used to deal with their claims was not unique; and 5. The federal government did attempt to set up a reserve in 1895 for half-breeds when it realized the scrip system had failed (St. Paul de Metis in northern Alberta) and created separate half-breed reserves under the half-breed adhesion to Treaty No. 3. Once again, the result is two persuasive arguments support two contradictory conclusions. This ambiguity forces the academic to look at later statutes, case law and political practice. Once again, both Schwartz and Chartier are able to sue identical provisions of the Indian Act to support their case.26 Adopting the Chartier analysis, two recent lower level court decisions have held that the metis are Indians and one has held that they are not.27 Additional case law focusing on Indian legislation with a particular legislative goal such as 69 prevention of selling intoxicants to Indians and protection of 28 hunting and fishing rights, also vary in their findings. A second argument can be made that "Indian title" in s. 31 refers to claims by Indians, as distinct from metis, and the claims of the half-breeds are collateral claims resulting from the surrender of lands by the Indians. The foundations for a collateral claim are discussed in Chapter 4. At this juncture it is sufficient to point out that section 31 can be interpreted in different ways. Referring to the brders-in-council is of little help as they tend to adopt the exact wording of the legislation: "And whereas, it is expedient, towards the extinguishment of Indian Title to the lands in the Province ..." Although the wording in the Dominion Lands Act is different, the same interpretation problem arises. Section 125(e) reads "To satisfy any claims existing in connection with the extinguishment of the Indian title, preferred by the half-breeds . . .". However, it is clear in the statutes and subordinate legislation that whatever the basis of the claim, the intention of the federal government is to extinguish it. II Lands Reserved For Indians Section 91(24) gives Parliament jurisdiction over "Indians" and "lands reserved for Indians" as two distinct heads of power. Even though the federal government has denied responsibility for the metis, certain metis populations may have been brought within the jurisdiction of the federal government by the establishment of colonies or settlements modelled on substantially similar patterns as reserves established under the federal Indian Act. Of particular interest are the half-breed adhesion to Treaty No. 3, 70 St. Paul de Metis, the farm colonies in Saskatchewan and the metis settlements in Alberta. Professor Slattery suggests there are two types of reserves within the scope of s. 91(24). The first type he labels "aboriginal reserves." An aboriginal reserve is defined as land that has become permanently attached to a native group by virtue of original aboriginal title to those specific lands. The second type he labels "granted reserves." Title to lands forming granted reserves stems from statutory provision, Crown grant, or other similar instruments and is not associated with the common law doctrine of aboriginal title. An example of such lands are lands set aside for displaced Indian groups.29 Both types of reserves fall within the definition of "lands reserved for Indians" given by the Privy Council in the St. Catherine's Milling case. The Court held that "the words actually used are, according to their natural meaning, sufficient to include all lands reserved, upon any terms or conditions, for Indian occupation."30 If the term "Indian" is taken to include all aboriginals, four groups of metis would be brought under s. 91(24) through the creation of reserves. The first group are those half-breeds involved in the Adhesion to Treaty No. 3. On September 12, 1875, a group of Ontario metis negotiated entry into the treaty separate from the Indian signatories and were allotted separate reserves. However, in 1876, the metis at Couchiching, Ontario were forced to join a nearby Indian band and claim as Indians in order to receive treaty annuities. In 1967 the half-breed reserves were amalgamated with the Indian reserve.31 Having brought the half-breed lands under reserves as defined in the Indian Act, however, prior to 1967 the basis for jurisdiction was s. 91(27) and the federal government's treaty with the half-breeds. The second reserve created by the federal government was St. Paul des Metis.32 After the metis insurrection of 1885, many metis found themselves landless and poverty stricken. Reverend Father Albert Lacombe petitioned the federal government to establish four townships in the Buffalo Lake area of Alberta to help the half-breeds become self-supporting. The structure was similar to Indian reserves in that the designated lands were inalienable and vested in the Crown and whites were excluded from beneficial use of reserve areas. However, the metis reserve differed from Indian reserves in that administrative control was with a Board of Management composed of Roman Catholic Bishops (rather than a band council) and the townships were leased to the Episcopal Corporations of three Roman Catholic dioceses.33. For some, the reserve was seen as "another example of the superior way in which Canadians treated their native races."34 Others looked upon the reserve, favourably and unfavourably, as a humanitarian scheme.35 The reserve operated primarily as a farm colony and metis children were educated in Catholic schools on the reserve. The reserve lasted approximately 10 years and was opened for settlement in 1905. Although the intentions of the oblate fathers and the reasons for the failure of the reserve are subject to debate, it is undisputed that the federal government created the reserve and then abolished it 10 years later.36 The metis argue that the creation of the above two reserves is recognition of the existence of metis aboriginal title. According to Slattery's theory, the intent behind the creation of 72 the reserve and its link to the doctrine of aboriginal title is not necessary for the reserve to fall within s. 91(24). Consequently, regardless of the acceptance of the metis perception of these reserves, they could fall within s. 91(24). Based on the Supreme Courts decision in R. v. Guerin. Slattery argues that there is no significant legal difference between aboriginal and granted reserves and the Crown's fiduciary obligation is associated with Indian reserves of all sorts by virtue of their inalienability except to the Crown.37 If the metis establish a usufructuary right to St. Paul de Metis and Slattery's definition of a reserve is accepted, the federal government could be liable to claims arising from its disestablishment. Reserve-like colonies have also been established by the provincial governments in Saskatchewan and Alberta. The settlements in Alberta are created pursuant to the 1938 Metis Population Betterment Act. The metis argue that the Alberta settlements were established in recognition of aboriginal title and the government argues they were created as part of a general welfare scheme.39 Regardless of the intent, a statutory right of use was given to the Alberta metis and title was retained by the provincial government. Professor Sanders argues that the act of setting aside these lands was a recognition of metis usufructuary rights which could not be ended by the Province.40 This usufruct would have fallen under s. 91(24) prior to 1982. As the settlements were established through negotiation, arguably the agreements leading to the Act are treaties as treaties do not have to be called "treaties" or take on a particular form. Consequently, the settlements may be protected under s. 35(1) of 73 the Constitution Act f 1982. Even if the treaty argument is rejected, the usufructuary interest is protected as an "aboriginal right."41 In his discussion of aboriginal and granted reserves, Slattery does not address the question of which government creates the reserve to bring the reserve within s. 91(24) , but one would expect from the reasoning of his argument the question is not relevant. Once the reserve is granted, by whatever means, it falls within 91(24). Consequently, Slattery's analysis of s. 91(24) would also bring the Alberta metis settlements under federal jurisdiction.42 The problems associated with this conclusion are discussed later in this paper. Similar arguments can be made to bring the farm colonies in Saskatchewan under federal jurisdiction. With the exception of Lebret which was first established by the Oblates, the Metis Farms in Saskatchewan were set up by the government of Saskatchewan as residential, training and economic development projects for the Metis. Ten farms were established in predominantly metis communities between 1939 and 1969 pursuant to the Local  Improvements Districts Relief Act. 1940 s.s., c. 128 and the Rehabilitation Act. 1953 R.S.S., c. 245. The farms are operated by metis families and until recently were owned and operated by the provincial government.43 In 1986, title to the Lebret farm was transferred to Lebret Farm Land Foundations Inc. which is owned and operated by metis and non-status Indians in the district of Lebret.44 On the eve of the 1987 constitutional conference, Premier Grant Divine indicated his willingness to transfer title to the 74 remaining existing colonies to the metis and non-status peoples and to share resource revenues with the province.45 The current position of the federal government is that they do not have jurisdiction over metis and non-status Indians but they are willing to assume some responsibility for them as a disadvantaged people. The position of the Provinces varies. Both Saskatchewan and Alberta have designed specific schemes to benefit them, but only Alberta has indicated a willingness to accept full responsibility under their provincial jurisdiction. Ill Jurisdiction and the Question of Aboriginal Title 1. Land Claims Negotiations It is generally accepted that the powers given to parliament under s. 91(24) are permissive and not mandatory. Consequently, unless there is political will to assist the metis, the resolution of the jurisdictional debate may not get the metis any further ahead in their demands for land, benefits, programs and services afforded to other aboriginal peoples under the Indian Act regime. Certain factions of the M.N.C. and the N.C.C. have pressed the federal government to accept jurisdiction over their constituents because they feel the federal government is generally more sympathetic to native issues and is more likely to adopt a broad national view.46 In addition, the federal government can raise revenues by a variety of means - a matter of particular concern to metis living in a have-not province.47 The assignment of jurisdiction to the federal government gives rise to the argument that the metis are entitled to equal treatment as aboriginal peoples. Delia Opekokew argues that the practice of the federal government to refuse jurisdiction over metis and non status peoples has resulted in a failure of both the federal and provincial governments to recognize their aboriginal rights and has created inequity in the provision of programs and services to all aboriginal peoples. The decision of the federal government to exclude certain aboriginals from the Indian Act regime has also affected the protection of aboriginal rights by the courts which often limit protection of Indian Act Indians. She contends that all persons of aboriginal ancestry whose ancestors lead an aboriginal way of life should have equal rights and suggests that the controversy surrounding a claim to aboriginal rights by the Metis Nation may result in their lobbying to be recognized as a band under the Indian Act.48 The significance of Opekokew's argument in the context of aboriginal title is equity of access to a land base, a resource base beyond that available to other disadvantaged peoples, the process of negotiating title claims (example through land claims negotiations) and equality in the results of land claim negotiations. However, even if the federal government does not have jurisdiction they are not legally obliged to treat all aboriginals the same and may not necessarily be shamed into doing so. In support of this argument one could point to the permissive nature of s. 91(24), section 25 of the Constitution which states that the equality provision of the charter does not apply to aboriginal peoples, and the common law which recognizes aboriginal rights based on the unique histories and cultures of different aboriginal groups.49 Although there has been some discussion of 76 equal treatment of Indian Act Indians, the matter is far from resolved. Rather, the current position of the federal government is to deal with proposals for land settlements on a tribal basis. The conclusion that all metis and non-status Indians are not s. 91(24) Indians does not prevent the federal government from providing assistance to constituents of the M.N.C. and N.C.C. under other heads of federal power. Shared jurisdiction is constitutionally possible as the metis can be classified as aboriginal, disadvantaged or ordinary citizens of Canada and the provinces. Assuming the main concern of the provinces in refusing to accept jurisdiction is fiscal responsibility, the shift of focus from a jurisdictional debate to the establishment of federal-provincial cost sharing arrangements may do more to further the goals of the metis and non-status Indians. The federal government is already providing limited financial assistance and, as discussed above, are willing to provide assistance to the metis as "disadvantaged people." Consequently, one solution to this problem may be to guarantee existing levels of federal expenditures with a "no-off loading" rule acceptance of shared jurisdiction and establishment of mechanisms for tripartite land claims settlement negotiations. The question of jurisdiction cannot be completely sidestepped through cost-sharing as the answer to this question will also affect the determination of a constitutionally valid method of implementing land claims agreements. If bilateral negotiations are entered with provincial governments, the settlement of claims reached through negotiations may be ultra vires. On the other hand, bilateral negotiations with the federal government may produce the same result if negotiations involve the creation of a new land base as legislative powers do not carry property rights with them.50 Consequently, metis land claims are best dealt with by expanding existing land claims practices to include metis claims. Negotiations for self-government could be considered at the same time.51 Settlements would be implemented through tripartite agreements, such as the proposed Dene/Metis land claim and the James Bay Agreement, or perhaps through "delegation of legislation to the provinces with any necessary complimentary legislation then being passed by parliament."52 As tripartite negotiations are cumbersome and necessarily lengthy, negotiations could be concentrated with one or the other government depending on whether more than simply a land base is being negotiated (eg. self-government) and the powers affected, but leaving access to the talks open to both governments. The main problem with insisting on federal jurisdiction only is the potential affect this could have on existing metis programs and settlements. As an example, let us consider the metis settlements in Alberta. Unlike the colonies in Saskatchewan, the metis settlements are created pursuant to legislation aimed specifically at the metis as a distinct class of people. The government of Alberta has advocated a made-in-Alberta approach to resolving questions of metis title and metis self-government. On July 6, 1988 Solicitor General Ken Rostad introduced two bills in the Alberta legislature designed at transferring title in the Alberta metis settlements to the metis people and delegating self-governing powers to individual settlement corporations and the Metis Settlements General Council composed of elected councillors 78 from the settlement corporation and independently elected officers. Bill 65, the Metis Settlements Lands Act, authorizes the issues of letters patent for metis settlement lands to the Metis Settlements General Council with ownership of minerals remaining with the Crown. Bill 64, the Metis Settlements Act, gives the two levels of government specific by-law and revenue raising powers similar to those of a municipal government. The by-law making powers are subject to transitional Ministerial approval for a specified period of time and the Minister retains extensive regulatory powers. In order to give metis lands constitutional protection, the government proposes entrenching metis title through an amendment of the Alberta Act.53 There are two problems with this "made in Alberta" approach. The failure to entrench the Metis Settlements Act in a constitutional accord, schedule or through some other means results in the ability of the provincial government to unilaterally terminate what they have established. The second relates to the question of jurisdiction. If the metis are s. 91(24) Indians, the present Metis Betterment Act and proposed legislation could be characterized as legislation in relation to Indians and thus ultra vires. Arguably any actions taken pursuant to this legislation would be invalid. For those metis in Alberta who are benefitting from this system and have negotiated the proposed self-governing scheme, a reference of the jurisdictional question to the courts could cause significant problems. Arguments can be made that the establishment of settlement lands places the metis settlements under federal jurisdiction pursuant to their power over lands reserved for Indians,54 but even if this argument were accepted it 79 would not have the effect of validating provincial self-government legislation. Rather it would have the opposite effect. One can only assume that the court would attempt to find some way to uphold a system agreed to by the province and the metis and unopposed by the federal government. However, the best solution would be for the federal government to endorse the existing scheme to avoid jurisdictional problems. Recognizing this dilemma, the following draft amendment to deal with jurisdiction was put forward by the M.N.C. at the 1987 First Ministers' Conference on aboriginal matters: 35(6) The Government of Canada and the Provincial Governments are committed to entering into negotiations directed towards concluding agreements with representatives of the Aboriginal Peoples relating to the land and resources, jurisdiction and financial arrangements for aboriginal self-government.(7) Notwithstanding Clause 24 of section 91 of the Constitution Act, 1867; the Parliament of Canada and the legislature of a Province shall have the competence to enact laws within their legislative authorities required for the implementation of the agreements with the Metis people as referred to in Sub-section (6) ,55 The federal government responded with a more expansive clause which would not assist the metis if they were found not to be s. 91(24) Indians. The clause was rejected by the aboriginal representatives.56 Chartier explains the intent of the proposed M.N.C. amendment as follows: The intent behind this amendment is to overcome the impasse, as well as allow the provincial members of the Metis National Council an opportunity to pursue either tripartite or bilateral agreements or both, primarily with the provincial governments. This, for example, would have made it possible for the Metis of Alberta to pursue rights under the Alberta government's preference for a made-in-Alberta agreement. It would also have accommodated the Alberta Metis Betterment Act and its successor legislation.57 80 An agreement on jurisdiction has not been reached. In Alberta, the provincial government is continuing with its approach of bilateral negotiations and implementation through provincial legislation. In Manitoba, the metis are involved in tripartite negotiations.58 2. Land Claims Litigation The question of jurisdiction has little effect on the selection of a defendant if the compensation sought is land as the province will necessarily be involved.59 Further, relief will likely be claimed based on actions of the federal government, such as the half-breed land grants in the Manitoba Act and the scrip distribution program. If liability of the Federal Crown is in issue directly or indirectly, the Federal Crown must be joined as a party.60 If the action raises a question of constitutionality of a federal or provincial enactment or the question of jurisdiction, most provinces have legislation that requires notice to the Attorney General for Canada and the relevant province.61 The question of jurisdiction may become significant in selecting the proper court. The general rule is that the Provincial Superior Courts have jurisdiction in all matters subject to the federal power to establish courts for the better administration of the "laws of Canada" under s. 101 of the B.N.A.  Act. 1867.62 This phrase has been interpreted to include any matter within Parliament's legislative competence. However this interpretation has been altered to allow provincial court jurisdiction as long as the liability of the Federal Crown is not 81 at issue.63 Consequently, unless the action is based on acts of the federal government, it may be necessary to bring a metis title case in the federal courts if the federal government continues to deny jurisdiction. Given the recognition of metis aboriginality in s. 35(2), this may be a purely academic point unless the federal government asserts that there is jurisdictional overlap in some aboriginal rights matters. Given the Federal Crown's current position that the metis are not s. 91(24) Indians, they are unlikely to accept that all aboriginal rights matters fall within s. 91(24) unless they deny "existing" metis aboriginal rights.64 This approach treats the inclusion of the term "Metis" in s. 35(2) as political "fluff" because the metis do not have aboriginal rights. It is beyond the scope of this thesis to examine the advantages and disadvantages of proceeding in the federal and provincial courts. The main concern for the litigant is the delay associated with the federal court because of less frequent sittings. Generally speaking, the question of jurisdiction is of little significance in the realm of civil procedure. Jurisdiction is relevant to questions of liability and compensation. The risks of finding one government liable to the exclusion of the other are set out above. This is the major concern associated with litigation and the reason why negotiated settlements are more advantageous to the metis in addition to the standard advantages of cost, expediency and public relations. 82 IV Conclusion Although much of the debate has focused on archival evidence supporting the meaning of the term "Indian" in s.91(24), the author submits that the question may not be one of historical definition so much as constitutional interpretation. The historical development of Indian cultures, customary and contemporary rules of membership, reformulation of aboriginal identity into status and non-status Indians, extension of legal definitions to include non-aboriginal groups and political practice of the federal and provincial governments suggests the definition of "Indians" in 91(24) is not a closed category. This position is supported by the Re. Eskimo decision which anticipates a prospective definition by defining Indians as "all present and future aboriginal native subjects of the proposed confederation of British North America."65 The contemporary term "Indian" has taken on many dimensions as foreseen by the Fathers of Confederation. These dimensions are reflected in the definition of aboriginal peoples in s.35(2) of the 1982 Constitution, a provision which should not be ignored in identifying federal jurisdiction. The fact Parliament chooses not to exercise jurisdiction over certain groups of aboriginals in s.35(2) does not mean they cease to be s.91(24) Indians as Parliament cannot alter the constitution by legislation or policy66. It simply means the exercise of jurisdiction is permissive, not mandatory. The question of jurisdiction has received considerable attention by the M.N.C. and N.C.C. However, resolving the jurisdiction debate will not place a positive obligation on either government to respond to metis grievances. Such an obligation will 83 have to have a source in law (eg. fiduciary obligation of the Federal Crown towards Indians) or arise from specific legislation (eg. Metis Betterment Act) to be enforceable. As jurisdiction has little impact on civil procedure, if obligations can not be agreed upon, the jurisdictional debate will not create an impasse to litigation. Unfortunately, litigation may be inevitable if the federal and provincial governments continue to associate obligation with jurisdiction and refuse to share jurisdiction over the metis as aboriginal citizens. For the metis, a reference to the Supreme Court is of little assistance if it deals only with jurisdiction and fails to address the question of obligation. Even so, litigation is dangerous because it may have negative ramifications. Nevertheless, it is unlikely shared responsibility will occur unless a decision is made about the validity of scrip distribution as a method of extinguishing metis rights. The reason for this is the federal government has indicated it will accept jurisdiction over metis only if they are given provincial lands. Prime Minister Trudeau justified this position by saying the fathers of confederation intended to exclude Indian lands when Crown lands went to the provinces.67 However, the issue is not that simple as metis claims were dealt with on a different basis than other Indian lands. Arguably, the practice of individual land allotment through federal legislation satisfied metis claims prior to Manitoba, Alberta and Saskatchewan obtaining ownership of Crown lands. These provinces could argue that metis lands were not intended to be excluded because they did not exist in the eyes of the law and, if they did, the federal government believed metis claims were extinguished. 84 Consequently, the question of "existing" metis title will likely have to be resolved by the courts before land claims agreements can be reached. It is the writer's opinion that the issue of jurisdiction is best left out of the litigation process and addressed in the settlement process once title issues have been resolved. Given the cost, length and evidentiary problems associated with aboriginal title litigation, it would be in the interests of the metis to have title questions resolved outside of the litigation process. However, the Dumont litigation suggests that the federal government, provincial government of Manitoba, or both are placing significant emphasis on the receipt of scrip in current • • • • 68 • • • Manitoba land claims negotiations. As indicated by Mr. Justice Twaddle, the purpose of the current litigation is Manitoba is to • 69 help the Manitoba metis reach a land claims settlement. However, Twaddle believes more than legal considerations will have to be addressed to resolve metis claims and thus decides the determination of the constitutional validity of the scrip program will not be determinative in land claims negotiations. The decision of Mr. Justice Twaddle is currently under appeal. 85 CHAPTER 2 ENDNOTES 1. See, for example, Clem Chartier, "Indians: An analysis of the Term Used in s. 91(24) of the British North America Act, 1867," (1978-79) 43 Saskatchewan Law Review 39; B. Schwartz, "The Metis and s. 91(24): The Legal History" and "The Metis and s. 91(24): Policy Aspects" chapters in First Principle:  Constitutional Reform with Respect to the Aboriginal Peoples  of Canada, 1982 - 1984 (Kingston: Institute of Intergovernmental Relations, Queens University, 1985). 2. Schwartz, id. at 205-210. 3. Id. at 209. 4. Chartier, supra. note 1 at 42-49. 5. Id. at 51-59. 6. See, for example, Metis National Council, Statement on Metis  Self-Identity. Paper presented at the Federal-Provincial Meeting of Ministers on Aboriginal Constitutional Matters" Toronto, Ontario, 13-14 February, Doc. 830-143/016; F.G. Stanley, The Birth of Western Canada (Great Britain: Longman's Green and Co. Ltd., 1936; reprint, Toronto: University of Toronto Press, 1960) at 48-49; A.S. Morton, "The New Nation: The Metis" in The Other Natives. Vol. 1., eds. D.B. Sealey and A. Lussier (Winnipeg: Manitoba Metis Federation Press and Editions Bois Brules, 1978); D. Bruce Sealey and A. Lussier, The Metis: Canada's Forgotten People (Winnipeg: Manitoba Metis Federation Press, 1975);E. Pelletier, A Social History of the  Manitoba Metis: The Development and Loss of Aboriginal Rights (Winnipeg: Manitoba Metis Federation, 1974) ; H. Adams, Prison  of Grass (Toronto: General Publishing, 1975) at 48-50. 7. See, for example, A. Morris, The Treaties of Canada with the  Indians of Manitoba and the Northwest Territories. (Toronto: Bedford, Clarke and Co. 1880) at 294-295; W. F. Pentney, The  Aboriginal Rights Provisions in the Constitution Act. 1982 (Saskatoon: University of Saskatchewan Native Law Centre, 1987) at 88; Schwartz, supra. note 1 at 218-220. 8. See, for example, T. Flanagan, "The Case Against Metis Aboriginal Rights," (1983) ix Canadian Public Policy 314 at 318-319. 86 9. C. Chartier, In the Best Interest of the Metis Child (Saskatoon: University of Saskatchewan, Native Law Centre, 1988) at 40-41. 10. Id. at 41 quoting J. Brown, "Metis" in The Canadian  Encyclopedia. Vol. 2 (Edmonton: Hurtig, 1985) at 1126. 11. A.G. Canada v. A.G. Ontario [1896] A.C. 348 at 351. 12. Chartier, supra. note 1 at 57-63. 13. An act to repeal the 1850 definition, 14 and 15 Vict. (1850) c. 59. 14. Schwartz, supra. note 7. 15. Norris, supra note 7; see also E. Foster "The Metis: The People and the Term" (1978) 3 Prairie Forum 79 at 83. 16. Manitoba Act. S.C. 1870, c. 3, s. 31. Dominion Lands Act. 1879, 42 Vict. c. 31, s. 125(e). Dominion Lands At. 1883, 46 Vict. c. 17, s. 81(e) & 83. Of particular interest is the half-breed adhesion to Treaty No. 3. They negotiated separately from the Indians and had separate reserves allotted to them but in 1876 they were forced to join a nearby Indian band. 17. See, for example, Sealey and Lussier, The Metis: Canada's  Forgotten People, supra. note 6 at 13-73; Morris, supra. note 7; Foster, supra. note 15 at 80-87; D.B. Sealey, Statutory  Land Rights of the Manitoba Metis (Winnipeg: Manitoba Metis Federation Press, 1975) at 4-50; G.H. Sprenger, "Metis Nation: Buffalo Hunting v. Agriculture in the Red River Settlement" in The Other Natives, supra, note 6 at 115-125. 18. Chartier, supra, note 1 at 64; D. Sanders, "A Legal Analysis of the Ewing Commission and the Metis Colony System of Alberta", Paper prepared for the Metis Assoc. of Alberta, Edmonton, Alberta, April 14, 1978, at 11-15. 19. Schwartz, supra. note 1 at 222. 87 20. Legislation included the Dominion Lands Act of 1879 and 1883, supra. note 16 and various provisions in early Indian Act legislation. There are numerous orders-in-council- passed pursuant to the Manitoba Act and Dominion Lands Act. Some are quoted in this thesis. An excellent summary can be found in D. Sanders, "Metis Rights in the Prairie Provinces and the Northwest Territories: A Legal Interpretation" in H. Daniels, The Forgotten People: Metis and non-status Indian Land Claims (Ottawa: Native Council of Canada, 1979) at 10-13. 21. P.C. No. 37233, 28. Dec. 1895. The establishment of St. Paul de Metis is discussed in further detail later in this chapter. 22. D. Purich, The Metis (Toronto: James Lorimer and Company, Publishers, 1988) at 176. 23. Flanagan, supra. note 8. 24. Schwartz, supra. note 1 at 222. 25. Dumont et al v. A.G. of Canada and A.G. of Manitoba (17 June 1988) Winnipeg, 152/87 at 10 (C.A.); G.F. Stanley, "Canada's Half-Breed Reserve, St. Paul des Metis" in The Other Natives. Vol. 2, supra. note 6 at 78. See also the discussion of consensual extinguishment in Chapter 5, Section II, 2(b). 26. Schwartz, supra. note 1 at 225 and Chartier, supraf note 1 at 60-61. 27. R. v. Generaux [1982] 3 C.N.L.R. 95 (SK P.C); Ontario Public  Employees Union v. Ontario Metis and Non-Status Indian Assoc. [1980] 3 C.L.R.B. 328 (Ont. L.R.B.); contra. R. v. Rocher [1982] 3 C.N.L.R. 124 28. See, for example, R. v. Howson (1984) 1 Terr L.R. 492; R. v.  Pritchard (1972) 9 C.C.C. (2d) 488 (SK.D.C); R. v. Verdi (1914) 23 C.C.C. (N.S. Co. Ct.). Contra.. R. v. Hughes (1906) 12 B.C.L.R. 290; R. v. Budd [1979] 6 W.W.R. 450 (SK.Q.B.); R.  v. Laprise [1978] 6 W.W.R. 85 (SK.C.A.) 29. B. Slattery, "Understanding Aboriginal Rights" (1987) 66 Canadian Bar Review 727 at 769 - 774. 88 St. Catherines' Milling and Lumber v. R (1888) IX A.C. 46 at 59 (P.C.). Native Council of Canada, A statement of Claim Based on the  Aboriginal Title of Metis and Non-Status Indians (Ottawa: Native Council of Canada, 1980) at 12; P.A.C. R.G. 10, Vol. 2313, File 62509-2. Supra. note 21. For a general discussion of the structure and operation of the reserve see G.F. Stanley, supra. note 25 at 75-707; Metis Assoc. of Alberta, J. Sawchuk and T. Ferguson Metis Land  Rights in Alberta: A Political History (Edmonton: Metis Association of Alberta, 1981) at 159-185; Lacombe, "A Philanthropic Plan to Redeem the Half-Breeds of Manitoba and the Northwest Territories" 27 March 1985, P.A.C, R.G. 15, Vol. 708, file 360-530. The Globe, Toronto, 12 February 1896, quoted in Stanley, id. at 84. Stanley, id. at 84-85. See, for example, Metis Assoc. of Alberta, supra. note 33 at 172-182. Guerin v R [1984] S.C.R. 335; Slattery, supra. note 29 at 771. The Metis Population Betterment Act. S.A. 1938 (2nd Sess.), c. 6 See, for example, Metis Assoc. of Alberta, supra. note 33 at 187-214; Alberta Federation of Metis Settlement Associations, Metisism: A Canadian Identity (Edmonton: Alberta Federation of Metis Settlement Associations, 1982) at 57; Policy and Planning Branch, Native Affairs Secretariat, Government of Alberta, Background Paper No. 6 The Metis Betterment Act:  History and Current Status (Edmonton: Native Affairs Secretariat, 1985) at 1-6. Attorney General for Quebec v. Attorney General for Canada. (1921) 1 A.C. 401; D. Sanders, "Metis Aboriginal Title", Appendix I in Metisism. id. at 58-63. 89 41. Canada Act. 1982 (U.K.), 1982, c. 11 42. Slattery, supra. note 29 at 773. 43. "Central Farm is Established to Help Metis", Leader Post. Regina, 14 September 1940; Glen Benedict, Senior Negotiator, Lands, Treaty Entitlement and Resources, Government of SK. to C. Bell, Oct 28, 1988; Sealey and Lussier, The Metis: Canada's  Forgotten People, supra. note 6 at 153-154. 44. Saskatchewan Indian and Native Affairs Secretariat, "Lebret Farm Transfer to Metis and Non-Status", news release, 18 August 1986. 45. Supra. note 22 at 200. 46. Id. at 177; Schwartz, supraf note 1 at 184-185; Native People  and the Constitution of Canada: The Report of the Metis and  Non-Status Indian Constitutional Review Commission, by H.W. Daniels, Commissioner (Ottawa: Ontario Mutual Press, 1981) at 30-31; R.E. Gaffney, G.P. Gould and A.J. Semple, Broken  Promises: The Aboriginal Constitutional Conferences (New Brunswick: N.B. Assoc. of Metis and Non-Status Indians, 1984) at 60. 47. Schwartz, id. at 186. 48. D. Opekokew, The Political and Legal Inequities Among  Aboriginal People in Canada, Aboriginal Peoples and Constitutional Reform Series (Kingston: Queen's University Institute of Intergovernmental Affairs, 1987). See also Schwartz, id. at 187-188; Gaffney, supra note 46 at 71; Chartier, supra. note 9 at 52-53. 49. Schwartz, id. 50. Opekokew, supra. note 48 at 33-34. 51. See, for example, proposals in Metis National Council, Options  for the Implementation of Metis Self-Government. Paper presented at the "Federal-Provincial Meeting of Officials on Aboriginal Constitutional Matters", Working Group 3, Ottawa, Ontario, 14-15 December 1983, at 4. 90 52. Schwartz, supra. note 1 at 184. 53. Bill 65, Metis Settlements Land Act. 3d. Sess, 21st Leg. Alta., 1988; Bill 64, Metis Settlements Actf 3d., Sess, 21st Leg. Alta, 1988; Don Thomas, "Bills Give New Hope to Metis", Edmonton, The Edmonton Journal, 6 July 1988, B.l. 54. Sanders, supra. note 40. 55. Quoted in Chartier, supra. note 9 at 47-48. 56. Chartier, id. at 48 - 49. 57. Id. at 48. 58. Purich, supra. note 22, at 200-201; id. at 58-59. 59. Supra, note 50. 60. Crown Liability Act. R.S.C. 1970, c. C-38. 61. See, for example, Judicature Act. R.S.A. 1980, c. J-l, s. 25; 62. Northern Pipeline Agency v. Perehinec [1983] 2 S.C.R. s.13 at 521-522; R. v. Thomas Fuller Construction Company 1958 Ltd. [1980] 1 S.C.R. 695 at 173; A.G. Canada v. Law Society of  British Columbia [1982] 2 S.C.R. 307 at 328-329. Note that the Federal Court Act. R.S.C. 1970, c. 10 (2d) Supp., s. 17(1) gives jurisdiction to the Federal Court where relief is claimed against the federal Crown. However, the constitutionality of this section has been challenged and Parliament is intending to amend the section to allow civil suits against the Federal Government in Provincial Superior Court. 63. Minister of Justice v. Berowski [1982] 1 W.W.R. 97 at 99 (S.C.C.). 64. Accepting that metis are s. 91(24) Indians, Slattery argues aboriginal rights are within s. 91(24) as they are "intimately connected with the special status and capacities of Indian peoples and the possession and use of their lands." Slattery, 91 supra note 29 at 775. Relying on R v. Dick [1985] 4 C.N.L.R. 55 (S.C.C.), Chartier suggests that for aboriginals not covered by the Indian Act, "provincial laws of general application which affect their 'Indianness1, •Inuitness1, or Metisness1 have to be read down in order not to constitutionally offend s. 91(24). 65. Supra.. note 1 at 118, 119 and 121 (emphasis added). 66. K. Lysyk, "The Unique Constitutional Position of the Indians" (1967) 45 Canadian Bar Review 513 at 515. 67. Schwartz, supra. note 1 at 192. 68. Supra. note 25. 69. Id. at 8. 92 CHAPTER 3 A NATURAL LAW THEORY OF ABORIGINAL TITLE Introduction Generally speaking, commentators on the origins of aboriginal title can be divided into two groups. One group adopts a functionalist approach maintaining that British colonial policy and practice in North America was pragmatic and not necessarily related to the recognition of indigenous rights as a question of law. The other group link principles of international law, British colonial law, or both, to British practice in the American colonies in an attempt to develop a coherent theory on the common law doctrine of aboriginal title. Both groups engage in critical legal analysis of domestic and international positive law and may make reference to the role of native customary law in the positivist legal regime. Very little attention has been given to the natural rights of indigenous peoples and the extent to which these rights have been recognized or ignored in the positivist tradition. The ruling of the Supreme Court of Canada in Guerin v. R. has reopened the question of the source of aboriginal title and its recognition in Canadian common law.1 In Guerin. Chief Justice Dickson wrote an opinion (concurred in by Beetz, Chouinard and Lamer J.J.) upholding the existence of aboriginal title as a legal right which both pre-dated and survived claims to sovereignty in North America by European nations. According to Dickson C.J., aboriginal title is a legal right which arises from historic use and occupation of tribal land independent of Canadian or British 93 acts of recognition. The legal interest created by this right is classified as "sui generis" and is considered inappropriately described by terminology drawn from general property law.2 Dickson's statement on aboriginal title has been interpreted in a variety of ways. For example, Douglas Sanders argues Guerin recognizes rights based on the "pre-contact Indian legal order" and in this sense "represents a major change in judicial premise."3 Brian Slattery suggests that the decision upholds a uniform common law doctrine of aboriginal rights distinctive to Canada existing independently of statute or executive order and originating in English colonial law.4 Others appreciate the significance of confirming the existence of native title as a legal interest, but trivialize the statements by Dickson on the source and uniqueness of the right by reducing its "sui generis" nature to a difficulty in finding appropriate descriptive legal terminology.5 However, there is one matter upon which all authors are likely to agree. This is the willingness shown by the court to reconsider the broad principles upon which claims to aboriginal title are based. The use of the phrase "sui generis" by Chief Justice Dickson is not accidental or without meaning. This same terminology is adopted by him one year later to describe the legal nature of Indian treaties. Assuming as a rule of international law that treaties can be terminated by subsequent hostilities, Dickson C.J. states: While it may be helpful in some instances to analogize the principles of international law to treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement sui generis which is neither created or terminated according to rules of international law.6 The classification of aboriginal and treaty rights as "sui generis" suggests that the law of aboriginal title in Canada is not a closed set of legal relations determined by international or common law theories on the origins and acquisition of property rights. Both the Guerin and Simon decisions raise two important questions in that regard: 1) in what circumstances will courts apply principles of domestic common law and international law? and 2) what is the alternative source of principles to be applied? The alternative sources which immediately come to mind are natural law and native customary law. This chapter will examine the independent moral validity of aboriginal title in the natural law tradition and the extent to which natural theories have been incorporated into domestic and international positive law. My aim is not only to link the doctrine of aboriginal title to natural law theories of property, but also to illustrate the cautious return to first principles of natural law by Canadian courts in the area of aboriginal title claims. The idea of natural law as a valid basis for legally enforceable title claims becomes clear in the influence it has exercised in shaping the positive law on aboriginal title. I Introduction to the Natural Law Tradition 1. A General Survey of Basic Principles Simply stated, natural law can be defined as "a body of primary principles governing the obligatory conduct of men towards one another."7 It is "natural" in the sense that it "derives from the natural function of man's faculties and the natural inclination to exercise them." Principles of natural law are determined by reason and are innate in human beings. The capacity to reason that distinguishes humanity from other forms of life. Natural Law theorists differ in their opinions on the role of the divine in human reasoning. However, all posit the existence of a higher legal order from which fundamental principles of law governing the correct order of human society are derived. Again, theorists differ on the role of positive law (legislated and judge made) within a natural law regime, but all would argue that positive law can be measured against the rational and moral validity of natural law precepts. These precepts are more than public opinion because they are constant and not subject to majority rule or the vicissitudes of juridical institutions. Simply put, in the natural law regime, law is reason unaffected by desire and humans, as rational creatures, are subject to this law. The theory of natural law finds its origins in ancient Greek philosophy and Roman Stoicism.9 Both introduced a moral and universal aspect to the concept of law in the application of a "just" law to all men of reason. Both also assume positive law will be made in a moral framework towards the attainment of a good life.10 Aristotle explains relationship as follows: I regard law as either particular or universal, meaning by 'particular' the law ordained by a particular people for its own requirements, and capable of being sub divided into written and unwritten law, and by 'universal' the law of nature. For there exists, as all men divine more or less, a natural and universal principle of right and wrong, independent of any mutual intercourse or compact.11 Later in this work Aristotle defines particular law as the statutes of a given state and universal law as universally recognized principles of morality.12 In Ethics. he admits that it is not always obvious which rules of morality or "justice" are natural and which are conventional (i.e. imposed by agreement and no original natural reason for formation) but that it remains true there is both natural and conventional justice.13 However, the justice or injustice of a particular act is clearly identifiable by its voluntariness. We blame the doer and, with that, his deed becomes an unjust act."14 Stoicism also assumes that moral law has natural origins. However, the Stoics introduced variables into the Greek philosophy of natural law such as the distinction between necessary and accidental or circumstantial human nature (the latter of which is not considered essential to the moral nature of man), the concept of "humane" law, the rejection of "unequal moral capacity used to justify slaves "by nature," and the idea of man being born into two communities - the cosmopolis or universal rational order (joining men together by universal goodwill, love, and reason) and the native city or state. In the cosmopolis, prejudices associated with race and class are subordinated to a sense of universal kinship shared by men of reason. Stoic philosophy is the foundation of the principles of fairness and fundamental equality of man introduced into the Western legal tradition by Roman law.15 Perhaps the most prominent of the Stoic philosophers was Cicero. According to Cicero, legislation which contravenes principles of natural law is not law. Cicero explains this position as follows: 97 There is in fact a true law - namely right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong.Its commands and prohibitions always influence good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible.16 In light of the eternal law (reason), Cicero views all men as equal and deserving of a measure of human dignity and respect.17 The idea that the moral validity of positive law can be measured against rules of natural law has been maintained throughout the development of the natural law tradition. The natural law tradition is also heavily influenced by medieval Christian philosophy. Of particular influence are the writings of St. Thomas Aquinas which apply Christian principles to Aristotelian and Stoic philosophies of law. Aquinas accepts the ancient principle that natural law measures the actions of men and the guiding principle of law is reason. However, he differs from the ancients in the attribution of an eternal Divine reason to the Christian God and the recognition of Divine reason as the ultimate force behind action. According to Aquinas, human reason is derived from God and is subject to Divine reason (Eternal Law). Divine reason, or will, is the driving force behind nature and man's natural inclination towards perfection and moral order. For Saint Thomas, human reason and eternal law are not synonymous. Rather, man participates in eternal law by recognizing through human reason, which actions are right and wrong (natural law) or through scripture revelation (divine law).18 98 According to St. Thomas, one of the dictates of natural law is "That society is a demand of nature and . . . the individual is naturally a part of society."19 The assumption of man's natural inclination to socialization is not a new concept, but takes on significance in the Thomist tradition because of its relationship to the common good. As a member of society, the individual goods basic to human nature towards which a moral person will strive (such as knowledge and self-sufficiency) may become subject to the common good of society. Legitimate law within a given society is law ordained to the common good. Positive law in this context is legitimacy derived from natural law and is "nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated."20 The concepts of "common good" and basic goods of human nature have survived the evolution of natural law and remain important concepts in contemporary legal philosophy. In the Thomist tradition common good is more than the sum of basic individual goods. Further, there is not a single common good but a hierarchy of common goods ordered in accordance with right reason. At the top of the hierarchy is the common good of the human race which St. Thomas defines in terms of universal peace and happiness.21 The descending hierarchy of common goods reflects the hierarchical unity of the church and humanity. St. Thomas describes the hierarchy as follows: . . . wherever many governments are ordained to one end, there ought to be one universal government over particular governments; because in all virtues and arts, as is pointed out in the first book of Ethics [Chapter 1], there is an order according to the order of ends. For the common good is more divine than a special good; 99 and therefore since the whole church is one body, if this unity is to be preserved, it is necessary that there be a certain governing power above the episcopal power with respect to the whole church, by which each particular church is ruled. . . [I]nasmuch as one congregation or community includes another; just as the community of a province includes the community of a city; and the community of the kingdom includes the community of a province; and the community of the whole world includes the community of a kingdom.22 Philosophies of natural law from the 13th century onward incorporate ancient and Thomist precepts of natural law subject to certain modifications. The major change in the tradition is the secularization of natural law precepts and the gradual removal of ethnocentric bias. It is beyond the scope of this thesis to give an exhaustive account of the nuances introduced by the various philosophers, but a brief mention of prominent theorists may be useful in understanding their contribution to the positive law of nations and, in particular, the acquisition of aboriginal property discussed later in this chapter. Two prominent philosophers of the sixteenth century were Francisco de Vitoria and Francis Suarez. Vitoria is essentially Thomist in the emphasis he places on human and Divine reason, but is unclear on the relationship between the will of the legislator and natural reason.23 Suarez, on the other hand, emphasizes the role of Divine will, rather than Divine reason in the creation of legal obligations. Further, Suarez believes in a need for humans to recognize a promulgation of divine will to be bound by moral law and that such law is not promulgated naturally in human nature. At the basis of natural law is natural honesty and man's recognition of the obligatory character of precepts of natural law.24 Major divergences from the Thomist doctrine by publicists 100 of the sixteenth century include Niccolo Machiavelli who viewed power as the ultimate end of politics and Albericus Gentilis who rejects the concept of eternal law and emphasizes the primacy of jurisprudence and human reason over theology and moral philosophies of law.25 The most prominent advocate of the natural law tradition in the 17th century was Hugo Grotius. Although Grotius assumes a connection between the dictates of right reason and the will of God, passages of his work hypothesize the elimination of God from the study of natural law and for this reason he is often credited for beginning the secularization or modernization of natural law. Grotius also introduced a distinction between absolute and non-absolute natural law. The former is the equivalent of natural morality concerning matters such as the love of God and the avoidance of harm to the innocent. The latter are imperfect natural rights to carry out certain acts until such acts are prohibited by positive law. Grotius also assumes man has a natural inclination to sociality and summarizes the law relating to sociality as abstaining from that which is another's, restoration of another's property and benefits received therefrom, fulfilling promises, making good losses incurred through our fault and inflicting penalties on men according to their just deserts. At the same time, Grotius advocates individual autonomy as a first principle and the concept of social contract - man voluntarily surrenders personal autonomy for the objective good and the state.26 In short, Grotius re-introduces Aristotelian and Stoic philosophy into natural law and at the same time revitalizes ideas later modified by influential positivists. For example, Thomas 101 Hobbes advocates the existence of a fictitious agreement among citizens that a government or Leviathan should be set up with absolute power over all citizens. Jeremy Bentham defines public interest or "good" as the greatest good for the greatest number. Their shared preference for legislation over the moralizing of the common law courts is a hallmark of what is now known as positivism.27 Hobbes also introduces a subjective element into natural law by asserting that the natural precept of self preservation results in a natural state of conflict, or in the case 28 of international relations, war. The eighteenth century witnessed further modifications to natural law theory by two prominent philosophers - Christian Wolff and Emmerich De Vattel. The significant contribution of Wolff is his discussion of the relationship of the law of nature and the law of nations. Wolff attributes both collective will and natural liberty to a nation and suggests that the rules governing a nation are not necessarily connected with an objective moral order established by natural law. He distinguishes between voluntary and necessary laws of nations. The latter are laws of nature applied to nations which are immutable, the violation of which will never be right, but may have to be tolerated because of the practical impossibility of satisfying in all detail natural laws. This ambiguous attitude to the immutability of natural laws is distinctly different from traditional natural law theories. As in the philosophy of Grotius, self-preservation is given status in the resolution of conflicts. Further, the common good in Wolff's philosophy is different in that it is the right or good of individuals taken collectively.29 Vattel is in many ways an 102 interpreter of Wolff, but differs in his understanding of the voluntary law of nations.30 The views of Wolff and Vattel are discussed in more detail throughout this chapter. Modern natural law theorists vary in their adoption of the ancient and Thomist philosophies of natural law. Of particular influence in the modern tradition are H.L.A. Hart and John Finnis.31 Hart argues that the minimum content of natural law is survival. In order to survive, humans adopt some form of social organization. In order to avoid chaos, rules are established to regulate areas such as social conduct and property rights.32 On the Hart ian analysis, "the forms of cooperation which characterize any community properly so called, are a manifestation of the basic good of sociability."33 John Finnis assumes the existence of basic human values or "goods" including survival, knowledge, sociability and practical reasonability (personal autonomy).34 The latter value assists people in choosing actions to further other goods. As Daniel Gormley points out in his discussion of Finnis, the most fundamental principle of practical reasoning is "actions essential for the attainment of human good are to be performed."35 According to Gormley, one of the actions derived from practical reasoning is the administration of "justice" by persons in authority, within a community. Gormley synthesizes Finnis' concept of practical reasoning with the concept of justice as follows: We may term as the primary requirement of justice the imperative that one ought not to demonstrate arbitrary preference as to persons. If one ought to further human goods, then it follows that one must respect each human being as a focus of actual or possible participation in those goods . . . [I]n any situation in which one's 103 decisions may affect another person's participation in human goods, one takes that person into account of deserving of respect. The primary principle of justice is therefore of enormous significance to those in authority within a community . . . Success in this endeavour will yield 'the common good': 'the securing of a whole ensemble of material and other conditions which tend to favour the personal development of each individual.'. . . An application of the primary principle of justice to human affairs tells us that within a community, each individual is entitled to participation in human goods to an extent that does not restrict his fellows' participation in them.36 It is beyond the scope of this thesis to give an exhaustive account of principles of natural law. However, from the general discussions above the following principles may be derived: 1. All humans are rational beings; 2. Natural law is reason (whether human or divine in origin) and all humans are subject to it by virtue of their rational nature; 3 . Natural law is universal; 4. Natural laws apply equally to all people and are immutable at least in respect to the question of what is "right", "moral", "good" or "just"; 5. People have a natural inclination to socialization and the achievement of common good, or at the very least, have a natural inclination to self-preservation or survival which requires some form of social organization; and 6. Positive laws are not necessarily derived from natural laws. However, the natural validity of a positive law may be measured against basic precepts of natural law such as the fostering of the common good. 104 Before leaving our discussion of the basic principles of natural law, it is useful to briefly examine the concept of rights and obligations in the natural law tradition. R. Begin defines "right" as follows: Right is the relation existing between one person and the action or omission of another, according to which this person may demand this action or omission as due to him on the strength of equality of men, in virtue of the common good, goal of happiness toward which all men strive . . .The determinant factors in the circumscription of Right are the common good of humanity and the means necessary for each individual to attain it. These factors are evaluated by reason and thus give birth to a 'concretization' of Right expressed in laws.37 Begin's interpretation of natural rights suggests all people as rational beings are able to regulate their own activity and are the subject of rights (even though historically they may not have been treated as the subject of rights). Individual rights are not limitless, but are restricted by the common good and the rights of others in society. States or collectivities of individuals created by individuals striving for the common good also have rights of their own vis a vis their members and other states, but these rights are ruled by reason and common good.38 Justice in this context is the "obligation of rendering to others what is due to them" according to their rights which may or may not exist independently of rights conferred by a particular state.39 For a positive right to be just or moral, it must be a right that concurs with the rational nature of humanity. Those fundamental natural rights which find their basis outside the state, such as an individual's right to live, are only subject to state regulation to the extent that they are regulated to the common good.40 105 2. A Natural Interpretation of Property Rights Rights of property can be viewed in two distinct ways - rights of property within a community and rights of property between communities.41 The recognition of aboriginal title as a pre existing legal right suggests that rights of property within an aboriginal community may properly be governed by native custom rather than Canadian or British law.42 The extent to which these rights survived British settlement and form the basis of a claim to land is determined by the rights and duties of communities vis a-vis one another. Consequently, natural theories concerning both the origin and acquisition of property rights have bearing on the natural legitimacy of aboriginal title claims. A claim to a right of property is really a claim that someone do or omit to do something with respect to that property. In the natural law tradition, laws creating obligations with respect to property and claims arising from those laws are only morally valid if they concur with the fundamental precepts of natural law. Of primary importance in contemporary theories is the application of principles equally to all human beings and the advancement of the common good. (a) Historical Views The moral content of property regimes has been considered by numerous philosophers of law. In ancient Rome, the Stoics advocated that by natural law all thing were originally held in common and the division of property was introduced by mankind.43 However, positive laws of property were not considered contrary to natural law to the extent that they advanced precepts of natural 106 law such as living honourably, injuring no one and giving "to every man his own."44 Although different philosophers have emphasized different precepts of natural law, such as common good and social stability, to legitimize property law per se, the view that all property was originally common has been carried through the development of the natural law tradition and remains essentially the same today.45 Cicero explained the relationship of the natural law of common property and the positive law of private property as follows: But just as though the theatre is a public place it is yet correct to say that a particular seat a man has taken belongs to him, so in the state or in the universe, though these are common to all, no principle of justice militates against the possession of private property.46 As between communities, classical Roman law asserted that the origin and acquisition of property rights was governed by the positive law of nations or "ius gentium." To juriconsultants this was universal natural law in the sense that it was "everywhere observed among men, according to the dictates of natural reason."47 However, the "ius gentium" was also used by them and others in a distinct sense. Where the phrase "ius naturale" was often used to emphasize the "raison d'etre" of a rule, the "ius gentium" was adopted when discussing its practical application. Despite the link between Roman philosophy and classical law, it is to be historically naive to argue that the Romans were ruled by natural philosophy in the creation and practice of acquiring foreign property when expanding the Roman empire. For example, it is clear barbarian peoples were not viewed as rational beings capable of asserting natural rights.49 Nevertheless, the influence of ancient Greek and Roman philosophy is evident in the assertion of natural 107 modes of acquisition found in the "ius civile" and the "ius gentium." As discussed below, many of these rules continue to be advocated by natural law theorists subject to certain modifications which take into consideration the ethnocentric bias of the Roman Empire in defining universality. The application of the "ius gentium" to a particular community was to a certain extent dependant on the capacity of the community to enter treaties. At the time of Rome's political supremacy, the theory developed that if "there were no treaties of any kind with any particular community . . . the law of nations, as generally understood, or rather as they themselves understood it, had not full applicability to that nation."50 Whatever concessions were granted were connected more with humane sentiments than a sense of legal obligation. Further, only communities with sufficient political organization were viewed as capable of entering treaties for the common good of the respective states.51 In that regard, Cicero defined a state as "a body politic or society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength."52 Again, the practice of Rome suggests this definition was not always adopted in the expansion of the Empire. Of particular interest in the context of the doctrine of aboriginal title are the following rules of acquisition which find their origins in Roman law. As will be seen, most of these rules are justifiable in the natural law tradition assuming their equal application to all communities and their contribution to social stability and peaceful relations. The development of these rules in the sixteenth to eighteenth centuries 108 is discussed in the context of aboriginal title claims in section III of this chapter. 1. Res Nullius [the property of nobody] - What does not belong to anyone becomes the property of the person who first acquires it.53 2. There is ... no such thing as private ownership established by nature, but property becomes private either through long occupancy (as in the case of those who long ago settled in unoccupied territory) or through conquest (as in the case of those who took it in war) or by due process of law, bargain, or purchase, or allotment ... 54 3. That which cannot be occupied, or which never has been occupied, cannot be the property of any one, because all property has arisen from occupation.55 4. Public territory arises out of the occupation of nations, just as private property arises out of occupation by individuals.56 5. Possession may be divided into two kinds for it is acquired either in good or bad faith.57 6. Usucupation can not take place without possession.58 Usucupation is the addition of ownership by means of continuous possession for a time prescribed by law.59 A person can acquire by usucupation the property of which he has possession, thinking that it belongs to him; even if this opinion is false.60 109 7. Prescription based upon long possession is usually not granted for the acquisition of places which are public by the Law of Nations.61 Prescription based on no matter how immemorial a time, sets up no title to those things which are recognized as common to the use of mankind [eg. sea] .62 8. Property which becomes ours by delivery is acquired by us under the Law of Nations; for nothing is so comfortable to natural equity as the wish of an owner, who intends to transfer his property to another, should be complied with.63 9. When ownership is transferred to him who receives it, it is transferred in the same condition that it was while in the possession of the grantor.64 Before leaving our discussion of historical principles, a few words should be said about the positive laws of prescription and conquest as both appear to be in direct conflict with the first principle of valid title by the original possessor. The ancient concept of first occupancy assumes full rights of dominion are acquired by the occupant who first takes possession of property with the intention of keeping it as his own.65 Prescription finds its roots in the idea of usucupation and holds that property in the possession of a person for a long period of time becomes the property of the possessor regardless of prior ownership.66 Conquest assumes the rightful appropriation of someone else's property by the victorious party in a war, without the consent of the losing party. 110 The apparent conflict between prescription and rights of first occupancy are explained by Joannes Andreae (1270-1348) by analyzing the relationship between positive and natural law. According to him, positive law specifies natural law and applies it to concrete situations. Where it is a concept of natural law that one should not benefit from damage done to another, positive law can specify those cases in which this can be accomplished without injuring someone's natural rights. The decisive reason in favour of such limitations is the common good of the community. With respect to prescription, the particular right of the original occupant is subordinated to the higher common good of peace and security arising from certainty of rightful ownership. The issue is not so much the justice of title by prescription as the consequence of silence or abandonment by the original owner. Arguments of modern authors remain essentially the same.67 For prescription to be effective, the person acquiring title by prescription must do so in good faith. "Good faith may be defined as a prudent judgment according to which a person believes • 68 that the thing he possess is rightfully his." Philosophers have generally agreed to this limitation on the positive law of prescription as "prescription would certainly be contrary to the Natural Law, inasmuch as it encouraged widespread dishonesty among citizens, a state or condition certainly harmful to the common good, to public peace and security."69 The rationalization of acquisition by prescription suggests that the moral legitimacy of positive laws which limit or vary the first principle of title by occupancy of previously unoccupied lands can be measured against the extent to which they promote the Ill common good. Arguably, this standard can be used to measure the legitimacy of acquisition by conquest. By the time of St. Thomas Aquinas, it became a rule of natural law that conquest was only legally valid if it could be characterized as "just war." In his view the ultimate good was "peace" and offensive war was only legitimate if three conditions were met - legitimate authority, just cause and right intention.70 By the sixteenth century, philosophers were focusing their attention on the condition of "just cause." The influence of Christian paternalism in the natural law tradition resulted in the adoption of ethnocentric views of the common good which were reflected in arguments legitimizing war on the grounds of infidelity and lack of sufficient political organization.71 Throughout the seventeenth and eighteenth century, the moral and intellectual tradition of international law debated the morality of war and the acquisition of conquered territories. Under the modern law of war, conquest is no longer accepted as a morally legitimate basis for continued possession of a territory.72 This rule of positive law accords with naturalist philosophy as it is hard to rationalize how forceful acquisitions foster inter-societal stability, universal happiness and peace. To accept the legitimacy of conquest would mean the acceptance of Machiavellian and Hobbesian philosophies of natural law and "might is right" as the primary governing principle in human relationships. (b) Contemporary Views Both Hart and Finnis have considered the morality of positive laws concerning the ownership of property.73 Both begin with the 112 assumption of common property because of the simple fact that material resources do not "come into the world attached to a particular owner."74 However, both appreciate the necessity of establishing a system of ownership to avoid chaos which would be threatening to individual and community survival. Both view rights to specified property as a creation of positive law. For Finnis, legitimate positive law is law aimed at achieving basic human "values" or "goods." He favours private ownership because in his view it is "most likely to produce an increase in the fruits of the common stock and to contribute to the good of personal autonomy."75 In his article "Aboriginal Rights as Natural Rights," Gormley argues that Finnis1 theory can be used as a framework to analyze the morality of inter-societal property laws. According to his analysis, the governing principles would necessarily include: 1. the fostering of the common good of all communities; 2. an imperative that laws ought not to show arbitrary preference as to communities; 3. an obligation on leaders of powerful communities to exercise power justly by taking into consideration the common good of communities affected; 4. the freedom of a community to choose its own waysdJ furthering its common good; 5. the avoidance of violence between communities; 6. the enhancement of stability which permits human development; and 113 7. the recognition of agreements entered between communities because of their contribution to inter-societal stability.76 According to Gormley, the furthering of common good will seldom justify interference in the affairs of others. Rather, paternalism should be avoided because our knowledge of other communities is bound to be inferior to our knowledge of our own, the autonomy of a community reflects the basic human value of personal autonomy and unwanted interference can lead to violence.77 Inherent in Gormley's analysis is the assumption of an objective common good and the removal of ethnocentric bias in inter-societal relations. Indeed, contemporary views of natural law would insist on the application of the above principles to all communities regardless of race, religion and western forms of political organization as these are no longer considered rational reasons for the denial of fundamental rights.78 (c) Fundamental Property Rights Both ancient and modern theorists agree that some form of property law is necessary to maintain stable and peaceful social relationships among individuals and peoples. All start with the fundamental principle that first occupation of previously unoccupied property establishes rights of property in the occupier. The extent to which this right can legitimately be altered by positive law will depend upon the extent to which the law contravenes natural law precepts and whether such contravention can be legitimized as furthering a greater common good. The application of this theory to relations between various communities 114 suggests legitimacy may be upheld on the basis of some international common good. The following section will illustrate that the predominant views on the acquisition of aboriginal lands during the colonization of North America concurred with modern precepts of natural law in the recognition of aboriginal title based on first use and occupation. Those views which offended principles of natural law failed to become part of the early tradition of recognition in British Canada. Rather, principles of natural law are evident in both British Colonial legal theory and practice, subject to certain paternalistic modification. Although it is debated whether British Colonial practice was motivated by international or British jurisprudence, both theory and practice reflect the following first principles of aboriginal title: 1. aboriginal title finds its source in the occupation of land by organized societies prior to European settlement; and 2. aboriginal title should be extinguished by consent. II Natural Law and The Origin of Aboriginal Title 1. Natural Law and the Law of Nations Although it is debated whether the Greeks had a clear jurisprudence on the law of nations, influential principles such as the concept of universality and the moral validity of independent political communities can be attributed to famous Greek orators such as Plato and Aristotle.79 Although there was clear hostility toward non-Hellenes or "barbarians" and Greek history 115 affords only few instances of political union, it was perceived that different societies would need different laws but "in so far as they were communities of civilized human beings; certain laws would be common to all, as their applicability is inevitably 80 determined by universal nature." On the other hand, Rome developed a clear jurisprudence on the law of nations referred to as the "ius gentium" but, as discussed above, the philosophical precepts of the "ius naturale" were not always adopted in the practical application of the "ius gentium." However, the "ius naturale" clearly influenced the positive law of nations and Roman juriconsultants all accepted the subordination of the law of 81 • • nations to precepts of natural law. Thomas Aquinas also linked natural law to a universal law of nations and has been credited with introducing an ethical element into the realm of international law. St. Thomas recognizes the existence of a transcendant natural law binding states and individuals from which the positive law of nations is derived. By law of nations he does not refer to law between nations determined by agreement, but a law found in every nation by virtue of reason and experience. In determining specific rights and duties of nations, St. Thomas applies principles which govern relations between individuals. However, St. Thomas has little to say about the content of these rights and duties except 82 • in the context of the morality of peace and war. At the time St. Thomas was writing, the Catholic Church wielded significant political and religious influence in Europe and the Pope was considered the secular authority on the law of nations. The role of the Pope in determining rights under the law of nations encountered severe criticism in the sixteenth and seventeenth 116 centuries - a development which allowed the removal of religious bias in the application of the law of nations to non-Christian peoples.83 Of particular interest in the sixteenth century are the views of Vitoria as he is credited with being the first publicist to deal with the question of aboriginal rights as a question of morality and international law (then referred to as the law of nations) . Vitoria contends that the law of nations is derived from natural law and the consensus of the majority of the world regarding the common good of all. Its natural origins provide sufficient authority to create rights and obligations known to all nations through reason and subject to change only by the consensus of the world. Suarez, who was writing at approximately the same time, takes the opposite view and argues that natural law and the law of nations are distinct. Unlike natural law, the law of nations is not universal and is derived from common judgment and usage. It is not observed always and by all nations, but only as a general rule and is binding only on those who participate in it. The influence of Suarez can be seen in the work of subsequent publicists including Grotius, Wolff and Vattel. The general principles of international law advocated by Grotius are 86 • fundamentally the same as those outlined by Suarez. Grotius sees the will of the people as the origin of public authority and carries a contractual analysis of civil government into his philosophy of international law. Like the state, any international authority is optional and rests fundamentally upon contract. Although the voluntary law of nations may reflect precepts of natural law, it may also oppose natural law in so much as it 117 represents the universal practice of mankind. For Grotius, the legal and moral aspects of international law are distinct.87 As discussed earlier, Wolff accepts the idea of a voluntary law of nations and argues that there are two branches in the law of nations (necessary law of nations) and the consensus of nations (voluntary law of nations) . The two branches are mutually exclusive although the voluntary law may incorporate necessary law which is aimed at the promotion of human good. A violation of necessary law is not right, but it may be left unpunished if it does not form part of the voluntary law of nations. Wolff's position allows for the separation of legality and morality. The validity of the law rests in the notion of a fictitious supreme state authority and the consent of nations. According to this philosophy, it may be morally wrong or unjust to exclude aboriginals from the law of nations, but if all nations agreed, it would be legal. Vattel adds little to the philosophy of Wolff. The major difference in their philosophies is Vattel's rejection of the idea 89 • • • • of a supreme state and his emphasis on cultivation as part of a nation's natural obligation to render its condition as perfect as possible.90 The nineteenth century witnessed a shift from an emphasis on man as a social and moral being to individualism, utilitarianism and liberalism. Views of social contract thinkers such as Hobbes, Bentham Austin and Locke, who emphasized law making by legislators and morality in terms of public opinion, became increasingly popular and resulted in the predominance of a positivist philosophy in the nineteenth and twentieth century. Prominent philosophers 118 such as Rousseau asserted the infallibility of the general will and the willingness of rational men to subject themselves to it. Emmanuel Kant argued that morality is in man's autonomous will and that law has in independent validity in its enactment by the state. John Stuart Mill advocated freedom of choice as an end in itself and elevated the freedom of thought and speech to the position of society's highest good.91 It is in this philosophical atmosphere that international and domestic judicial principals were first formulated on the question of aboriginal title. As will be seen in the discussion on the judicial doctrine of aboriginal title, the courts soon lost sight of the natural origins of aboriginal title and rendered decisions in conformity with settled general principles of English common law and legislation. Political practice turned from the recognition of natural rights to the promotion of egalitarian and liberal philosophies which necessitated the denial of special rights of aboriginal peoples vis a vis other Canadian citizens. However, the federal government's plan to eliminate special status failed and, despite the historical distortion of first principles, the Canadian courts began a cautious return to a natural interpretation of aboriginal rights. Although it would be naive to assume the eventual freedom of the courts from the predominant positivist philosophy of law, the currant blending of natural and positive philosophies of aboriginal title suggests that compliance or non compliance with the first principles of prior occupation and surrender of land by consent may now be sufficient to establish a claim to title. 119 2. Natural Law and Theories of Acquisition As discussed earlier, ownership through original occupation can be legitimized in accordance with fundamental precepts of natural law. The application of this principle in the context of the acquisition of territories by discovering nations suggests that land can only be acquired through occupation if the land is ownerless (terra nullius). The corollary of this position is land which is the property of someone, or some nation, must be acquired in some other manner. Keeping in mind the natural precept of promoting the common good of inter-societal stability and peace, the most valid method of acquiring owned property is with the owner's consent, or in the case of unoccupied property of a previous owner, through a right of prescription. The validity of these principles was accepted by legal theorists of the sixteenth century in their attempts to legitimize European claims to lands already in the occupation of indigenous peoples in North America. As acquisition by European occupancy could only be regarded as lawful if North America was terra nullius, the characterization of land as terra nullius became the subject of juristic debate. Another disputed issue was the legitimacy of conquest as a method of acquisition. It is in the context of these debates that Vitoria gave birth to a natural theory of aboriginal title. While some scholars argue classification of land as terra nullius by early jurists depended on the religion of the inhabitants, others argue Christianity was relevant only to the question of acquiring title and sovereignty through just war. Those in the latter group considered the crucial question to be 120 the level of political organization of the inhabitants and their ability to participate in the voluntary law of nations.92 The first known legal documents addressing these issues were the Alexandrian Bulls by which the Pope asserted moral and secular authority over indigenous lands ignoring the political and legal rights of the inhabitants because of their infidelity.93 These were followed by the treaty of Tordesillas which divided the known world between Spain and Portugal upholding their claims to land and sovereignty in the Americas. Regardless of wether one accepts the separation of natural law from the law of nations or views them as one and the same, the legal validity of the Papal donations is subject to severe criticism. The former perspective would require validation by the voluntary consent of all nations, or at the very least, the discovering nations. History shows us that European nations competing for power in the new lands ignored papal donations and were far from agreement on the Pope's authority over newly discovered land.95 The latter perspective would require the denial of the capability of Indian peoples to reason, and thus a denial of their humanity, to justify their exclusion from the application of principles of natural law. At the very least, this view requires the acceptance of some ethnocentric view of the common good, such as the promotion of European civilization, to justify a refusal to recognize natural rights of aboriginal peoples arising from original occupation. Francisco de Vitoria (1480-1546), a Catholic theologian, was one of the first people to support Indian ownership of the lands they occupied and Indian territorial sovereignty. He argued that 121 as true owners of their lands, Indians could not be deprived of them by discovery, occupation or conquest. He rejected the validity of the papal donations, asserted that only just war or cession gave rise to legal title in inhabited lands and argued that religion was not a justification for war. However, he was not completely free from bias in that he believed if Indians were incapable of achieving the status of a civilized state, the Spaniards could step in and control territorial sovereignty if such control was for the benefit and welfare of the original inhabitants (i.e. the common good of the community) .96 In De Indis. Vitoria justifies his views by drawing on fundamental principles of natural law as he believes it is "by divine law that questions concerning them are to be determined.1,97 He argues that the rights of first occupants are clearly derived from natural law which is capable of creating rights and * * 98 • • • obligations. Should a nation discover lands which belong to nobody, right of discovery is adequate title because "regions which are deserted become, by the law of nations and the natural law, the property of the first occupant."99 Accepting that first occupancy gives dominion to rational creatures, he asserts that Indians cannot be barred from the exercise of true dominion because they have the use of reason.100 Further, he asserts that their non-Christian beliefs do not affect the fact that they are possessed of their lands in absolute dominion. In his view, to conclude otherwise would be contrary to principles of natural law and common 101 practice towards other non-Christian peoples. Consequently, Indian lands are not open to acquisition by discovery and unless it can be shown that they are not "in peaceable possession of their 122 goods . . . they must be treated as owners and not be disturbed in their possession unless cause be shown."102 Vitoria considers other alleged titles to Indian lands asserted by Spanish jurists. He rejects title based on authority of the Holy Roman Emperor and the Pope as no one, by natural law, has dominion over the world. Similarly, he argues rejection of the Christian faith is not adequate cause to wage war on Indians and deprive them of their property.104 Although Vitoria does not dismiss the concept of title by voluntary surrender, he argues that choice played a very little part in the relation between Indians and Spaniards and asserted that "a consent to the taking of • • • • • 105 possessions in fear or ignorance is in truth no consent." Other titles asserted based on the sin of aborigines and possession by the Spaniards by special grant from God are also rejected as contrary to natural law.106 Vitoria does not deny that Spaniards may have title based on arguments other than those rejected. In this context, he looks to the consensus of the majority of nations, measured against the common good, as a source of title. It is here that Vitoria's paternalism and cultural bias is evident. The first legitimate title is that of natural society and fellowship which allows Spaniards to trade, travel and settle in America. It is legitimized by the natural precept it is humane and correct to treat visitors well and contrary to the natural law to dissociate oneself from others without good reason. It is assumed that in the exercise of this title, the Spaniards do not harm Indian country.107 108 A denial of this title is just cause for war. The second legitimate title involves rights of missionaries. Although Indians 123 have a right to their own religion, in Vitoria's view the Spanish . • . • • 109 priests also had the right to lay their views before the natives. Christian conversion and inhumane treatment of natives by their own governments also justify intervention in Indian affairs as does true and voluntary choice of Spanish rule. Finally, while Vitoria upholds the humanity of aboriginals, their right to equal participation in fundamental natural rights, and their status as nations possessed of international rights; he is aware that their civilization is vastly different from European civilization and upholds the right of Spaniards to interfere with Indian government if it is "for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards."110 With the exception of voluntary choice, Vitoria's grounds for legitimate intervention were not incorporated into British colonial theory or practice towards aboriginal peoples.111 Nor would these views be acceptable in contemporary natural law theory. Contemporary philosophers would take exception to interference on the grounds set out by Gormley in section I, 2(b) of this chapter. A modern definition of common good presupposes racial and religious equality and should attempt to avoid an ethnocentric perspective of civilization. The current emphasis on autonomy and avoidance of conflicts suggests interference will only be warranted on humane grounds without consent of the Indian community at issue. The views of Vitoria were argued by Bartolome de La Casas (1474-1566) in one of the most famous debates concerning indigenous rights. His opponent, Juan Gines de Sepulveda (1490-1573) argued that Spain's conquest of the new world was legitimized by papal authority, the inability of Indians to govern themselves and the 124 failure of the Indians to yield to the Requirmiento - a proclamation read to American Indians requiring acknowledgement of the supremacy of the Pope and the Spanish Crown.112 Numerous jurists in various countries supported and expanded on the views of Vitoria and La Casas. Eventually a body of jurisprudence emerged supporting the following principles: 1. whenever a country is inhabited by persons connected by some political organization, no matter how "primitive", it is not res nullius; 2. title to Indian lands can not be acquired simply by discovery and occupation; 3. native tribes in North America had sufficient political and territorial sovereignty to enter voluntary agreements for the surrender of their legal and political rights; and 4. the doctrine of just war is not applicable to Indian lands based on the justification of infidelity.113 Two other theories emerged alongside the recognition of aboriginal title and sovereignty. The first follows the views of Sepulveda. Most of the publicists supporting this view wrote in the mid-to-late nineteenth century. Among the most notable were Westlake and Oppenheim, both of whom emphasize the necessity of the existence of a civilized state to remove lands from the category of terrae nullius. Both assert aboriginal tribal organization was uncivilized and insufficient to constitute aboriginal populations states in the international sense.114 Their views are consistent with the contemporaneous movement in North America toward domesticating native issues and the intellectual 125 patterns of the nineteenth century which were dominated by Darwinistic thinking, economic liberalism and legal positivism.115 The second theory admits native title but only under certain conditions. The most well known publicist of this theory is Vattel (Switzerland, 1758). Vattel argues a distinction should be drawn between cultivated and uncultivated lands. For Vattel, cultivation is an obligation imposed by nature as the earth can only perform its function to feed its inhabitants if it is cultivated. Every nation is obliged to cultivate the land and has no right to enlarge its boundaries beyond what is necessary to furnish it with necessities. In his view, the hunt is no longer a sufficient means to provide for the human race. Those nations that refuse to recognize this and usurp more extensive territories than would be necessary if cultivation was employed might legitimately lose possession of uncultivated lands to those who put it to proper use. In Vattel's view, rights of property and dominium are dependant on fulfilling the obligation to cultivate. Consequently, nomadic peoples who possess land in common and fail to appropriate and cultivate specific parcels of land have insufficient possession of the land to acquire title.116 Vattel's theories of acquisition mirror those of Christian Wolff. Both agree that when a nation acquires title to unoccupied territory through occupancy, it also acquires sovereignty over the territory acquired.117 In Vattel's view, both ownership and acquisition require actual possession and cultivation. Wolff differs on this point by recognizing that an "alternation of specific lands for hunting and gathering was 'an intended use of lands' sufficient to yield property in them."118 Both also address 126 the concept of just war but their views will not be discussed here as conquest played little role in the development of Canadian law on aboriginal title. Of more interest are their views on prescription which are reflected in Canadian jurisprudence on aboriginal title. Vattel and Wolff uphold acquisition through usucupation and prescription as part of the natural law and the voluntary law of nations. In this context Wolff distinguishes between ordinary and immemorial prescription. The latter assumes that there is no remembrance of the beginning of present possession and upholds the natural precept that every possessor is presumed owner unless the contrary is proven. Ordinary prescription arises from abandonment, neglect and silence on the part of the original owner for a considerable number of years. The loss of rights through ordinary prescription can be defended against someone, or some nation, that has been in possession for a long time only if the original owner has just reasons for neglecting his rights.119 Both immemorial and ordinary prescription are considered part of the voluntary law of nations because they contribute to the common good of certainty of ownership but for this reason are also subject to modification by the stipulative law of nations. The validity of prescription in the natural law tradition has already been addressed. The arguments that Indians can be denied title and territorial sovereignty based on insufficient political organization and land use are contrary to traditional and contemporary views of natural law. Although Indians have been historically viewed as irrational savages, today we do not hesitate to accept that there was a high degree of social, religious and political organization among North 127 American tribes.121 It is true that the form of organization varied from tribe to tribe and did not necessarily reflect European forms of community and political organization, but it is equally true that Indian peoples formed into societies and confederations. As Gormley points out, the failure to recognize them as land-possessing communities because of a foreign method of government and community organization reflects an arbitrary preference as to communities incompatible with contemporary views.122 A defence of these positions by persons purporting to uphold precepts of natural law can only be understood if placed in proper historical perspective and the influence of cultural and religious bias on theories of natural law is understood. Similar arguments are raised against the exclusion of aboriginal peoples from the enjoyment of rights arising from original possession due to improper land use. A legitimate concern might be raised if Indian tribes simply wandered aimlessly and claimed title to any land they happened to pass over. However, this was not the case. Rather, non-agricultural communities and agricultural communities tended to hunt and gather within reasonably defined territories. Further, a focus on cultivation is clearly linked to a cultural bias on the question of economic 123 • value. Accepting as a natural precept that there is a duty to use resources effectively to enhance the common good does not necessarily lead to the conclusion that cultivation is a more effective use than hunting and gathering or that the former is more beneficial to others than the latter. As Gormley points out, methods of technology and productivity will always vary between communities and a failure to recognize this would threaten 128 intersocietal stability. Further, communities are valued today as "more than mere vehicles for the efficient production of wealth."124 Only if a community is "hoarding and making grossly inadequate use of a large amount of resources while the survival or viability of other communities is threatened by their lack of access to such resources" will land use be a natural justification for interfering with their property rights." In this situation, interference may very well be justified for the sake of peace and stability. In summary, Vitoria's view on occupancy and conquest are most indicative of a natural law theory of aboriginal title. In accordance with this theory Europeans were morally and legally obliged to recognize that first use and occupancy established Indian ownership over Indian lands. Such lands were not capable of acquisition through discovery and occupation but only through cession or prescription. All other justifications for acquisition or interference can not be upheld against contemporary views of natural law which attempt to eliminate cultural, religious, racial and any other subjective bias. 3. Natural Law and British Jurisprudence The role of natural law in the law of nations and the property rights of indigenous peoples were considered by Sir William Blackstone (1723-1780) in his Commentaries on the Laws of England. Blackstone's theory is developed from a selective application of principles enunciated by preceding philosophers of natural law. However, a distinctive aspect of Blackstone's philosophy is his reliance on the Bible as a source of natural law. Blackstone distinguishes between laws dictated by a superior being that govern 129 the actions of all creatures and laws "in their more confined sense" (human law) which he defines as the "precepts by which man . . a creature endowed with both reason and freewill, is commanded to make use of those faculties in the regulation of his • 126 • • • behaviour." Law in the former sense is the law of nature which is determined by the will of the maker and binding on all creatures. These laws are innate in man from the date of his creation and regulate his free will. They are discovered through the faculty of reason and are immutable. These laws have also been revealed in part through the Holy Scriptures and declared by God himself. Human laws are invalid if they are contrary to either the law of nature or the law of revelation.127 In Blackstone's view, if "man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature and the law of 128 God." However, he accepts that man is naturally inclined to sociability and therefore human laws are necessary. Because man is not united into one great society, but many societies, he argues that a "third kind of law" is necessary to regulate mutual intercourse. This third law is the law of nations which "depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between several communities" which are also ruled by the laws of nature.129 Like Vitoria, Blackstone accepts the formation of law through the consent of nations but views all laws as subject to a higher natural authority. Blackstone's natural philosophy of law influences his opinions on the origins and acquisition of property. Blackstone defines a 130 right of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."130 He argues that the natural state of property is common property as the earth was gifted to all mankind by the Creator. In a state of primeval simplicity, nature and reason govern rules of acquisition such that he who first acquires the use of a thing, acquires a "transient property", right of possession, or "sort of ownership" which continues, to the exclusion of others, so long as he is in possession. In this property regime it is unjust, and contrary to nature, to drive out the possessor by force, but once he quits use and occupation, his property can be • • ... 131 . . . . • seized without injustice. In this description Blackstone is in agreement with previously established precept of natural law that first occupancy creates original title to property. The most interesting part of Blackstone's analysis in the context of his theory of aboriginal title is he points to "the manners of many American nations when first discovered by the Europeans" as an • 132 example of this natural state. Blackstone's theory of ownership focuses on the common goods of stability and peace. Although he clearly adopts the precept of rightful occupation of previously unoccupied lands by individuals and nations, he differs from other philosophers by using the Biblical story of the distribution of lands among the sons of Abraham to legitimize his position. Using this same story he argues for the right of migration and the developing of colonies when the mother country (England) is overinhabited. Like Vattel, he links agriculture with the creation of a more permanent property 131 right than use and occupation because of the necessity to feed an increasing population.133 Admitting that seizure of vacant possession could not subsist as the only method of acquisition in a civilized society, Blackstone elaborates on the positive law of acquisition of individual property rights developed in the English legal tradition such as succession on death, grants of title from the Crown, perfection of title, title by descent, title by occupancy and title by prescription. With the exception of his discussion on "that which is subject to the laws of England" discussed below, he does not elaborate on the application of these principles in the international sphere. However, it is worth mentioning his views on the acquisition of rights through custom and prescription as elements of his philosophy in these areas can be seen in subsequent jurisprudence on the question of aboriginal title. In his discussion of "rules and requisites of proof relating to a particular custom," Blackstone asserts that the following must be established to make a particular custom good or legal:134 1. The custom must be immemorial; that is, "it has been used so long, that the memory of man runneth not to 135 the contrary." A statute to the contrary of a particular custom is proof of a time when the custom did not exist. 2. The custom must have continued without interruption of the right. Interruption of possession only is permissable but makes the custom more difficult to prove. 3. The custom must be peaceful and acquiesced in; not subject to contention and dispute. 4. The custom must not be unreasonable in the sense that a good legal reason cannot be raised against it. 5. The custom must be certain. 6. The custom be compulsive even though it may have initially been established by consent. 7. Customs must be consistent. Two contradictory customs cannot be good or stand together. Blackstone concludes his discussion of custom by asserting that customs in derogation of the common law must be construed strictly.136 Blackstone distinguishes custom from prescription by stating the former is properly a local usage and the latter is a personal usage. Like custom, the prescriptive right is dependant on immemorial usage. However, in the case of prescription, limitations on acquisition prior to the passage of a specified period of time have been imposed by statute. Further, the positive law on prescription presupposes a grant of title to have existed prior to the creation of prescriptive rights.137 Blackstone's comments on the acquisition of Indian lands in North America are very brief. Of the various theories, Blackstone seems to accept Vattel when he differentiates between the ability to acquire cultivated and uncultivated lands by occupation. In his discussion of the application of English laws in North America, he notes that desert and uncultivated lands are claimed by occupancy only and cultivated lands through conquest on treaties of cession. 133 Given Blackstone's general opinion that original possessor's cannot properly be deprived of their lands by force, it is surprising that he refers to conquest as a method of acquisition. However, this apparent conflict is resolved if one limits his statement to an observation of limited practice in North America. It is clear he is not upholding the legitimacy of conquest when he explicitly states his intention not to inquire into the natural justice of acquisition in this manner.138 By including American Plantations in the category of conquered or ceded territories, Blackstone removes them from the category of terra nullius. In doing so, he recognizes the right of aboriginal peoples to dominion over their own lands. However, he places limitations on their territorial sovereignty based on their infidelity. Although he does not use religion to deny aboriginals their natural rights to property as had been done by many of his predecessors, he does not go as far as Vitoria and attempt to remove religious bias altogether. According to Blackstone, Indian laws only remain in full force until explicitly abrogated by the king. At the same time, Blackstone gives greater validity to aboriginal title by failing to address any of Vitoria's arguments • • • 139 for legitimate title other than cession. The implications of Blackstone's opinions are that at the time of colonization in North America, British legal theory supported natural theories of aboriginal title plus accepted that aboriginal societies had sufficient political organization to assert territorial sovereignty. However, because of their infidelity, the legality of their own laws is called into question after the act of conquest or cession. The latter part of Blackstone's theory is 134 clearly bias and unacceptable to modern philosophies of natural law. Further, this aspect of his theory is contrary to the form and content of Indian treaties, the Marshall decisions and contemporary views on self-determination.140 With the exception of the above revision to the law of nature, Blackstone upholds the two fundamental precepts of a natural law: 1. title to a specific parcel of land arises from original and continued occupation of that land; and 2. it is contrary to the law of nature to seize someone else's property by force. Translated into a natural theory of aboriginal title (taking into consideration the distinction Blackstone makes between the natural justice and practice of conquest) these precepts can be restated as follows: 1. Aboriginal title to a specific parcel of land arises from use and occupation of that land by indigenous societies prior to European settlement in North America; and 2. It is contrary to the law of nature to extinguish aboriginal title of an aboriginal society without their consent. 4. Natural Law and British Practice Although it may be presumptuous to suggest that natural law influenced government practice toward Indian peoples in North America, it is clear that by the 1700's it had become settled British policy to accept the legal validity of Indian title and to acquire Indian lands by formal cession. Upon discovery of North 135 America, the British Crown authorized acquisition and settlement of lands by issuing royal charters, letters and patents to private individuals and trading companies. However, in practice and law, these were held not to affect the legal rights of indigenous people. Initially, lands were acquired from the Indians by private agreements or conquest. In the former case, agreements soon became more political in nature and were entered between Indian tribes and colonial governments. In the latter case, the loss of land rights was addressed in subsequent treaties. As settlement progressed, jurisdiction over Indian affairs became more centralized and a formal recognition of British policy was required. This was accomplished through the promulgation of the Royal Proclamation of 1763 which confirmed treaty making as the method of British colonial expansion in Canada.143 This method was eventually abandoned in the United States, but remained the practice in Canada until the mid-twentieth century when the practice was replaced by agreements put into force by legislation. In British Columbia, the practice was not adopted and the validity of aboriginal title claims is denied.144 The Royal Proclamation of 1763 translated natural precepts of Indian title, territorial sovereignty and acquisition of title through purchase into principles of positive law. At the same time, it introduced an element of paternalism into the common law doctrine of aboriginal title by confirming a Crown monopoly on the acquisition of Indian territory, centralizing Indian affairs and controlling expansion into specified areas.145 Keeping in mind the fundamental right to transfer one's own property and Vitoria's opinion on the issue of voluntary consent, the paternalistic 136 elements are difficult to uphold in natural law without exercising an arbitrary preference as to community. Granted, the restriction on alienation to private citizens might be upheld on the basis of protecting Indian societies from mistreatment by private citizens. It is more difficult to uphold the validity of treaties with the Crown where land is given in fear or ignorance without arguing that the survival of one civilization is more desirable than another. It is beyond the scope of this thesis to examine the moral validity of specific treaty negotiations. The point here is that recognition of Indian title and acquisition through voluntary surrender became a part of British positive law and British practice in North America. In the Royal Proclamation, Britain declares sovereignty or suzereignty over all Indians "with whom [the Crown] is connected." One could argue that this assertion of sovereignty does not affect aboriginal title but indicates that the British no longer recognized native territorial sovereignty and the capability of Indian nations to enter international legal relations. However, given the continued practice of treaty making and the content of treaties entered subsequent to 1763, the Proclamation is best understood as declaring a right to sovereignty vis a vis other colonizers and establishing British policy of consensual acquisition of native lands. The language of the Royal Proclamation also suggests that the British may have been declaring a colonial protectorate and thus the right to annex the protected territories to its Dominion. This right was enforceable only against other European powers. Regardless of the Proclamation, the rules of international law required continued and peaceful 137 sovereignty over uninhabited lands, cession or conquest of inhabited lands to accomplish annexation.146 This analysis of the proclamation fits with the practice of acquiring lands and jurisdiction through treaty as lands were required and the view of the relationship between the Indian nations and the British Government adopted by Chief Justice Marshall in the Worcester ~ = 147 case. The form and content of Indian treaties varies throughout North America. In the Maritimes where settlement was prevented because of fighting between the British and the Indians, treaties were primarily political in nature and were aimed at obtaining peace and alliance.148 Other treaties such as those entered with the Six Nations Confederacy established alliances, trade restrictions and boundaries crucial to the British competition with France in North America.149 Some explicitly address the question of sovereignty. For example, the treaty of 1778 between the United States and the Delaware Nation explicitly recognizes the power of the Delaware to make peace and war, provides for the passage of American troops through Delaware country and recognizes the criminal jurisdiction of the Delaware nation over their own • • 150 ... • • citizens. Early New Zealand and maritime treaties have similar political and international law characteristics. In Canada, the treaties entered with the Indians fall into six general categories; (a) the maritime treaties; (b) the treaties concluded in southern Ontario between 1764 and 1850; (c) the treaties concluded on Vancouver Island in the 1850s1 (d) the numbered treaties and adhesions covering areas of Ontario, the Northwest Territories and all of the prairies provinces; (e) 138 specific treaties between authorized individuals or companies and the Indians; and (f) modern land claims settlements. Although treaties executed by the Government of Canada between 1871 and 1961 expressly indicate a goal of peaceful relations, only the Maritime treaties contain specific provisions on political relations. Most of the treaties dealt with the transfer of specific lands.151 As in the United States, the British and Canadian governments passed legislation confirming the treaty making process. Unlike the United States, Canada has constitutionally recognized the continuing efficacy of this policy.152 It has been argued that the practice of entering treaties was purely practical in its inception and cannot be taken as recognition of legal or political rights. Peaceful acquisition avoided wars which resulted in loss of lives and money, both scarce resources in the colonies.153 Although this argument carries some strength in the context of original settlement in New England and the Maritimes, it weakens in the context of continual pattern of treaty making in the United States in 1871 and Canada until the present day. Regardless of the "raison d'etre" behind British practice, the practice concurs with natural theories of property rights. 5. Concluding Remarks The above discussion illustrates that pre-nineteenth century theories of acquisition and aboriginal title developed in the context of fundamental precepts of natural law and a natural interpretation of positive laws governing property rights. The direct link between natural interpretations of property regimes 139 and aboriginal title was made by philosophers of the sixteenth century who attempted to rationalize the legitimacy of European settlement in North America. Although there were clear differences of opinion on the question of aboriginal title, the views of Vitoria and Vattel predominated and are reflected in British legal tradition of the eighteenth century. Despite the influence of Vattel, British legal theory recognized the natural rights of aboriginal peoples arising from use and occupation. Although a clear relationship between the theories of Vitoria, Blackstone and British colonial practice is yet to be established, taken together or separately, each supports an argument for the natural origins of aboriginal title. The natural origins of aboriginal title are upheld in early American and contemporary Canadian case law. However, from the mid-nineteenth to mid-twentieth centuries, Canadian courts lost sight of the natural origins of aboriginal title and began to distort or reject the natural theory of aboriginal title. Positivism became the prevailing general view of the legal system and the court took on a fact-finding and law-applying role. In the United States, associated with positivism was the election of judges "so that judges, like legislators, would be more responsive to public wishes."154 Although the Canadian legal system continued to uphold the separation of the court form the electoral process, the appointment of the judiciary by government continues to ensure that the court will uphold the majority view. In the area of title claims, judges themselves seemed to adopt a more positivist view by relying on legislation and a selective application of English, American and Canadian precedent to 140 legitimize their opinions. The "sui generis" character of Aboriginal title was lost in the reliance on positive law and a failure to consider the legitimacy of aboriginal rights as independent legal rights. The distortion of natural rights is particularly evident in early Canadian decisions on the source of aboriginal title and more recent decisions on questions of proof and extinguishment. The decision of the Supreme Court of Canada in Calder v. A.G. of B.C. signalled a selective movement back to first principles155 by recognizing the natural origins of title claims. Subsequent decisions of the lower courts followed this lead, but only in the area of the source of aboriginal title. The most recent statement of the Supreme Court in the Guerin decision suggests that the Court is willing to reconsider the question of aboriginal title and the appropriateness of applying British and Canadian positive law to define aboriginal rights.156 The remainder of this chapter will illustrate these patterns in the development of Canadian jurisprudence on aboriginal title by analyzing decisions frequently relied upon in attempts to present a Canadian theory of aboriginal title. Ill Natural Law and the Common Law Doctrine of Aboriginal Title Canadian law on aboriginal title is influenced by two separate positive legal traditions. Significant emphasis is placed on early American decisions but, as will be seen, a misunderstanding of the evolution of the Marshall court on the origins of title has resulted in reliance on doctrines severely modified by subsequent rulings. Of lesser influence, but worthy of mention, are more 141 recent Commonwealth authorities which are inconsistent in their treatment of aboriginal title as a natural right. 1. The American Doctrine The question of aboriginal title in North America was addressed for the first time by the Marshall court in 1810 in the case of Fletcher v. Peck.157 Although the case was litigated by non-aboriginal parties, one of the issues for the court to determine was whether the State of Georgia could convey a property interest in lands that were subject to a claim of Indian title. Counsel for Peck argued that Indians overran, rather than inhabited, the lands and therefore did not have true and legal possession of their lands. These arguments clearly reflect Vattel's cultural bias concerning land tenure. This is not surprising as one of the counsel for Peck was John Quincy Adams who had been elaborating on Vattel's theory for some time.158 In his view, "by virtue of the cultural superiority of European institutions, the law of nations characterized the transfer of lands from aboriginal peoples to the European settler colonies as a natural law transaction that should not be impeded."159 The opinion of the court was rendered by Justice Marshall who felt the main issue was a potential fight between Georgia and the United States over jurisdiction of lands.160 Although he generally ignored the pleadings on the nature of Indian title, he asserted that Indian title should be respected by the courts until it is legitimately extinguished and it is not repugnant to seisin in fee on the part of the state.161 Marshall did not elaborate on the legal foundations of this conclusion. In the dissent, Justice 142 Johnson argued against compatibility and upheld Indians as sovereign nations and absolute owners of their lands. He argued that the United States acquired nothing but a right of conquest or purchase exclusive to all other competitors. Ironically, the same view is espoused by Marshall twenty two years later in the decision of Worcester v. Georgia, except conquest as a method of acquisition is clearly rejected.163 The above discussion illustrates that natural law was argued and accepted by the court as legal argument in the early 1800s. The extent to which the position of John Quincy Adams concurs with fundamental precepts of natural law need not be addressed as they are based on the philosophies of Vattel which have been examined in detail earlier in this chapter. Johnson's dissent amounts to an endorsement of natural rights arising from original use and occupation, but deviates from more contemporary views on the legitimacy of conquest. Marshall's simple statement is loaded with implications that have been repeated continually in title cases namely: Indian title exists, the government has power to extinguish it, and the government has paramount property rights in the land.164 The extent to which this position violates principles of natural law is discussed in the context of the St. Catherine's Milling case, infra. Chief Justice Marshall is given a second opportunity to consider the questions of aboriginal title in a series of three cases beginning in 1823. Read together, these decisions reflect a progression of thought on theories of acquisition and Indian sovereignty. This reading of the Marshall trilogy is supported by close examination of the individual cases and statements in the 143 final decision which clarify rulings or overrule prior inconsistent statement. In its final form, Marshall's theory concurs in the main with fundamental precepts of natural law and, in the view of the American scholar Felix Cohen, can be traced "particularly to the doctrines of Francisco de Vitoria, the real founder of modern international law."165 In Johnson v. M'Intosh (1823), Chief Justice Marshall invokes the doctrine of discovery to limit the authority of aboriginal people over their territories. He argues that discovery of lands in North America gave the European discoverer title to the lands discovered and the right to extinguish Indian rights of occupation by conquest or cession. Assuming the legal validity of this position, he states that Indian rights to sovereignty must necessarily be diminished on discovery thereby linking the expansion of sovereignty to the acquisition of title. Rather than support his assertions, he invokes the "political question doctrine" stating that the courts have not investigated, and should not investigate, the legal validity of the Crown's title.166 It is worth considering this decision in some detail as Marshall's views on discovery, occupancy, dominion and conquest are continually quoted to limit and even deny aboriginal peoples a proprietary interest in their lands despite the fact that Marshall overrules himself less than ten years later. It is most often cited in Canadian decisions as a common law precedent for recognition of a legal right to sue for tribal lands based on aboriginal possession. The extensive powers granted to the discovering nation also provide the foundations for the principle that aboriginal title can be unilaterally extinguished by the 144 Crown. The acceptance of the theory of title set out in Johnson  v. M'Intosh without considering the remainder of the Marshall trilogy is probably the greatest contributing factor to the subsequent distortion of first principles by the Canadian courts. In Marshall's initial opinion, American title to Indian lands is rooted in discovery. He argues that in order to avoid conflict and war, all nations agreed to be bound by principles of discovery. According to this principle: 1. discovery gave title to the government by whose subject or authority it was made to the exclusion of other European governments; 2. exclusion of the Europeans gave the discovering nation sole right of acquisition and settlement; 3. relations to exist between the discoverer and the natives were regulated by themselves; 4. discovery necessarily diminishes Indian sovereignty; 5. the right of Indian peoples to transfer their title was necessarily limited by the fact that discovery gave exclusive title to the discovering nation; 6. the nature of the title acquired by discovery gave the discoverer right to grant the soil; and 7. discovery gives the right to extinguish aboriginal title by purchase or conquest.167 The most basic objection to Marshall's theory is it is contrary to historical practice and without legal foundation. First, the colonization practices of various European nations illustrates that they were not in agreement that discovery gave 168 sole rights to the discoverer. Even if agreement could be 145 established, publicists were in general agreement that it was purely a distributional principle and had no effect on Indian title. There is nothing explicit or implicit in the opinion of publicists to suggest discovery gave absolute dominion to the discoverer. Further, both publicists and contemporary international jurisprudence assert that discovery alone is insufficient to grant title, it must be coupled with effective occupation, or in the case of inhabited lands, land must be purchased.170 Even England, which is referred to by Marshall as a supporter of the discovery principle, modified the principle to suit its national purpose. In responding to Spain's claim in the New World, Queen Elizabeth asserted that symbolic possession is not enough as prescription without actual possession is invalid.171 Finally, even if one accepts that discovery gives the right to grant title, it was settled English law that such grants did not affect Indian title. In Johnson, Marshall also upholds the legitimacy of conquest. He argues that conquest gives an absolute title which is acquired and maintained by force. Rather than support his conclusion with precedent or legal theory, he invokes what is now referred to as the political question doctrine. According to this doctrine the courts will not rule on the validity of laws on certain subject matters.172 Further, Marshall's application of the theory of conquest to the United States is difficult to sustain in face of the fact that most of North America was surrendered by cession. Rather than deal with this apparent contradiction, he invokes the political question doctrine: 146 However extravagant the pretention of converting discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes law of the land and cannot be questioned.173 Marshall's manipulation of the discovery principle and the right of conquest cannot be attributed to an ignorance of the natural law or law of nations as it was perceived at that time. Not only was their extensive literature on the rights of non-European peoples, but writings of philosophers such as Vattel, Grotius and Puffendorf were introduced in the pleading of Fletcher  v. Peck and Johnson v. M'Intosh.174 Marshall's judicial creativity can only be understood if placed in its historical context. As one author puts it: The Indian title concept was born in an era of America's development when the Supreme Court was politically constrained to respect the power of the other branches of Government and to recognize the national imperative to clear the young nation's vast lands of adverse titles which threatened to impede westward expansion.175 The legitimacy of conquest as a precept of natural law has already been examined. Title by discovery of inhabited lands is clearly contrary to the assumption that one should respect the rights of first occupants without introducing arguments based on land use, nature of community, religion, an ethnocentric view of the common good or some other bias which could not be sustained under contemporary views. Further, the justification of the common law principle that all title derives from a grant of the sovereign by relying on theories of discovery and conquest is contradictory to the assumption that original occupants have absolute title in the soil until their rights are abandoned or voluntarily 147 surrendered. The concept of absolute dominion by discovery and conquest is repudiated by Chief Justice Marshall only nine years later in the Worcester decision. Given Marshall's clear reversal on the questions of discovery, dominion and conquest one is left wondering whether Johnson v.  M'Intosh should be given any weight in developing a theory of aboriginal title. It is argued that rather than ignore his theory outright, it should be "analyzed in light of modern historical 176 understanding, so that its useful elements may be salvaged." If one takes this approach, the only useful element of Marshall's theory that can be legitimized in both the natural and positivist traditions are his views on Indian title. In his view, it is a legal right based on aboriginal possession and it includes a complete prerogative of Indian nations to determine their own systems of land tenure.177 Unfortunately, even this theory of Marshall's has been used to limit the propriety rights of the Indians by focusing on Marshall's description of Indian title as a right of occupancy, which in positive law is less than fee simple but in natural law carries the rights of absolute ownership 178 assuming occupancy is of previously unoccupied lands. Recognizing that restrictions on Indian title may be opposed to natural rights, Marshall's stated intention is only to limit Indian title to the extent that it can be transferred to others.179 Eight years later in the Cherokee case, Marshall addresses the * 180 question of Indian territorial and national sovereignty. A motion was brought on behalf of the Cherokee Nation for an injunction to prevent the execution of legislation passed by the State of Georgia which had the effect of extending State laws over 148 Cherokee territory, seizing Cherokee lands and abolishing Cherokee laws. The motion was brought pursuant to Article III, section 2 of the United States Constitution which gives the Supreme Court jurisdiction over disputes between "the state or citizens thereof, and foreign states, citizens or subjects." The Court held that the Cherokee could not invoke the jurisdiction of the court pursuant to this clause because they were not a "foreign state" in the sense that the term is used in Article III. The merits of the application were not considered. To support his opinion, Mr. Justice Marshall reasons: nations not owing alliance to each other are foreign to each other; by admission, Cherokee territories are within the territorial boundaries of the United States; in foreign dealings Indians are considered within United States jurisdiction; the treaties with the Cherokee evidence common reliance through limitations on Cherokee sovereignty and an offer of protection from the United States; Article III, clause 8 of the Constitution identifies Indian tribes separate from foreign nations; and the question of approaching the court to remedy a wrong likely never entered the minds of the Indians when the constitution was framed. Consequently, the framers of the legislation could not have intended to include Indian tribes in the term "foreign nations". This is "not because a tribe may not be a nation, but because it 181 is not foreign to the United States." Recognizing the unique relationship of aboriginal tribes to the United States, Marshall analogizes the relationship to that of a ward to his guardian and refers to Indian nations as "domestic 182 • dependant nations." Although this statement is quoted to support 149 limitations on, or denial of, Indian sovereignty; it is best understood as a geographical conclusion which is legal or political to the extent that it recognizes the protectorate status of the Cherokee nation. The tenor of the judgment is most clearly stated in the dissent of Mr. Justice Thompson as follows: . . . I do not understand it is denied by a majority of the court that the Cherokee Indians form a sovereign state according to the law of nations, but that although a sovereign state, they are not considered a foreign state within the meaning of the Constitution.183 The proposed reading is supported by the judgments of Marshall and Johnson. At the beginning of his opinion, Chief Justice Marshall states counsel has been "completely successful" in persuading the court that the Cherokee are a "distinct political society" and that treaties and laws enacted pursuant thereto "plainly recognize the Cherokee Nation as a State."184 Mr. Justice Johnson takes exception to this finding and argues that the Cherokee do not have the character of a state consistent with entities admitted to the family of nations; if they were recognized as a state, they were not recognized by any nation other than the United States (which is insufficient to pull them within the family of nations); and they were incapable of becoming a state because Great Britain acquired sovereignty upon discovery of North America.185 These arguments are addressed one year later by Chief 186 Justice Marshall in Worcester v. Georgia. The significance of this decision in the area of property rights is twofold. As explained earlier, a school of thought was developing at this time legitimizing the exclusion of Indians from principles of the law of nations (derived from laws of nature) on the ground of insufficient political organization to be recognized 150 as states in the international sense. Insufficient political organization also meant their lands were terrae nullius and title and sovereignty could be acquired by a discovering nation through 187 • • • occupancy. The Cherokee decision can be used in addition to arguments derived from natural law to oppose these views. Second, the recognition of Indians as independent nations supports the argument that the only valid method of acquiring their lands is through treaty, a practice that predominated in international relations of that time. Before leaving the Cherokee decision, a brief word should be said about the characterization of the Cherokee as a domestic dependant nations which seems incompatible with their recognition as a nation in the international sense. This inconsistency can be resolved through a temporal distinction on the basis that external sovereignty is lost at the time of taking treaty, at which point the Cherokee assume a state of "pupillage." They are sovereign at the time of entering the treaty (and thus the treaty can still be considered an international agreement). Afterwards, they are dependant in the sense that sovereignty is lost. However, Marshall's statements in Worcester suggest this is reading too much into the analogy. He elaborates on the peculiarity of the relationship between the Indians and the United States as follows: . . .the settled doctrine of the law of nations is that a weaker power does not surrender its independence - its right to self-government by associating with a stronger and taking its protection . . Examples of this kind are not wanting in Europe. 'Tributary and feudatory states' says Vattel, 'do not thereby cease to be sovereign and independent states so long as self-government and sovereign and independent authority are left in the 151 Marshall concludes that the Cherokee retained certain aspects of sovereignty which could not legally be removed by the State in absence of agreement. His position on limited external sovereignty is consistent with the concept of sovereignty or protectorate status in international law. The case of Worcester v. Georgia represents a culmination of an evolving theory on aboriginal title and sovereignty. In Worcester,, a missionary was charged with residing in Cherokee territory contrary to the laws of Georgia. The court held that the laws of Georgia were inapplicable within Cherokee territory. Marshall rejects his earlier theory that title and sovereignty were acquired by the British at the time of discovery. He emphasizes that discovery may have affected rights vis-a-vis the European powers, but Indian rights could only be diminished through voluntary purchase and surrender. By overruling his previous views on discovery, he removes the justification for the assumption that sovereignty is necessarily diminished. Rather, he suggests that aspects of sovereignty may be surrendered pursuant to terms of a treaty (eg. restrictions on trade and alienation) but this does not necessarily have the effect of destroying internal self-government or preventing Indian nations from exercising powers not relinquished. Considering both the terms of the various treaties with the Cherokee and the fact of repeated treaties with them, he upholds Cherokee sovereignty. This reasoning reflects the natural philosophies of Vitoria and accords with principles of 189 international law relating to dependant or vassal states. Marshall begins his repudiation of the theory that dominion and sovereignty were acquired on discovery by admitting it is 152 difficult to comprehend the legitimacy of a proposition that "the inhabitants of either quarter of the globe could have rightful original claims of the dominion over the inhabitants of the other, or over the lands they occupied" or that the discoverer acquired rights "which annulled the pre-existing rights of its ancient 190 • • possessors." Although he continues to assert that discovery was a principle respected by European nations he clarifies that it did not affect the rights of those already in possession "as aboriginal occupants, or as occupants by virtue of discovery made before the 191 • • * • • • memory of man." By this qualification, Marshall upholds original occupation and prescription as legitimate origins of property rights. However, because he continues to uphold discovery as a legitimate exclusionary principle, he does not change his position on the inability of aboriginals to transfer their lands to anyone other than the discovering nation. The right of the discoverer was • • • • • 192 not dominion, but simply a pre-emptive right of purchase. Marshall removes the second basis for upholding absolute dominion in the Crown by specifically repudiating his previous views on conquest. He clarifies that the policy of Britain was not one of title by conquest but title by purchase. Although he admits the existence of some Indian warfare, he analyzes the right of the government to make war in the context of "just cause" rather than conquest.193 The Worcester decision also contains significant statements on the question of aboriginal sovereignty. It is beyond the scope of this thesis to examine sovereignty in any depth. However, a summary of Marshall's views on this point are reflected in the 153 following quotation upholding the natural right of the Cherokee Nation: The Indian nations had always been considered as distinct, independent political communities retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. . . The words "treaty" and "nation" are words of our own language selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.194 The court notes that final word of the concept of title arises from modes of usage foreign to European systems and includes communal tenure as an aspect of occupancy rights. The court affirms that Indians were considered to own their lands in common • .195 • • by a "perpetual right of possession" and that Indian possession or occupation was considered with reference to their modes of life; "their hunting-grounds were as much in their actual possession as the cleared fields of the whites." The above discussion reveals that natural law played a significant role in developing the first positive law on aboriginal title. Not only were precepts of natural law recited in the pleadings before the court, they were also eventually mirrored in principles enunciated by the Marshall court. By 1832, the United States Supreme Court upheld the pre-existing natural rights of Indian peoples and translated Vitoria's views on occupancy into positive law. The only conflicting principle with contemporary philosophies was the acceptance of discovery as an exclusionary 154 principle accepted by nations and the restriction placed on alienation. Even this position is hard to rationalize as limiting aboriginal rights because the effectiveness of the exclusionary principle lies in the absence of other buyers, not the inability of the Indians to sell. By 1835, the distinction between cultivated lands and uncultivated lands introduced by Vattel was rejected. The final theory enunciated in Worcester is in complete harmony with contemporary philosophies of natural law which rejects ethnocentric bias, upholds inter-societal agreements and emphasizes the role of community autonomy in the definition of "common good." Unfortunately, this doctrine was formalized at a time when the political practice of the United States was moving toward domestication of Indian affairs. In 1830, Congress passed the Indian Removal Act. 4 Stat. 211, which provided for the removal of tribes from the eastern shores. Despite the ruling in Worcester, president Jackson forcibly removed the Cherokee from their lands.197 Policy changed to favour the exercise of direct colonial power over native nations. This policy was augmented through legislation which had the effect of gradually wearing away Indian sovereignty 198 and eventually the treaty making process was brought to an end. 2. The Commonwealth Doctrine The significant decisions rendered by courts of the British Commonwealth are divided between those that uphold natural origins of aboriginal title and those that assert the need for legislative recognition or at least elements of title provable in a court of law. In Symmonds. Mr. Justice Chapman upholds that aboriginal title does not originate in the sovereign, but in occupancy since 155 time immemorial. In his view, the law requires if such title is to be extinguished, it must be by fair purchase. This doctrine was approved by the privy council in Nireaha Tamaki v. Baker which at the same time refused to consider the Marshall decisions.200 This reflected the 19th century practice of the Judicial Committee of the Privy Council and British courts to consider United States authorities. Two more recent cases distort natural principles in attempts to establish recognition of aboriginal title in the common law. > • • • 201 In re Southern Rhodesia involved a dispute over unalienated land. The undeveloped nature of tribal land was held not to disqualify natives from possessing legal rights, a principle clearly valid in the natural law tradition. However, the decision assumes that the tribe should prove that their property rights have survived the English assertion of sovereignty so that the native system can be reconciled with institutions of non-native society.202 In Millirpum  v. Nabalco Property Ltd.. the court conceptualized native title in terms of English title despite its express intention not to do so.203 A property right is defined as "the right to use or enjoy, the right to exclude others, and the right to alienate" and the court concludes that the Indians do not have a legal propriety right. This decision has been subject to much criticism and has been rejected in Canada by Mr. Justice Hall on the grounds that is presupposes the necessity of recognition after discovery or • • 205 conquest to establish a legal right. 156 3. Canadian Decisions As previously stated, a natural interpretation of aboriginal title upholds the following fundamental principles: 1. aboriginal title is an independent legal right derived from original occupation; and 2. aboriginal title may only be extinguished by consent. The American doctrine of aboriginal title adds the following two principles, the second of which is questionable in natural law: 1. aboriginal title is derived from aboriginal (original) occupation or occupancy by virtue of discovery prior to the memory of man (prescription) ; and 2. aboriginal title is inalienable to anyone other than the Crown. For the remainder of this thesis the term "first principles" will be used to refer to the first three above named principles which are not only legitimate when measured against contemporary philosophies of natural law, but have been translated into positive law first in the Worcester case and later, with slight modification in the Canadian decisions Calder v. A.G. of B.C. and Guerin v. R. The remainder of this chapter will trace the extent to which these principles have been upheld in the significant cases on aboriginal title in Canadian law. The first decision in Canadian law is St. Catherine's Milling  and Lumber Co. v. The Queen (1888) ,206 In St. Catherine's, the Privy Council made three major statements concerning the doctrine of aboriginal title in Canada namely: the source of a legal right 157 to aboriginal title is the Royal Proclamation of 1763, aboriginal title is dependant on the good will of the sovereign and the nature of aboriginal title is personal and usufructuary. Although the first principle is no longer upheld by the Canadian courts, it is worth discussing because it reflects the influence of positivism on the initial development of aboriginal rights theory in Canada. Judges who accept a positivst philosophy are bound to render decisions in conformity with settled principles of English law, applicable legislation and precedent. To the extent that right cannot be found in the royal prerogative, commonlaw or statute, it does not give rise to a legally enforceable interest in the English 207 • • system. The predominance of this philosophy in the late nineteenth and early twentieth centuries explains why the Privy Council defined the nature and scope of Indian title based on an 208 interpretation of the Royal Proclamation. If a source could not be found in English law, they could not uphold aboriginal title as a legal interest in land. The validity of the Royal Proclamation as the source of Indian title rests on two assumptions - the legal reception of English law in Canada and the need for rights arising from independent legal systems to be recognized and implemented by domestic legislation. Both of these assumptions are based on the exercise of sovereignty by the British Crown. Although the former is left unchallenged by the Canadian courts, the latter has been explicitly « • • • 209 overruled in the area of aboriginal title. The second principle that title exists at the sufferance of the Crown forms the basis of the Canadian position on the legitimacy of unilateral extinguishment. The court reaches this 158 conclusion by emphasizing possessive terminology in the Royal Proclamation implying property in the British Crown as well as passages that suggests the sovereign may not continue to recognize the legitimacy of aboriginal title at a later date. This interpretation of the Proclamation has been challenged on the grounds that emphasis on other passages support the characterization of all lands as Indian territories until they are 210 • # • purchased. The latter interpretation is argued to be the most appropriate if one considers the historical context in which the Proclamation was made. It was a time when a moratorium had been placed on westward expansion and the British were formalizing their policy of expansion through consensual acquisition. It was not intended to be a source of Indian rights but a statement of when and how Britain intended to move westward.211 Argument on the different interpretations of the Royal Proclamation is endless and the question of its scope, meaning and legal effect are yet to be resolved by the court.212 The issue of scope is addressed to a limited extent later in this thesis. At this point, sufficient discussion has been given to illustrate the difficulty in relying on the Proclamation as a source of sovereign rights. The third principle also finds its origins in positive law. The characterization of aboriginal title as "personal and usufructuary" and a mere "burden" on the underlying title of the Crown. The concept of usufruct finds its origins in positive Roman law on land tenure.213 In Smith v. R. the court defined usufruct as follows: 1. Law: The right of temporary possession, use, on enjoyment of the advantages of property belonging 159 to another, so far as may be had without causing damage or prejudice to it. 2. Use, enjoyment, or profitable possession (of something).2U This characterization has lead some to argue that aboriginal title is not a property right but this argument has been effectively discounted in the Star Chrome case where the Privy Council explained that Indian title is "a personal right in the sense that it is in its nature inalienable except by surrender to the Crown.1,215 The St. Catherine's case is probably the clearest example of the movement away from the first principles of aboriginal title. Although the Supreme Court recognized the validity of the Marshall decisions as an attempt to state the pre-existing legal regime before America was formed, these decisions were not directly cited by the Privy Council in their attempt to rationalize aboriginal title within a positivist regime . The conflict between the St.  Catherine principles and first principles of aboriginal title are so clear they need not be stipulated. The most obvious is the assumption that Britain could acquire ultimate title by discovery, conquest or some other manner than purchase; that somehow Britain gained absolute dominion and sovereignty without the consent of the original occupants; that British laws replace Indian laws regardless of their consent; and that the sovereign and proprietary rights of the aboriginals could not survive without recognition after the assertion of British sovereignty. Not only are these propositions questionable in the context of British legal theory 160 and practice, they are contrary to fundamental principles of 217 natural law. The next major opinion on the question of aboriginal title occurred almost ninety years later in the decision of Calder v. 218 • • A.G. of B.C.. In this case the Supreme Court of Canada signalled a movement back to first principles by finding that the Royal Proclamation was not the exclusive source of aboriginal title, but that aboriginal title had its origins in the prior use and occupation of specified lands by aboriginal societies. However, a misunderstanding of the Marshall trilogy, other American case law and the nature of Indian title leads the court to uphold unilateral extinguishment and split on the question of methodology. Consequently, Calder opens the door to natural philosophies of aboriginal title but at the same time reaffirms limitations introduced by the positivist regime. Both Mr. Justice Judson (speaking for three) and Hall deny the need for aboriginal title to be recognized by the Crown before it 218 can be enforced as a legal right. Justice Blackburn expands on this point by saying that to decide otherwise would be to assume that natives have no rights except those recognized after conquest • • • • • • • * 219 • on discovery, a principle which in his opinion is wrong. Justice Hall denies the same principle on the ground that the Act of State • • • 220 doctrine is inapplicable to aboriginal title cases. Both Hall and Judson trace the source of aboriginal title to a pre-existing • 221 « • right of possession. Mr. Justice Judson summarizes the concept of aboriginal title as follows: 161 Although I think it is clear that Indian title in British Columbia cannot owe its origins to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a 'personal and usufructuary right.' This simple statement of Mr. Justice Judson reaffirms the first principle of the natural theory of aboriginal title — aboriginal title is derived from original occupation. The reference to organized societies reflects the historical fact that aboriginal lands were held in common. It is important to note that he does not add the same qualification found in Worcester that title may also be acquired through immemorial possession. Rather, it is sufficient that the land be in the possession of the Indians when the settlers came. It is Mr. Justice Hall who introduces the concept of immemorial possession in his explanation of why the Nishga claim is not a prescriptive claim. He does not exclude prescription as a method of acquiring title, but argues its inapplicability because the Crown has admitted immemorial possession and a prescriptive right presupposes a prior right in some other person or • 223 • • • • authority. Hall fails to pick up on the point that prescription may also be based on immemorial possession if one accepts the natural philosophies of Wolff and Vattel in this area.224 This point was clearly understood in Worcester. The natural law principle that aboriginal title may only be extinguished by consent is rejected by both Mr. Justice Judson and Hall. Instead, both uphold the principle enunciated in St.  Catherine's that aboriginal title is dependent on the good will of 162 • 225 the sovereign. Both refer to Johnson v. M'Intosh and Worcester  v. Georgia to uphold the description of the nature of Indian title in St. Catherine's. In Judson's opinion, St. Catherine's was influenced by the above named judgments. In particular, he quotes a passage from Johnson v. M'Intosh which upholds absolute title in 226 the crown, subject to the Indian right of occupancy. Judson fails to appreciate that this statement assumes that the Crown obtained title and sovereignty through discovery and conquest. The reformulation of these concepts in Worcester resulted in the recognition of absolute title and sovereignty in Indian nations with the exception of a restriction on their right of alienation. This confusion could be due to the fact that counsel for the Nishga lumped the Marshall decisions together as representing a uniform approach to recognition of title as do most American texts and articles. Hall refers to Johnson v. M'Intosh as the "locus classicus of • • • • • • 227 • the principles governing aboriginal title." Like Judson, he quotes it in support of a legal and just claim to aboriginal title, but fails to appreciate this is all Johnson can stand for. Mr. Justice Hall's error can be seen in the following passage: The dominant and recurring proposition stated by Chief Justice Marshall in Johnson v. M'Intosh is that on discovery or on conquest the aborigines of newly-founded lands were conceded to be rightful occupants of the soil with a legal as well as just claim to retain possession of it and to use it according to their own discretion . • • Hall would have accurately summed up the natural philosophy of aboriginal title endorsed by the Marshall trilogy if he stopped there, but he went on to say: 163 . but their rights to complete sovereignty as independent nations were necessarily diminished and their power to dispose of the soil of their own free will to whomsoever they pleased was denied by the original fundamental principle that discovery of conquest gave exclusive title to those who made it.228 The acceptance of absolute power and title in the Crown lays the necessary theoretical foundation for the doctrine of unilateral extinguishment. In Mr. Justice Judson's opinion, extinguishment may be accomplished by legislation allowing alienations inconsistent with the existence of aboriginal title and does not give rise to a right to compensation in absence of a statutory • • 229 • direction to pay. Relying on some of the same precedents, Mr. Justice Hall concludes that Indian title must be presumed to exist unless the sovereign indicates a "clear and plain" intention to extinguish Indian title and that land should not be expropriated without compensation unless there is legislation to that effect.230 A more detailed analysis of extinguishment is given in Chapter 5 of this thesis. The point her is that a misunderstanding of the Marshall trilogy, which upholds cession as the only valid method of extinguishing title, has resulted in a drastic movement away from first principles beyond the single limitation on the right of alienation upheld in the Worcester decision. The next decision worthy of note is Hamlet of Baker Lake v.  Minister of Indian Affairs and Northern Development. Although this opinion was delivered at the federal court trial level, it has been subsequently applied with approval by the Ontario High Court 232 of Justice and the British Columbia Court of Appeal. The decision has also been used by opponents of Metis title to illustrate the impossibility of Metis successfully proving a claim 164 to aboriginal title. Finally, it adopts the commonwealth perspective that aboriginals should be able to prove their claims and attempts to set out a series of proofs that must be met. In doing so, Mr. Justice Mahoney not only misinterprets common law precedent, but takes Canada further away from a natural philosophy of aboriginal title. For all of these reasons, the case is worth examining in some detail. Mr. Justice Mahoney upholds the proposition that the Royal Proclamation is not the only source of aboriginal title. He quotes Calder and Worcester v. Georgia to support the general proposition that "the law of Canada recognizes the existence of an aboriginal title independent of the Royal Proclamation or any other prerogative Act or legislation."234 Had Mahoney appreciated that the four to three split in Calder on the recognition of Indian title as an independent right, he may have looked into the American decisions in more depth and come to terms with the first principles of aboriginal title. Instead, he jumps from this initial proposition to the elements of proof that must be proven by the plaintiff to establish aboriginal title cognizable at common law. These are: 1. That they and their ancestors were members of an organized society. 2. That the organized society occupied the specific territory over which they assert the aboriginal title. 3. That the occupation was to the exclusion of others. 4. That the occupation was an established fact at the time sovereignty was asserted by England.235 165 The first requirement is derived from the reference to organized societies by Mr. Justice Judson in Calder and the reference to the level of Indian political organization in Worcester. In Mahoney's view, the level of organization need not be more "than is necessary to demonstrate that there existed among the aborigines a recognition of the claimed rights, sufficiently defined to permit their recognition by the common law upon its • 236 • advent to the territory." The level of organization is not to be measured against European structures, but the needs of the group asserting the claim taking into consideration their physical surroundings. The effective date for determining the level of organization is the date England asserted sovereignty and the fact that their society has changed since then is irrelevant.237 The requirement of organization likely finds its source in the argument that insufficient political organization renders lands terra nullius and open to occupation. As discussed earlier, this view was adopted to justify the taking of lands of nomadic peoples with limited social structure. It is in response to this tradition that the element of organization was built into original theories on aboriginal title. In Calder. Mr. Justice Judson and was not attempting to delineate criteria, but to eliminate cultural bias and accept Indian forms of political organization as sufficient to remove their lands from terra nullius. Be that as it may, Mahoney is not acting contrary to principles of natural law when he incorporates the defence of organization into a criterion of positive law because he does not impose an arbitrary preference to community or adopt a social darwinistic approach to defining political organization. Rather, he accepts as valid forms of 166 organization radically different from European standards. Further, the requirement of organization reflects the communal nature of aboriginal title which is acknowledged by scholars of natural law to be the natural state of property holding and which has been advocated by aboriginal groups themselves. However, it is important to note that a requirement of organization is not inherent in the first principles of original occupation of unoccupied lands or prescriptive rights to previously occupied lands and that organization need not mean more than "community" or • • • 239 "group" in the natural law tradition. The second criteria that the group occupy the territory claimed is in accordance with a natural philosophy of aboriginal title based on prior possession. Again, Mahoney adopts a subjective test and applies the test at the date of asserting sovereignty. In doing so, he rejects arguments based on "quality of use" such as those initially introduced by Vattel and recognizes the central feature in a natural interpretation to aboriginal title - occupation or possession.240 It is in the third an fourth criteria that Mahoney introduces concepts of British law which are foreign to a natural interpretation of aboriginal rights. According to Mahoney, occupation must be to the exclusion of others. In natural law, (and in Canadian property law) exclusivity is a right of property and not an obligation.241 It is not contrary to natural precepts for groups to share their lands by agreement or to hold distinct but overlapping titles if such arrangements promote the overall common good of aboriginal communities. Further, as Professor Slattery points out "the courts should endeavour to give effect to 167 the actual patterns of use existing among the groups in question, in keeping with their sui generis character. 1,242 The Americans have done this to a certain extent by recognizing lands held in joint and amicable possession. As authority for this proposition Mahoney cites United States  v. Santa Fe Pacific Railway Co.244 However, exclusivity was not an issue in Santa Fe and there is nothing in the decision to suggest that territories mutually used by aboriginal groups were excluded. Whether justice Mahoney is conscious of it, the application of this criteria originates in early English law on the legality of custom and prescriptive rights both of which emphasize uninterrupted and exclusive exercise of the right asserted. The application of these principles are no longer appropriate in light of the Guerin case discussed infra. The influence of British customary law and doctrines of immemorial prescriptions are most evident in the fourth criteria enunciated by Mahoney in which he asserts that the group must have had possession since "time immemorial" and he defines "time immemorial" as the date of assertion of English sovereignty over the territory claimed.246 This criterion can be attacked on several grounds. From the perspective of natural rights, it confuses rights arising from original occupation with rights arising from immemorial prescription. Further, in collapsing original and prescriptive rights, it fails to take into account ordinary prescriptive rights which arise based on possession for a substantial period of time. As indicated previously, the latter concepts are not contrary to natural law because they contribute ?A7 to the common good of social stability. 168 The acknowledgment of three sources of rights - original occupation, immemorial prescription and ordinary prescription was first suggested in Worcester and continues to receive recognition in contemporary American law. In the United States it is sufficient to possess the land for a "long time" or long enough to transform the area into domestic territories. This view is clearly more reflective of natural principles than one which refuses to recognize any form of title that does not pre-date the assertion of English sovereignty. Calder can not be used as precedent for this latter criteria. Judson simply states that "when the settlers came" the aboriginals had been in possession of their land "for centuries." He does not state that rights could not be acquired after settlement if such settlement occurred as a result of wrongful appropriation of Indian lands. Further, it is not clear what Mahoney means by assertion of sovereignty, although it has been assumed that he means the date of European settlement. Other cases cited by Mahoney in support of the criteria of "time immemorial" may refer to the fact that the aboriginal group at issue had possession since time immemorial, but none of the cases referred to holds this as an essential proof of f^f1o 250 title. Finally, this requirement does not make sense in the context of aboriginal history. As professor Sanders points out, not all Indian groups that have settled title claims can assert occupation prior to settlement. For example, neither of the two major Indian communities in Southern Quebec were in control of their tribal 251 lands in those areas prior to French settlement. Further, groups which have moved away from traditional lands are not excluded from 169 advancing claims. For example, in the plains tribes can only trace their occupation back to the introduction of the horse by the Spaniards and migration from traditional lands, yet they have not • • • • 252 • lift* been denied aboriginal rights. Given the above criticisms, it is unlikely that this last criterion would survive a direct challenge in the courts. Before leaving Hamlet of Baker Lake, the "frozen title theory" and question of extinguishment should be addressed. Mahoney focuses on the date of assertion of sovereignty to determine the nature and existence of aboriginal title. The theory assumes that the claimant group must "be in possession at the relevant date and it cannot inherit title from earlier occupants or tack its 252 possession on to theirs." As Slattery points out, this theory implicitly treats aboriginal title as finding its origins in a Crown grant by assuming dominion in the Crown and its permissive policy toward use and occupation of lands by Indian peoples. The basic objection to this approach is it forces aboriginal title into a "mold familiar to English law, while disregarding factors peculiar to its origin." Further, the theory freezes aboriginal rights at a point in history by limiting the legal rights of the group to those exercised at the relevant date. This approach refuses to recognize aboriginal peoples as evolving cultures with changing needs. Mahoney also upholds the validity of unilateral extinguishment but introduces a new twist into the question of methodology. He argues that if "the necessary effect of legislation is to extinguish aboriginal title then the courts must give effect to 170 it."254 In his view the intention need not be set forth explicitly • • • 255 in the legislation. The final decision to be considered is Guerin v. R. In this decision, Chief Justice Dickson resurrects the concept of title upheld in Worcester by recognizing the origin of aboriginal title in a pre-existing right of possession and limiting the legal nature of aboriginal title only to the extent that it is inalienable to the Crown. In doing so, he moves away from the narrow legalism characteristic of St. Catherine's and Hamlet of Baker Lake. In Dickson's view, aboriginal title is "a legal right derived from the Indian's historic occupation and possession of their tribal lands."256 He does not qualify this possession by imposing criteria of possession prior to settlement since "time immemorial." Rather, he points to Johnson v. M'Intosh as authority for the proposition that aboriginal title predates and survives claims to sovereignty by Europeans and emphasizes that portion of the judgment upholding their legal and just claim to retain possession. Unfortunately, he also quotes passages in Johnson which have been overruled, but he only expressly relies on these passages to the extent they support the argument that change in sovereignty over a given ( • • • 257 territory does not affect pre-existing rights. Dickson upholds the characterization of aboriginal title as personal and usufructuary citing St. Catherine's. Star Chrome. 258 Admodu Tiiani and Johnson v. M'Intosh to support his views. However, he does not deny it is a proprietary interest. Recognizing the existence of a debate on the personal nature of the right he states: 171 . . . there is not real conflict between the cases which characterize Indian title as a beneficial interest of some sort, and those which characterize it as a personal, usufructuary right. Any apparent inconsistency derives from the fact that in describing what constitutes a unique interest in land the courts have almost inevitably found themselves applying a somewhat inappropriate terminology drawn from general property law.2 He goes on to characterize their interest as "sui generis" and states: The nature of the Indians interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians' behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.260 The views of Chief Justice Dickson on the origin of aboriginal title translate the first principle of title from original or historic occupation and possession into positive law. The removal of limitations on possession other than restrictions on alienation suggests that there is room in Canadian law to recognize title from original occupation, immemorial occupation and perhaps ordinary prescription depending on the interpretation given to "historic." The reference to title as "sui generis" suggests the frozen title theory and legalistic restrictions on the nature of possession introduced in the Baker Lake case will be rejected in favour of actual patterns of occupancy and land tenure recognized by Indian societies, all of which accords with the natural precept that title in found in possession. Whether the Canadian courts will go so far as to uphold the necessity of consent for the purpose of extinguishment is yet to be determined. The emphasis placed on Johnson v.M'Intosh suggests that the court does not yet completely understand the natural 172 origins of aboriginal title or the American doctrine on aboriginal sovereignty and dominion. On the other hand, the refusal to limit aboriginal title beyond restrictions on alienation and the classification of aboriginal rights as "sui generis" suggests that the Canadian courts are open to argument on the proper reading of the Marshall trilogy and natural theories of aboriginal title. The acceptance of inalienability was crucial in this decision in order to establish a foundation for the Crown's fiduciary obligation (or trust as characterized by Madame Justice Wilson). However, as Worcester illustrates, this limitation may continue to be adopted without upholding the proposition that title is "dependant on the good will of the sovereign." The latter conclusion is contrary to natural law principles and the law of nations. IV Summary of a Natural Theory on Aboriginal Title In summary, my theory on the natural principles of aboriginal title is: 1. The characterization of aboriginal rights as "sui generis" suggests that the Canadian courts are willing to reconsider the foundations upon which claims to aboriginal title are based. 2. The common law doctrine of aboriginal title is derived from principles of natural law. This fact was recognized by early publicists considering the acquisition of lands in North America, British colonial theory, and the judicial opinion of the Marshall court. Respect for natural principles of aboriginal title is also evidenced in the British 173 practice of treaty making, but a link between practice and contemporaneous jurisprudence is not proven. 3. The idea of natural law as a valid basis for legally enforceable claims is legitimate given the influence it played in shaping the original doctrine of aboriginal title. 4. Positive laws governing the origin and acquisition of property rights are not contrary to natural law to the extent they promote stability and peaceful social relationships. The fundamental principle at the basis of a just property regime is that first occupation of previously unoccupied land establishes rights of property in the occupant. The extent to which this principle can be legitimately altered by positive law will depend on the extent to which the law contravenes natural precepts and whether contravention can be legitimized as furthering the common good. 5. Vitoria*s views on acquisition are most indicative of a natural law theory of aboriginal property rights. In accordance with his theory, Europeans were morally and legally bound to recognize that first use and occupancy established Indian ownership over Indian lands. Vitoria1 s views on paternalistic intervention are contrary to contemporary philosophies of natural law. 174 A natural interpretation of aboriginal rights upholds the following principles: (a) aboriginal title to a specific parcel of land arises from original occupation of that land by organized societies; (b) aboriginal title may only be extinguished by consent. Despite the initial tendency of the Canadian courts to positivism, the first of these two principles has been upheld by the Supreme Court of Canada. The second is currently the subject of litigation. A natural interpretation of title recognizes title arising from ordinary or immemorial prescription against the original occupant, but does not impose immemorial possession as a criterion. The reference to "historic" occupation in Guerin suggests immemorial and ordinary prescription may also be recognized in positive law as a legitimate basis for aboriginal title. Rights arising from possession for a substantial period of time have been recognized in the American tradition. The legitimacy of title acquired prior to surrender of aboriginal title to a discovering sovereign depends on its legitimacy vis a vis the rights of the original occupants. Prescriptive rights acquired against the original occupant are valid assuming good faith and possession for a substantial period of time. Discovering nations are morally 175 obliged to recognize them as a derivative form of aboriginal property rights. 10. A natural interpretation of aboriginal title would require the following proofs of title: the existence of an identifiable group and occupation of a territory as original occupants or for a substantial period of time. These criteria are based on current occupation. If a group was wrongfully displaced, this criteria should be applied at the date of dispossession. 11. Unilateral extinguishment without compensation is contrary to natural law. 176 CHAPTER 3 ENDNOTES Guerin v. R. [1984] 2 S.C.R. 335. Id. at 377-79; 382. D. Sanders, "Pre-Existing Rights: The Aboriginal Peoples of Canada," (Vancouver: University of British Columbia, Faculty of Law, 1988) 35, photocopied, at 1. B. Slattery, "Understanding Aboriginal Rights" 66 Canadian  Bar Review 727 at 736-741. See, for example, M. Mossman, "Developments in Property Law. The 1984-1985 Term." (1986) 8 Supreme Court Law Review 319 at 335. Simon v. R. (1985) 24 D.L.R. 390 at 404 (S.C.C.). R. Begin, Natural Law and Positive Law (Washington: Catholic University of America Press, 1959) at 50. Id. at 56. Contemporary theorists also point to the influence of Greek scientific and mathematical thought on the rational approach to reality prevalent in original theories of natural law and the creation of universal principles some of which could be stated mathematically. See, for example, J.C. Smith and D. Weistub, The Western Idea of Law (Toronto: Butterworths and Co. (Canada) Ltd., 1983)) at 242-243. In the discussion of specific natural law publicists the term "men" or "man" is used in the same sense as intended by the publicists named. The author recognizes the historical context in which these philosophies developed and the consideration of "reason" as part of the "male" nature. Contemporary natural law theorists would extend the application of their theories to include all humans, male or female. 177 11. Quoted in C. Phillipson, The International Law and Custom of  Ancient Greece and Rome. Vol. I (London: MacMillan and Co., Ltd., 1911) at 53-54. 12. Id. at 54. 13. Aristotle, Ethics. Book V, trans. J.A.K. Thompson (London: Penguin Books, 1955) at 157-159 in Smith and Weistub id. at 279-280. 14. Id. at 280. 15. See, for example, Ernst Cassirer, The Myth of the State (New Haven: Yale University Press, 1946) at 100-104; E. Vernon Arnold, Roman Stoicism (Oxford: Clarendon Press, 1936) at 273-385; George Sabine, A History of Political Theory (New York: Holt, Rinehart and Winston, 1937) at 163-173; all of the above quoted in Smith and Weistub, supra. note 12 at 288-289, 290-292 and 345-352 respectively. 16. Quoted in Sabine, id. at 345. 17. Sabine, id. 18. There are many sources of St. Thomas' view of natural law. See, for example, Thomas Aquinas, "Treatise on Law" in Summa  Theologica (Indiana: Regnery/Gateway Inc., 1963) at 1-19; E.B.F. Midgley, The Natural Law Tradition and the Theory of  International Relations (London: Elek Books Ltd., 1975) at 1-55; W.F. Roemer, The Ethical Basis of International Law Phd. Thesis, University of Notre Dame, 1927 (London: University Microfilms International, 1981) at 53-69. 19. Roemer, id. at 59. 20. Aquinas, supra. note 18 quoted in Smith and Weistub, supra. note 13 at 382. 21. Midgley, supra. note 18 at 23. 22. Quoted in Midgley, id. at 23-24. 178 23. Midgley, id. at 69-71. 24. Id. at 72-79. 25. For a general discussion see chapter 3 of Midgley, id. at 95-120; see also G. Van Der Molen, Alberico Gentili. 2 ed. (Leyden: A.W. Sijthoff, 1968) at 114-116. 26. Midgley, id. at 137-167; D. Hill, "Introduction" in H. Grotius, The Rights of War and Peace, trans, by A.C. Campbell (Washington: M. Walter Dunne, 1901) at 9-11. 27. A. D'Amato, "Towards a Reconciliation of Positivism and Naturalism: A Cybernetic Approach" [1975] 14 Western Ontario  Law Review 171 at 174-175; Roemer, supra. note 18 at 99. 28. Midgley, supra. note 18 at 168-171; Roemer, id. 29. Midgley, id. at 175-184; C. Wolff, Ius Gentium Methodo  Scientifico Pertractatum. trans, by J. H. Drake in Classics  of International Law, ed. J. B. Scott (Oxford: Clarendon Press, 1934) at 10-19. 30. Midgley, id. at 184-195; Foemer, supra. note 18 at 99-100; E. Vattel, The Law of Nations, trans, unnamed (London: G.G. and J. Robbinson, Patemoster-Row, 1797) at iv-ivii. 31. See, for example, H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) and J. Finnis, Natural Law and Natural  Rights (Oxford: Clarendon Press, 1980). 32. Hart, id. at 188. 33. D. Gormley, "Aboriginal Rights as Natural Rights" (1984) 1 The Canadian Journal of Native Studies IV, 29 at 33. 34. J. Finnis, supra. note 31 at chapter 4. 35. Supra. note 7 at 14-15. 36. Id. 179 37. Supra. note 7 at 14-15. 38. Id. at 29-31 and 36. 39. Id. at 37. 40. Id. at 37-41. There are numerous theories on the concept of right in natural law. With the exception of his discussion on the role of the State in the natural law regime, Begin provides a general definition of right common to most natural law theorists as it is understood in the context of rational equality, the common good and the relationship to human nature and human development. For further discussion on rights see for example J. Finnis "Some Professional Fallacies About Rights" (1971-72), 4 Adelaide Law Review 377; H.N. Hoffield, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven: Yale University Press, 1923) and R. Dworkin, Taking Rights Seriously (Cambridge Mass.: Harvard University Press, 1978). 41. J.C. Smith, "The Concept of Native Title" (1974) 24 University  of Toronto Law Journal 1 at 4. 42. R. v Guerin. supra, note 1; Sanders, supra. note 3; Slattery, supra. note 4 at 745. 43. See, for example, Cicero, De Officias I. vii 21 quoted in J. Scott, Law, the State and the International Community. Vol. II (New York: Columbia University Press, 1939) at 161-162. 44. Ulpian, quoted in Sabine, supra note 15 at 349; see also Digest XLI.i.l and Institutes Hi. 11 quoted in Scott, id. at 163. 45. See, for example, the views of St. Thomas Aquinas, Suarez and Francisco de Vitoria quoted in Scott, supra. note 35 at 161-163, 250; H.L.A. Hart, supra note 31; Finnis, supra. note 31. 46. De Finibus. III. xx. 67 in Scott, supra. note 43 at 160. 47. Digest XLI. i.l in Scott, id. at 163; see also Phillipson, supra. note 11 at 78-81. 180 48. Supra. note 11 at 92. 49. Roemer, supra note 18 at 30-31; T. Lawrence, The Principles  of International Law (D.C. Heath & Co., 1985) at 29. 50. Supra, note 11 at 378. 51. Id. at 379. 52. Quoted in F. Snow, International Law (Washington: Government Printing Office, 1895) at 19. 53. Digest XLI. 1. 3 in Scott, supra, note 43 at 164. 54. Cicero, supra. note 43. 55. Grotius, Mare Liberum. Introduction in Scott, supra. note 43 at 160. 56. Id. 57. Digest XLI. ii.3 in Scott, supra. note 43 at 164. 58. Digest XLI iii. 25 in Scott, id. at 167. 59. Digest XLI. iii. 3 in Scott, id. 60. Digest XLI. x. 5. par 1 in Scott, id. 61. Digest XLI. iiid. 45 in Scott, id. at 165. 62. Grotius, supra. note 46 chapter vii in Scott, id. at 167. 63. Digest XLI. i. 9 par 3 in Scott, id. 64. Digest XLI. i. 20 par 1 in Scott, id. at 168. 181 65. Sir H.S. Maine, Ancient Law (London: Oxford University Press, reprinted 1959, copyright 1861) at 237. 66. Id. at 275, 278. 67. Supra. note 7 at 140-142. 68. Id. at 142. 69. Id. at 143. 70. Midgley, supra. note 18 at 43. 71. See, for example the discussion of Juan Gines de Sepulveda and publicists supporting his views at page 120 of this chapter in Section II, 2 of this chapter. 72. D. Sanders, "The Re-emergence of Indigenous Questions in International Law" (1983) 4 Canadian Human Rights Yearbook 3 at 27 and Lawrence, supra. note 49 at 368. 73. For general discussion see M. McCoubray, The Development of  Naturalist Legal Theory (New York: Croom Helm, 1987) at 169-186. 74. Gormley, supra. note 33 at 34. 75. Id. 76. Id. at 34-36. 77. Id. at 35. 78. See, for example, Western Sahara (1975) I.C.J. Reports 6 at 39; Sanders, supra. note 72 at 38. 79. For a summary of these views see Phillipson, supra. note 11 at 46-42. 182 80. Id. at 53; see also Roemer, supra. note 18 at 26-28. 81. For a discussion of the influence of ancient Greek and Roman law, philosophy and practice on the development of international law, see generally, Phillipson, id. 82. Roemer, supra. note 18 at 60-64. 83. See the discussion of the views of Francisco de Vitoria and his followers at pages 114-118 of this chapter. 84. Midgley, supra. note 18 at 83-85. 85. Id. at 85-86. 86. Roemer, supra. note 18 at 78. 87. Id. at 84-95 and Midgley, supra. note 18. 88. Supra. note 29. 89. Midgley, supra. note 30. 90. Vattel, supra. note 30 at 35-36. 91. See generally Midgley, supraf note 18 at 276-304 and McCoubry, supra. note 73 at 85-94. 92. M.F. Lindley, The Acquisition and Government of Backward  Territory in International Law (Longman's, Green & Co. Ltd., 1926; reprint, New York: Negro University Press, 1969) at 10; G. Morris, "In Support of the Right of Self-Determination for Indigenous Peoples under International Law" (1986) German  Yearbook of International Law 277 at 280. 93. Alexandrian Bulls, May 3 and 4, 1493 reprinted in Paul Goltschalk, Earliest Diplomatic Documents of America (Berlin: 1927) at 21. 94. Morris, supra. note 92 at 281. 183 95. D. Sanders, "The Extent of Recognition of Pre-Existing Rights of Indigenous Peoples in the Legal History of Canada" (Vancouver: U.B.C. Faculty of Law, 1988), 28, photocopied at 5. 96. Francisco de Vitoria, De Indes et de Jure Belli: Reflectiones. trans by J.P. Bates in J.B. Scott ed., The Classics of  International Law (Washington: Carnegie Institution 1917; reprint, Oceana Publications Inc., 1964) at 217-268. 97. Id. quoted in Scott, supra note 43 at 119. 98. Id. at 250. 99. Id. at 276. 100. Supra. note 87. 101. Supra. note 97 at 108. 102. Id. at 109. 103. Id. at 276. 104. Id. at 116. 105. Id. at 148. 106. Scott, supra. note 43, Vol. I at 315. 107. Id. at 316-318. 108. Grotius, Mare Liberum. quoted in Scott, supra. note 43 at 275. 109. Scott, supra. note 106 at 318-319. 110. Id. at 319-320; Scott, supra. note 43 at 320. 184 111. See discussion in Sections II, 2 and II, 3 of his chapter. 112. Morris, supra, note 92 at 286-287, Sanders, supraf note 72 at 5. 113. Publicists supporting these views are listed in Lindley, supra. note 92 at 12-17. 114. Id. at 18. 115. Supra. note 3, at 18. 116. Vattel, supra, note 30 at 35-37, 98. 117. Wolff, supra. note 29 at 50-51; Vattel, id. at 99. 118. Gormley, supra. note 33 at 38, Wolff, id. at 140-143. 119. Vattel, supra, note 30 at 187-192; Wolff, id. at 186-190. 120. Wolff, id. at 188-190. 121. See, for example, D. Jenness, Indians of Canada. 7th ed (Toronto: University of Toronto Press, 1977). 122. Gormley, supra. note 118 at 38. 123. Id. at 39. 124. Id. 125. Id. at 40-41. 126. Sir William Blackstone, Blackstone1s Commentaries. Vol. 1, ed. St. George Tucker (Philadelphia: Birch and Small, 1830) at 34. Note that Blackstone seems to use the phrases "law of Revelation," "Divine Law" and "law of God" interchangeably to reveal to that part of the natural law revealed in the Bible as distinct from natural law revealed in the Bible as distinct from natural law known innately or stated by ethical writer. 185 127. Id. at 34-43. 128. Id. at 43. 129. Sir W. Blackstone, Blackstone1s Commentaries. ed. J. Ehrlich (Wesport: Greenwood Press, 1959) at 777. 130. Id. at 113. 131. Id. at 114-115, 118, 276. 132. Id. at 114. 133. Id. at 117. 134. Id. at 27-28. 135. Id. at 27. 136. Id. at 28. 137. Id. at 280-281. 138. Id. at 36. 139. Id. at 35-36. 140. See, for example, discussions of Marshall decisions in Section III, 1 of this chapter; Sanders, supra. note 72; Morris, supra. note 92; Western Sahara, supra. note 78 and Sanders, supra. note 3, at 25-28. 141. Supra. note 95 at 4; supra. note 129 at 335. 142. Sanders, id. at 5-9; Royal Proclamation of 1763 reprinted in R.S.C. 1970, Appendices, at 127-129. For a general discussion of treaty practice in North America, see, for example, R. Fumoleau, As Long as this Land Shall Last (Toronto: McLelland 186 & Stewart Ltd., 1973) and A. Morris, The Treaties of Canada  with the Indians (Toronto: Belford, Clarke & Co., 1880; reprint, Toronto: Cotes Publ. Co., 1971). 143. Supra. note 142. 144. Supra. note 3 at 5-6 and 28. 145. Supra. note 142. 146. Palmas Island Arbitration (1928), 2 R.I.A.A. 831; The Legal  Status of Eastern Greenland (1933) P.C.I.J. Report Series A/B, No. 53; Lindley, supra. note 92 at 182-185. 147. Worcester v. Georgia. 8 L. ed 483 (1832). 148. Reprinted in Cumming and Mickenberg, eds. Native Rights in Canada, 2 ed. (Toronto: Indian-Eskimo Assoc. in assoc. with General Publishing Co., 1972) appendix III. 149. Sanders, supra. note 141 at 8. 150. Reprinted in Worcester, supra. note 147 at 497-498. 151. Sanders, supra. note 141. For an example of the numbered treaties see Cumming and Mickenberg, supra. note 148 appendix IV. Note the Sask. Indian Federation asserts the numbered treaties are not just land cessions but also explicitly recognize Indian government. Some of the Maritime treaties do not deal with land. 152. The Constitution Act (U.K.), 1982, c. 11, ss. 25 and 35. 153. Sanders, supra. note 72 at 6; St. Catherine's Milling v. R. (1887) 13 S.C.R. 577 at 609. 154. D'Amato, supra. note 27 at 178. 155. Calder v. A.G. of B.C. [1973] R.C.S. 313. 187 156. Guerin. supra. note 1. 157. 10 U.S. (6 Cranch) 87 (1810). 158. H. Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States" (1978) 27 Buffalo Law  Review 637 at 639. 159. Id. at 640. 160. Id. 161. Supra, note 157 at 142-143. 162. Id. at 146-147. 163. Supra. note 147. 164. Supra. note 158 at 641. 165. F. Cohen, "Original Indian Title" (1947) 32 Minnesota Law  Review 28 at 43-44. 166. 5 L ed. 541, 692-693 (1823). 167. Id. at 548-560, 562. 168. Supra. note 158 at 651-653, Sanders, supra. note 72 at 16-19; R. Barsch, "Indigenous North America and Contemporary International Law" (1982) 62 Oregon Law Review 73 at 74-75. 169. Lindley, supra, note 92 at 131. 170. Id.; see also Island of Palmas. supra, note 146 and Western  Sahara. supra note 78. 171. Supra, note 158 at 652. 188 172. Supra. note 166 at 560-561. 173. Id. 561. 174. Supra. note 58, at 646. 175. D.G. Kelly, "Indian Title: The Rights of American Indians in Lands they Have Occupied Since Time Immemorial" (1975) 75 Columbia Law Review 655 at 656. 176. W.F. Pentney, The Aboriginal Rights Provisions in the  Constitution Act. 1982 (Saskatoon: University of Saskatchewan: Native Law Centre, 1987) at 204. 177. Supra, note 166 at 693. 178. See, for example, St. Catherines Milling Co. v. R. (1888) 14 A.C. 46 (P.C.). 179. Supra. note 166 at 561. 180. Cherokee Nation v. Georgia, 8 L ed. 25 (1831). 181. Id. at 32. 182. Id. at 31. 183. Id. at 44. 184. Id. at 30. 185. Id. at 33-34. 186. Supra. note 147 at 500-501. 187. See discussion of political organization in Section II, 2 of this chapter. 189 188. Supra. note 147 at 501. 189. Id. at 494-495; 500-501; per McLean J. at 508; Lindley, supra. note 92 at 181-187. 190. Supra. note 147 at 494 (emphasis added). 191. Id. at 495. 192. Id. 193. Id. at 495 and 497. 194. Supra. note 186. 195. 34 U.S. (9 Pet.) 711 (1835) 196. Id., at 745. 197. Berman, supra. 158 at 665; Morris, supra note 92 at 300. 198. See, for example, Major Crimes Act. 23 Stat. 385 (1885) and the Dawes Severalty Act. 24 Stat. 388(1887). The practice of treaty making was ended by an Act of Congress of 3 March 1871 which provided "No Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty." 199. (1847) N.Z.P.C. 390. 200. (1901) A.C. 561 at 579. See also Amodu Tiiani v. the Sec, of  State [1921] A.C. 399 at 409-410 (P.C.). 201. [1919] A.C. 211 (P.C.). 202. Supra. note 176 at 206. 203. (1971) F.L.R. 141. 190 204. Pentney, supra, note 176 at 272. 205. Calder v. A.G.B.C. (1973) 34 D.L.R. (3d) 145 at 218 (S.C.C.) For criticisms, see G. Lester and G. Parker, "Land Rights: The Australian Aborigines Have Lost a Legal Battle, But . . ." (1973) 11 Alta. L. Review 189; L.J. Priestly, "Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case" (1974) 6 Federal Law Review 150 and Dr. Hookey, "Chief Justice Marshall and the English Oak: A Comment" (1974) 6 Federal Law Review 174. 206. (1888) 14 A.C. 46 (P.C). 207. D. Elliott, "Aboriginal Title" in Aboriginal Peoples and the  Law: Indian. Metis and Inuit Rights in Canada, ed. Bradford Morse, 48-121 (Ottawa: Carleton University PRess, 1985). 208. Supra, note 65 at 46. 209. See, for example, Calder. supra. note 205 and Guerin. supra. note 1. 210. See, for example, Slattery, supra. note 4; M. Jackson, Memorandum submitted to the A.G. of the United Kingdom on  behalf of the Union of B.C. Indian Chiefs in M. Jackson, Materials for Native Peoples and the Law, 1989, photocopied, 597 at 98, and 101-104; The Royal Proclamation, supra. note 143. 211. Jackson, id.; Plan for the Future Management of Indian  Affairs. 1775 in A Statement of Claim Based on Aboriginal  Title of Metis and Non-Status Indians (Ottawa: Native Council of Canada, 1980) appendix 5. 212. The interpretation of the Royal Proclamation is in issue in litigation brought by the Gitskan and Wet'suwet'en against the A.G. of B.C See statement of claim filed in action No. 0843, May 14, 1987 reprinted in Jackson materials, id. at 374-394. 213. Scott, supra. note 43 at 113 and 121. 214. (1983) 147 D.L.R. (3d) 237 at 249 (S.C.C). 191 215. A.G. Quebec v. A.G. Ontario [1921] A.C. 401 at 408. 216. (1886) 13 S.C.R. 577 at 610 per Strong J. 217. See summaries of fundamental principles in Sections I, 1 and I, 2(b) of this chapter. 218. Supra. note 205 at 328 and 390. 219. Id. at 416. 220. Id. at 404-405. 221. Id. at 390 per Hall J. 222. Id. at 328. 223. Id. at 353. 224. See discussion at pages 105 to 106 of this chapter. 225. Supra. note 205 at 328 per Judson C. J. ; at 383-384 and 402 per Hall J. 226. Id. at 320-322. 227. Id. at 380. 228. Id. at 383 (emphasis added); See also 380-385. 229. Id. at 344. 230. Id. at 404. 231. (1979) 107 D.L.R. (3d) 513 (F.C.T.D.). 192 232. A.G. Ontario v. Bear Island Foundation (1984) 15 D.L.R. (4th) 321; R. v Dick [1989] 1 C.N.L.R. 132 (B.C. Prov. Ct.). 233. See, for example, T. Flanagan, "The Case Against Metis Aboriginal Rights" (1983) IX Canadian Public Policy 314. 234. Supra. note 231 at 541. 235. Id. at 542. 236. Id. at 543. 237. Id. at 543-544. 238. There was a similar trend in international law at the same time. See, for example, Western Sahara. supra. note 78; Sanders, supra, note 72 at 25-29. 239. Supra, note 187. 240. Supra, note 231 at 545. 241. See, for example, Wolff, supra, note 29 at 144; Blackstone, supra, note 129 at 113. 242. Supra, note 4 at 758. 243. F.S. Cohen, Handbook of Federal Indian Law Albuquerque: University of New Mexico Press, 1942) at 294. 244. (1941) 314 U.S. 399. 245. See discussion of prescription on customary law in Section II, 3 of this chapter. 246. Supra, note 231 at 546. 247. Supra, note 224. 193 248. U.S. v. Seminole. 180 Ct. CI. 375 (1967); Confederated Tribes  V. U.S.. 177 Ct. CI. (1966). 249. Slattery, supra. note 4 at 759; supra. note 141 at 6. 250. Slattery, id. at note 126. 251. Supra. note 249. 252. Slattery, id. at 759. 253. Id. 254. J. Bickenbach, "The Baker Lake Case: A Partial Recognition of Inuit Aboriginal Title" (1980) 38 University of Toronto Law  Review 232 at 251. 255. Supra. note 231 at 551-552. 256. Guerin. supra. note 1 at 551-552. 257. Id. at 376. 258. Id. at 377-378. 259. Id. at 379-380. 260. Id. at 382. 194 CHAPTER 4 NATURAL RIGHTS OF THE METIS NATION OF MANITOBA  Introduction The identification of the metis people is discussed at length in chapter 1 of this thesis. In that chapter, contemporary revisionism of traditional historical accounts and views of self-identifying metis groups are examined to illustrate some of the difficulties associated with identifying a "metis" people. The phrase "Metis Nation" is used to describe French and English speaking half-breeds who emerged as a distinct cultural group in Manitoba, Saskatchewan and Alberta. Some insist that membership in the Nation is dependant on descendancy from Metis inhabiting territory in Manitoba (Rupert's Land) prior to 1870. Others extend membership to Metis originating in the historic North West Territories who shared a common political will and other persons accepted by descendants of the Metis Nation. Although descendants of the Metis Nation share certain aspects of their history such as modes of survival, political organization, resistance to foreign settlement and unilateral imposition of government, advancement of land claims and participation in scrip programs; the histories of the Metis of Manitoba and the Metis of the North West Territories are also unique. Of particular significance in Manitoba history is the formation of a Provisional Government in 1869 and the role of that government in the creation of the Manitoba Act. S.C. 1870, c.3. For this reason, the natural rights of the Manitoba Metis are examined separate from those of 195 the North West Territories. This does not mean that arguments derived from the history of the Manitoba Metis will not, in some instances, apply to Metis in the North West Territories or that subsequent activities in the North West Territories do not affect claims of the Manitoba Metis. The latter point is illustrated in the discussion of extinguishment in chapter 5. Nor does it mean the Metis in the historic North West Territories, or contemporary self-identifying metis groups, do not have natural rights. Rather, the intention is to illustrate the application of a natural theory of aboriginal title to a metis group by way of examination of a sample population. This examination recognizes certain limitations. First, the focus is natural rights within an inter-societal property regime. The concern is not with property systems within specific Metis communities except to the extent that those systems define natural rights to be respected by others. Second, although some reference is given to primary historical sources, considerable reference is made to secondary sources. If a claim was advanced in Canadian courts based on natural rights, the truth of historical evidence would be at issue unless admitted. This would necessitate the compilation of archival evidence and the utilization of expert evidence by historians, genealogists, anthropologists, archaeologists, etc. The purpose here is simply to outline an argument for natural rights drawing inferences from facts repeated in both primary and secondary sources. These are listed in Appendix I of this chapter. Where the opinion or interpretation of a particular author is relied upon, such reliance is indicated. Third, the discussion of positivist arguments may seem cursory. 196 The intent is not to critique their validity in detail, but to outline for the reader popular arguments concerning Metis title and issues that need to be addressed to develop a coherent theory. Finally, the reader will recall from the discussion in chapter three, two fundamental principles of aboriginal title. These are: 1. aboriginal title to a specific parcel of land arises from original occupation of that land by organized societies; and 2. aboriginal title may only be extinguished by consent. This chapter is concerned with the first of these two principles. Chapter five is concerned with the second. I Positivist Arguments For and Against Metis Title Legal and political commentators on the question of Metis title have centred their energies on developing a theory of Metis title which can be upheld in the context of the common law doctrine of aboriginal title. Consequently, the limited legal opinion in this area has focused on establishing that the Metis are Indians and that Canada recognized a claim by the Metis to aboriginal title.1 With the exception of tracing aboriginal rights of use and occupation through maternal lines, little attention has been paid to the origins or source of Metis title. Rather, the debate has focused on the Manitoba Act and Dominion Lands Acts as sources or, at the very least, legislative recognition of the existence of Metis title.2 The central issue debated is not whether Metis aboriginal rights exist, but whether they have been lawfully extinguished. This approach is pragmatic within the context of a 197 positivist philosophy on aboriginal title claims and continues to be significant given the court's current reluctance to abandon the notion that title exists at the sufferance of the Crown. Opponents to Metis title have also argued within the boundaries of positive law. The government asserts that the Metis are not Indians and any rights they may have had, for whatever reason, were extinguished through the land grant and scrip system established under the Manitoba Act.3 Challenges to the legitimacy of Metis title focus on lifestyle, aboriginality, federal recognition of "special" Metis rights, the concept of title in British colonial law, the ability of the Metis to prove title in accordance with Canadian common law, the legitimacy of the scrip system and the establishment of the Metis as makers of their own misfortune.4 As will be seen, these arguments are challenging in the context of the common law doctrine of aboriginal title, but are difficult to sustain in the natural law tradition. 1. Share in Aboriginal Ancestry This theory asserts that the Metis are a distinct aboriginal nation who, by virtue of their aboriginal ancestry and partial Indian blood, are entitled to recognition of their aboriginal rights including rights to land and self-government. This position was advocated by Louis Riel,5 placed before the Canadian government by Father Ritchot when negotiating Manitoba into confederation,6 and according to some authors, motivated the formation of the Provisional Government and the Metis resistance to the unilateral imposition of title and sovereignty in the Red River Area.7 The theory rejects an arbitrary preference for patrilineal descent and 198 government definitions of who is, and is not, an Indian for the purposes of jurisdiction and responsibility. Rather, the assumption is the right to title by all original nations, regardless of the level of civilization or percentage of Indian blood, is qualitatively the same. The focus is on the Metis as an ethnic collectivity, or nation, in common possession of "Metis" lands. The subsequent recognition of Metis title as a collective or individual right by the federal government is treated as a separate issue and a violation of Metis rights. Because of the tendency to use the words "aboriginal" and "Indian" interchangeably in reference to "title" claims, advocates of Metis title develop a concept of "Indian" that goes beyond racial, cultural and lifestyle definitions. Arguments for the inclusion of Metis within this concept are outlined in chapter two and need not be repeated here except to remind the reader of two points. First, all definitions accept that the core of the group identifying as Indian must be of native descent. Second, while there is clear disagreement on whether all Metis are Indians, there seems to be no opposition to the argument that half-breeds who lived among the Indians and were entitled to take treaty are legitimate beneficiaries of the collective title of the bands with whom they reside. For advocates of Metis title, this compromise is insufficient because it excludes most Metis and fails to recognize the existence of different aboriginal ways of life. Consequently a theory of inheritance has evolved Metis have aboriginal rights by virtue of their Indian blood and inheritance from their Indian ancestors.8 Starting with this premise, 199 arguments are made to illustrate the conformity of Metis history and culture with common law proofs of aboriginal title. At this point it is important to distinguish between political, historical and legal analysis of Metis title. Legal opinion has paid little attention to proof of title at common law. Rather, once "Indianness" is established, the emphasis is placed on express recognition of the Metis share in Indian title to land in legislation, acts of recognition by the federal and provincial governments, and the validity of land grants and scrip as a method to extinguish Indian title.9 As legal opinion in this area has been aimed at achieving results within the existing legal system, the failure to devote more time to origins and proof is readily understood. However, unless entitlement can be established outside of recognition, the courts may have difficulty recognizing legal (versus political and moral) obligations of the Crown. The need for the development of a more comprehensive theory on origins is illustrated in the following statement of Mr. Justice Twaddle in the Dumont case: The legal basis of the [Metis] land claim is a matter of great uncertainty. Unlike the Nishga Indian Tribe in Calder v. Attorney-General of British Columbia (1973) , 34 D.L.R. (3d) 145, the Metis people did not occupy a clearly defined area of land and only on one side of their families can they show descent from persons who inhabited the land from time immemorial. Even if they had aboriginal rights prior to July 15, 1870, these rights may have been extinguished by the Manitoba Act on its subsequent validation. The issue of extinguishment divided the Supreme Court of Canada in the Calder case. It cannot be assumed that it will be resolved in favour of the Metis.10 Some attention has been paid to the question of proof in political and historical writings. In some instances emphasis is placed on the similarity of Metis culture and subsistence 200 activities to traditional views of the Indian way of life. These writings emphasize the importance of activities such as hunting, fishing and trapping and the impact of the Indian culture on the Metis identity.11 Most focus on the blending of the Indian and European cultures into a distinct aboriginal culture enjoyed by the Metis as a "people" and incidents in Metis history that evidence their attempt to continue in possession of their lands to the exclusion of others. Incidents cited include the battle of Grand Coteau, the battle of Seven Oaks, the trial of Guillame Sayer, the opposition to survey, the rejection of McDougall's government, the 1870 insurrection and the formation of the Provisional Government.12 Both approaches evidence the existence of different Metis lifestyles and communities within a given geographic territory when Manitoba was transferred to Canada in the 1870*s. Other commentators focusing on the question of indigenous rights add that the Metis are Canada's only true "natives" as both Indians and Europeans emigrated to Canada from other countries.13 The writer is aware of three attempts to translate these arguments into legal proofs of title.14 Two in favour of Metis title are cursory and emphasize the difficulties that the Metis will face if the court insists on compliance with the criteria enunciated in the Baker Lake case.15 Of particular concern are the criteria of exclusive occupation and possession since time immemorial. In his discussion of exclusive occupation, Steven Carter attempts to fit the mode of Metis land tenure into British property law. He suggest the issue of exclusivity is not vis a vis Europeans, but other Indians as the Metis were in effect 201 claiming dominion over land that at one point was in the possession of others. The solution proposed is to recognize degrees of aboriginal title and to accept a "legal interest in land akin to, perhaps, a tenant at will or sufferance holding the land from other aboriginal landlords."16 The immediate positivist rebuttal to this argument is the inalienability of Indian title, but the idea of degrees of title is one worth pursuing should the Baker Lake criteria continue to be of influence. The Metis Association of Alberta has also considered the potential difficulties in meeting these criteria but concludes: Fortunately, the Metis in the Prairies don't have to establish an aboriginal title under the circumstances outlined by the court, since the Manitoba Act. and several successive Dominion Lands Acts have already acknowledged their rights to Indian Title.17 With the exception of Carter's challenge to the concept of time immemorial, the inherent weakness in both of these opinions is the acceptance of the validity of the Baker Lake criteria. This is of crucial importance in light of the Manitoba Court of Appeal's scepticism regarding the legal basis of Metis title outside of legislation and the emphasis placed on these criteria by opponents to Metis title. If the source of title is legislation, there is nothing preventing unilateral abrogation by the Crown. If legislation recognizes a pre-existing right, that right must have a source. If the source is common law and entitlement is determined in accordance with the legalism of Mr. Justice Mahoney in the Baker Lake case, arguments against Metis title below suggest the Metis will have a difficult time establishing a legal claim independent of statutory promises. Identifying the source of title is also significant if the Metis wish to obtain collective 202 compensation in the form of a land base. Reliance on legislative recognition may not logically give rise to the remedy desired. For these reasons, the Metis must challenge Baker Lake and develop a theory on the origins of their rights. 2. Recognition of Metis Title Advocates of Metis rights argue that the government can not deny the existence of Metis title at common law in face of explicit recognition in s. 31 of the Manitoba Act, equivalent sections of 18 the Dominion Lands Act and s. 35 of the Constitution Act. 1982. Opponents to Metis title will immediately argue the Constitution is not a source of rights and the inclusion of the term "existing" may mean that the reference to Metis in s. 35(2) has no effect as their rights, whatever they are, have been extinguished. Thomas Flanagan suggests that their inclusion in s. 35(2) is a "thoughtless elevation of the Metis to the status of a distinct •aboriginal1 people" and that the damage caused in the name of political expediency is best solved by emphasizing the word "existing.1,19 The inclusion of the word "existing" in s. 35(2) suggests that constitutional recognition will only be given to • • • 20 rights that exist in law and are not yet extinguished. Manitoba Metis argue their rights are not a question of politics. Rather, they rely on s. 31 of the Manitoba Act as evidence of the existence of Metis aboriginal title. The Act is viewed as part of a tradition of recognition of aboriginal rights established in the Royal Proclamation of 1763.21 Section 31 reads: 203 31. And whereas, it is expedient, towards the  extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four thousand acres thereof, for the benefit of families of half-breed residents, it is hereby enacted, that, under regulations to be from time to time made by the Governor General in Council, the Lieutenant Governor shall select such lots or tracts in such parts of the province as he may deem expedient, to the extent aforesaid, and divide the same among the half-breed heads of families residing in the province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine (emphasis added). Further support is drawn from similar language in Orders-in-Council passed under the Act,22 the extension of treaty entitlements to half-breeds and subsequent acts of recognition by the federal and provincial governments such as the establishment of St. Paul de Metis and the Alberta Metis settlements.23 In face of these acts of recognition. Unfortunately, doubts have been cast on the intention of the legislation to recognize Indian title and thus the existence of Metis Aboriginal rights. The alternative source examined is the common law which increases rather than decreases the doubts surrounding the existence of Metis rights. The important phrase in s. 31 is "towards the extinguishment of Indian title." The use of this phrase gives rise to some interpretation problems. The claims of the Metis may very well be collateral claims (rather than aboriginal title claims) arising from the surrender of lands by Indian bands. The satisfaction of the proprietary interest of the Metis, whatever it is, is a logical step "towards" the transfer and extinguishment of Indian title.In order to obtain clear title to Indian lands, it was necessary for the Crown to discharge all legal and equitable encumbrances on 204 Indian title. Title would have to be completely cleared before alienation through sale of grant was possible. This interpretation is supported by subsequent orders-in-council which make it clear the distribution of land grants and scrip is in "satisfaction of" Metis claims. However, with a few exceptions, the basis of the claim is never clearly stated.24 Consequently the basis of the claim could vary among the Metis depending on the lifestyle enjoyed by a particular group or it could be uniform arising from the fact that they were original settlers with possessory rights. The latter argument receives some support from the fact that similar grants were subsequently made to the original white settlers of the Red River Valley.25 Identifying the basis of the claim is important if the Metis assert a collective right to aboriginal title. Without a theory to support collective entitlement to a land base independent of the legislation, it is very difficult to prove that the legislation and subsequent acts of the government are contrary to the intention to establish a land base expressed to the Metis or, that unilateral extinguishment by individual compensation is illegal. On its face, it is difficult, if not impossible, to construe s. 31 as conferring a collective entitlement to a land base. A plain reading suggests a basis for individual claims rather than a collective claim by a "people." The logical consequence of illegality is to compensate the descendants as individuals, each individual claim asserted having examined on its own merits. Again, these concerns are expressed in the opinion of Mr. Justice Twaddle: 205 It is, in any event, impossible to construe s. 31 of the Manitoba Act as conferring on half-breed children generally a community of interest in the 1,400,000 acres appropriated for the benefit of the families of half-breed residents. The section makes it quite clear that the land was to be divided "among the children of the half-breed heads of families residing in the Province" and "granted to the said children respectively." The plaintiffs argue that, by reason of the loss of individual land rights, their forbears were unable to assemble the land which should have been theirs into townships . . . That argument is purely speculative of what might have been. It offers no justification for a finding that the plaintiffs have a community of interest in some unspecified land or that their own rights are at issue.26 Taken alone, arguments against recognition based on interpretation are weak but coupled with arguments against the existence of Metis title they gain in strength. For these reasons, legal opinion must move beyond a dependence on legal recognition to develop a coherent theory on the origins and persistence of Metis aboriginal title. Two alternatives immediately come to mind. The first is to develop a theory within the confines of the popular doctrine of aboriginal title. The second is to reject the legalism introduced into the theory of aboriginal title and develop a theory supporting the natural rights of the Metis people based on first principles of aboriginal title. The difficulties encountered by the Metis in the positivist tradition and arguments advanced in favour of a natural interpretation of aboriginal rights law suggest that a natural theory of Metis title may be more helpful in advancing their cause. 3. Arguments Against Metis Title Government lawyers have focused on the question of extinguishment and Indian status in their defence to Metis title claims. With the exception of the proposed Dene/Metis land agreement in what is now the North West Territories, the setting aside of land for metis collectivities has been done under the guise of welfare legislation and, in the opinion of the participating government, without recognition of claims to aboriginal title.27 Convinced that claims have been satisfied, until recently the federal government excluded metis peoples from the land claims negotiation process and paid little attention to the origins and nature of their claim.28 Increased activity on the part of metis political organizations has re-opened negotiations, but the issues raised in the Dumont case suggest that the federal government is hesitant to admit legal obligations that may arise independent of defects in the scrip distribution system. Further, during the First Ministers conferences on aboriginal title, the federal government indicated a willingness to assist the metis as disadvantaged peoples, but would not accept responsibility for them as s. 91(24) "Indians" unless the provinces provided them with a land base. The author is not aware of a change in this position.29 The existence and proof of Metis title at common law has been challenged by Thomas Flanagan, a professor of political science at the University of Calgary. Flanagan's views are worth examining in some depth as they challenge trends in academic literature concerning Metis history and land claims. In his book, Riel and  the Rebellion: 1885 Reconsidered. Flanagan inquires into the events that lead to the 1885 insurrection and casts doubt on the validity of the Metis claim to aboriginal title.30 Although his focus is the land question in the North West Territories and Riel's involvement 207 in the 1885 "rebellion," he does examine the legitimacy of claims in Manitoba in his discussion of aboriginal title. According to Flanagan, the government erred in "gratuitously introducing the concept of aboriginal title" in the land grant provisions of the Manitoba Act and the Dominion Lands Act.31 He reasons that in Manitoba the Metis wanted control of all public land by local government. This was unacceptable to John A. MacDonald because it was contrary to his plans for railway expansion and nation building in the North-West. Ritchot, a delegate from the Provisional Government established by Riel, acted outside the scope of his authority when he accepted the land grant compromise contained in s.31 of the Manitoba Act. Citing Ritchot's diary as evidence of these assertions, Flanagan argues that it was Ritchot who was the first to claim that the Metis had aboriginal rights as descendants of the Indians. He states that inclusion of the phrase "towards the extinguishment of Indian title" in s.31 is not evidence that the government accepted Ritchot*s view. Pointing to the vagueness of s.31, the numerous orders in council required to clarify the section, later statements of John A. MacDonald, and the fact that original white settlers eventually got the same concessions, Flanagan concludes that the inclusion of the fateful phrase was a thoughtless concession and quick solution to get Manitoba lands into the Dominion of Canada so that the railway could proceed. The significance of Flanagan's argument is he reduces the aboriginality of the Metis to a mistake in the Manitoba Act. This mistake was carried over into the provisions of the Dominion Lands  Act dealing with the claims of the North-West half-breeds. As will 208 be seen in the discussion of Metis natural rights given below, the evidence cited by Flanagan to reach this conclusion can be used to support the opposite view. That is, the Manitoba Act is a treaty negotiated between two governments and s.31, with its subsequent implementation, does not reflect the agreement reached. Turning his attention to the method of scrip distribution, Flanagan argues that there were limited cases of fraud, theft and impersonation. In his view, Metis entitled to scrip under the Manitoba Act lost their scrip through speculation. He notes that the government attempted to avoid this problem when it passed the Half-Breed Land Grant Protection Act but later amended the Act to facilitate the sale of scrip at the request of the Metis. He rejects the theory that the speculators were villains and sees them as the "benefactors both of the half-breeds, whom they provided with sizeable amounts of cash, and of potential farmers, for whom they created a market land as an alternative to the government's requirement for homesteading."32 This view of the Metis as makers of their own misfortune is also applied to the system of scrip distribution under the Dominion Lands Act. Comparing the acquisition of Manitoba and the North-West to a complicated real estate transaction, Flanagan asserts that the Hudson's Bay company was the legal vendor and Indian title was a mere encumbrance which had to be removed before the sale could be completed to the government. "From the offer of purchase through taking possession and finally clearing title, everything was based on the validity of the Hudsons Bay Charter and the contemporary understanding of aboriginal rights."33 He argues that the view of aboriginal title found in the St. Catherine's case was implicit in 209 the dealings with the Metis.34 Indian title was not seen as sovereignty or ownership, but a mere encumbrance which required compensation prior to removal. Indian title was limited and stemmed from the benevolence of the sovereign. According to this view the Manitoba Act is not a treaty, but a unilateral act of the government to clear title. The main weaknesses in the Flanagan's argument is acceptance of controversial positions as "givens." Flanagan assumes that the judicial views presented in the St. Catherine's case are correct, that the source of Metis title and aboriginality is in the wording contained in the Manitoba Act and Dominion Lands Act, and that the Hudson's Bay Company was the legal owner of Rupert's Land and the North-West. Two of these assumptions have been refuted previously in this thesis and clearly form a weak basis for argument.35 The assertion that Metis aboriginality arises from a mistake in history also rests on weak legal foundations if one considers the natural origins of title claims and the strength of academic opinion against Flanagan's acceptance of Baker Lake.36 It also loses ground in Flanagan's discussion of the Manitoba Act. If the Metis are not aboriginals and were intended to be treated as all other white settlers as he contends, why did the government compensate them for their interest in the land in a separate provision referring to "Indian title?" Why was it necessary to "clear title" before the conveyance from the Hudson's Bay Company to Canada could be completed? Flanagan says the answer is one of political expediency not recognition of rights. It is emphasis on the political expediency arguments evidences his failure to understand that recognition is a red herring if one accepts the existence of 210 aboriginal rights independent of legislation. The issue is not recognition, but the legitimacy of extinguishment. The author's failure to address the existence of a unique Metis culture prior to the introduction of survey to Manitoba and the North-West and to question the accountability of the government for incompetence and mishandling of Metis claims is additional evidence of his failure to understand the important legal issues. However, in fairness to Flanagan, one must recognize his opinions were given prior to the Supreme Court's clear recognition of the independent existence of aboriginal title and in response to predominant legal and political arguments concerning legal recognition of Metis rights. Flanagan develops his theory against Metis title and addresses the question of the emergence of the Metis as a distinct society in his article the "The Case Against Metis Aboriginal Rights."37 Flanagan defends his case by examining Metis history in Rupert's Land. He argues that prior to the Manitoba Act, they were not considered a distinct people. Rather "half-breeds could claim a share of aboriginal title to the extent that they were willing to be classified as Indians and that Indians would accept them as such."38 He argues that there was never a demand for special treatment of the Metis as a group and summarizes his argument on the reason for including s.31 of the Manitoba Act as evidence of this assertion. Flanagan contends even if one accepts recognition of title in the Manitoba Act and Dominion Lands Act. it is not enough to establish Metis title. He applies the theory of Ivor Jennings that the mere existence of precedents is not enough to create a binding 211 constitutional convention. Rather one must ask what are the precedents, "did the actors in the precedents believe they were bound by a rule" and "is there a reason for the rule?"39 Flanagan agrees that there are precedents recognizing extinguishment of Metis title, but contends John A. MacDonald considered this a matter of policy and not right. More significant, he argues, is the fact that there is no reason for the rule. According to Flanagan, the reason should be found in the definition of aboriginal rights and Canadian law on aboriginal rights. Accepting that "aboriginal rights are those rights which native people retain as a result of their original possession of the soil," he argues that the Metis could not have had original possession in the usual sense of pre-dating European contact.40 Although he acknowledges the trend in the United States to accept long term possession as sufficient, he argues this could not be applied to the Metis because their "presence was so obviously a result of white intrusion."41 Flanagan then examines the proofs necessary to establish an aboriginal rights claim set out in the Baker Lake case and concludes that the Metis fail on all four accounts. He contends that the Metis were an organized society but not a distinct society to themselves; that is, "a separate society in the classic sociological sense for a self-sufficient group of people living under common rules of conduct."42 According to Flanagan they were never self-sufficient demographically, economically or culturally. Although the Metis claimed a right to go anywhere they chose, they had exclusive territory over which they roamed. To accept a concept of Indian and Metis title to the land would be contrary to 212 Mahoney's concept of exclusive use and occupancy. Finally, he argues that the Metis are the product of intermarriage between whites and Indians so they cannot claim to have been in possession of Rupert's Land prior to the assertion of sovereignty. Flanagan states an argument favouring Metis title is even more difficult if one accepts aboriginal title as a legal theory to allow for the adjustment required in the contact between agricultural and nomadic peoples. Pointing to the more European cultural tendencies of the Metis, Flanagan argues that the Metis were vastly different from the Indians and were not a nomadic people. He contends that aboriginal rights are given to Indians because of their level of social development to reconcile them as a nomadic people to the demands of European civilization. Thus, aboriginal rights are determined by way of life and not racial extraction. Therefore, he concludes, to "speak of aboriginal title being passed on to the Metis through inheritance from the Indians, even though the Metis way of life was very different from that of the Indian, contradicts the nature of aboriginal title."43 Flanagan completes his case with a discussion of the scrip system and current litigation in Manitoba challenging the legality of the system. He argues that even if Metis rights were not effectively extinguished, they are asking for more than they were originally entitled to in law. He argues the logical consequence of illegality would be to compensate descendants of the Manitoba Metis as individuals and not the establishment of a continuing corporate entity as demanded by contemporary Metis politicians and litigants. 213 The strengths of Flanagan's argument lie in his analysis of section 35 of the Constitution and his application of the Baker Lake case to a claim to aboriginal title. He illustrates the importance of defining the Metis as a people, determining the effects of alleged extinguishment and the difficulty of applying traditional aboriginal rights tests to the Metis people. However, the weakness in his analysis lies in his misunderstanding of the legal origins of aboriginal title and his static view of ethnicity. An understanding of the history and development of aboriginal rights and a recognition of ethnicity evolving over time through the selection and adaptation of different cultural forms, forces one to question the appropriateness of Flanagan's definition of an organized society and an aboriginal culture. Arguments for a broad definition of aboriginal peoples have been outlined in some detail in chapter one of this thesis and will not be repeated here. The point is a definition of an aboriginal people should not depend on a lifestyle distinction. In applying the Baker Lake criteria, Flanagan misinterprets Mahoney's test for an organized society. Mahoney saw the test as a subjective test and held that the society must be sufficiently defined to establish a relationship with the land. The key is whether there is sufficient coherence, permanence or self-identification to qualify as an organization or group because aboriginal title is viewed by him as a collective right. The difficulty in meeting the criteria of exclusive territorial occupation and possession since the assertion of time immemorial are more difficult issues to address. As discussed in chapter three, these criteria do not have a solid foundation in positive 214 law on aboriginal title and cannot be sustained in the naturalist tradition. Further, one can point out that Mahoney did not have to address the issue of equal or shared occupation. Finally, recent case recognition by the Courts of aboriginal title as sui  generis may allow the courts to be more flexible in this area.44 Most difficult to accept is Flanagan's argument that the doctrine of aboriginal title was created to allow for adjustment by nomadic peoples. This theory would deny title to large numbers of settled Indian communities that did not participate in a nomadic lifestyle.45 This theory has historically been raised to discredit Indian claims and reflects the white stereotype that Indians have no culture or a single lifestyle. It is also contrary to the reasoning of the courts in the development of the doctrine and is impossible to maintain in face of the Supreme Court's recognition of Indian title as a pre-existing legal right. However, it is fair to say that the original doctrine has been distorted to enhance settlement and legitimize colonization practices in North America.46 It is beyond the scope of this thesis to develop a detailed response to Flanagan's arguments relying on established principles of common law. Although some of the most obvious problems in the positivist analysis of Metis title have been addressed, our concern is to build an argument for Metis title in accordance with first principles. Taking this approach, most of Flanagan's arguments become irrelevant. Aboriginality is not defined by racial, ethnic, or cultural criteria. It simply means "indigenous." The origin of the right is not racial or dependant on a particular lifestyle. Rather, the basis of the claim is original occupation or rights vis a vis the original occupant. The requirement of the existence of 215 a group reflects the natural state of property as common property and recognizes the existence of group rights, in addition to individual rights, in natural law. Exclusivity is a right, not an obligation. Recognition of the right in legislation is irrelevant. The issue is whether the legislation has a legal effect on the pre existing natural right. In essence, the only significant objections raised by Flanagan are the difficulty of defining Metis territory, the characterization of the Manitoba Act as a unilateral act of parliament and the legitimacy of the scrip distribution system. Each of these objections will be addressed in the following discussion of Metis natural rights or the discussion on legitimate methods of extinguishment in Chapter 5. II Natural Rights of the Manitoba Metis 1. Proof of Title Chapter three illustrates that the doctrine of aboriginal title originates in natural theories concerning the origin and acquisition of property rights. A naturalist interpretation accepts aboriginal title is an independent legal right derived from occupation of land by identifiable peoples prior to European acquisition. The most secure title arises from continuous occupation of previously unoccupied lands. However, title arising from immemorial and ordinary prescription may be legitimately asserted against first occupants and subsequent claimants assuming certain conditions are met such as good faith and possession for a substantial period of time. In each instance, recognition is given to title based on occupation and possession rather than some 216 form of derivative title through grant, or agreement. The legitimacy of the title at issue depends on its derivation from the original or "aboriginal" occupant and not the discovering sovereign if such title is acquired prior to voluntary surrender of the underlying aboriginal right. It is through this layering of original title that Metis rights are linked to rights of first occupants. Both find their origins in principles of natural law regarding the origins and acquisition of property rights. This chapter will illustrate that Metis title is acquired from the first occupants through acquiesence and prescription. Proof of title can be established by meeting three criteria: (a) the existence of an identifiable group, (b) original or prescriptive rights against the original occupant and (c) an identifiable territory. The right of exclusivity is important in the context of voluntary abandonment of land rights and territorial sovereignty, but need not be determinative in the event of shared jurisdiction. Natural theory requires flexibility in the selection of an effective date for the application of the above criteria to different groups. For example, a group claiming to have been unlawfully dispossessed of its lands may not be in present occupation of the lands claimed and might have difficulty identifying a contemporary collectivity. Although descendants can be identified to assert the claim, the dispossession may have resulted in the breakdown of tribal organization and the cohesiveness of the group. If the effective date is the date a legal claim is commenced, groups or descendants of groups advancing 217 claims on a basis other than current possession might be barred from compensation for illegal activity. Although title is based on possession, natural theorists would find it repugnant to ignore claims of those wrongfully dispossessed. The preference given to surviving communities and the contemporary property regime inherent in a failure to adjust the effective date for dispossessed groups not only necessitates an ethnocentric bias, but endorses power, rather than justice, as the governing principle in human relationships. Further, ignoring the rights of disadvantaged communities is contrary to the moral obligation of powerful communities and persons in authority to consider the common good of weaker communities that may be harmed by their decisions.47 For these reasons, natural justice requires that the criteria be applied at the date of dispossession or loss of rights. One could argue that it is in the best interest of the Canadian community that the legality of titles held under the current regime be upheld without subject to challenge because of the chaos and social instability that would result if lands were returned to groups illegally dispossessed. This argument echoes the political question doctrine invoked by the Marshall court to legitimize actions of the Crown towards indigenous peoples that were without legal foundation.48 At the same time, it addresses the practical problems associated with the resolution of title claims to settled lands. However, natural law will not simply deem unjust acts just because the act now seems irreversible. A naturalist approach attempts to overcome practical difficulties. This may be accomplished by considering questions such as contemporary identity and availability of historic land holdings in the determination of 218 an appropriate method of compensation, rather than denying the existence of a right or the occurrence of an injustice. Compromise will be necessary on both sides and the resolution of these difficulties may mean monetary compensation rather than the creation of a contemporary land base. The point is natural law will not condone ignoring the right because of the pragmatic problem of formulating a remedy. Determining the date of dispossession is not without its own difficulties. The view one has on sovereign title and legitimate methods of extinguishment will affect her interpretation of "dispossession." Those who ascribe to the view that the Crown obtained an inchoate title upon discovery that is somehow perfected by effective occupation, conquest or purchase might argue the date of discovery is the effective date of loss even though the original inhabitants remained in actual possession. Others might argue the need for an overt action asserting sovereignty such as the enactment of legislation incompatible with the existence of Indian title. Both of these views are contrary to principles of natural law. Natural theory rejects the notion of underlying title in the discovering sovereign and the notion that title exists at the sufferance of the discovering Crown. Rather, it recognizes title in the prior possessor until it is voluntarily surrendered or abandoned. Therefore, a naturalist might argue the effective date of loss is the date a treaty is signed or land is voluntarily abandoned. The natural corollary in the event of wrongful dispossession is the date of the illegal agreement or forced abandonment. 219 The situation of the Manitoba Metis is particularly difficult. Because there is considerable disagreement among authors concerning the nature of the Manitoba Act and its affect on Metis claims. As discussed in further detail below, some argue it was a unilateral act of Parliament, some argue it represents a negotiated settlement that was later dishonored through amending legislation and orders in council, and some argue the Act does not represent the agreement reached. If the legislation is viewed as an agreement gone bad, it is reasonable to select as the effective date the date the agreement was reached, or given the short period of time between the agreement and its enactment, the date the Manitoba Act received royal assent. However, the appropriateness of this selection can be challenged if one considers the method and duration of implementation. Selecting the date of dispossession as the effective date assumes the ability to pin point a date when rights were extinguished or land was involuntarily lost. Unfortunately neither is easily ascertainable. For example, the ambiguous phraseology contained in s. 31 of the Manitoba Act and subsequent legislation suggests the intention of parliament was not to extinguish title with a legislated statement to that effect. Consequently, the date of the enactment of the Manitoba Act is not the date the Metis were dispossessed. Rather, s. 31 is a statement of intent to satisfy Metis claims at a future date on an individual basis. Dispossession was purportedly accomplished through a land grant and scrip distribution process. Some Metis were issued and received scrip or patent or both, some never received either and some never located their lands. The majority were eventually displaced and 220 lost their traditional lands.49 Unlike Indian tribes, the Metis were not removed as a group to designated lands or given reserve lands in exchange for the surrender of their collective rights enjoyed as an indigenous society. Rather, in practice extinction was an on-going process aimed at compensating individual claimants. Consequently the alleged cessation of Metis rights did not occur at once but at different times for different individuals over a period of several years. A natural theory of Metis title may help to resolve some of the confusion surrounding the identification of the date of dispossession. First, theories based on the priority of sovereign title over that of first occupants prior to legitimate acquisition are rejected. Second, the existence of Metis rights is not dependent on the interpretation in s. 31. Therefore, a distinction is drawn between the existence of Metis rights and the decision reflected in legislation to extinguish those rights through individual compensation. Assuming the independent existence of Metis collective rights (discussed below) dispossession is properly viewed as the loss of dominion and territorial sovereignty of the Metis Nation over its lands. The issue is not when individual Metis lost their respective land holdings pursuant to terms contained in s. 31, but when the Metis Nation lost its right to assert ownership and sovereignty within its territories. The determination of the date of loss still varies depending on whether the Manitoba Act is viewed as an agreement or a unilateral act of parliament. The former perspective supports the conclusion that collective rights were surrendered or lost when an agreement was approved by Canada and the Metis Nation. The latter perspective traces the loss of rights to the imposition of martial law in the Red River area immediately after the Manitoba Act was proclaimed and the breakdown of the Provisional Government. Practically speaking, the choice is more significant in reflecting one's perspective on the question of negotiation versus unilateral imposition than affecting the date of loss as both events occurred in 1870 within a couple of months of each other. The following analysis of Metis natural rights uses June, 1870 as the effective date for the application of criteria to the Metis. This date is chosen because it is the month in which the Provisional Government approved the terms of the Manitoba Act and stopped asserting collective rights to Metis lands and self-government in exchange for certain guarantees. From this day forward land holding within Metis communities was regulated by the Canadian government. In August of 1870, Canadian troops entered the Red River area without opposition and imposed Canadian rule.50 Although actual dispossession began several years later, this date reflects a loss of control by the Metis Nation. 2. Identifiable Group (a) Aboriginality Natural rights of property are possessory rights without racial or cultural definition. To suggest a particular race is entitled to property rights due to ethnic origin, lifestyle or method of land tenure violates natural precepts of equality and universality. To deny rights of occupancy based on any of these reasons is to deny the humanity of the group deprived and to 222 attribute special or "supernatural" rights to the beneficiary. Consequently, the extent to which the positive law on aboriginal title is affected by a racial or way-of-life distinction is the extent to which it deviates from its original and natural application. The issue is not one of race or culture, but the moral obligation of all races and cultures to respect pre-existing rights arising from legitimate possession.51 This point is significant to the Metis people who are of partial Indian ancestry and who, as an entire people, did not enjoy a single way of life. Rather, by 1870 there were at least three distinct classes of Metis living in what was then Manitoba - those who lived as Indians and were recognized as members of a particular Indian tribe; the hivernants, who continued to pursue the nomadic life of the buffalo hunter and those who engaged in farming. Those who farmed continued the traditional pursuits of hunting, fishing and trapping and some participated in communal buffalo hunts in the summer. In addition to these groups were Metis who continued to live as voyageurs, tradesmen freighters and employees of the Hudson's Bay Company.52 Those who lived among the Indians were viewed as Indians and their aboriginal rights are generally not disputed. The remaining Metis eventually united and identified as a Nation distinct from the Indians and the European immigrants.53 The Nation formulated in response to threats to the existing way of life and in order to achieve common political and economic goals. Some of the threats included restriction on trade, changes in the economic base arising from rapid settlement and the loss of lands for which legal titles had not been issued. Members of the nation shared several significant bonds - aboriginal ancestry, 223 title to individual lands and common property (eg. hunting grounds) based on traditional occupancy rather than some form of derivative title from the Crown, indifference to the Hudson's Bay government (as long as it did not interfere with their economic and proprietary rights) and eventually formation of their own government when the existing government failed to meet their needs.54 The diversified land use, economy and lifestyles of the communities forming the Metis Nation and the similarities between the lifestyles of many Metis to the contemporaneous European frontier culture is cited as evidence that the Metis Nation, if it did exist, is not an aboriginal Nation capable of asserting a claim to aboriginal title. This view has been discredited previously and will not be examined here except to illustrate the distortion of rights which occurs by equating the term aboriginal with the term Indian. The term "aboriginal" changes from a simple reference to native inhabitants of a country and gains racial, cultural and legal dimensions because of static and ethnocentric views of what it means to be an Indian. The term "Indian" was first used by Christopher Columbus to describe the aborigines - the original inhabitants of North America.55 In its attempts to satisfy aboriginal claims and expand settlement in the West, the federal government fragmented original inhabitants into sub-groupings. Initially the division appears to have been based on race and on a way of life distinction determining group membership through paternal lines - if a person lived among and was accepted by an Indian tribe she was entitled to take treaty and participate in the reserve system established to satisfy aboriginal claims.56 The 224 Indian Act evolved to administer reserve communities and defined the Indian population entitled to live on reserves. Status was not determined by a racial criteria, but according to the status of the father resulting in the exclusion certain original peoples and the inclusion of non-aboriginals.57 In the government scheme, connection to Indian blood through family ties or ancestry was significant, but a percentage of Indian blood did not automatically make a person an Indian. The problem with utilizing the term "Indian" in aboriginal rights theory is the tendency to lose sight of its initial meaning and to define it in accordance with government policy and practice. This approach is understandable if entitlement is based on recognition, but not if entitlement is based on pre-existing legal rights. In the latter scenario government practice is relevant only to the question of legitimate extinguishment. A focus on government policy and the implementation of a reserve system fosters arguments based on racial characteristics and a particular way of life. The translation of this perspective into aboriginal rights theory can result in a total misunderstanding of the basis of entitlement. A clear example of this distortion is seen in Flanagan's understanding of the legal basis of entitlement. In his view entitlement makes no sense unless a distinction is drawn between agricultural and nomadic existence. The doctrine evolved in British law to obtain land from nomadic, hunting, food-gathering peoples for the purposes of "civilization" without resorting to force. Aboriginal rights are not "merely or even chiefly, a question of who was here first; they arise rather as an adjustment 225 in the contact between agricultural and nomadic peoples."58 Unlike the Indians, the Metis were not a nomadic people. Their way of life was not aboriginal and so they cannot claim aboriginal rights.59 Reliance on definitions in the Indian Act also results in a distortion of first principles. The fragmentation of the native population into status and non-status groups has resulted in jurisdictional tangles which complicate the advancement of title claims. This is of particular significance to the Metis who are excluded from the Indian Act regime and, until recently, were excluded from the land claims negotiation process. Rather than ask if the Metis were in legitimate possession of the territories claimed and thus entitled to recognition of their pre-existing rights by European colonizers, the argument has centred on whether the Metis are "Indians" as the term was understood by the government in 1867, the date it assumed jurisdiction over "Indians and lands reserved for Indians."60 Although the majority of academic opinion agrees that "Indian" in the 1867 and 1982 Constitutions has a different meaning than "Indian" in the Indian  Act, many will not transcend the racial and cultural boundaries of the term.61 Restraint is likely due to a focus on recognition as a basis of enforceability of rights and assumption of responsibility over specific aboriginal groups. The natural theorist would say the question of whether Metis are "Indians" is a red herring because recognition is not necessary for legal entitlement. The issue is whether there is a legal and moral obligation to recognize the claims of the Metis as prior possessors and not whether the federal government chooses to recognize and assume responsibility for their claims as "Indians." If the answer to the former question is yes, natural justice demands that their claims be treated on equal footing with other occupancy based claims and that the federal and provincial governments, when exercising their decision making power, take into consideration the common good of the Metis community. This argument echoes the equality argument advanced by the Metis people but is not dependant on their classification as an Indian people but their natural rights derived from possession.62 Fewer restrictions are placed on natural rights if the term "indigenous" is incorporated into aboriginal rights theory. "Indigenous" simply means native to a particular land or region or "born or produced naturally in a land or region."63 The term is commonly used in contrast to the word "immigrant" which refers to populations that originate in countries other than those in which they live. The Metis people are indigenous to North America in the sense that "they came into being as a distinct people on this content."64 Although their paternal ancestors were immigrants, the Metis are indigenous because they became a distinct people independent of their aboriginal and immigrant ancestors. In particular, they are indigenous to Rupert's Land and the Northwest as it is within these regions they evolved into a people.65 Like other indigenous peoples, they enjoy natural property rights if they can establish first occupation of previously unoccupied lands or legitimate title against the original possessor prior to European occupation of their territories. Unfortunately, the use of the term "indigenous" can also result in non-compliance with the natural precepts underlying the 227 concept of aboriginal title. This occurs if emphasis is place on the characterization of a group as indigenous without understanding the foundation of indigenous rather than understanding that the legal foundation of indigenous rights is original occupation. For example, one might argue that the characterization of Metis as indigenous depends on the ancestry of the population and not the birthplace of the nation. A focus on the ancestry without placing temporal restrictions renders every person born in Canada indigenous to Canada. Consequently, the term is to be used to refer to populations originating in Canada prior to its colonization. Indigenous rights are rights which accrue to the populations originating in a particular area prior to European immigration. These rights may, or may not, continue to survive depending upon the legitimacy of acts of extinguishment by the colonizing power. In this sense of the term it is impossible for Metis to have indigenous rights because their existence does not pre-date European immigration. The problem with this interpretation is it focuses on the existence of a people prior to European contact rather than the origin and acquisition of property rights in unoccupied and occupied lands. Further, the emphasis on the date of European contact assumes the legitimacy of doctrines of discovery, conquest and unilateral extinguishment which cannot be sustained in natural law. Rather, rights can only be acquired by cession or prescription. Natural law is concerned with the recognition of rights arising from legitimate possession not the date a people comes into being. The entitlement to recognition or property rights is not dependant on the origins of the right holder so much 228 as the origin of the property right in legitimate possession prior to legal acquisition. It just so happens that the clearest right is one arising from original occupancy by original peoples. However, rights may also arise against the original occupant in natural theory "indigenous" comes to mean rights of, or arising from the rights of, first occupants. It can not be established that the Metis are original occupants or inhabitants of the lands in which their nation was born prior to European contact, it does not mean they did not acquire legitimate rights of property enforceable against Canadian claims to title and sovereignty over their lands. It simply means their rights arise against the original inhabitants prior to legitimate acquisition rather than by virtue of their own original inhabitation or Crown grant. Because of the etymological debates concerning the classification of Metis as Indian, aboriginal or indigenous and the tendency of these debates to distort the natural basis of aboriginal title, naturalists should avoid labelling collective occupancy based rights through the use of inappropriate terminology. The terms "Indian," "aboriginal" and "indigenous" have been created within the positivist regime to explain the recognition of certain rights by colonizing nations and cannot be translated into natural theory without being accompanied by undesirable positivist baggage. For this reason it is best to refer to the natural rights of specific peoples arising from legitimate possession rather than attempting generic categorizations. The issue is not wether a people are Indian, indigenous or aboriginal but the identification of a "people" possessing natural rights arising from original occupation or 229 derived from the first occupants prior to legitimate acquisition of the original title by the Crown. Thus, we are concerned here with Metis rights or natural rights of the Manitoba Metis rather than categorizing the Metis as aboriginal, indigenous or Indian people. (b) The Metis People The emergence of the Metis as a "people" is significant in the natural tradition for two reasons. First, it is logical that a group exist before one can speak of group rights. Second, the law of nations requires some form social organization to pull lands not in actual physical possession of a person or community out of the category of terrae nullius and into the category of national public lands.66 The definition of "people" and "nation" have been examined in Chapter one and will not be repeated here. Rather, we are concerned with one question. As of June, 1870 did the Metis of Manitoba have sufficient coherence, permanence, political organization and self-identity to qualify as a group? The natural rule against arbitrary preference to communities requires that identification criteria be applied flexibly in light of varying levels and forms of organization among different societies67. If the existence of a group is confirmed, the primary concern is identification of Metis occupation of Metis territory and not the private land holdings of individual Metis. If it is denied, the analysis of natural rights must focus on the legitimacy of individual property rights or specific Metis community based rights and assume territories not in actual possession of Metis people or under the jurisdiction of local governments are open to acquisition 230 by mere occupation and assertion of sovereignty by the Crown. The latter conclusion necessitates negotiating Metis claims on an individual or community basis where as the former allows negotiations with representatives of a single people. As it is impossible to identify the exact date that the mixed blood population emerged into a "people" a brief examination of their social and political history is necessary to determine their existence as a single group or distinct groups. Prior to 1835, the Metis enjoyed three distinct lifestyles geared at the maintenance 68 of the familial unit rather than making a profit. Those who secured employment with fur trading companies tended to settle close to the trading posts. Although the men had duties that took them from the settled areas, their families stayed permanently in one location. A second group lived semi-settled lives spending part of the year on small farms and part of the year hunting buffalo to feed and clothe their families. The third group sustained themselves by hunting and trapping. They lived a nomadic lifestyle and lived in temporary settlements of tepees and log shacks.69 By the beginning of the 19th century two distinct cultural groups also emerged - the French and English speaking Metis. Generally, the former were nomadic or semi-settled and the latter permanently settled at the posts or in agricultural communities.70 By 1810, numerous Metis communities lived settled, semi-settled or nomadic lives in Rupert's Land but the communities existed independently of each other and not as a cohesive group.71 However, the economic stresses experienced by these communities between 1812 and 1820 fostered the development of a unified 231 political consciousness particularly among the french-speaking Metis in the Red River area as their livelihoods were more dependant on hunting and trading. Of particular significance was the united opposition to restrictions on trade and armed resistance under the leadership of Cuthbert Grant to the establishment of the Selkirk colony.72 The resistance to economic change coupled with geographic isolation fostered a sense of ownership and nationality among the different groups concentrated in the Red River area. However, the primary cultural and economic division between French and English speaking Metis remained and was eventually recognized politically through equal representation in Riel's provisional government.73 George Stanley describes the national unity felt by French and English speaking Metis as follows: In spite of these differences there was a common bond between the English and French half-breeds. Both sprang from a common race, both claimed territorial rights to the North-West through their Indian ancestry; both in large measure, spoke their mother tongue in addition to French and English. The half-breeds as a race never considered themselves as humble hangers-on to the white population, but were proud of their blood and their deeds. Cut off, as they were, from European expansion by the accident of geography and by the deliberate policy of the Hudson's Bay Company, they developed a resolute feeling of independence and keen sense of their own identity which led them to regard themselves as a separate racial and national unit and which found expression in their name "The New Nation."74 In 1821, the Hudson's Bay Company and the North West Company combined under the name of the Hudson's Bay Company. Numerous trading posts were shut down and persons settled in those areas were moved to the Red River area. Numerous settlements were formed along the Red and Assiniboine villages. Those Metis who refused to move to the Red River colony moved to Pembina or formed small villages at various parts on the plains. Later, after the drawing 232 of the 49th parallel, many Metis in Pembina moved back to Red River and established Grantown (St. Francois Xavier). Between 1821-25 missionaries also came to the colony and introduced the institutions of Catholicism, formal education and domestic farming. Acculturation toward a more European lifestyle began but the community continued to depend on traditional forms of subsistence and in particular, the buffalo hunt.75 By 1835 predominantly Metis communities in the Red River area included St. Vital, St. Norbert, Ste. Agathe, St. Paul, St. Charles, Grantown, Selkirk, High Bluff and Portage la Prairie.76 Economically, the communities were semi-autonomous. "Their subsistence household economy was based on the buffalo hunt, small scale cultivation and seasonal labour for the Hudson's Bay Company."77 During the 1840s there was increased Metis involvement in the capitalistic fur trade and in particular the buffalo trade. The emerging buffalo robe trade became a rural industry upon which most communities were dependant. The establishment of trading posts in the Dakotas, Montana and Minnesota resulted in an alternative market for the Metis. By 1840, they relied heavily on these posts. Freighting of buffalo hides and other goods by way of red river cart to trading posts and other settlements over land trade routes and hunting territories were established. This development also provided a communication system strengthening ties between the Red River and other, metis communities.78 The change in the Metis economy was significant for three reasons. First, many Metis left the settled communities in the Red River Valley and began wintering on the plains. By 1856, the phenomena of wintering villages became widespread.79 Second, 233 agricultural production in the Red River Valley suffered during this time and the communities became increasingly dependant on the buffalo hunt.80 Third, the common reliance on trade resulted in unified Metis opposition in the Red River settlement to restrictions on free trade with Americans imposed by the Hudson's Bay Company and threats by the Company to dispossess them of their 81 • • lands should they participate in illegal trade. Once again Metis nationalism was sparked as evidenced in the following opening words of a Metis petition presented to the Council of Assiniboine in August, 1845 demanding a definition of their special status: Sir - Having at this moment a very strong belief that we, as natives of this country, and as half-breeds, having the right to hunt furs in the Hudson's Bay Company's territories whenever we think proper, and again sell those furs to the highest bidder; likewise having a doubt that natives of this country can be prevented from trading and trafficking with one another; we would wish to have your opinion on the subject, least we should commit ourselves by doing anything in opposition, either to the laws of England, or the honourable companies privileges. . . ,82 The Council of Assiniboine denied that the Metis had special rights. From 1846-1849 an imperial army was stationed in the settlement and resistance to the Company's action was illicit rather than overt. However, upon the removal of the regiment in 1849, the rule of the Hudson's Bay Company was directly challenged. The turning point was the trial of Guillaume Sayer for illegal trading. The Metis armed themselves and surrounded the courthouse during his trial. Although Sayer was found guilty, no penalty was imposed and the Metis, realizing the Company's rules were unenforceable, declared victory.83 During this period a special committee was also set up by the British Colonial Office to investigate the Company's dealings in the North West. Although the 234 company was exonerated of wrongdoing, it's monopoly on trade was broken.84 During this period various forms of political organization developed. In 1835, the Hudson's Bay Company established the Council of Assiniboine to govern in the Red River Colony. Little resistance was shown towards the Council once the trade issue was resolved and Metis representatives were added until the 1860s when it failed to successfully defend Metis interests affected by settlement and the transfer of Rupert's Land by the Company to Canada.85 Outside the colony courts were held to deal with civil and criminal matters. Otherwise, communities were left alone to rule themselves.86 Local Metis governments in the Red River area and elsewhere organized around the buffalo hunt. Organization within the community prior to, and after, the hunt is described by Tremaudan as "a sort of simple, equitable communism based above all on the interests of the majority."87 However, for the duration of the hunt a council was formed which acted as both government and tribunal with jurisdiction over the participants in the hunt. A leader and twelve councillors were elected. In addition, a public crier was made responsible for bringing rules, orders and recommendations to persons in the hunting camps. The remaining men were organized into groups of ten soldiers and placed under the direction of captains selected by the Council. Guides were also chosen. Captains and soldiers were responsible for the carrying out of the Councils orders. However, the authority of the Council was limited in that it required the consent of the entire camp it governed.88 235 For a period of approximately ten years Metis communities continued to organize under the hunt and persist under different local economies. However, the threat of settlement and loss of lands caused Metis communities in the Red River area to unite once again to resist the Hudson's Bay transfer of Rupert's Land to Canada. The resistance began with opposition to government survey and culminated in the formal election of a provisional government representative of both the French and English half-breeds of the Red River Settlement. It is this government which negotiated the terms of entry of Rupert's Land into Confederation in April of 1870.89 By 1870 the majority of the population in the area was Metis. In 1871, a census described the population of Red River as consisting of 5,720 French-speaking half-bre