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Metis aboriginal title 1989

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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 t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October, 1989 (g> Catherine Edith B e l l , 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) i i ABSTRACT This thesis i s a l e g a l analysis of the o r i g i n and persistence of Metis aboriginal t i t l e as an independent l e g a l r i g h t . The popular doctrine of aboriginal t i t l e i s rejected i n favour of the natural r i g h t s of the Metis and f i r s t p r i n c i p l e s of aboriginal t i t l e . A theory of Metis t i t l e i s developed through the examination of: 1. the i n c l u s i o n of Metis peoples i n s.35(2) of the Constitutional Act. 1982; 2. j u r i s d i c t i o n over Metis claims; 3. natural r i g h t s of indigenous peoples and the recognition of natural r i g h t s i n domestic and int e r n a t i o n a l p o s i t i v e law; 4. natural r i g h t s of the Metis Nation of Manitoba; and 5. the persistence of Metis t i t l e i n the face of u n i l a t e r a l and consensual acts of extinguishment. The examination of natural r i g h t s reveals an increased importance of natural theories i n aboriginal t i t l e cases. These theories provide the basis upon which Metis claims to t i t l e can be linked to aboriginal t i t l e claims and doctrines of extinguishment can be re-examined. i i i TABLE OF CONTENTS TITLE i ABSTRACT i i TABLE OP CONTENTS i i i - v i ACKNOWLEDGEMENT v i i CHAPTER 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) C o l l e c t i v e B e n e f i c i a r i e s 3 (b) D e f i n i t i o n of the word "Peoples" 9 (c) Temporal Considerations 17 2. Who i s an Aboriginal and What i s an Aboriginal Group? 19 3. Summary 24 II Who are the Metis? 25 1. The Comparative Approach 26 2. H i s t o r i c a l , P o l i t i c a l , and Legal Usage of the Term "Metis" 34 3. Resolution of the D e f i n i t i o n Debate 39 III Standing to Sue 42 1. Introduction 42 2. Standing 44 Endnotes 4 9 - 5 9 CHAPTER 2 - JURISDICTION OVER METIS CLAIMS 60 I Are the Metis s. 91(24) Indians? 60 II Lands Reserved For Indians 69 III J u r i s d i c t i o n and the Question of Aboriginal T i t l e 74 i v 1. Land Claims Negotiations 74 2. Land Claims L i t i g a t i o n 78 Endnotes 8 5 - 9 1 CHAPTER 3 - A NATURAL THEORY OF ABORIGINAL TITLE 92 Introduction 92 I Introduction to the Natural Law T r a d i t i o n 94 1. A General Survey of Basic P r i n c i p l e s 94 2. A Natural Interpretation of Property Rights 105 (a) H i s t o r i c a l Views 105 (b) Contemporary Views 111 (c) Fundamental Property Rights 113 II Natural Law and the Origin of Aboriginal T i t l e 114 1. Natural Law and the Law of Nations 114 2. Natural Law and Theories of A c q u i s i t i o n 119 3. Natural Law and B r i t i s h Jurisprudence 128 4. Natural Law and B r i t i s h Practice 134 5. Concluding Remarks 138 III Natural Law and the Common Law Doctrine of Aboriginal T i t l e 140 1. The American Doctrine 141 2. The Commonwealth Doctrine 154 3. Canadian Decisions 156 IV Summary of a Natural Law Theory on Aboriginal T i t l e 172 Endnotes 176 - 193 CHAPTER 4 - NATURAL RIGHTS OF THE METIS NATION OF MANITOBA 194 Introduction 194 V I P o s i t i v i s t Arguments For and Against Metis T i t l e 196 1. Share i n Aboriginal Ancestry 197 2. Recognition of Metis T i t l e 202 3. Arguments Against Metis T i t l e 205 II Natural Rights of the Manitoba Metis 215 1. Proof of T i t l e 215 2. I d e n t i f i a b l e Group 221 (a) A b o r i g i n a l i t y 221 (b) The Metis People 229 3. O r i g i n a l or P r e s c r i p t i v e Rights 240 (a) Rights of the Cree, Assiniboine and Saulteaux 241 (b) Hudson's Bay Company T i t l e 247 (c) T i t l e i n the Crown 256 (d) Conclusion 268 4. Metis T e r r i t o r y 269 III Summary of a Natural Theory on Metis T i t l e 271 Endnotes 275 - 289 Appendix to Chapter 4 - H i s t o r i c a l Outline 290 - 284 CHAPTER 5 - PERSISTENCE OF METIS TITLE 296 Introduction 296 I The Question of U n i l a t e r a l Extinguishment 299 1. Common Law 299 2. Natural Law Analysis 302 II The Persistence of Metis Rights 308 1. Defence to U n i l a t e r a l Extinguishment 308 2. Defences to Consensual Extinguishment 319 v i (a) Freedom of Choice 322 (b) V i o l a t i o n of the Agreement Reached 324 (c) Immoral Exercise of Discretion 333 III Translation into Domestic Pos i t i v e 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 B I B L I O G R A P H Y 351 - 360 v i i ACKNOWLEDGEMENT The author g r a t e f u l l y acknowledges the a s s i s t a n c e and a d v i c e of P r o f e s s o r s Douglas Sanders and M i c h a e l Jackson. S p e c i a l thanks t o Douglas Sanders f o r h i s time and e f f o r t s . The author a l s o thanks the F e d e r a l Department of J u s t i c e f o r i t s f i n a n c i a l support of t h i s p r o j e c t . L o v i n g a p p r e c i a t i o n t o Robert and G e r a l d i n e B e l l f o r t h e i r continuous encouragement and support. 1 CHAPTER 1 IDENTIFICATION OF THE METIS PEOPLE Introduction Throughout the course of Canadian h i s t o r y various terms have been adopted to r e f e r 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 i s p a r t i a l l y due to the introduction of l e g a l and administrative d e f i n i t i o n s for various native groups through federal Indian l e g i s l a t i o n and assistance programs which e s s e n t i a l l y created four l e g a l categories of native people: status Indians, non-status Indians, Inuit and half-breeds (now commonly referre d to as "Metis.") Further d i v i s i o n s have been created by the denial of federal r e s p o n s i b i l i t y for Metis and non-status Indians, the u n i t i n g of these groups into national and p r o v i n c i a l organizations for the purpose of achieving s o c i a l and economic goals common to both groups as disadvantaged aboriginal populations, attempts by p r o v i n c i a l governments (namely Alberta and Saskatchewan) to e s t a b l i s h programs i n response to the exclusion of these groups from federal j u r i s d i c t i o n , and the movement back to segregation of Metis and non-status Indian issues a f t e r the recognition of Metis as a d i s t i n c t aboriginal people i n s. 35(2) of the Constitution Act, 1982.1 As a r e s u l t of these developments, the i d e n t i f i c a t i o n of Indians, Metis and non-status Indians has become a complicated exercise. 2 The most recent l e g a l d e f i n i t i o n of aboriginal peoples i s found i n s. 35 of the Constitution which states: 35(1) The e x i s t i n g aboriginal and treaty r i g h t s of the aboriginal peoples of Canada are hereby recognized and affirmed. 35(2) In t h i s Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada. Unfortunately, t h i s f a i r l y simple d i v i s i o n creates numerous d e f i n i t i o n problems as the s e l e c t i o n of i d e n t i f y i n g c r i t e r i a i s l e f t open f o r debate. The resolution of t h i s debate i s s i g n i f i c a n t because i t w i l l specify the class of persons to whom sections 25 and 35 of the Constitution w i l l apply. The debate i s of p a r t i c u l a r importance to Metis and non-status Indians who through the process of p o l i t i c a l p o l i c y and l e g a l d e f i n i t i o n have been excluded from federal schemes designed to benefit Indian peoples and who, u n t i l recently, have been denied recognition as an aboriginal people. Section 35 i s the l o g i c a l basis from which to formulate a d e f i n i t i o n of the Metis as i t contains the f i r s t national l e g a l usage of the term "Metis" as an aboriginal people. Certain elements i n s.35 may help i n the d e f i n i t i o n process including the de s c r i p t i o n of Metis as "aboriginals" and the c o l l e c t i v e reference to Metis "peoples." However, one i s s t i l l l e f t with a d e f i n i t i o n which lacks s u f f i c i e n t c r i t e r i a to i d e n t i f y the Metis as a d i s t i n c t group. Within the context of s. 35, two d i f f e r e n t approaches may be adopted to develop further i d e n t i f i c a t i o n c r i t e r i a . The term "Metis" may be defined with reference to the i n c l u s i o n of the term "In u i t " and "Indian" i n s. 35(2) or i n accordance with i t s unique meaning and h i s t o r y . 3 I The Impact of the Phrase " A b o r i g i n a l Peoples" 1. The S i g n i f i c a n c e o f the Term "Peoples" (a) C o l l e c t i v e B e n e f i c i a r i e s I t has been suggested t h a t the i n c l u s i o n o f the word "peoples" i n s. 35 r e f l e c t s the c o l l e c t i v e nature o f a b o r i g i n a l r i g h t s . 2 T h i s i n t e r p r e t a t i o n f a i l s t o account f o r the d i f f i c u l t y o f p r o v i n g t h a t a l l a b o r i g i n a l r i g h t s are c o l l e c t i v e and t h a t the phrase " c o l l e c t i v e r i g h t s " has come t o be used i n two d i f f e r e n t ways. Although the c o u r t s have r u l e d on the c o l l e c t i v e n ature o f s p e c i f i c a b o r i g i n a l r i g h t s , t h e r e has not been a j u d i c i a l d e t e r m i n a t i o n on whether an i n d i v i d u a l has a b o r i g i n a l r i g h t s by reason o f b e i n g a b o r i g i n a l o r because she i s a member i n an a b o r i g i n a l c o l l e c t i v e . For example, a b o r i g i n a l t i t l e i s t r e a t e d as a c o l l e c t i v e r i g h t v e s t e d i n a group and c l a i m s t o t i t l e can o n l y be advanced by an o r g a n i z e d group o f a b o r i g i n a l p e o p l e . 3 On the o t h e r hand, the c o u r t r e c o g n i z e s the l e g a l e n t i t l e m e n t o f an i n d i v i d u a l a b o r i g i n a l t o seek j u d i c i a l enforcement o f a b o r i g i n a l r i g h t s depending on the a b o r i g i n a l r i g h t a t i s s u e . For example, an i n d i v i d u a l a b o r i g i n a l may seek t o e n f o r c e an a b o r i g i n a l r i g h t t o hunt or f i s h . 4 I t i s t r u e one can say the r i g h t accrues by v i r t u e o f membership i n a c o l l e c t i v i t y , but i s e q u a l l y t r u e t h a t the i n d i v i d u a l , and not the group, e x e r c i s e s the r i g h t . F u r t h e r d i f f i c u l t y a r i s e s from the f a c t t h a t " c o l l e c t i v e " or "group" r i g h t s i s used i n p o l i t i c a l and l e g a l t e r m i n o l o g y i n two d i f f e r e n t ways. The phrase r e f e r s t o r i g h t s which o n l y group members have t h a t a re e x e r c i s e d by i n d i v i d u a l s , such as t h e r i g h t 4 t o hunt and f i s h . I t a l s o r e f e r s t o r i g h t s o f a c o l l e c t i v i t y as a c o l l e c t i v i t y such as the r i g h t s t o self-government, an economic base and l i n g u i s t i c s u r v i v a l . The matter i s f u r t h e r c o m p l i c a t e d by the Supreme Court's c l a s s i f i c a t i o n o f a b o r i g i n a l r i g h t s as p r e - e x i s t i n g . 5 Douglas Sanders suggests t h a t the i m p l i c a t i o n s o f t h i s c h a r a c t e r i z a t i o n i s t o r e c o g n i z e " I n d i a n r i g h t s based on the p r e - c o n t a c t I n d i a n l e g a l o r d e r . " 6 Consequently the c l a s s i f i c a t i o n o f " e x i s t i n g a b o r i g i n a l and t r e a t y r i g h t s " as c o l l e c t i v e or i n d i v i d u a l o r both may depend upon the treatment of t h a t r i g h t by the I n d i a n community w i t h i n which i t was c r e a t e d . 7 I t i s beyond the scope of t h i s t h e s i s t o p r o v i d e a d e t a i l e d a n a l y s i s of c o l l e c t i v e r i g h t s and t h e i r a p p l i c a t i o n t o a b o r i g i n a l r i g h t s . The p o i n t i s t h a t one can not assume t h a t the word "peoples" i s i n c l u d e d i n s.35 o n l y t o c l a r i f y t h a t the r i g h t s i n v o l v e d are c o l l e c t i v e o r group r i g h t s . Rather, t h i s may p l a c e unnecessary r e s t r i c t i o n s on the c ontent o f , and e n t i t l e m e n t t o , " e x i s t i n g a b o r i g i n a l and t r e a t y r i g h t s . " The b e t t e r i n t e r p r e t a t i o n i s t o view the term "peoples" as d e s c r i b i n g the c o l l e c t i v e nature o f the b e n e f i c i a r i e s of s. 35 and not the c o l l e c t i v e n ature of t h e i r r i g h t s . As d i s c u s s e d below, the r e f e r e n c e t o " a b o r i g i n a l p e o p l e s " i n s t e a d o f a s i n g l e a b o r i g i n a l "people" may simply r e f l e c t the governments' new r e c o g n i t i o n o f d i s t i n c t a b o r i g i n a l groups i n accordance w i t h t h e i r own t erminology. A c c o r d i n g t o t h i s i n t e r p r e t a t i o n , the e x i s t i n g a b o r i g i n a l and t r e a t y r i g h t s of the a b o r i g i n a l p e o p l e s ; whether c o l l e c t i v e , i n d i v i d u a l o r a combination of both, are r e c o g n i z e d and a f f i r m e d by s. 35. 5 I f one accepts the above argument, there are two possible ways to read s. 35(2). The f i r s t assumes that there are three d i s t i n c t a boriginal peoples i n Canada - the Indian, Inuit, and Metis. The second assumes that "peoples" refers to numerous smaller aboriginal c o l l e c t i v i t i e s c o n s t i t u t i n g the three broader named groups. That i s , the aboriginal peoples of Canada are the Indian peoples, Inuit peoples, and Metis peoples of Canada. There are several reasons why the second in t e r p r e t a t i o n i s preferable to the f i r s t including: 1. Groups which i d e n t i f y as Inuit, Indian and Metis view themselves as d i s t i n c t from other s e l f - i d e n t i f y i n g groups of Inuit, Indian and Metis; 2. Contemporary aboriginal c o l l e c t i v i t i e s organized for s o c i a l , p o l i t i c a l or l e g a l reasons may draw t h e i r membership from two or more of the named groups i n s.35(2) and therefore w i l l not f a l l within any p a r t i c u l a r named group; and 3. C u l t u r a l , s o c i a l and p o l i t i c a l differences among aboriginal groups r e s u l t i n the law t r e a t i n g them as d i s t i n c t peoples. The f i r s t point i s i l l u s t r a t e d by the d e f i n i t i o n of "aboriginal people" adopted by the J o i n t Council of the National Indian Brotherhood i n the Declaration of F i r s t Nations: "Aboriginal people" means the F i r s t Nations or Tribes of Indians i n Canada and each Nation having the r i g h t to define i t s own c i t i z e n s h i p . 8 This viewpoint i s expressed i n the t i t l e of the national status Indian organization (The Assembly of F i r s t Nations), Indian l i t e r a t u r e and government l i t e r a t u r e . 9 S i m i l a r l y , the Inuit 6 peoples of Canada are viewed as a d i s t i n c t group, but a group composed of various t r i b e s or bands. 1 0 Among the Metis, there i s disagreement whether the Metis are a si n g l e people or several peoples. However, i t i s c l e a r that a va r i e t y of mixed blood aboriginal c o l l e c t i v i t i e s i d e n t i f y as a Metis people. This i s r e f l e c t e d i n the following statement by a New Brunswick member of the Native Council of Canada: There i s no one exclusive Metis People i n Canada, anymore than there i s no one exclusive Indian people i n Canada. The Metis of eastern Canada and northern Canada are as d i s t i n c t from the Red River Metis as any two peoples can be. Yet a l l are d i s t i n c t from Indian communities by ancestry, by choice, and t h e i r s e l f - i d e n t i f i c a t i o n as Metis. As early as 1650, a d i s t i n c t Metis community developed i n LeHeve, Nova Scotia, separate from Acadians and Mic Mac Indians. A l l Metis are aboriginal people. A l l have Indian ancestry. 1 1 An example of the second point are the Metis people l i v i n g on the settlements i n northern Alberta. The Metis Betterment Act which established the p r o v i n c i a l settlement scheme defines "Metis" on a r a c i a l basis as persons with a minimum of 1/4 Indian blood who are not status or treaty Indians as defined by the Indian Act. 1 2 The d e f i n i t i o n r e f l e c t s the fac t that the persons f o r whom the settlements were created were not a single people that could trace i t s o r i g i n s to a d i s t i n c t Indian or Metis people. Rather many (and perhaps the majority) were Indians who surrendered t h e i r treaty r i g h t s or were struck from government band l i s t s . 1 3 The creation of t h i s group of s e l f - i d e n t i f y i n g and l e g a l l y recognized "people" resulted from the p o l i t i c a l u n i f i c a t i o n of in d i v i d u a l s from d i s t i n c t c u l t u r a l groups who were facing s i m i l a r problems created by poverty, homelessness, disease and hunger and were seeking s i m i l a r economic and s o c i a l goals. United under the Metis 7 Association of Alberta, they successfully lobbied f o r the creation of the Metis Settlements. 1 4 In the proposed Metis Settlements Act, the Metis are moving away from a r a c i a l d e f i n i t i o n and have proposed that "Metis" be defined as "an i n d i v i d u a l of aboriginal ancestry who i d e n t i f i e s with Metis h i s t o r y and c u l t u r e . " 1 5 Although t h i s suggests a f f i l i a t i o n with a single Metis people, i t does not change the o r i g i n a l composition of the group or a s s i s t us i n the process of defining who the Metis people are. I t i s generally agreed among academics that s. 35 entrenches aboriginal r i g h t s as they existed at A p r i l 17, 1982 but there i s some disagreement whether the section applies to extinguished, r e s t r i c t e d and future r i g h t s . 1 6 I t i s c l e a r that up to A p r i l 17, 1982 Canadian law recognized Indian t r i b e s as d i s t i n c t s o c i e t i e s and responded to them as separate groups. This approach i s not only r e f l e c t e d i n aboriginal t i t l e cases, 1 7 but also i n h i s t o r i c a l l e g a l documents. The h i s t o r i c a l treatment of Indians as d i s t i n c t peoples i s i l l u s t r a t e d by Douglas Sanders i n h i s discussion of the extent of recognition by Canadian law of l e g a l orders established by Indian s o c i e t i e s p r i o r to European settlement: The Royal Proclamation of 1763 referred to the "several nations as t r i b e s of Indians with whom we are connected, and who l i v e under our protection. . ." The t r e a t i e s were made between representatives of the Crown and leaders representing Indian t r i b a l groups. Indian l e g i s l a t i o n and the reserve system involved the formal d e f i n i t i o n of groups of Indians as bands that had c e r t a i n r i g h t s of self-government on band-reserve land. Native people argue that one of t h e i r aboriginal r i g h t s i s a ri g h t to continue as self-governing communities. 1 8 This l e g a l treatment of Indian s o c i e t i e s as d i s t i n c t peoples, coupled with the focus on self-government f o r Indian and Inuit communities at the F i r s t Ministers Conferences on aboriginal 8 matters, provides further support f o r the argument that "peoples" r e f e r s to smaller aboriginal c o l l e c t i v i t i e s of the three named aboriginal groups i n 35(2). At t h i s point one might argue that s. 35(2) r e f e r s to a single Metis people, but numerous d i s t i n c t Indian and Inuit peoples. To argue otherwise i s to d i s t o r t the f a c t u a l h i s t o r y of the Metis and the emergence of the Metis as a d i s t i n c t society i n Western Canada. The f i r s t objection to t h i s suggestion i s i t stretches the p l a i n reading of s. 35 and i s grammatically incorrect. Read properly, the words "Indian, Inuit and Metis" are coordinate modifiers of the word "peoples." However, i t i s t r i t e to base a l e g a l argument on a grammatical error. Rather, the resolution of t h i s problem may depend on the following: 1. The d e f i n i t i o n of the word "people." Is the word people synonymous to "state" or i s i t something less? 2. The temporal nature of the word people. Does i t r e f e r to d i s t i n c t h i s t o r i c a l groups or does i t encompass contemporary s e l f - i d e n t i f y i n g c o l l e c t i v i t i e s ? 3. The approach adopted i n s e l e c t i n g i d e n t i f y i n g c r i t e r i a f o r the three named groups i n s. 35(2). Item 3 above i s discussed i n d e t a i l below. For now, l e t us concentrate on the p o t e n t i a l l i m i t s placed on the terms "Indian", "Inuit", and "Metis" by v i r t u e of t h e i r association with the word "peoples." The question which i s of key importance to the Metis i s whether the term "people" i s equivalent to the term "state". I f yes, some ce r t a i n t y or c r i t e r i a for defining the Metis i s made possible. 9 (b) D e f i n i t i o n of the Word "Peoples" P u b l i c i s t s i n international law have used the terms "nation" and "state" interchangeably to r e f e r to those communities recognized as states by the international community. Understood i n t h i s sense, international law i d e n t i f i e s four fundamental requirements f o r a state to be recognized as a l e g a l e n t i t y , namely: a permanent population, a defined t e r r i t o r y , a government and the a b i l i t y to enter international r e l a t i o n s . 1 9 Some p u b l i c i s t s would add that the nation must also be a recognized member of the family of nations. Others would d i l u t e the c r i t e r i a by arguing that the f i r s t three elements are r e q u i s i t e elements of the fourth rather than t r e a t i n g the fourth element separately. 2 1 Regardless of how these debates are resolved, only one Metis group can meet the c r i t e r i a - descendants of the Red River Metis who i n the l a t e 18th century emerged as a d i s t i n c t national group. T r a d i t i o n a l i s t s w i l l argue that mixed blood populations originated i n Eastern Canada from the time of f i r s t contact between Indians and Europeans, but only i n the North West did a d i s t i n c t p o l i t i c a l and national consciousness develop among the mixed blood population. Some argue t h i s consciousness i s a t t r i b u t a b l e to the geographic and s o c i a l i s o l a t i o n of the Metis populations i n the North West brought about by the discouragement of settlement and the control of the fur trade. 2 2 Others argue that Metis nationalism was fostered by the North West Company i n order to protect i t s economic i n t e r e s t i n the West.23 Whatever i t s source, i t manifested i t s e l f i n the s o c i a l and p o l i t i c a l u n i f i c a t i o n of various Metis c o l l e c t i v i t i e s i n what was then known as Ruperts Land to oppose 10 Canadian expansions into the North West and to constitute a d i s t i n c t people commonly referred to as the Metis Nation. From the mid-sixteenth century u n t i l the early nineteenth century diverse Metis communities were forming i n Western Canada. The population consisted of two f a i r l y d i s t i n c t groups "the French Metis" or Bois Brules, whose paternal language was French, and the English Metis, whose paternal language was English." Among these groups d i s t i n c t l i f e s t y l e s developed including p r o v i s i o n a l bands of Metis who hunted buffalo and a f t e r the hunt returned to permanent s i t e s i n the Red River region, trappers, farmers, fisherman, voyageurs, interpreters and f r e i g h t e r s . 2 5 Although i t i s c l e a r that a d e f i n i t e p o l i t i c a l and s o c i a l organization evolved around the buffalo hunt, the diverse elements of the population did not c r y s t a l l i z e into a united people u n t i l the early nineteenth century. I t i s d i f f i c u l t to pinpoint the exact date the Metis Nation came into being. The development of t h e i r p o l i t i c a l consciousness as a people can be traced from t h e i r i n i t i a l u n i f i c a t i o n i n 1816 at the Battle of Seven Oaks to r e s i s t the establishment of the Se l k i r k Settlement, to the establishment of a pr o v i s i o n a l government i n 1869 which negotiated what i s now known as Manitoba into Canadian Confederation. 2 6 Although Lord S e l k i r k was successful i n e s t a b l i s h i n g h i s 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 s e t t l e r s . 2 7 A f t e r the creation of Manitoba a s i g n i f i c a n t number of Metis migrated west and north-west into what i s now Saskatchewan and part of Alberta. D i s t i n c t Metis communities with t h e i r own p o l i t i c a l organization developed once again. However, prosperity was short l i v e d . The Metis, white s e t t l e r s and Indians were threatened by poverty, an i n f l u x of s e t t l e r s and government imposed changes to the e x i s t i n g land holding system. Numerous p e t i t i o n s were sent to Ottawa from various communities seeking a redress of grievances. Although s u f f i c i e n t compromises were made to s a t i s f y the predominantly white communities (such as St. A l b e r t ) , Metis concerns remained unresolved. Once again, the Metis p o l i t i c a l consciousness was displayed i n the formation of a p r o v i s i o n a l government and a resistance to the Canadian government. This time, the Metis were deprived of the opportunity to negotiate t h e i r r i g h t s and the s c r i p system adopted i n Manitoba was extended to Alberta and Saskatchewan to s a t i s f y Metis claims. 2 9 Keeping t h i s description of the Metis Nation i n mind do they f i t the aforementioned c r i t e r i a of a state? I t i s undisputed that i n 1871 the predominant population i n Manitoba was Metis and that h i s t o r i c a l populations can also be traced to s p e c i f i c geographical areas i n Alberta and Saskatchewan. Although one could take issue with the legitimacy, e f f i c i e n c y and recognition of the government established i n Saskatchewan under Louis R i e l i n 1885 (and thus exclude these areas from the defined t e r r i t o r i e s of the Metis Nation) strong arguments can be advanced i n recognition of the h i s t o r i c Metis population i n Manitoba c o n s t i t u t i n g a recognized state i n in t e r n a t i o n a l law. Problems may be encountered i n defining Metis t e r r i t o r y i f emphasis i s placed on the method of land use. I f one takes into consideration land uses ranging from f r e i g h t i n g to hunting to c u l t i v a t i o n , the extent of the Metis 12 homeland i s vast. On the other hand, i f emphasis i s placed on c u l t i v a t i o n , the area i s s i g n i f i c a n t l y reduced. These problems are discussed i n chapter 4 of t h i s t h e s i s . At t h i s juncture i t i s s u f f i c i e n t to e s t a b l i s h that the Metis Nation existed within a s p e c i f i c t e r r i t o r y the d e f i n i t i o n of which may vary depending on the c r i t e r i a adopted. This i s not an unusual issue i n int e r n a t i o n a l law which i s often concerned with boundary i d e n t i f i c a t i o n . Stable state boundaries are a recent development. Arguably the issue i s not one of stable boundaries so much as the existence of a t e r r i t o r y that can be i d e n t i f i e d as Metis. The main argument against the int e r n a t i o n a l status of the h i s t o r i c Metis Nation i s the i l l e g i t i m a c y of R i e l ' s government. According to t h i s argument, the proper governing body i n the Red River Settlement from 1835 u n t i l Canada assumed j u r i s d i c t i o n over the Metis i n 1870 was the Council of Assiniboia established by the Hudson's Bay Company.30 Whether R i e l ' s p r o v i s i o n a l government i s defended on the basis of the f a i l u r e of the Council to e f f e c t i v e l y represent the Red River population or an inherent r i g h t to aboriginal sovereignty and voluntary surrender of aboriginal lands, 3 1 i t i s c l e a r that i t was the representatives of R i e l ' s p r o v i s i o n a l government that negotiated the terms of the Manitoba Act with Ottawa. 3 2 The Act was "endorsed by the pr o v i s i o n a l l e g i s l a t u r e i n the Red River, enacted by the Parliament of Canada and confirmed by Imperial l e g i s l a t u r e . " 3 3 Metis n a t i o n a l i s t s would argue that they had a choice to ei t h e r accept o f f e r s of annexation to the United States or to s t r i k e a deal with Canada i n which a l e v e l of Metis autonomy could be maintained. In t h i s sense, the Metis nation was capable of, and 13 did conduct, international r e l a t i o n s with other nations. The form of government envisioned by the Metis Nation was a non-ethnic p r o v i n c i a l government forming a component part of a federated state. By v i r t u e of the population, the Metis would hold the majority of the seats i n the newly created province of Manitoba. However, the massive i n f l u x of s e t t l e r s soon resulted i n the Metis becoming a minority i n t h e i r homeland and control i n the l o c a l l e g i s l a t u r e was l o s t . The claim of aboriginal peoples to recognition as states i s based i n the l e g a l order established by Indian s o c i e t i e s p r i o r to European contact; the suggestion i n early United States decisions that at the time of B r i t i s h Colonial expansion i n North America, Indian t r i b e s were recognized by the B r i t i s h as sovereign nations capable of entering international r e l a t i o n s ; i n t e r n a t i o n a l law p u b l i c i s t s and decisions challenging the l e g a l and p o l i t i c a l assumptions upon which the denial of Indian sovereignty i s based; and treaty p r a c t i c e i n North America and i n t e r n a t i o n a l treaty p r a c t i c e . In order for a l l t r i b e s to meet the c r i t e r i a of statehood, the basis for comparison i n determining the existence of a government must be something other than a western model of government. Further, the a t t r i b u t e s of a t r i b a l government and i t s a b i l i t y to conduct international r e l a t i o n s w i l l vary depending upon the terms of the various t r e a t i e s entered with the B r i t i s h and Canadian governments. 3 4 Given these l i m i t a t i o n s , numerous s e l f - i d e n t i f y i n g Indian peoples could be excluded from s. 35(2) i f the term "peoples" i s equated with the term states. However, most would e a s i l y meet the contemporary d e f i n i t i o n of "nationhood" which 14 d i f f e r s from statehood i n that nations do not require u n i f i c a t i o n of the c o l l e c t i v i t y under a government. The use of the term "people" i n i n t e r n a t i o n a l law suggests that a "people" need not meet the formal c r i t e r i a of a state. Debate over the meaning of t h i s term was raised by i t s use i n various United Nations documents upholding the r i g h t to " s e l f - determination of peoples" and the increasing a c t i v i t y of the United Nations aimed at putting an end to c o l o n i a l domination. 3 5 To date the p r i n c i p l e of self-determination has not been applied to aboriginal groups whose t e r r i t o r i e s l i e within the j u r i s d i c t i o n of recognized members of the Untied Nations. However, i n 1975 the International Court of J u s t i c e gave an advisory opinion on the Western Sahara which att r i b u t e d t h i s r i g h t to a nomadic population with l i t t l e i n the way of a western s t y l e government. Although the t r i b e s were not held out to meet the formal requirements of a nation, they were held to have s u f f i c i e n t s o c i a l and p o l i t i c a l organization to require voluntary surrender of t h e i r lands and to exercise a r i g h t of self-determination. Further, t r a d i t i o n a l arguments used to deny aboriginal sovereignty were c l e a r l y r e j e c t e d . 3 6 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 i n that the former are constituted of "persons who accepted incorporation into e x i s t i n g states" but "peoples were c o l l e c t i v e e n t i t i e s requiring self-determination." 3 7 The d i s t i n c t i o n i s of l i t t l e assistance i n e s t a b l i s h i n g i d e n t i f y i n g c r i t e r i a . Rather than resolve the issue, 15 the p a r t i c i p a n t s at a 1977 United Nations Non-Governmental Organization Conference on Discrimination Against Indigenous Populations adopted the formal requirements of statehood f o r the purpose of i d e n t i f y i n g indigenous nations, but also declared that groups not meeting the c r i t e r i a were proper subjects of int e r n a t i o n a l law e n t i t l e d to the same ri g h t s as nations i f they are " i d e n t i f i a b l e groups having bonds of language, heritage, t r a d i t i o n or other common i d e n t i t y . " The International Commission of J u r i s t s has proposed a d e f i n i t i o n of people based on the following c r i t e r i a : 1. a common hi s t o r y ; 2. r a c i a l or ethnic t i e s ; 3. c u l t u r a l or l i n g u i s t i c t i e s ; 4. r e l i g i o u s or i d e o l o g i c a l t i e s ; 5. a common t e r r i t o r y or geographical l o c a t i o n ; 6. a common economic base; and 7. a s u f f i c i e n t number of people. 3 9 This d e f i n i t i o n accords with the social-science c r i t e r i a of nationhood which emphasizes a psychological bond j o i n i n g a people and d i f f e r e n t i a t i n g them from others, an aversion to being ruled by others, common ideology, common i n s t i t u t i o n s and customs, and a sense of homogeneity. 4 0 A c o l l e c t i v i t y may be a state or nation but not a people. For example, Canada i s a state but i t s population does not constitute a single "people" given c r i t e r i a one to four above. The impact of adopting t h i s d e f i n i t i o n i s to expand the parameters of s. 35(2) to include aboriginal groups that do not meet the formal c r i t e r i a of a state. For the Metis, t h i s would mean that i t would not be necessary for a group i d e n t i f y i n g as Metis people to e s t a b l i s h a l i n k to the Metis Nation. An example of such a group would be the Metis i n Grande Cache, Alberta. These people trace t h e i r o r i g i n s to "Iroquois-Cree and White-Cree marriages between fur company men and Cree women."41 There are several reasons why the broader i n t e r p r e t a t i o n of "peoples" i s preferable despite the arguments of Metis n a t i o n a l i s t s . The f i r s t , and most obvious i n l i g h t of the above discussion i s that the adoption of the formal requirements statehood or nationhood may r e s u l t i n the exclusion of s e l f - i d e n t i f y i n g aboriginal peoples from the scope of s. 35(2). The second i s that the in c l u s i o n of the term nation i n the co n s t i t u t i o n would have been t o t a l l y unacceptable because of Quebec's p o s i t i o n and the r e j e c t i o n of "two nations" as a descr i p t i o n of Canada. Further, the federal and p r o v i n c i a l governments i n i t i a l l y rejected aboriginal sovereignty and are s t i l l debating the meaning of s e l f - government and i t s ap p l i c a t i o n to aboriginal groups. 4 2 I f Indian "nations" or "peoples" i s interpreted i n the manner suggested by the International Commission of J u r i s t s , the term i s given meaning without denying s e l f - i d e n t i f i c a t i o n or admitting aboriginal sovereignty. F i n a l l y , Canadian courts have treated aboriginal groups as d i s t i n c t c u l t u r a l groups but not as independent s e l f - governing s o c i e t i e s . The federal and p r o v i n c i a l governments did not intend to give aboriginals additional r i g h t s under the co n s t i t u t i o n than those they have by v i r t u e of l e g i s l a t i o n , t r e a t i e s or common law and thus they would not i n t e n t i o n a l l y acknowledge t h e i r national status. 4 3 17 The d i f f i c u l t i e s faced by contemporary Indian c o l l e c t i v i t i e s and groups purporting to represent the Metis are not overcome by t h i s conclusion. Although the Metis on Alberta settlements can es t a b l i s h a common hi s t o r y of poverty and deprivation, they have d i f f i c u l t y e s t a b l i s h i n g a common hi s t o r y as a "people." A s i m i l a r problem i s faced by Indian bands on the p r a i r i e s which are recognized as e x i s t i n g aboriginal c o l l e c t i v i t i e s by the Indian Act, but are constituted by descendants from more than one Indian t r i b e . 4 4 Given the emphasis on registered bands i n self-government negotiations, the argument can be made that "peoples" should simply r e f e r to i d e n t i f i a b l e c o l l e c t i v i t i e s having a common bond based on some, but not necessarily a l l , of the c r i t e r i a enumerated by the International Commission of J u r i s t s . The advantage of t h i s approach i s i t i s broad enough to encompass a l l s e l f - i d e n t i f y i n g a b o r i ginal groups without conferring r i g h t s that they would not otherwise have as only " e x i s t i n g aboriginal and treaty r i g h t s " are recognized and affirmed. Whether there i s s u f f i c i e n t bonding to create entitlement to a c o l l e c t i v e r i g h t would be l e f t as a question of f a c t f o r the courts depending on the r i g h t asserted. Accepting t h i s approach "peoples" would simply be a body of persons united into a community for whatever reason. (c) Temporal Consideration The issue of whether "peoples" re f e r s to h i s t o r i c a l or contemporary groups i s s i g n i f i c a n t f or two reasons. F i r s t , an in d i v i d u a l may not be associated with an ongoing c o l l e c t i v i t y but may be able to es t a b l i s h descent from a h i s t o r i c a l aboriginal c o l l e c t i v i t y . Second, contemporary aboriginal groups may not be 18 able to trace a l i n k to a single h i s t o r i c a l "people" or they may have d i f f i c u l t y showing they have s u f f i c i e n t coherence and permanence to constitute a contemporary people. Rules of statutory i n t e r p r e t a t i o n are of l i t t l e assistance i n t h i s regard. On the one hand, c o n s t i t u t i o n a l documents are to be defined broadly so that they are f l e x i b l e enough to adapt to the times. On the other hand, one can argue there i s no need for f l e x i b i l i t y because Inuit, Indians and Metis are h i s t o r i c a l l y i d e n t i f i a b l e people. 4 5 The obvious problem with the second argument i s i t freezes aboriginal c o l l e c t i v i t i e s at a p a r t i c u l a r point i n h i s t o r y and denies them the a b i l i t y to reformulate for the purpose of achieving s p e c i f i c p o l i t i c a l , economic and s o c i a l goals. This problem i s of p a r t i c u l a r importance to the Metis who may experience d i f f i c u l t i e s e s t a b l i s h i n g a contemporary c o l l e c t i v e i d e n t i f y f o r the numerous reasons set out i n sections III and IV of t h i s chapter. This problem was b r i e f l y mentioned by Mr. J u s t i c e 0'Sullivan i n h i s dissenting opinion i n Dumont v. A.G. of Canada where he stated that s. 35(2) recognizes the Metis as an aboriginal people and " [ i t ] must be noted that the existence of the Metis people i s asserted i n the Constitution as of the present, not simply as of the past." 4 6 By t h i s statement 0'Sullivan suggests the term "people" i s to be given both contemporary and h i s t o r i c a l s i g n i f i c a n c e . Regardless of whether 0'Sullivan's views are accepted, peoples must r e f e r to one of two possible groups - descendants of h i s t o r i c aboriginal c o l l e c t i v i t i e s or peoples associated with contemporary aboriginal c o l l e c t i v i t i e s . 19 2. Who Is An Aboriginal and What i s an Aboriginal Group? The shorter Oxford Dictionary defines "Aborigines", "Indians" and "Natives" as follows: Aborigines: Usually explained as from the beginning, but t h i s i s not c e r t a i n ; inhabitants of a country; s p e c i f i c a l l y the natives as opposed to the c o l o n i s t s , 1789. Indian: Belonging or r e l a t i n g to the o r i g i n a l inhabitants of America and the West Indies, 1618. Native: Of indigenous o r i g i n , production as growth 1555; of or belonging to the natives of a p a r t i c u l a r place, 1796. 4 7 These terms have been used interchangeably and conjunctively, i n common and l e g a l use, to r e f e r to the o r i g i n a l race which inhabited to Canada as d i s t i n c t from European c o l o n i s t s . Used i n t h i s way the term "aborigine" i s a generic r a c i a l term and an aborigine i s 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 o r i g i n or mixed native and non-native o r i g i n s have been drawn into the fe d e r a l l y recognized Indian bands and other contemporary c o l l e c t i v i t i e s . I f the term "peoples" i s to be given any contemporary s i g n i f i c a n c e , then the broader named group of "aboriginal people", necessarily takes on non-racial dimensions. How then do we determine i f a group q u a l i f i e s as "aboriginal"? Arguably the core of the group must be descendants of the o r i g i n a l native inhabitants of Canada. The r a c i a l boundaries of the group may be expanded by a v a r i e t y of means including l e g i s l a t e d d e f i n i t i o n s , native customary law (eg. marriage and adoption) and recognition of s e l f - i d e n t i f y i n g members by p a r t i c u l a r aboriginal communities. Professor S l a t t e r y suggests that a d d i t i o n a l factors 20 to consider i n the c l a s s i f i c a t i o n of a group of people as aboriginal include: 1. the s e l f - i d e n t i t y of i t s members, as shown i n t h e i r actions and statements; 2. the culture and way of l i f e of the group; 3. the existence of group norms or customs s i m i l a r to that of other aboriginal people; and 4. the genetic composition of the group. 4 9 Although Sl a t t e r y ' s c r i t e r i a are useful i n attempting to define an aboriginal group, the author submits that caution must be exercised i n placing too much emphasis on factors (2) and (3) at t h i s stage i n the d e f i n i t i o n process. Problems a r i s e from the tendency of non-natives to hold a s t a t i c view of aboriginal culture by freezing i t at a p a r t i c u l a r h i s t o r i c moment. This perspective i s described by S a l l y Weaver as the "hydraulic Indian" view. 5 0 The Indian or native person i s a cylinder which, at some undefined point i n h i s t o r y i s f u l l to the top with Indian culture. As time passes, a group adopts c e r t a i n aspects of European culture and the l e v e l of "Indianness" i s dropped to the point that the cy l i n d e r i s almost empty. The native group i s then accused of having "spurious e t h n i c i t y " and i s no longer considered a b o r i g i n a l . 5 1 This view i s even more r e s t r i c t i v e when combined with the tendency of non- natives to assume one culture or custom i s more aboriginal than another by an ethnocentric comparison to t h e i r own white culture or customs. These perspectives are adopted i n arguments raised by opponents of Metis aboriginal r i g h t s . Emphasizing the European tendencies of the Metis of Ruperts Land i n the 1870s and comparing 21 t h e i r l i f e s t y l e to the a g r i c u l t u r a l and nomadic t r i b e s of the p l a i n s , Thomas Flanagan argues i t i s d i f f i c u l t to show that the Metis are a d i s t i n c t aboriginal people. 5 2 Flanagan describes the Metis as follows: Now the Metis of Ruperts' Land were v a s t l y d i f f e r e n t from the Indians. They did not e x i s t i n a natural economy of hunting, f i s h i n g and food gathering. They were from the s t a r t part of the commercial economy of the fur trade. Some were long term employees of the companies. Others worked int e r m i t t e n t l y on the cart t r a i n s and boat brigades. Many hunted buffalo, but not i n a subsistance fashion . . . The way of l i f e of most was much clo s e r to that of t h e i r paternal white ancestors than to that of t h e i r maternal Indian forebears. Their r e l i g i o n was Protestant or Catholic C h r i s t i a n i t y . Many were f a m i l i a r with and used i n t h e i r l i f e , white p o l i t i c a l i n s t i t u t i o n s such as written law, courts, magistrates, el e c t i o n s , representative assemblies and committees . . . He continues: There were some mixed blood people who had Indian wives, l i v e d with Indian bands, and were scarcely distinguishable from Indians . . . To the extent that the Metis lead a t r u l y aboriginal l i f e , they were not d i s t i n c t from the Indians; and to the extent that they were d i s t i n c t from the Indians, t h e i r way of l i f e was not a b o r i g i n a l . 5 3 Similar arguments are raised by Brian Schwartz i n h i s consideration of whether the Metis are Indians within s. 91(24) of the B r i t i s h North America Act. 1867 (B.N.A. A c t ) . 5 4 Schwartz argues that those Metis who i d e n t i f i e d as Indians and l i v e d 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 i s etymologically dubious. The Metis are c e r t a i n l y indigenous to North America - they came into being as a d i s t i n c t people on t h i s continent. But they are not aboriginal i n 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 i n connection with the fur trade. 5 5 The d i f f i c u l t y with these arguments i s the assumption that there i s a sing l e aboriginal way of l i f e and the treatment of the Red River Metis culture without reference to i t s native o r i g i n s . Extremely d i f f e r e n t pictures of the Metis culture emerge i f one emphasizes t h e i r maternal native ancestry; Metis arts and c r a f t s ; the introduction of unleavened bread (bannock); the dependence of the community on the buffalo hunt, hunting and f i s h i n g ; and the adoption of the dances of the p l a i n s Indians i n the Red River J i g . 5 6 Like other aboriginal groups, the Metis combined the culture of t h e i r native ancestors with that of the European colonizers i n order to survive p o l i t i c a l , s o c i a l and economic changes introduced by the 'whiteman1. The main d i s t i n c t i o n between the Metis culture and other aboriginal cultures i s the h i s t o r i c and contemporary Metis culture descends from the native and European cultures i n a hereditary sense. As an i l l u s t r a t i o n of t h i s point consider the Cherokee Nation as i t existed i n the State of Georgia i n the early-to-mid nineteenth century. P r i o r to the j u r i s d i c t i o n a l and t e r r i t o r i a l f i g h t s between the Cherokee and the State of Georgia, the Cherokees l i v e d undisturbed within t h e i r h i s t o r i c t e r r i t o r y governed by t h e i r own laws, usages and customs. However, European contact resulted i n the adoption of c e r t a i n aspects of the European culture into the Cherokee way of l i f e which, i n the words of the United States Supreme Court, "lead the Cherokees to a greater degree of c i v i l i z a t i o n . " 5 7 A b i l l presented to the Supreme Court by counsel for the Cherokees described the Cherokee culture i n part as follows: 23 They have established a c o n s t i t u t i o n and form of government, the leading features of which they have borrowed from that of the United States; d i v i d i n g t h e i r government into three separate departments, l e g i s l a t i v e , executive and j u d i c i a l . In conformity with t h i s c o n s t i t u t i o n , these departments have a l l been organized. They have formed a code of laws, c i v i l and c r i m i n a l , adapted to t h e i r s i t u a t i o n ; have erected courts to expound and apply those laws, and organized an executive to carry them into e f f e c t . They have established schools fo r the education of t h e i r children, and churches i n which the C h r i s t i a n r e l i g i o n i s taught; they have abandoned the hunter state and become a g r i c u l t u r a l i s t s , mechanics and herdsmen; and under provocations long continued and hard to be borne, they have observed, with f i d e l i t y , a l l t h e i r engagements by treaty with the United States. 5 8 The aboriginal and treaty r i g h t s of the Cherokee were argued before the United States Supreme Court again i n 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 t h e i r surrender of the nomadic hunting l i f e s t y l e t r a d i t i o n a l l y associated with native cultures and the adoption of European c u l t u r a l i n s t i t u t i o n s . More modern examples of c u l t u r a l blending are seen among t r i b e s such as the West Coast Squamish who r e l y on r e a l estate as a s i g n i f i c a n t contribution to t h e i r economic base and the Hobbema i n Alberta who are the b e n e f i c i a r i e s of o i l and gas development on t h e i r lands. I t i s ludicrous to suggest these people are not aboriginal because they have s a t e l l i t e T.V., drive Ford trucks, send t h e i r children to accredited p r o v i n c i a l schools and have expanded or replaced t h e i r h i s t o r i c economic base. As Professor S l a t t e r y implies i n h i s suggested c r i t e r i a , i t i s misleading to speak of a single contemporary or h i s t o r i c a b o r i g i n a l l i f e s t y l e or culture among aboriginal groups. A comparison of aboriginal groups across Canada from the West Coast Haida, through the P l a i n s Cree, t o the Mic Macs of the E a s t c o a s t i l l u s t r a t e s t h e d i v e r s i t y o f h i s t o r i c a b o r i g i n a l c u l t u r e s i n areas such as r e l i g i o n , economic development and p o l i t i c a l o r g a n i z a t i o n . Although one might f i n d s e v e r a l common f e a t u r e s among groups w i t h i n c l o s e geographic p r o x i m i t y , s i m i l a r i t i e s are l e s s f r e q u e n t as the g e o g r a p h i c a l d i s t a n c e between groups i n c r e a s e s and the topography of the e a r t h changes. 6 0 Given the d i v e r s i t y among h i s t o r i c a l a b o r i g i n a l groups and the i n e v i t a b i l i t y o f the commingling o f the a b o r i g i n a l and c o l o n i z i n g c u l t u r e s , i t i s d i f f i c u l t t o i d e n t i f y a s i n g l e common f a c t o r l i n k i n g a b o r i g i n e s t o g e t h e r as a group o t h e r than the a b i l i t y t o t r a c e the descendency o f the core o f the group t o indigenous i n h a b i t a n t s o f Canada through maternal o r p a t e r n a l l i n e s . Consequently i t i s more a p p r o p r i a t e t o c o n s i d e r c u l t u r e , custom and l i f e s t y l e when d e f i n i n g composite groups o f a b o r i g i n a l s than i n the d e f i n i t i o n o f the term " a b o r i g i n a l . " Even then, the emphasis g i v e n t o these f a c t o r s w i l l v a r y i n accordance w i t h the c u l t u r a l e v o l u t i o n o f a p a r t i c u l a r a b o r i g i n a l group. U l t i m a t e l y , t h i s may mean t h a t t r a d i t i o n a l and contemporary c u l t u r e s , customs and l i f e s t y l e s become more important when d e f i n i n g e n t i t l e m e n t t o , and the con t e n t o f , a b o r i g i n a l r i g h t s than d e t e r m i n i n g whether a group i s " a b o r i g i n a l . " 3. Summary In s h o r t , the impact o f the phrase " a b o r i g i n a l p e o p l e s " on the d e f i n i t i o n o f i t s composite groups i s : 1. the term people i m p l i e s a c o l l e c t i v i t y o f persons u n i t e d t o g e t h e r i n t o an i d e n t i f i a b l e community; 2. i d e n t i f i c a t i o n as an Indian, Inuit or Metis under s. 35(2) i s dependent on descent from a h i s t o r i c a l a boriginal c o l l e c t i v i t y or association with, and acceptance by, a contemporary aboriginal c o l l e c t i v i t y ; 3. the c o l l e c t i v i t y must be a r a c i a l group to the extent that the core of the group must be descendants of the o r i g i n a l inhabitants of Canada; and 4. the r a c i a l boundaries and u n i f i c a t i o n of the group may be defined i n numerous d i f f e r e n t ways including l e g i s l a t i o n (eg. Metis Betterment Act and the Indian Act) , native customary law and membership c r i t e r i a of s p e c i f i c aboriginal groups. 6 1 II Who Are the Metis? The c r i t e r i a established by an examination of the phrase "aboriginal peoples" i s useful to determine the minimum standards that must be met by a group purporting to be "Metis," but i s not s p e c i f i c enough to define the Metis as a d i s t i n c t aboriginal group. Within the context of s. 35, two approaches may be adopted to delineate more i d e n t i f i c a t i o n c r i t e r i a . The f i r s t approach i s to define the Metis by process of elimination. I f an aboriginal group f i t s the c r i t e r i a i n section I I , but does not f a l l within the d e f i n i t i o n of Inuit or Indian, the group i s Metis i f i t i d e n t i f i e s as Metis. The second approach i s to t r e a t each term separately according to i t s own use, rather than to adopt a "catch a l l " d e f i n i t i o n i n fear of inadvertently excluding an aboriginal group from c o n s t i t u t i o n a l protection. The numerous problems associated with defining the terms "Indian", "Inuit" and "Metis"; the 26 p o l i t i c a l h i s t o r i e s of each term; and the unresolved p o l i t i c a l and le g a l debates concerning t h e i r meaning suggests that the only f e a s i b l e way to define these groups i s by defining each group without reference to the other categories of aboriginal peoples. 1. The Comparative Approach P r i o r to the d e f i n i t i o n of aboriginal peoples i n s. 35(2), four main categories of aboriginal peoples were commonly used i n le g a l and p o l i t i c a l spheres. These categories are status Indians, non-status Indians, Inuit and Metis. Non-status Indians are not s p e c i f i c a l l y recognized as aboriginal peoples i n s. 35(2). Consequently, i n order for them to receive c o n s t i t u t i o n a l protection, they must f a l l within one of the three named groups. The c e n t r a l issue debated among groups purporting to represent the Metis i s whether non-status persons of mixed o r i g i n s can properly be i d e n t i f i e d as Metis i f they have no connection with the Metis Nation. Ess e n t i a l to t h i s debate i s the scope of the term "Indian" i n s. 35(2). I f "Indian" r e f e r s to the same cla s s of persons referr e d to i n s. 91(24) of the B.N.A. Act. a narrow d e f i n i t i o n of Metis peoples focusing on a common p o l i t i c a l , national and h i s t o r i c background may not a f f e c t the c o n s t i t u t i o n a l recognition of non-status Indians. Although the term "Indian" has been interpreted to re f e r only to Indian Act Indians, 6 2 t h i s p o s i t i o n has been subject to strong c r i t i c i s m 6 3 and cannot be applied to s.91(24) i n the face of the Eskimo d e c i s i o n . 6 4 The Eskimo decision held that Eskimo peoples are s. 91(24) Indians even though they are not included as Indians i n post-confederation Indian l e g i s l a t i o n . The term "Indian" i n s. 91(24) was interpreted 27 to include " a l l present and future aboriginal native subjects of the proposed confederation of B r i t i s h North America". 6 5 The reasoning adopted i n the Eskimo case can be applied to non-status Indians who were never registered under the Indian Act, were enfranchised, were excluded from t r e a t i e s , never signed t r e a t i e s or are descendants of the above as long as t h e i r ancestors were recognized by the fathers of Confederation as aborigines l i v i n g within the t e r r i t o r i e s to be included i n the proposed confederation of B r i t i s h North America. The f a c t that Parliament has chosen not to exercise i t s j u r i s d i c t i o n over these people and has excluded them from the d e f i n i t i o n of "Indian" i n an independent l e g i s l a t i v e regime does not mean they cease to e x i s t as s. 91(24) Indians. Parliament cannot control or a l t e r the c o n s t i t u t i o n a l d e f i n i t i o n of the term through l e g i s l a t i o n . 6 6 I f 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" r e f e r s only to a recognizable Indian group, the d e f i n i t i o n of the term "Metis" peoples takes on greater s i g n i f i c a n c e . There are several reasons why s. 35(2) should be read independently of s. 91(24) including: 1. The i n c l u s i o n of the Inuit peoples i n s. 35(2) suggests that the term "Indian" i s not being used simply i n i t s meaning i n s. 91(24). 2. The functions of the two sections are separate. Section 91(24) c e n t r a l i z e s control over Indian a f f a i r s by placing Indians and lands reserved f o r Indians under the j u r i s d i c t i o n of the federal government. Section 35 of the Constitution Act i s not concerned with j u r i s d i c t i o n a l 28 issues but with giving c o n s t i t u t i o n a l recognition to aboriginal and treaty r i g h t s by l i m i t i n g the a b i l i t i e s of federal and p r o v i n c i a l governments to impair e x i s t i n g r i g h t s . Section 35(2) simply defines the cla s s of persons to whom sections 25 and 35 apply. 3. Although the Native Council of Canada argued that the co n s t i t u t i o n a l provision defining aboriginal peoples should r e f l e c t what was intended at the time of Confederation by providing a more e x p l i c i t d e f i n i t i o n of who i s an Indian, post 1982 a c t i v i t y suggests that t h i s was not the approach taken. 6 7 The federal government has not changed i t s p o s i t i o n on the issue of j u r i s d i c t i o n and some Metis organizations and leaders representing the Metis continue to press for c o n s t i t u t i o n a l amendments to deal with j u r i s d i c t i o n s and r e s p o n s i b i l i t y . 6 8 4. The wording of the two sections i s d i f f e r e n t . Although there are strong arguments that the word "Indian" i n s. 91(24) means "aboriginal" and includes a l l f u l l and mixed blood persons of aboriginal descent, there are several opposing opinions and the matter has not been resolved by the courts. I f s. 91(24) and 35(2) were intended to be read together, the use of the word "Indian" instead of the word "aboriginal" i n s. 35(2) would have helped to eliminate confusion. If the "Indians" referred to i n s. 35(2) are not s. 91(24) Indians who are they? One could argue they are i d e n t i f i a b l e groups of status Indians who f a l l within the Indian Act d e f i n i t i o n of "Indian." I f t h i s i s so, defining "Metis" as requiring some l i n k to the Metis Nation could r e s u l t i n excluding a large number of native persons from s. 35(2). However, t h i s i n t e r p r e t a t i o n i s questionable because i t allows Parliament to act beyond i t s competence to define terms i n the c o n s t i t u t i o n . Since the proclamation of the Constitution, the membership c r i t e r i a of the Indian Act has been changed to include Indian women who had previously l o s t status through marriage. I f "Indians" i n s. 35(2) are only Indian Act Indians, Parliament might arguably have u n i l a t e r a l l y amended the Constitution by amending i t s l e g i s l a t i o n . The a l t e r n a t i v e argument i s "Indians" might mean Indians as defined from time to time by Parliament. 6 9 The courts are u n l i k e l y to foreclose Parliament's options by l i m i t i n g the term to Indian Act Indians. I t i s also c l e a r from the context of the negotiations leading to the i n c l u s i o n of s. 35 i n the Constitution that t h i s i n t e r p r e t a t i o n was not intended. During that time there was p o l i t i c a l concern with sexual discrimination i n the Indian Act and proposals were being made for reworking the Indian Act membership system. Although there had been a l i t t l e l i t i g a t i o n on the app l i c a t i o n of aboriginal and treaty r i g h t s to non-status Indians, 7 0 a pattern of decisions had developed which f a i l e d to d i f f e r e n t i a t e between status and non-status Indians when determining the v a l i d i t y of p r o v i n c i a l laws of general applic a t i o n . The issue was one of federal occupation of the f i e l d . 7 1 However, the question of d i f f e r e n t i a t i o n has re-emerged a f t e r the proclamation of the co n s t i t u t i o n i n Dick v. The Queen which made i t c l e a r p r o v i n c i a l hunting laws only applied to Indians because of the wording of s. 88 of the Indian Act. 7 2 The main argument i n support of a narrow d e f i n i t i o n of "Indian" i s the d i f f e r e n t i a t i o n between Indians and Inuit i n s. 35(2). However, i f one considers the p o l i t i c a l a c t i v i t y leading to the i n c l u s i o n of section 35 i n the Constitution, the i n c l u s i o n of the term "Inuit" i n s. 35(2) need not r e s u l t i n a r e s t r i c t e d i n t e r p r e t a t i o n of the word "Indian." The federal government was lobbied by three independent national aboriginal organizations to protect aboriginal and treaty r i g h t s i n the new Constitution - the Assembly of F i r s t 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 T e r r i t o r i e s ) and the Inuit communities of the North represented by the Inuit T a p i r i s a t and the Inuit Committee on National Issues (I.C.N.I.). I f s. 35 i s viewed as a p o l i t i c a l response to these three independent organizations, the s p e c i f i c a t i o n of Inuit peoples can be viewed as both a matter of p o l i t i c a l expediency and recognition of a d i s t i n c t aboriginal people i n accordance with t h e i r own terminology. This sophisticated d i s t i n c t i o n was not appreciated by the Fathers of Confederation and t h e i r h i s t o r i c a l counterparts who lumped "Indian- Esquimauxs" together with Indian nations i n t h e i r usage of the terms "Savages" and "Indians." 7 3 The willingness of the federal government to recognize a d i s t i n c t i o n between these two aboriginal groups may simply mean the term "Indian" i n s. 35(2) does not include the Inuit. Whether the term "Indian" includes status Indians has never been an issue. I f one accepts that section 35(2) need not be analyzed by an "either-or" l o g i c (that i s e i t h e r i t encompasses Indians referred to i n s. 91(24) or i t does not) then 31 those persons who do not f a l l under a narrow d e f i n i t i o n of "Metis" peoples can l o g i c a l l y be included i n the reference to "Indians." Who are the Metis People i n t h i s context? Why have they been given s p e c i f i c recognition i n s. 35(2)? The "Metis" may be referred to i n s. 35(2) as a matter of p o l i t i c a l expediency and recognition as an aboriginal group. The d e f i n i t i o n section was inserted p r i m a r i l y to s a t i s f y the claims of the Metis to recognition as a d i s t i n c t aboriginal people. The i n c l u s i o n was made without making a previous determination of whether the Metis a c t u a l l y had aboriginal and treaty r i g h t s . 7 4 Further, the decision was made without determining who the Metis are. This l a t t e r point i s i l l u s t r a t e d by the subsequent debates at the F i r s t Ministers conferences on the question of Metis i d e n t i t y . 7 5 There are several broad choices from which to choose a d e f i n i t i o n f o r the term "Metis." Among these are: 1. anyone of mixed Indian/non-Indian blood who i s not a status Indian; 2. a person who i d e n t i f i e s as Metis and i s accepted by a successor community of the Metis Nation; 3. a person who i d e n t i f i e s as Metis and i s accepted by a s e l f - i d e n t i f y i n g Metis community; 4. persons who took, or were e n t i t l e d to take half-breed grants under the Manitoba Act or Dominion Lands Act and t h e i r descendants; 7 6 and 5. descendants of persons excluded from the Indian Act regime by v i r t u e of a way of l i f e c r i t e r i a . Given the p o l i t i c a l 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 t h i s term into the Constitution. This d e f i n i t i o n would include populations d i s t i n c t from the Metis Nation who i d e n t i f y themselves as "Metis" rather than as "Indians." Some of these persons whose ancestors did not l i v e an Indian way of l i f e may not f a l l within the parameters of s. 91(24) and thus s p e c i f i c mention i s necessary to ensure the app l i c a t i o n of sections 25 and 35 to t h i s group. 7 7 This p o s i t i o n has not been accepted by a l l persons who i d e n t i f y themselves as Metis. In March, 1983 the Metis organizations i n Saskatchewan, Alberta and Manitoba s p l i t 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: A l l persons who can show they are descendants of persons considered Metis under the 1870 Manitoba Act, a l l persons who can show they are descendants of persons considered as Metis under the Dominion Lands Act of 1879 and 1883; and a l l 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 i n the c o n s t i t u t i o n a l conferences and the debate surrounding the i d e n t i f i c a t i o n of Metis peoples remains unresolved. Caution must be observed i n placing too much emphasis on the ro l e of the N.C.C. without taking into consideration some of t h e i r p o l i t i c a l and economic concerns. P r i o r to 1982 the N.C.C. received funding on behalf of Metis and non-status Indians f o r cer t a i n p o l i t i c a l , l e g a l , economic and s o c i a l a c t i v i t i e s . A large portion of i t s membership was composed of non-status Indian women who would ultimately be returned to status. I f the N.C.C. recognized a narrow d e f i n i t i o n of Metis people and t h e i r need for spec i a l representation, t h e i r effectiveness as a lobbying group could be marginalized and t h e i r funding base reduced. The F i r s t ministers conferences i l l u s t r a t e there was no s p e c i f i c d e f i n i t i o n of Metis at the time s. 35(2) was negotiated and a f t e r that time i t was contrary to the N.C.C.'s p o l i t i c a l and f i n a n c i a l i n t e r e s t s to agree to a narrow d e f i n i t i o n of Metis peoples. Further, a narrow d e f i n i t i o n could p o t e n t i a l l y a f f e c t the c o n s t i t u t i o n a l r i g h t s of i t s non-status membership. By t h i s discussion i t i s not the author's intention to down-play the achievements of the N.C.C. or t h e i r importance i n representing Canada's non-status Indians, but simply to address some of the p o l i t i c a l r e a l i t i e s which have created the i d e n t i f i c a t i o n 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 i n t e r r e l a t e d analysis of the terms used i n s. 35(2) does l i t t l e to a s s i s t i n the d e f i n i t i o n process as we are s t i l l l e f t with numerous variab l e s . However, the analysis i s useful because i t i l l u s t r a t e s non-status Indians f a l l within the term "Indians." This means the central issue i s not whether non-status Indians w i l l be inadvertently excluded from s. 35(2) i f a narrow d e f i n i t i o n of Metis i s adopted. Consequently, the most l o g i c a l approach to determining the i d e n t i f i c a t i o n of the Metis i s to look at the unique h i s t o r y and use of the term as well as the views of the Metis community. 2. H i s t o r i c a l . P o l i t i c a l and Legal Usage of the Term "Metis" Basic to an understanding of the d i f f i c u l t i e s associated with def i n i n g the term "Metis" i s an understanding of the h i s t o r y and use of the term. The word "metis" i s a French word meaning "mixed" and was f i r s t used to r e f e r to the French speaking half-breeds of the Red River settlement and surrounding areas. 7 9 I n i t i a l l y the term was used to r e f e r to the French and Cree speaking descendants of the French-Catholic Red River Metis as d i s t i n c t from the descendants of English speaking half-breeds or "country born," who l i v e d a more agrarian l i f e s t y l e and i d e n t i f i e d themselves as Protestant and B r i t i s h . Later, both native and non-native scholars w r i t i n g h i s t o r i e s on the Red River area used the term c o l l e c t i v e l y to r e f e r to French and English speaking half-breeds who emerged as a d i s t i n c t c u l t u r a l group i n the West and spoke of themselves as the "New Nation." By the 1970's the term extended beyond i t s r e l i g i o u s , geographic and l i n g u i s t i c boundaries to encompass "any person of mixed Indian-white blood who i d e n t i f i e d him or h e r s e l f and was i d e n t i f i e d by others as neither Indian or white, even though he or • 81 she might have no provable l i n k to the h i s t o r i c Red River Metis." The i d e n t i f i c a t i o n was a negative i d e n t i f i c a t i o n used interchangeably with the word "half-breed." They were Metis or 82 half-breed because they were not somebody else. More recent h i s t o r i c a l works focusing on ethnic o r i g i n s and changing dimensions of Metis i d e n t i t y use the term to r e f e r to those i n d i v i d u a l s , frequently of mixed Indian, Western, European and other ancestry, who are i n the St. Lawrence - Great Lakes trading system, including i t s extension to the P a c i f i c and A r c t i c coasts and chose to see themselves i n various c o l l e c t i v i t i e s as d i s t i n c t from 83 members of the 'white 1 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 i s i l l u s t r a t e d i n an a r t i c l e on Metis his t o r y by Jennifer Brown i n The Canadian Encyclopedia. Cautioning that there i s no agreement among writers concerning who the Metis are, she argues that d i s t i n c t i o n s must be made based on the context i n which the term i s used. I t i s important to define s p e c i f i c meanings f o r the terms as used i n t h i s discussion, while cautioning that writers, past and present, have not achieved consensus on the matter. Written with a small "m",metis i s an old French word meaning "mixed", and i t i s used here i n a general sense for people of dual Indian-white ancestry. Capi t a l i z e d , Metis i s not a generic term for a l l persons of t h i s b i r a c i a l descent but ref e r s to a d i s t i n c t i v e s o c i o c u l t u r a l heritage, a means of ethnic s e l f - i d e n t i f i c a t i o n , and sometimes a p o l i t i c a l and l e g a l category, more or le s s narrowly defined . . . This complexity a r i s e s from the fact that b i o l o g i c a l race mixture (Fr, metissage) by i t s e l f does not determine a persons s o c i a l , ethnic or p o l i t i c a l i d e n t i t y . 8 5 This same d i f f e r e n t i a t i o n has been adopted by the Metis National Council. In i t s opening statement to the United Nations working group i n August 1984 i n Geneva i t suggested that "metis" written with a small "m" be used as a r a c i a l term for any person of mixed Indian-European ancestry, and written with a c a p i t a l "M" be used to r e f e r to the Metis Nation. For the remainder of t h i s thesis t h i s d i f f e r e n t i a t e d s p e l l i n g w i l l be adopted i n the same way with the addition that the term "Metis" i n quotation marks re f e r s to the term as i t appears i n S.35(2). The use of the term "non-status Indians" w i l l r e f e r to those non-status aboriginals who do not i d e n t i f y as metis. A consideration of the l e g a l and common use of the term helps to understand how some of the confusion arose. The only l e g a l d e f i n i t i o n of Metis i s i n the Metis Betterment Act which adopts a r a c i a l view for the purpose of defining Metis persons within the b o u n d a r i e s o f t h e p r o v i n c e o f A l b e r t a . T h i s i s somewhat i r o n i c i n t h a t t h e o n l y " s t a t u s " M e t i s a r e n o t d e s c e n d a n t s b y t h e M e t i s n a t i o n . A l t h o u g h t h e f e d e r a l g o v e r n m e n t h a s n o t l e g i s l a t e d w i t h r e s p e c t t o M e t i s p e o p l e s , i t h a s l e g i s l a t e d w i t h r e s p e c t t o h a l f - b r e e d s . I n t h e M a n i t o b a A c t o f 1870 a n d t h e D o m i n i o n L a n d s A c t s o f 1879 a n d 1 8 8 3 , t h e f e d e r a l g o v e r n m e n t g r a n t e d l a n d s t o h a l f - b r e e d s . S u b s e q u e n t f e d e r a l l e g i s l a t i o n a n d s u b o r d i n a t e l e g i s l a t i o n p r o v i d e d f o r t h e d i s t r i b u t i o n o f l a n d g r a n t s a n d s c r i p t o t h e h a l f - b r e e d p e o p l e t o s a t i s f y c l a i m s e x i s t i n g i n c o n n e c t i o n w i t h t h e e x t i n g u i s h m e n t o f I n d i a n t i t l e . T h i s p r o c e d u r e c o i n c i d e d w i t h t h e e x t e n s i o n o f t r e a t y m a k i n g t o t h e w e s t e r n p r a i r i e s . F o r t h e p u r p o s e o f t r e a t y e n t i t l e m e n t , a d i s t i n c t i o n was d r a w n b e t w e e n I n d i a n s a n d h a l f - b r e e d s o n a l i f e s t y l e , s e l f - i d e n t i f i c a t i o n a n d g r o u p i d e n t i f i c a t i o n b a s i s . T h o s e l i v i n g t h e l i f e s t y l e o f I n d i a n s a n d a s s o c i a t e d w i t h I n d i a n t r i b e s w e r e a l l o w e d t o t a k e t r e a t y . The o t h e r s w e r e g i v e n s c r i p . 8 8 A r e v i e w o f t h e h i s t o r i c a l d e v e l o p m e n t o f t h e I n d i a n A c t r e v e a l s t h a t t h i s same g r o u p o f p e o p l e w e r e i n t e n t i o n a l l y e x c l u d e d f r o m b e n e f i t s r e c e i v e d b y I n d i a n p e o p l e s p u r s u a n t t o t h e I n d i a n 89 A c t . The t e r m " h a l f - b r e e d " i n t h i s c o n t e x t c a n b e u s e d i n t e r c h a n g e a b l y w i t h t h e t e r m " M e t i s . " The r e l a t i o n s h i p b e t w e e n t h e M a n i t o b a A c t . D o m i n i o n L a n d s A c t a n d I n d i a n A c t d e f i n i t i o n s o f " h a l f - b r e e d " h a s l e a d D o u g l a s S a n d e r s t o s u g g e s t t h a t t h e o n l y l o g i c a l l e g a l d e f i n i t i o n o f " M e t i s " w o u l d be t h e d e s c e n d a n t s o f t h o s e p e r s o n s who t o o k s c r i p a n d a r e e x c l u d e d f r o m s t a t u s b y t h e • 90 i • • • # i I n d i a n A c t . W i l l i a m P e n t n e y w o u l d e x t e n d t h i s d e f i n i t i o n t o i n c l u d e d e s c e n d a n t s o f p e r s o n s e n t i t l e d t o r e c e i v e s c r i p . 9 1 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 i t s e l f . Rather, these i n d i v i d u a l s were expected to assimilate and lose i d e n t i f i c a t i o n as an Indian. Further confusion arose when mixed blood status Indians were given the option to surrender t h e i r treaty r i g h t s and take s c r i p . 9 2 Eventually, popular usage came to equate Metis and non-status Indians on the p r a i r i e s . This equating of the two categories also occurred i n federal funding and non- status Indian membership was accepted into Metis p r o v i n c i a l organizations i n order to achieve economic, s o c i a l and p o l i t i c a l goals. 9 3 The contemporary usage of the term Metis has been adopted by the N.C.C. They argue that Metis people include "both blood r e l a t i v e s of the Red River Metis and completely d i s t i n c t Metis populations which pre-and-post date both the h i s t o r y and the people of the Red River." They contend the term "Metis" i n s. 35(2) of the Constitution r e f e r s to t h e i r constituents who i d e n t i f y themselves as metis and were never included i n treaty, or were excluded from treaty as half-breed, or were refused s c r i p on a residency basis or are descendants of the above. 9 5 The M.N.C. have rejected both the contemporary and t r a d i t i o n a l usage of the term Metis and have adopted a d e f i n i t i o n consistent with the l e g i s l a t i v e and p o l i t i c a l a c t i v i t y of the federal government with respect to half-breeds l i v i n g i n Ruperts Land and the Northwest T e r r i t o r i e s . The M.N.C. define the Metis as follows: 38 1. The Metis are: - an aboriginal people d i s t i n c t from Indian and Inuit; - descendants of the h i s t o r i c Metis who evolved i n what i s now Western Canada as a people with a common p o l i t i c a l w i l l ; - descendants of those aboriginals who have been absorbed by the h i s t o r i c Metis. 2. The Metis community comprises members of the above who share a common c u l t u r a l i d e n t i t y and p o l i t i c a l w i l l . 9 6 The p r o v i n c i a l organizations comprising the M.N.C. adopt s i m i l a r d e f i n i t i o n s but also accept non-status Indians who have been accepted as members of the p r o v i n c i a l organization. For example, when the Alberta Metis Association was founded i n 1932 i t offered membership to anyone of native ancestry. 9 7 As recent as 1987, any person of native ancestry could be a member so long as a member of the Association was w i l l i n g to take a sworn statement that the applicant was a metis. In Manitoba, the Manitoba Metis Federation was started because of a s p l i t between status and non- status Indians. Their c o n s t i t u t i o n 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. 9 9 I t i s l i k e l y t h i s f l e x i b i l i t y within the membership c r i t e r i a of the p r a i r i e p o l i t i c a l organizations that i s the reason behind the s e l f - i d e n t i f i c a t i o n element i n the M.N.C. d e f i n i t i o n of the Metis Nation. 39 The r e s u l t i s today "metis" can be defined i n many d i f f e r e n t ways. A metis person i s described as a person of mixed-blood, one who considers h e r s e l f a metis, a non-status Indian, one who received land s c r i p or money s c r i p , one who i s i d e n t i f i e d with a group that i d e n t i f i e s as metis and a non-native married to a metis. 1 0 0 None of the d e f i n i t i o n s standing alone i s s a t i s f a c t o r y to a l l persons who i d e n t i f y themselves as metis. These p o t e n t i a l usages and d e f i n i t i o n s have created the i d e n t i t y debate and have resulted i n major d i v i s i o n s i n native p o l i t i c a l organizations. 3. Resolution of the D e f i n i t i o n Debate Given the complexity of the d e f i n i t i o n debate i s i t possible to define the term "Metis" i n s. 35(2)? This could depend on the view of e t h n i c i t y adopted by the interpreter of s. 35(2) and the willingness of the governments and metis organizations to accept varying d e f i n i t i o n s of the term "Metis" f o r c o n s t i t u t i o n a l and other purposes. I f s. 35(2) refe r s to the metis ethnic i d e n t i t y and i f we accept the proposition that e t h n i c i t y i s an ongoing process defining i t s boundaries i n response to and i n the context of s o c i a l change, culture bearing c o l l e c t i v i t i e s with a common hist o r y , such as the descendents of the Metis Nation, w i l l not necessarily have to be equated to the ethnic group referred to i n s. 35(2). Joe Sawchuk argues that the contemporary concept of metis i s a d r a s t i c reformulation of the c r i t e r i a that once i d e n t i f i e d the Metis Nation. However, i f one views e t h n i c i t y as p r i m a r i l y p o l i t i c a l i n nature reformulating i t s e l f i n response to many c u l t u r a l s t i m u l i , the emphasis on d i f f e r e n t i d e n t i f y i n g c r i t e r i a by d i f f e r e n t metis organizations can be e a s i l y understood. 40 Sawchuk contends that ethnic consciousness i s more than recognition of c u l t u r a l phenomena, i t i s a p o l i t i c a l assertion to defend predominantly economic int e r e s t s of a c o l l e c t i v i t y . Consequently, ethnic i d e n t i t y i s always i n a state of f l u x and responds to the p o l i t i c a l climate of a given period. 1 0 1 The fa c t that the two national metis organizations cannot agree on who i s or i s not a metis does not mean a contemporary metis ethnic i d e n t i t y does not e x i s t . I t may mean that these p o l i t i c a l organizations have adopted i d e n t i f i c a t i o n c r i t e r i a that further t h e i r p o l i t i c a l and economic goals. An example of t h i s phenomena can be seen i n the New Brunswick Association of Metis and Non-Status Indians. In the 1600s there was a s i g n i f i c a n t amount of mixing between the French and Indian fam i l i e s i n Acadia and New France, but a d i s t i n c t c u l t u r a l group did not emerge and t h e i r o f f s p r i n g were not c l a s s i f i e d as a • • 102 d i s t i n c t race. Research conducted by the New Brunswick Association supports these facts . Clem Chartier suggests t h i s research represents a "conscious attempt" by "maritime organizations to distance themselves from any possible negative impact which may r e s u l t from being i d e n t i f i e d as half-breeds or • 103 • • • Metis." Chartier argues that the tune of the p r o v i n c i a l organization changed. A f t e r Constitutional recognition of the Metis as a d i s t i n c t aboriginal people, focus was s h i f t e d to metis o r i g i n s and r a c i a l c r i t e r i a . 1 0 4 I f the existence of more than one metis people i s accepted, there w i l l be some ind i v i d u a l s of Indian descent who are not metis and do not have Indian status. The "Metis" i n s. 35(2) w i l l have to be one of two possible groups: 41 1. The descendants of the h i s t o r i c Metis Nation. 2. People associated with ongoing metis c o l l e c t i v i t i e s . A r e f u s a l to sel e c t i d e n t i f y i n g c r i t e r i a by freezing c u l t u r a l idioms at a given point i n hi s t o r y allows the int e r p r e t e r of s. 35(2) to define "Metis" for c o n s t i t u t i o n a l purposes as small "m" metis. This i n t e r p r e t a t i o n makes sense i n the context of the p o l i t i c a l a c t i v i t y surrounding the negotiation of s. 35 into the Constitution. The r e s u l t i s the c o n s t i t u t i o n a l term "Metis" does not r e f e r to a homogeneous c u l t u r a l group but a large and varied population characterized by aboriginal ancestry. This conclusion should not be su r p r i s i n g as the term "Indian" c l e a r l y encompasses a v a r i e t y of Indian nations with d i f f e r e n t p o l i t i c a l , c u l t u r a l and h i s t o r i c a l backgrounds. The common factor shared by a l l of these groups i s t h e i r aboriginal ancestry. This i n t e r p r e t a t i o n also avoids u n i l a t e r a l a p p l i c a t i o n of a l e g a l d e f i n i t i o n and allows for s e l f i d e n t i f i c a t i o n . So when does the d i s t i n c t i o n between small "m" metis and the Metis Nation become s i g n i f i c a n t ? I t i s s i g n i f i c a n t i n the context of entitlement to s p e c i f i c aboriginal r i g h t s such as a land base and the r i g h t to self-government. In t h i s context the question i s not so much one of d e f i n i t i o n but entitlement and standing. Membership c r i t e r i a w i l l vary depending on regional, h i s t o r i c a l , c u l t u r a l and p o l i t i c a l differences and the nature of the claim asserted. The demands of the membership w i l l vary depending on these differences and t h e i r h i s t o r y of dealings with the federal and p r o v i n c i a l governments. Consequently, i t may be impossible to design a single system of compensation f o r a l l metis claims which recognizes t h e i r d i v e r s i t y or resolve t h e i r grievances with a 42 s i n g l e court action and at the same time upholds the unique i d e n t i t y of the Metis Nation. I l l Standing to Sue 1. Introduction The membership c r i t e r i a and d e f i n i t i o n of a metis group w i l l a f f e c t the basis upon which claims to aboriginal t i t l e are made and the form of compensation sought. Groups which have a d i f f i c u l t time e s t a b l i s h i n g h i s t o r i c a l occupation of a defined t e r r i t o r y may s h i f t t h e i r focus to the mode of extinguishment adopted by the federal government creating a natural d i v i d i n g l i n e between those metis who took s c r i p and those who accepted treaty. On the other hand, persons l i v i n g within the same geographic boundaries and joined together i n pursuit of the same goals may se l e c t i d e n t i f y i n g c r i t e r i a focused more on a contemporary solut i o n than a common his t o r y . For example, the d e f i n i t i o n of "Metis" i n the proposed Dene/Metis land claim settlement has r a c i a l , geographical, s e l f - i d e n t i f i c a t i o n and group i d e n t i f i c a t i o n c r i t e r i a and c l e a r l y includes persons who may have had treaty, s c r i p or other claims against the federal government. Those metis who took s c r i p may organize into d i s t i n c t groups based on claims to Metis n a t i o n a l i t y , claims to monetary compensation as opposed to the creation of a land base and membership i n a group occupying a contemporary land base. Whether the claims of these groups are resolved by j u d i c i a l determination or land claims settlement, the group asserting the r i g h t w i l l concern i t s e l f with the c o n s t i t u t i o n a l protection of those r i g h t s . The necessity of the groups to create a p l a i n t i f f 43 recognizable i n law i s one more reason why a broad i n t e r p r e t a t i o n of the word "Metis" i n s. 35(2) i s desirable. Recognizing the d i v e r s i t y among s e l f - i d e n t i f y i n g metis groups and the reformulation of groups for the purposes of asserting various claims, t h i s thesis w i l l address the claim to aboriginal t i t l e by descendants of the Metis inhabiting Manitoba p r i o r to 1870 and t h e i r descendants (Manitoba Metis). Where appropriate, reference w i l l be made to other metis groups to i l l u s t r a t e p a r t i c u l a r points. Keeping t h i s i n mind, the following analysis of standing w i l l focus on the Manitoba Metis. 2. Standing In Calder v. A.G. of B.C. Mr. J u s t i c e Judson summarized aboriginal t i t l e as follows: . . . when the s e t t l e r s came, the Indians were there, organized i n s o c i e t i e s and occupying lands as t h e i r forefathers had done for centuries. This i s what Indian t i t l e means...106 This d e s c r i p t i o n of t i t l e has since been confirmed by the Supreme Court of Canada and forms the basis for the assertion that aboriginal t i t l e i s a c o l l e c t i v e r i g h t . 1 0 7 Although the question of c r i t e r i a f o r proof of t i t l e i s the subject of debate, academic and j u d i c i a l opinion agree that p a r t i e s asserting a claim to t i t l e must constitute an organized group of native people. In h i s a r t i c l e "Understanding Aboriginal Rights", Professor S l a t t e r y explains t h i s c r i t e r i o n as follows: This c r i t e r i o n excludes claims advanced by i n d i v i d u a l s . Aboriginal t i t l e i s a c o l l e c t i v e r i g h t vested i n a group. I t should be noted that t h i s does not mean that i n d i v i d u a l members of a native group cannot hold l e g a l l y enforceable r i g h t s to share i n a group's c o l l e c t i v e t i t l e under the rules i n force within the group. Such r i g h t s are not, however, aboriginal t i t l e i n the s t r i c t sense. The c r i t e r i o n also d i s q u a l i f i e s c o l l e c t i o n s of people who lack s u f f i c i e n t coherence, permanence or s e l f i d e n t i f i c a t i o n to q u a l i f y as an organized group. But these requirements must be applied f l e x i b l y , i n l i g h t of the varying l e v e l s of organization found i n aboriginal s o c i e t i e s . A s i m i l a r view i s adopted by Mr. J u s t i c e Steele who states the following on the question of standing i n the Bear Island case: I t i s t r i t e law that aboriginal r i g h t s pre-date any treaty or se t t i n g up of reserves. Hence i f there are persons who are recognized by native Indian groups as being Indians and members of t h e i r group, but who are not able to be registered under the [Indian] Act, then there must be a method whereby t h e i r r i g h t s can be asserted. . . The only way t h i s can be done i s by allowing a representative action on behalf of the band... Whether there i s a band, and who i t s members are, i s a matter to • . . . 110 be determined i n the action upon the evidence. The requirement that the p l a i n t i f f ( s ) represent an organized group of native people could r e s u l t i n a bar to a claim to aboriginal t i t l e by descendants of the Red River Metis given the problems associated with defining a contemporary metis i d e n t i t y and a l l e g a t i o n s that the Metis Nation died with Louis R i e l . This point i s i l l u s t r a t e d i n the recent decision of Dumont et a l v A.G. of Canada. 1 1 1 This was not an aboriginal t i t l e case but a case concerned with the c o n s t i t u t i o n a l v a l i d i t y of orders-in-council and Acts of Parliament purportedly passed i n accordance with sections 31 and 32 of the Manitoba Act of 1870. The i n d i v i d u a l p l a i n t i f f s claimed to be descendants of persons referred to as "half-breeds" i n the Manitoba Act and the corporate p l a i n t i f f s (Manitoba Metis Federation Inc. and the N.C.C. Inc.) purported to represent the i n t e r e s t of " a l l other descendants of Metis persons e n t i t l e d to land and other r i g h t s under Section 31 and 32 of the Manitoba Act of 1870." 1 1 2 4 5 At the t r i a l l e v e l , an a p p l i c a t i o n was made by the Attorney General of Canada to s t r i k e out the statement of claim on the grounds that the p l a i n t i f f s lacked standing i n a p u b l i c i n t e r e s t s u i t . The court held f o r the p l a i n t i f f s on the following grounds: 1 . the court has j u r i s d i c t i o n to grant a declatory order providing a r e a l issue concerning the r e l a t i v e issues of each has been raised; 2. the r e a l issues i n the action are whether the Manitoba Act promised a Metis reserve and whether the alleged measures taken to extinguish Metis t i t l e were unconstitutional; 3. the p r a c t i c a l e f f e c t of finding for the p l a i n t i f f s would be support i n t h e i r land claim negotiations; 4. the l e g i s l a t i o n i n question r e f e r s to a s p e c i f i c group or class represented by the p l a i n t i f f s ; and 5. there i s a current v i o l a t i o n of the p l a i n t i f f s ' r i g h t s r e l a t i n g to the Metis reserve. This case was successfully appealed by the Attorney General. Speaking f o r the Court of Appeal, Mr. J u s t i c e Twaddle held that the declaration of i n v a l i d i t y would not serve the intended purpose of deciding an issue e s s e n t i a l to the land claims negotiations as the l e g a l basis of a land claim was a matter of "great uncertainty" and the federal government would also be influenced by s o c i a l , p o l i t i c a l and h i s t o r i c a l considerations. 1 1 3 J u s t i c e Twaddle also stated that the p l a i n t i f f s ' assertion of a community of i n t e r e s t i n land was not alleged i n the statement of claim and was not supported by the Manitoba Act which granted i n d i v i d u a l , rather than c o l l e c t i v e , r i g h t s . For the purpose of the appeal he assumes that " a l l half-breeds of 1870 were 'Metis'; that the Metis of 1870 were a d i s t i n c t people; and that a l l of t h e i r descendants are included within the undefined group of persons c o n s t i t u t i o n a l l y recognized today as 'the Metis people*." 1 1 5 As discussed, the f i r s t two assumptions made by Mr. J u s t i c e Twaddle are currently challenged and are not statements of fac t but issues to be resolved. The decision i s currently under appeal. Although the question of standing i s not d i r e c t l y r a i sed by Ju s t i c e Twaddle, the dissenting opinion of Mr. J u s t i c e O'Sullivan notes that i t i s d i f f i c u l t for the courts and lawyers to understand what the r i g h t s of a "people" can mean and how they are asserted. Accepting that s. 35(2) recognizes the Metis as aboriginal people and r e j e c t i n g the argument that the section i s meaningless because the Metis have no ri g h t s , he argues that " i t i s impossible i n our jurisprudence to have r i g h t s without a remedy and the r i g h t s of the Metis people must be capable of being asserted by somebody."116 He emphasizes that the co n s t i t u t i o n recognizes the Metis as a people of the "present" and not the "past." 1 1 7 Treating t h e i r land r i g h t s as c o l l e c t i v e r i g h t s , he concludes that the " p l a i n t i f f s are suita b l e persons to assert the claims of the half-breed people" and comments on the need f o r the development of "a r u l e of law to make 118 possible a l e g a l s o l u t i o n to minority claims." The Dumont decision i s s i g n i f i c a n t because i t r e j e c t s reliance on the Manitoba Act to assert a c o l l e c t i v e claim to aboriginal t i t l e . I f i t i s upheld, some other source may have to be established. Further, c e r t a i n factual assumptions were made to permit standing by the p l a i n t i f f s i n the action. In the event of 47 an aboriginal t i t l e case, the assumptions would be issues of dispute. The i n a b i l i t y of s e l f - i d e n t i f y i n g metis to agree on a d e f i n i t i o n 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 d i f f i c u l t y i n est a b l i s h i n g an ongoing Metis c o l l e c t i v i t y since 1870 and a s t a t i c view of aboriginal culture are a l l reasons that can be employed to deny s u f f i c i e n t coherence, permanence of s e l f - i d e n t i f i c a t i o n to q u a l i f y as an organized group. The coherence of the p l a i n t i f f group should not be a bar to recovery but i s more properly taken into consideration when determining the mode of compensation. Like other aboriginal groups who have been dispossessed of t h e i r lands, the Metis of the Red River can not show a continual l i n k to a given t e r r i t o r y to the exclusion of others up to the present day. Assuming dispossession was involuntary, i l l e g a l or wrongful i n some other way, i t i s only j u s t that the c r i t e r i o n f or 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 s u f f i c i e n t coherence to be c a l l e d a group today, a land settlement for an e x i s t i n g group of descendants may not be appropriate. Rather, compensation may be i n the form of cash payments or in d i v i d u a l land grants coupled with c u l t u r a l centres and scholarships to compensate for destroying the c o l l e c t i v e i d e n t i t y of the group. I f a claim can not be brought because an e x i s t i n g c o l l e c t i v i t y can not be i d e n t i f i e d , the r e s u l t i s to deny the l e g a l e n f o r c e a b i l i t y of the ri g h t s of an in d i v i d u a l members of a group 48 to share i n a group's c o l l e c t i v e t i t l e . The r e l a t i o n s h i p between the i d e n t i f i c a t i o n of the group and the mode of compensation i s i l l u s t r a t e d through contemporary examples of land claims agreements and settlement schemes discussed i n the conclusion of t h i s t h e s i s . i 49 CHAPTER 1 ENDNOTES 1. Canada Act. 1982 (U.K.), 1982, c . l l . 2. W.F. Pentney, The Aboriginal Provisions i n the Constitution Act. 1982 ( Saskatoon: Native Law Centre, University of Saskatchewan, 1987) at 100; 45-51. 3. See, f o r 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 A f f a i r s 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, f o r 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, i d . , which r e f e r s to aboriginal r i g h t s as communal r i g h t s . This i n t e r p r e t a t i o n a r i s e s from a view that aboriginal r i g h t s are synonymous to, or are i n some way derived from aboriginal t i t l e . Similar views are given by Slattery, i d . 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 B r i t i s h Columbia, Faculty of Law, 1988), 35, photocopied, 1. 7. For an i n t e r e s t i n g discussion on d i f f e r e n t classes of aboriginal r i g h t s see D. Ahenakew, "Aboriginal T i t l e and Aboriginal Rights: The Impossible and Unnecessary Task of I d e n t i f i c a t i o n and D e f i n i t i o n " i n The Quest f o r J u s t i c e , eds. M. Boldt, J.A. Long and L. L i t t l e Bear (Toronto: University of Toronto Press, 1985) 24 at 25-26. 8. Reprinted i n The Quest for J u s t i c e , i d . at 359. 9. See, f o r example, D. Opekokew, The F i r s t 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 i n 50 Canada, by Keith Penner, Chairman (Ottawa: Queen's P r i n t e r 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 i n Alberta," Paper prepared f o r the Metis Association of Alberta (Edmonton: A p r i l 4, 1978) Photocopied, at 19. 14. For a discussion on the h i s t o r y of the Metis settlements see, for example, Metis Association of Alberta, P. Sawchuk and T. Ferguson, Metis Land Rights i n Alberta: A P o l i t i c a l 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. B i l l 64, Metis Settlements Act. 3d. Sess., 21st Leg. A l t a . , 1988 s. 1(1) h. 16. For a summary of academic opinion see W.F. Pentney, supra, note 2 at 182-188. 17. Aboriginal t i t l e i s treated as a communal r i g h t of a t r i b e 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 i n the Constitution of Canada" i n Canada and the New Constitution: The Unfinished Agenda,, Vol. I, eds. S.M. Beck and I. Bernier (Montreal: I n s t i t u t e 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 P r i n c i p l e s f o r the Defence of the Indigenous Nations and Peoples of the Western Hemisphere, a r t i c l e 1, printed i n National Lawyers Guild, ed. Rethinking Indian Law (New Haven: Advocate Press, 1982) 137-138; F. Snow, International Law (Washington, Gov't P r i n t i n g O f f i c e , 1985) at 19. 20. See discussion i n M.F. Lindley, The A c q u i s i t i o n and Government of Backward T e r r i t o r y i n International Law (Longman's, Green & Co. Ltd., 1926; re p r i n t , New York: Negro University Press, 1969) at 19. 21. See, f o r example, R. Coulter, "Contemporary Indian Sovereignty" i n 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 i n Western Canada, trans. E. Maguet (Winnipeg: Pemmican Publications, 1982) at 8. 23. See, f o r example, G. Stanley, The B i r t h of Western Canada (Great B r i t a i n : Longmans, Green and Co. Ltd., 1936; r e p r i n t , Toronto: University of Toronto Press, 1960) at 11; A.S. Morton, "The New Nation: The Metis" i n The Other Natives, v o l . 1., eds. A. Lussier and D.B. Sealey (Winnipeg: Manitoba Metis Federation Press and Editions Bois-Brules, 1978) at 28. 24. Tremaudan, i d . 25. For a discussion of the various l i f e s t y l e s among the Metis see, f o r 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 i n the Canadian West, trans, G. Woodock (Edmonton: University of Alberta Press, 1986); E. P e l l e t i e r , A S o c i a l History of the Manitoba Metis: The Development and Loss of Aboriginal Rights (Winnipeg: Manitoba Metis Federation 1987). This subject i s discussed i n further d e t a i l i n chapter 4 of t h i s t h e s i s . 26. See, f o r 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 i n 1870, trans. B e r l i t z Translation Service, Public Archives of Canada, Ottawa, photocopied 14; D. Sanders, "Metis Rights i n the P r a i r i e Provinces and the Northwest T e r r i t o r i e s : A Legal 52 Interpretation" i n The Forgotten People: Metis and Non-Status Land Claims i n Alberta by H. Daniels (Ottawa: Native Council of Canada, 1979) at 10. There i s some disagreement on whether Ritchot went beyond h i s delegated powers during the course of the negotiations. The development of the Metis as a d i s t i n c t society and the negotiations leading to Manitoba j o i n i n g confederation are discussed further i n Chapter 4 of t h i s t h e s i s . 27. D. Sanders, i d . at 8. 28. See, f o r example, discussion of early Metis settlement i n Prince Albert, White Fish Lake, St. Albert, Lac l a Biche, Lac St. Anne and St. Laurent (Batoche) i n 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 h i s t o r y i n the North West T e r r i t o r i e s 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 f o r the 1885 insu r r e c t i o n arguing that the Metis wanted money, not land, and violence was not necessary to resolve Metis grievances. See, T. Flanagan, R i e l and the Rebellion: 1885 Reconsidered (Saskatoon: Western Producer P r a i r i e Books, 1983) at 14-74. 30. See, f o r example, Flanagan i d . , at 80-81; 31. Arguments f o r the legitimacy of the p r o v i s i o n a l government are outlined i n chapter 4 of t h i s t h e s i s . 32. Manitoba Act. S.C. 1870, c. 3; see also, supra. note 26. 33. Sanders, supra.. note 26. 34. These issues are discussed i n further d e t a i l i n Chapter 3. 35. See, f o r example Declaration on the Granting of Independence to Colonial Countries and T e r r i t o r i e s . 1960. a r t i c l e 2 ; International Covenant on C i v i l and P o l i t i c a l Rights, a r t i c l e I (1) ; International Covenant on Economic. S o c i a l and C u l t u r a l Rights. a r t i c l e I (1) a l l reprinted i n UNIFO, International 53 Human Rights Instruments of the United Nations 1948 - 1982 (P l e a s a n t v i l l e : UNIFO Publishers, Ltd., 1983). 36. Western Sahara (1975) I.C.J. Reports 6. 37. M. Davies, "Aboriginal Rights i n International Law: Human Rights", Chapter 13 i n Aboriginal Peoples and the Law: Indian. Metis and Inuit Rights i n Canada by B.W. Morse (Ottawa: Carleton University Press, 1985) at 756. 38. A r t i c l e 2, Draft Declaration of P r i n c i p l e s f o r 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, " T r i b a l Traditions and European - Western P o l i t i c a l Ideologies : The Dilemma of Canada's Native Indians", i n The Quest for J u s t i c e , supra. note 7 at 344. 41. Metis Assoc. of Alberta, supra. note 14 at 16-17; see also 216-222. 42. See f o r example, D. Sanders, supra. note 18 at 263-267; R. Romanow, "Aboriginal Rights i n the Constitutional Process" i n The Quest For Ju s t i c e , supra. note 7 at 73-82; R. Dalon, "An Alberta Perspective on Aboriginal Peoples and the Constitution" i n The Quest f o r J u s t i c e supra. note 7 at 107- 112. 43. See, f o r example, Dalon, i d . at 96 and 105; Sanders, i d at 236; and f o r a discussion on various academic views see Pentney, supra. note 2 at 181-188. 44. I t i s not unusual f o r t r i b e s of d i f f e r e n t o r i g i n s or registered Indian bands to be reorganized into a single band for administrative or other reasons. An example i s the Saddle Lake Band i n Alberta which was reorganized into a si n g l e band to f a c i l i t a t e the payment of annuities. 54 45. P. Hogg, Constitutional Law of Canada. (2d) (Toronto: Carswell, 1985) at 340-342; 657-659. 46. Dumont et a l 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, f o r example, Re Eskimo [1939] S.C.R. 104 at 118 per Kerwin J ; at 119 and 121 per Canon J . where the term "Indians" i n s. 91(24) of the B r i t i s h North America Act. 1867 i s defined as " a l l present and future aboriginal native subjects of the proposed confederation . . . 1 1 and R. v. Gueriny supra f note 5 at 376 per Dickson J . who with the concurrence of three other judges states the Crown's f i d u c i a r y r e l a t i o n s h i p to Indian peoples has i t s "roots i n the concept of abori g i n a l , native or Indian t i t l e . " 49. Supra, note 3 at 757. 50. S. Weaver, "Federal D i f f i c u l t i e s with Aboriginal Rights Demands" i n The Quest for J u s t i c e , 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. B r i t i s h North America Act. 1867, 30 & 31 V i c t . , c. 3. 55. B. Schwartz, F i r s t P r i n c i p l e s : Constitutional Reform with Respect to the Aboriginal People of Canada. 1982-84 (Kingston: Queens University I n s t i t u t e of Intergovernmental Relations, 1985) at 228. 56. See, f o r example, descriptions i n B. Sealey, "One Plus One Equals One" i n The Other Natives. supra. note 23 at 7-8; Purich, supra. note 14 at 10-12. E. P e l l e t i e r , 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, f o r 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" i n The Forgotten People: Metis and Non-Status Land Claims i n Alberta. supra. note 26 at 94 and Chapter 2 of t h i s t h e s i s . 65. Id. 66. K. Lysyk, "The Unique Constitutional P o s i t i o n 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, f o r 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, fo r example, Sanders, supra. note 18 at 232 regarding the p o l i t i c a l atmosphere i n which s. 35 came into being; Schwartz, supra. note 55 at 288. 75. See, fo r example, Chartier, supra f note 68 at 21; D. Sanders, "An Uncertain Path: The Aboriginal Constitutional Conferences" at 69; Metis National Council, Statement on Metis S e l f 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 V i c t . , c. 31; 1883, 46 V i c t . , c. 17. 77. For a more det a i l e d 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, f o r example, J . Peterson and J . Brown, eds., The New Peoples: Being and Becoming Metis i n North America (Winnipeg: University of Manitoba Press, 1985) at 5; T. Berger, F r a g i l e Freedoms: Human Rights and Dissention i n Canada (Toronto: Irwin Publishing Inc., 1982) at 33; J . E. Foster", The Metis: The People and the Term" (1978) 3 P r a i r i e 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," i n The New Peoples: Being and Becoming Metis i n 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 I n s t i t u t e of Intergovernmental A f f a i r s , 1986) at 6. 85. J . Brown, "Metis," The Canadian Encyclopedia. v o l . 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 i n Peterson and Brown, supra. note 80 at 6. 87. There are numerous references on the question of s c r i p d i s t r i b u t i o n . See, for example, N.O. Cote, "Grants to the Half-Breeds of the Province of Manitoba and Northwest T e r r i t o r i e s " (Department of the I n t e r i o r , 1929) P.A.C. RG 15 Vol. 227; Metis Assoc. of Alberta, supra. note 14 at 118-151; D.N. Sprague "Government Lawlessness i n the Administration of Sc r i p " (1980) 10 Manitoba Law Journal (no. 4) 415; Sanders, supra. note 26 at 9-19. The s c r i p system i s discussed i n Chapter 5. 88. See, f o r example, A. Morris, The Treaties of Canada with the Indians of Manitoba and the Northwest T e r r i t o r i e s (Toronto: Bedford, Clarke and Co., 1880) at 294-195; Chapter 5. 89. See, for example, the Indian Act. 1876, 39 V i c t . , 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, f o r 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 t h i s t h e s i s . 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" i n The Other Natives. Vol. 2 (Winnipeg: Manitoba Metis Federation Press and Editions Bois Brules, 1978) at 190-191; Manitoba Federation Inc., Manitoba Metis Rights P o s i t i o n 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, i d . 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 i n P r i n c i p l e (Ottawa: Department of Indian A f f a i r s 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, f o r example, supra. note 3. 59 109. S l a t t e r y , supra r note 3. 110. Supra. note 3, at 332. 111. Supra r note 46. 112. Dumont et a l 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 J u r i s d i c t i o n Over Metis Claims I Are Metis s. 91(24) Indians? Section 91(24) of the BNA Act provides that the federal government has j u r i s d i c t i o n over "Indians and lands reserved for Indians." Although the federal government has generally l i m i t e d the exercise of i t s j u r i s d i c t i o n to status Indians l i v i n g on reserves, i t i s c l e a r that the reference to Indians i n s. 91(24) encompasses a larger group of aboriginal peoples than those included under the federal Indian Act regime. Whether federal j u r i s d i c t i o n extends to the metis i s a question which in t e r p r e t a t i o n , h i s t o r i c a l evidence, pre-and-post confederation statutes and p o l i t i c a l p r actice can be used persuasively to support two contradictory conclusions - the metis are s. 91(24) Indians or only those metis who l i v e d the way of l i f e of the Indians are s. 91(24) Indians. In t h e i r attempts to address t h i s issue, academics adopt the approach taken by the Supreme Court of Canada i n the Re. Eskimo 1 decision. In t h i s decision h i s t o r i c a l evidence including o f f i c i a l documents, government documents and published texts (which might be expected to be known to the fathers of confederation) were r e l i e d upon to conclude that Hudson's Bay Company o f f i c i a l s , and Canadian and English parliamentarians regarded Eskimos as Indians at the time of confederation. A l l of the judges placed emphasis on ajCensus taken by the Hudsons Bay Committee contained i n an 1857 Report to the Select Committee of the House of Commons. This 61 census l i s t e d "Esquimaux" peoples i n enumeration of Indians and l i s t e d whites and half-breeds together i n a separate category. Brian Schwartz argues that the exclusion of half-breeds from the Indian category and the o r a l testimony given to the sele c t committee i s evidence that the terms "half-breed" and "Indians" were used h i s t o r i c a l l y to characterize two d i s t i n c t groups of 2 people. He argues that h i s p o s i t i o n i s consistent with the claim of the M.N.C. and a number of h i s t o r i a n s who trace Metis nationalism to the Red River area. He concludes that the "development of d i s t i n c t i v e 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 i n the Report and sel e c t s passages from the o r a l testimony of Hudson Bay o f f i c i a l s to support an argument that half-breeds were included under the term Indians. Recognizing that the evidence i n the Eskimo case i s not concerned with metis issues and i s capable of supporting opposite conclusions, Chartier argues that other sources must be consulted to determine the intention of parliament. Additional h i s t o r i c a l evidence c i t e d 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 i d e n t i f y half-breeds as part of the t r i b e with whom they reside, and statements i n Parliament concerning the renewal of the Hudson Bay Company's trading l i c e n s e which by t h e i r content l o g i c a l l y include a reference to half-breeds. He concludes that the weight of h i s t o r i c a l evidence favours the in c l u s i o n of half-breeds i n s. 62 91(24). 5 The weakness of Chartier's analysis l i e s i n h i s f a i l u r e to address the emergence of the Metis Nation as a d i s t i n c t socio- economic c u l t u r a l group who i d e n t i f i e d themselves as separate from both Indian and white soci e t y , 6 h i s t o r i c a l evidence that suggests only those persons of mixed ancestry who l i v e d l i k e Indians were treated as Indians f o r l e g a l purposes, 7 and further evidence that those mixed bloods who did not l i v e as Indians may have been viewed by Parliament as having no greater r i g h t s than the o r i g i n a l white s e t t l e r s i n Ruperts Land (Manitoba) and the Northwest T e r r i t o r i e s (including Saskatchewan and A l b e r t a ) . 8 Viewed i n t h i s broader h i s t o r i c a l context, Chartier's evidence may also support the view that the half-breeds, and i n p a r t i c u l a r the Metis Nation, were seen as a d i s t i n c t people except for the l i m i t e d purpose of allowing those who l i v e d l i k e Indians to be treated as Indians. Chartier addresses the argument that the Metis were a d i s t i n c t people i n a l a t e r p u b l i c a t i o n e n t i t l e d "In the Best Interest of the Metis C h i l d . " He points out that the d i s t i n c t i v e n e s s of Metis culture can not be raised against the Metis as there i s no such thing as a sing l e d i s t i n c t Indian people. He argues: While i t i s true that the Metis developed as a d i s t i n c t a b o r i g inal people, i t i s also true that the Inuit were d i s t i n c t aboriginal peoples as well. In f a c t , i t i s beyond debate that there i s a d i s t i n c t i v e n e s s among the d i f f e r e n t nations or t r i b e s of peoples commonly referred to as Indians. The Metis d i d develop into a d i s t i n c t nation, v i s - a - v i s the Cree nation and the Ojibway nation. B a s i c a l l y , t h i s can be characterized as a new nation or group a f f i l i a t i o n of aboriginal/native/Indian peoples. 9 In support of t h i s argument, Chartier r e f e r s to correspondence to Nor'Wester William Mc G i l l i v r a y r e f e r r i n g to Cuthbert Grant, leader of the Metis against the development of the S e l k i r k colony and employee of the North West Company: 63 Nor'Wester William Mc G i l l i v r a y admitted i n a l e t t e r 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 a l l look upon themselves as members of an independent t r i b e of natives, e n t i t l e d to a property i n the s o i l , to a f l a g of t h e i r own, and to protection from the B r i t i s h government." Further, i t was well proved "that the half-breeds under the denominations of bois- brules and metifs [alternate form of Metis] have formed a separate and d i s t i n c t t r i b e of Indians f o r a considerable time back. 1 0 Although the Eskimo decision did not consider pre- confederation statutes, subsequent case law has held that they are relevant to the in t e r p r e t a t i o n of the B.N.A. Act. 1 1 Chartier argues that the i n c l u s i o n of half-breeds i n the d e f i n i t i o n of "Indians" i n pre-confederation l e g i s l a t i o n and the pra c t i c e of the federal government to include them i n treaty i s further evidence that they were viewed by the government as Indians. 1 2 Of p a r t i c u l a r i n t e r e s t are An Act for the Better Protection of the Lands and Property of the Indians i n Lower Canada, 13 & 14 V i c t . (1850) and An Act to Encourage the Gradual C i v i l i z a t i o n of the Indian Tribes i n the Province and to Amend the Laws Respecting Indians 20 V i c t . (1857). Section 5 of the 1850 l e g i s l a t i o n defines "Indians" as follows: . that the following classes of persons are and s h a l l be considered as Indians belonging to the Tribe or Body of Indians interested i n such lands: F i r s t - A l l persons of Indian blood, reputed to belong to a p a r t i c u l a r Body or Tribe of Indians interested i n such lands, and t h e i r descendants. Secondly - A l l persons intermarried with any such Indians and re s i d i n g amongst them, and the descendants of a l l such persons. T h i r d l y - A l l persons r e s i d i n g among such Indians, whose parents on e i t h e r side were on are Indians of such Body or Tribe, or e n t i t l e d to be considered as such: And Fourthly - A l l persons adopted i n infancy by any such Indians, and res i d i n g i n the V i l l a g e or upon the lands of such t r i b e or Body of Indians, and t h e i r descendants. In 1851, the d e f i n i t i o n was changed to exclude non-Indian males married to Indian women and t h e i r descendants. 1 3 The emphasis 64 on p a t r i l i n e a l descent continues under the federal Indian regime but i s modified by the passing of B i l l C - 31 which reinstated Indian women who l o s t status through marriage. The 1851 d e f i n i t i o n was c a r r i e d into An Act Respecting Indians and Indian Lands. 31 V i c t . (1868) Cap. 14 and An Act Providing f o r the Organization of the Department of Secretary of State of Canada and f o r the Management of Indian and Ordinance Lands. 31 V i c t . (1868) Cap. 42 with minor modifications. A s l i g h t l y d i f f e r e n t d e f i n i t i o n i s found i n the Act For Gradual C i v i l i z a t i o n of Indian Tribes, supra. Section one provides the following persons are to be covered: . . . s h a l l apply only to Indians or persons of Indian blood or intermarried with Indians, who s h a l l be acknowledged as members of Indian Tribes or Bands . . . ; and such persons and such persons only s h a l l be deemed Indians within the meaning of any provision of the said Act or of any other Act or Law i n force i n any part of t h i s Province by which any l e g a l d i s t i n c t i o n i s made between the r i g h t s and l i a b i l i t i e s of Indians and those of Her Majesty's other Canadian subjects. The problem with r e l y i n g on these statutes i s they can also be used to support the argument that not a l l half-breeds were considered Indians because the half-breeds referred to i n the l e g i s l a t i o n are reputed to belong to a p a r t i c u l a r t r i b e and are l i v i n g among them. The term i s not a r a c i a l term, but one that depends on an Indian way of l i f e and f a m i l i a l and c u l t u r a l t i e s . This argument gains greater force i f one considers Alexander Morris' account of the negotiations of the numbered t r e a t i e s s h o r t l y a f t e r Confederation. He states that only those half-breeds who l i v e d as Indians could declare themselves as Indians and take t r e a t y . 1 5 Consequently without considering further a r c h i v a l evidence, arguments based on pre-confederation evidence are equally persuasive to support two opposite conclusions. 65 The r e s o l u t i o n t o the agreements may depend upon the weight g i v e n t o p o s t - c o n f e d e r a t i o n l e g i s l a t i o n , p r a c t i c e and case law. The importance p l a c e d by the judges i n the Eskimo case on contemporaneous h i s t o r i c a l evidence t o d e r i v e a h i s t o r i c a l d e f i n i t i o n o f the term " I n d i a n " i n s. 91(24) suggests t h a t t h e term i s l i m i t e d h i s t o r i c a l l y i n i t s scope and the l a t e r i n time the evidence, the l e s s r e l e v a n t i t i s . I f , on the o t h e r hand, one p l a c e s more emphasis on the f i n d i n g t h a t Indians are a l l a b o r i g i n e s w i t h i n the t e r r i t o r i e s t o be i n c l u d e d i n c o n f e d e r a t i o n , a broader c o n s t r u c t i o n o f s. 91(24) may be p o s s i b l e and l a t e r evidence may become more r e l e v a n t . The q u e s t i o n i s not so much whether h a l f - breeds were c a l l e d " I ndians", but whether they were c o n s i d e r e d an a b o r i g i n a l people^ The s t r o n g e s t argument f o r metis b e i n g c o n s i d e r e d a b o r i g i n a l s l i e s i n the r e c o g n i t i o n of the h a l f - b r e e d c l a i m t o I n d i a n t i t l e i n the Manitoba A c t of 1870 and the Dominion Lands A c t s o f 1879 and 1883 and t h e i r a b i l i t y t o take t r e a t y . 1 6 A t the time o f the t r a n s f e r o f Manitoba t o Canada, t h e r e were a t l e a s t f o u r d i s t i n c t h a l f - b r e e d p o p u l a t i o n s who l i v e d i n Manitoba: those who l i v e d w i t h the I n d i a n s , those o f who had permanent homes c l o s e t o the t r a d i n g p o s t and adopted the way of l i f e o f the white s e t t l e r s ; those who were s e m i - s e t t l e d and l i v e d by the b u f f a l o hunt and f r e i g h t i n g ; and those who were s e m i - s e t t l e d and l i v e d by h u n t i n g , t r a p p i n g and the b u f f a l o h u n t. 1 7 The l a t t e r two groups j o i n e d t o g e t h e r under the l e a d e r s h i p o f L o u i s R i e l and opposed the t r a n s f e r o f Manitoba t o Canada without p r o t e c t i o n of c e r t a i n r i g h t s i n c l u d i n g provincehood and p a r t i c i p a t i o n i n government. T h i s group i s r e f e r r e d t o by h i s t o r i a n s as the M e t i s N a t i o n . Although the q u e s t i o n of the n e g o t i a t i o n o f a p r o t e c t i o n t o a b o r i g i n a l r i g h t s i n l a n d i s a m a t t e r o f a c a d e m i c d i s p u t e , t h e n e g o t i a t i o n s c l e a r l y r e s u l t e d i n a g r a n t o f l a n d t o a l l h a l f - b r e e d p e o p l e i n M a n i t o b a who d i d n o t t a k e t r e a t y i n s a t i s f a c t i o n o f t h e i r c l a i m s t o t i t l e . When C a n a d a e x t e n d e d i t s t e r r i t o r i e s t o i n c l u d e t h e N o r t h w e s t T e r r i t o r i e s , s i m i l a r p r o v i s i o n s w e r e i n c l u d e d i n t h e D o m i n i o n L a n d s A c t o f 1879 a n d 1 8 8 3 . The s y s t e m o f d i s t r i b u t i o n t h r o u g h t h e p r o v i s i o n o f s c r i p r e d e e m a b l e i n l a n d o r money d e v e l o p e d p u r s u a n t t o t h o s e p r o v i s i o n s w e r e i n i t i a l l y l i m i t e d i n t h e i r s c o p e b u t w e r e e v e n t u a l l y e x t e n d e d t o a l l h a l f - b r e e d s w i t h i n M a n i t o b a a n d t h e N o r t h w e s t . T h o s e who l i v e d a s I n d i a n s w e r e g i v e n t h e o p t i o n t o t a k e t r e a t y o r s c r i p . L a t e r , t h o s e who a c c e p t e d t r e a t y a n d f e l l u n d e r t h e I n d i a n A c t r e g i m e w e r e g i v e n t h e o p t i o n t o o p t o u t o f t r e a t y a n d t a k e s c r i p . T h o s e who r e c e i v e d s c r i p r e m a i n e d o u t s i d e 18 • t h e p r o v i s i o n s o f t h e I n d i a n A c t a n d t r e a t i e s . The r e c o g n i t i o n o f I n d i a n t i t l e i n t h e a b o v e l e g i s l a t i o n c o u p l e d w i t h t h e o p t i o n g i v e n t o h a l f - b r e e d s t o t a k e t r e a t y i s c o n s i s t e n t w i t h t h e v i e w t h a t t h e y w e r e c o n s i d e r e d a n a b o r i g i n a l p e o p l e b y t h e g o v e r n m e n t a t t h e t i m e o f c o n f e d e r a t i o n . S c h w a r t z a r g u e s t h a t s. 31 o f t h e M a n i t o b a A c t d o e s l i t t l e t o h e l p r e s o l v e t h e i s s u e . He s t a t e s : The o p e n i n g w o r d s o f s. 3 1 , t a k e n a t f a c e v a l u e , p r o v i d e some s u p p o r t f o r t h e i n c l u s i o n o f t h e M e t i s w i t h i n s. 9 1 ( 2 4 ) . H a v i n g " I n d i a n t i t l e " , h o w e v e r , i s n o t n e c e s s a r i l y t h e same t h i n g a s b e i n g a n I n d i a n . I t i s n e c e s s a r y t o e x a m i n e t h e p u r p o s e s o f a s s i g n i n g j u r i s d i c t i o n o v e r " I n d i a n " t o t h e f e d e r a l l e v e l o f g o v e r n m e n t . The same s. 31 t h a t r e f e r s t o " I n d i a n " t i t l e o f h a l f - b r e e d s a l s o c o n t e m p l a t e s e x t i n g u i s h i n g i t . T h a t d o n e , t h e r e w o u l d be no n e e d f o r P a r l i a m e n t t o r e t a i n j u r i s d i c t i o n o v e r M e t i s a n d M e t i s l a n d s . 1 9 67 The inherent weakness of Schwartz's argument i s he f a i l s to consider that the federal government continued to exercise j u r i s d i c t i o n over the metis a f t e r 1870. They l e g i s l a t e d metis r i g h t s to land, money s c r i p and land s c r i p by statute and orders- m-council u n t i l as l a t e as 1921. In December of 1895 the federal government established a reserve f o r metis people along s i m i l a r l i n e s of the p r a i r i e Indian reserves except control and management of the lands was given to the Roman Catholic church. 2 1 The reserve lasted approximately 10 years and was opened f o r settlement i n 1905. Since then, the federal government has signed land claims agreements with metis people i n the Northwest T e r r i t o r i e s . They also provide l i m i t e d f i n a n c i a l support to metis and non-status Indians through funding of p o l i t i c a l organizations; grants for education, housing and business ventures; and core funding f o r the Urban Indian-metis friendship centres. 2 2 The system adopted by the federal government can also support the argument that reference to Indian t i t l e i n the above l e g i s l a t i o n was simply a matter of p o l i t i c a l expediency. The Metis were viewed by the federal government as having the same r i g h t s as other o r i g i n a l white s e t t l e r s who were also e n t i t l e d to receive s c r i p . 2 3 Their claim arises from being o r i g i n a l s e t t l e r s whose land holdings were threatened by government plans f o r settlement. This argument gains further support when one considers that the practice of the federal government towards Indians was to reserve lands for t h e i r use as c o l l e c t i v i t i e s and not to extinguish claims by i n d i v i d u a l allotments. 2 4 Several points can be raised i n response to t h i s argument including: 1. The Metis Nation understood they were to be granted land as i n d i v i d u a l s , but the land granted was to be assembled into Metis townships or reserves; 2 5 2. Individual grants were consistent with the government's Indian p o l i c y of " c i v i l i z i n g " so the system can not be taken as evidence that the metis are not Indians; 3. The government was l i k e l y influenced by the p o l i c y of the United States government at the time to breakdown t r i b a l organizations through i n d i v i d u a l land allotments; 4. The fac t that s c r i p was av a i l a b l e to o r i g i n a l white s e t t l e r s does not mean the metis are not Indians, i t means the system used to deal with t h e i r claims was not unique; and 5. The federal government did attempt to set up a reserve i n 1895 for half-breeds when i t r e a l i z e d the s c r i p system had f a i l e d (St. Paul de Metis i n northern Alberta) and created separate half-breed reserves under the half-breed adhesion to Treaty No. 3. Once again, the r e s u l t i s two persuasive arguments support two contradictory conclusions. This ambiguity forces the academic to look at l a t e r statutes, case law and p o l i t i c a l p r a c t i c e . Once again, both Schwartz and Chartier are able to sue i d e n t i c a l provisions of the Indian Act to support t h e i r case. 2 6 Adopting the Chartier analysis, two recent lower l e v e l court decisions have held that the metis are Indians and one has held that they are not. 2 7 Additional case law focusing on Indian l e g i s l a t i o n with a p a r t i c u l a r l e g i s l a t i v e goal such as 69 prevention of s e l l i n g intoxicants to Indians and protection of 28 hunting and f i s h i n g r i g h t s , also vary i n t h e i r findings. A second argument can be made that "Indian t i t l e " i n s. 31 r e f e r s to claims by Indians, as d i s t i n c t from metis, and the claims of the half-breeds are c o l l a t e r a l claims r e s u l t i n g from the surrender of lands by the Indians. The foundations f o r a c o l l a t e r a l claim are discussed i n Chapter 4. At t h i s juncture i t i s s u f f i c i e n t to point out that section 31 can be interpreted i n d i f f e r e n t ways. Referring to the brders-in-council i s of l i t t l e help as they tend to adopt the exact wording of the l e g i s l a t i o n : "And whereas, i t i s expedient, towards the extinguishment of Indian T i t l e to the lands i n the Province . . . " Although the wording i n the Dominion Lands Act i s d i f f e r e n t , the same in t e r p r e t a t i o n problem a r i s e s . Section 125(e) reads "To s a t i s f y any claims e x i s t i n g i n connection with the extinguishment of the Indian t i t l e , preferred by the half-breeds . . .". However, i t i s c l e a r i n the statutes and subordinate l e g i s l a t i o n that whatever the basis of the claim, the intention of the federal government i s to extinguish i t . II Lands Reserved For Indians Section 91(24) gives Parliament j u r i s d i c t i o n over "Indians" and "lands reserved for Indians" as two d i s t i n c t heads of power. Even though the federal government has denied r e s p o n s i b i l i t y for the metis, c e r t a i n metis populations may have been brought within the j u r i s d i c t i o n of the federal government by the establishment of colonies or settlements modelled on s u b s t a n t i a l l y s i m i l a r patterns as reserves established under the federal Indian Act. Of p a r t i c u l a r i n t e r e s t are the half-breed adhesion to Treaty No. 3, 70 St. Paul de Metis, the farm colonies i n Saskatchewan and the metis settlements i n Alberta. Professor S l a t t e r y suggests there are two types of reserves within the scope of s. 91(24). The f i r s t type he labels "aboriginal reserves." An aboriginal reserve i s defined as land that has become permanently attached to a native group by v i r t u e of o r i g i n a l aboriginal t i t l e to those s p e c i f i c lands. The second type he l a b e l s "granted reserves." T i t l e to lands forming granted reserves stems from statutory provision, Crown grant, or other s i m i l a r instruments and i s not associated with the common law doctrine of aboriginal t i t l e . An example of such lands are lands set aside for displaced Indian groups. 2 9 Both types of reserves f a l l within the d e f i n i t i o n of "lands reserved for Indians" given by the Privy Council i n the St. Catherine's M i l l i n g case. The Court held that "the words a c t u a l l y used are, according to t h e i r natural meaning, s u f f i c i e n t to include a l l lands reserved, upon any terms or conditions, for Indian occupation." 3 0 I f the term "Indian" i s taken to include a l l aboriginals, four groups of metis would be brought under s. 91(24) through the creation of reserves. The f i r s t group are those half-breeds involved i n 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 a l l o t t e d separate reserves. However, i n 1876, the metis at Couchiching, Ontario were forced to j o i n a nearby Indian band and claim as Indians i n order to receive treaty annuities. In 1967 the half-breed reserves were amalgamated with the Indian reserve. 3 1 Having brought the half-breed lands under reserves as defined i n the Indian Act, however, p r i o r to 1967 the basis f o r j u r i s d i c t i o n 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. 3 2 A f t e r the metis insurrection of 1885, many metis found themselves landless and poverty s t r i c k e n . Reverend Father Albert Lacombe petitioned the federal government to e s t a b l i s h four townships i n the Buffalo Lake area of Alberta to help the h a l f - breeds become self-supporting. The structure was s i m i l a r to Indian reserves i n that the designated lands were ina l i e n a b l e and vested i n the Crown and whites were excluded from b e n e f i c i a l use of reserve areas. However, the metis reserve d i f f e r e d from Indian reserves i n 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. 3 3. For some, the reserve was seen as "another example of the superior way i n which Canadians treated t h e i r native races." 3 4 Others looked upon the reserve, favourably and unfavourably, as a humanitarian scheme.35 The reserve operated primarily as a farm colony and metis ch i l d r e n were educated i n Catholic schools on the reserve. The reserve lasted approximately 10 years and was opened for settlement i n 1905. Although the intentions of the oblate fathers and the reasons f o r the f a i l u r e of the reserve are subject to debate, i t i s undisputed that the federal government created the reserve and then abolished i t 10 years l a t e r . 3 6 The metis argue that the creation of the above two reserves i s recognition of the existence of metis aboriginal t i t l e . According to Sla t t e r y ' s theory, the intent behind the creation of 72 the reserve and i t s l i n k to the doctrine of aboriginal t i t l e i s not necessary for the reserve to f a l l within s. 91(24). Consequently, regardless of the acceptance of the metis perception of these reserves, they could f a l l within s. 91(24). Based on the Supreme Courts decision i n R. v. Guerin. S l a t t e r y argues that there i s no s i g n i f i c a n t l e g a l difference between aboriginal and granted reserves and the Crown's f i d u c i a r y o b l i g a t i o n i s associated with Indian reserves of a l l sorts by v i r t u e of t h e i r i n a l i e n a b i l i t y except to the Crown.37 I f the metis e s t a b l i s h a usufructuary r i g h t to St. Paul de Metis and Slattery's d e f i n i t i o n of a reserve i s accepted, the federal government could be l i a b l e to claims a r i s i n g from i t s disestablishment. Reserve-like colonies have also been established by the p r o v i n c i a l governments i n Saskatchewan and Alberta. The settlements i n Alberta are created pursuant to the 1938 Metis Population Betterment Act. The metis argue that the Alberta settlements were established i n recognition of aboriginal t i t l e and the government argues they were created as part of a general welfare scheme.39 Regardless of the intent, a statutory r i g h t of use was given to the Alberta metis and t i t l e was retained by the p r o v i n c i a l government. Professor Sanders argues that the act of s e t t i n g aside these lands was a recognition of metis usufructuary r i g h t s which could not be ended by the Province. 4 0 This usufruct would have f a l l e n under s. 91(24) p r i o r to 1982. As the settlements were established through negotiation, arguably the agreements leading to the Act are t r e a t i e s as t r e a t i e s do not have to be c a l l e d " t r e a t i e s " or take on a p a r t i c u l a r form. Consequently, the settlements may be protected under s. 35(1) of 73 the Constitution Act f 1982. Even i f the treaty argument i s rejected, the usufructuary i n t e r e s t i s protected as an "aboriginal r i g h t . " 4 1 In h i s discussion of aboriginal and granted reserves, S l a t t e r y 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 h i s argument the question i s not relevant. Once the reserve i s granted, by whatever means, i t f a l l s within 91(24). Consequently, Slattery's analysis of s. 91(24) would also bring the Alberta metis settlements under federal j u r i s d i c t i o n . 4 2 The problems associated with t h i s conclusion are discussed l a t e r i n t h i s paper. Similar arguments can be made to bring the farm colonies i n Saskatchewan under federal j u r i s d i c t i o n . With the exception of Lebret which was f i r s t established by the Oblates, the Metis Farms i n Saskatchewan were set up by the government of Saskatchewan as r e s i d e n t i a l , t r a i n i n g and economic development projects f o r the Metis. Ten farms were established i n predominantly metis communities between 1939 and 1969 pursuant to the Local Improvements D i s t r i c t s R e l i e f Act. 1940 s.s., c. 128 and the R e h a b i l i t a t i o n Act. 1953 R.S.S., c. 245. The farms are operated by metis fa m i l i e s and u n t i l recently were owned and operated by the p r o v i n c i a l government.4 3 In 1986, t i t l e to the Lebret farm was transferred to Lebret Farm Land Foundations Inc. which i s owned and operated by metis and non-status Indians i n the d i s t r i c t of Lebret. 4 4 On the eve of the 1987 c o n s t i t u t i o n a l conference, Premier Grant Divine indicated h i s willingness to t r a n s f e r t i t l e to the 74 remaining e x i s t i n g colonies to the metis and non-status peoples and to share resource revenues with the province. 4 5 The current p o s i t i o n of the federal government i s that they do not have j u r i s d i c t i o n over metis and non-status Indians but they are w i l l i n g to assume some r e s p o n s i b i l i t y f o r them as a disadvantaged people. The p o s i t i o n of the Provinces v a r i e s . Both Saskatchewan and Alberta have designed s p e c i f i c schemes to benefit them, but only Alberta has indicated a willingness to accept f u l l r e s p o n s i b i l i t y under t h e i r p r o v i n c i a l j u r i s d i c t i o n . I l l J u r i s d i c t i o n and the Question of Aboriginal T i t l e 1. Land Claims Negotiations I t i s generally accepted that the powers given to parliament under s. 91(24) are permissive and not mandatory. Consequently, unless there i s p o l i t i c a l w i l l to a s s i s t the metis, the re s o l u t i o n of the j u r i s d i c t i o n a l debate may not get the metis any further ahead i n t h e i r 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 j u r i s d i c t i o n over t h e i r constituents because they f e e l the federal government i s generally more sympathetic to native issues and i s more l i k e l y to adopt a broad national view. 4 6 In addition, the federal government can r a i s e revenues by a v a r i e t y of means - a matter of p a r t i c u l a r concern to metis l i v i n g i n a have-not province. 4 7 The assignment of j u r i s d i c t i o n to the federal government gives r i s e to the argument that the metis are e n t i t l e d to equal treatment as aboriginal peoples. Delia Opekokew argues that the pra c t i c e of the federal government to refuse j u r i s d i c t i o n over metis and non- status peoples has resulted i n a f a i l u r e of both the federal and p r o v i n c i a l governments to recognize t h e i r aboriginal r i g h t s and has created inequity i n the provision of programs and services to a l l a b o r i g i n a l peoples. The decision of the federal government to exclude c e r t a i n aboriginals from the Indian Act regime has also affected the protection of aboriginal r i g h t s by the courts which often l i m i t protection of Indian Act Indians. She contends that a l l persons of aboriginal ancestry whose ancestors lead an aboriginal way of l i f e should have equal r i g h t s and suggests that the controversy surrounding a claim to aboriginal r i g h t s by the Metis Nation may r e s u l t i n t h e i r lobbying to be recognized as a band under the Indian Act. 4 8 The s i g n i f i c a n c e of Opekokew's argument i n the context of aboriginal t i t l e i s equity of access to a land base, a resource base beyond that a v a i l a b l e to other disadvantaged peoples, the process of negotiating t i t l e claims (example through land claims negotiations) and equality i n the r e s u l t s of land claim negotiations. However, even i f the federal government does not have j u r i s d i c t i o n they are not l e g a l l y obliged to t r e a t a l l aboriginals the same and may not necessarily be shamed into doing so. In support of t h i s 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 r i g h t s based on the unique h i s t o r i e s and cultures of d i f f e r e n t aboriginal groups. 4 9 Although there has been some discussion of 7 6 equal treatment of Indian Act Indians, the matter i s f a r from resolved. Rather, the current p o s i t i o n of the federal government i s to deal with proposals for land settlements on a t r i b a l basis. The conclusion that a l l 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 j u r i s d i c t i o n i s c o n s t i t u t i o n a l l y possible as the metis can be c l a s s i f i e d as a b o r i g i n a l , disadvantaged or ordinary c i t i z e n s of Canada and the provinces. Assuming the main concern of the provinces i n refusing to accept j u r i s d i c t i o n i s f i s c a l r e s p o n s i b i l i t y , the s h i f t of focus from a j u r i s d i c t i o n a l debate to the establishment of f e d e r a l - p r o v i n c i a l cost sharing arrangements may do more to further the goals of the metis and non-status Indians. The federal government i s already providing l i m i t e d f i n a n c i a l assistance and, as discussed above, are w i l l i n g to provide assistance to the metis as "disadvantaged people." Consequently, one s o l u t i o n to t h i s problem may be to guarantee e x i s t i n g l e v e l s of federal expenditures with a "no-off loading" r u l e acceptance of shared j u r i s d i c t i o n and establishment of mechanisms for t r i p a r t i t e land claims settlement negotiations. The question of j u r i s d i c t i o n cannot be completely sidestepped through cost-sharing as the answer to t h i s question w i l l also a f f e c t the determination of a c o n s t i t u t i o n a l l y v a l i d method of implementing land claims agreements. I f b i l a t e r a l negotiations are entered with p r o v i n c i a l governments, the settlement of claims reached through negotiations may be u l t r a v i r e s . On the other hand, b i l a t e r a l negotiations with the federal government may produce the same r e s u l t i f negotiations involve the creation of a new land base as l e g i s l a t i v e powers do not carry property r i g h t s with them.50 Consequently, metis land claims are best dealt with by expanding e x i s t i n g land claims practices to include metis claims. Negotiations f o r self-government could be considered at the same time. 5 1 Settlements would be implemented through t r i p a r t i t e agreements, such as the proposed Dene/Metis land claim and the James Bay Agreement, or perhaps through "delegation of l e g i s l a t i o n to the provinces with any necessary complimentary l e g i s l a t i o n then being passed by parliament." 5 2 As t r i p a r t i t e 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 i s being negotiated (eg. self-government) and the powers affected, but leaving access to the t a l k s open to both governments. The main problem with i n s i s t i n g on federal j u r i s d i c t i o n only i s the p o t e n t i a l a f f e c t t h i s could have on e x i s t i n g metis programs and settlements. As an example, l e t us consider the metis settlements i n Alberta. Unlike the colonies i n Saskatchewan, the metis settlements are created pursuant to l e g i s l a t i o n aimed s p e c i f i c a l l y at the metis as a d i s t i n c t c l a s s of people. The government of Alberta has advocated a made-in-Alberta approach to resolvi n g questions of metis t i t l e and metis self-government. On Ju l y 6, 1988 S o l i c i t o r General Ken Rostad introduced two b i l l s i n the Alberta l e g i s l a t u r e designed at t r a n s f e r r i n g t i t l e i n the Alberta metis settlements to the metis people and delegating s e l f - governing powers to i n d i v i d u a l settlement corporations and the Metis Settlements General Council composed of elected c o u n c i l l o r s 78 from the settlement corporation and independently elected o f f i c e r s . B i l l 65, the Metis Settlements Lands Act, authorizes the issues of l e t t e r s patent for metis settlement lands to the Metis Settlements General Council with ownership of minerals remaining with the Crown. B i l l 64, the Metis Settlements Act, gives the two l e v e l s of government s p e c i f i c by-law and revenue r a i s i n g powers s i m i l a r to those of a municipal government. The by-law making powers are subject to t r a n s i t i o n a l M i n i s t e r i a l approval f o r a s p e c i f i e d period of time and the Minister retains extensive regulatory powers. In order to give metis lands c o n s t i t u t i o n a l protection, the government proposes entrenching metis t i t l e through an amendment of the Alberta Act. 5 3 There are two problems with t h i s "made i n Alberta" approach. The f a i l u r e to entrench the Metis Settlements Act i n a co n s t i t u t i o n a l accord, schedule or through some other means r e s u l t s i n the a b i l i t y of the p r o v i n c i a l government to u n i l a t e r a l l y terminate what they have established. The second r e l a t e s to the question of j u r i s d i c t i o n . I f the metis are s. 91(24) Indians, the present Metis Betterment Act and proposed l e g i s l a t i o n could be characterized as l e g i s l a t i o n i n r e l a t i o n to Indians and thus u l t r a v i r e s . Arguably any actions taken pursuant to t h i s l e g i s l a t i o n would be i n v a l i d . For those metis i n Alberta who are be n e f i t t i n g from t h i s system and have negotiated the proposed self-governing scheme, a reference of the j u r i s d i c t i o n a l question to the courts could cause s i g n i f i c a n t problems. Arguments can be made that the establishment of settlement lands places the metis settlements under federal j u r i s d i c t i o n pursuant to t h e i r power over lands reserved f o r Indians, 5 4 but even i f t h i s argument were accepted i t 79 would not have the e f f e c t of v a l i d a t i n g p r o v i n c i a l self-government l e g i s l a t i o n . Rather i t would have the opposite e f f e c t . One can only assume that the court would attempt to f i n d some way to uphold a system agreed to by the province and the metis and unopposed by the federal government. However, the best solu t i o n would be for the federal government to endorse the e x i s t i n g scheme to avoid j u r i s d i c t i o n a l problems. Recognizing t h i s dilemma, the following d r a f t amendment to deal with j u r i s d i c t i o n was put forward by the M.N.C. at the 1987 F i r s t Ministers' Conference on aboriginal matters: 35(6) The Government of Canada and the P r o v i n c i a l Governments are committed to entering into negotiations directed towards concluding agreements with representatives of the Aboriginal Peoples r e l a t i n g to the land and resources, j u r i s d i c t i o n and f i n a n c i a l arrangements for aboriginal self-government.(7) Notwithstanding Clause 24 of section 91 of the Constitution Act, 1867; the Parliament of Canada and the l e g i s l a t u r e of a Province s h a l l have the competence to enact laws within t h e i r l e g i s l a t i v e a u t h o r i t i e s required fo r the implementation of the agreements with the Metis people as referred to i n Sub-section (6) , 5 5 The federal government responded with a more expansive clause which would not a s s i s t the metis i f they were found not to be s. 91(24) Indians. The clause was rejected by the aboriginal representatives. 5 6 Chartier explains the intent of the proposed M.N.C. amendment as follows: The intent behind t h i s amendment i s to overcome the impasse, as well as allow the p r o v i n c i a l members of the Metis National Council an opportunity to pursue e i t h e r t r i p a r t i t e or b i l a t e r a l agreements or both, p r i m a r i l y with the p r o v i n c i a l governments. This, f or example, would have made i t possible for the Metis of Alberta to pursue r i g h t s under the Alberta government's preference for a made-in-Alberta agreement. I t would also have accommodated the Alberta Metis Betterment Act and i t s successor l e g i s l a t i o n . 5 7 80 An agreement on j u r i s d i c t i o n has not been reached. In Alberta, the p r o v i n c i a l government i s continuing with i t s approach of b i l a t e r a l negotiations and implementation through p r o v i n c i a l l e g i s l a t i o n . In Manitoba, the metis are involved i n t r i p a r t i t e negotiations. 5 8 2. Land Claims L i t i g a t i o n The question of j u r i s d i c t i o n has l i t t l e e f f e c t on the s e l e c t i o n of a defendant i f the compensation sought i s land as the province w i l l necessarily be involved. 5 9 Further, r e l i e f w i l l l i k e l y be claimed based on actions of the federal government, such as the half-breed land grants i n the Manitoba Act and the s c r i p d i s t r i b u t i o n program. I f l i a b i l i t y of the Federal Crown i s i n issue d i r e c t l y or i n d i r e c t l y , the Federal Crown must be joined as a party. 6 0 I f the action raises a question of c o n s t i t u t i o n a l i t y of a federal or p r o v i n c i a l enactment or the question of j u r i s d i c t i o n , most provinces have l e g i s l a t i o n that requires notice to the Attorney General for Canada and the relevant province. 6 1 The question of j u r i s d i c t i o n may become s i g n i f i c a n t i n s e l e c t i n g the proper court. The general r u l e i s that the P r o v i n c i a l Superior Courts have j u r i s d i c t i o n i n a l l matters subject to the federal power to e s t a b l i s h courts f o r 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 l e g i s l a t i v e competence. However t h i s i n t e r p r e t a t i o n has been alt e r e d to allow p r o v i n c i a l court j u r i s d i c t i o n as long as the l i a b i l i t y of the Federal Crown i s not 81 at i s s u e . 6 3 Consequently, unless the action i s based on acts of the federal government, i t may be necessary to bring a metis t i t l e case in the federal courts i f the federal government continues to deny j u r i s d i c t i o n . Given the recognition of metis a b o r i g i n a l i t y i n s. 35(2), t h i s may be a purely academic point unless the federal government asserts that there i s j u r i s d i c t i o n a l overlap i n some aboriginal r i g h t s matters. Given the Federal Crown's current p o s i t i o n that the metis are not s. 91(24) Indians, they are u n l i k e l y to accept that a l l aboriginal r i g h t s matters f a l l within s. 91(24) unless they deny " e x i s t i n g " metis aboriginal r i g h t s . 6 4 This approach t r e a t s the i n c l u s i o n of the term "Metis" i n s. 35(2) as p o l i t i c a l " f l u f f " because the metis do not have aboriginal r i g h t s . I t i s beyond the scope of t h i s t h e s i s to examine the advantages and disadvantages of proceeding i n the federal and p r o v i n c i a l courts. The main concern f o r the l i t i g a n t i s the delay associated with the federal court because of le s s frequent s i t t i n g s . Generally speaking, the question of j u r i s d i c t i o n i s of l i t t l e s i g n i f i c a n c e i n the realm of c i v i l procedure. J u r i s d i c t i o n i s relevant to questions of l i a b i l i t y and compensation. The r i s k s of f i n d i n g one government l i a b l e to the exclusion of the other are set out above. This i s the major concern associated with l i t i g a t i o n and the reason why negotiated settlements are more advantageous to the metis i n addition to the standard advantages of cost, expediency and public r e l a t i o n s . 82 IV Conclusion Although much of the debate has focused on a r c h i v a l evidence supporting the meaning of the term "Indian" i n s.91(24), the author submits that the question may not be one of h i s t o r i c a l d e f i n i t i o n so much as c o n s t i t u t i o n a l i n t e r p r e t a t i o n . The h i s t o r i c a l development of Indian cultures, customary and contemporary rules of membership, reformulation of aboriginal i d e n t i t y into status and non-status Indians, extension of l e g a l d e f i n i t i o n s to include non- aboriginal groups and p o l i t i c a l p r a c t i c e of the federal and p r o v i n c i a l governments suggests the d e f i n i t i o n of "Indians" i n 91(24) i s not a closed category. This p o s i t i o n i s supported by the Re. Eskimo decision which anticipates a prospective d e f i n i t i o n by defining Indians as " a l l present and future aboriginal native subjects of the proposed confederation of B r i t i s h North America." 6 5 The contemporary term "Indian" has taken on many dimensions as foreseen by the Fathers of Confederation. These dimensions are r e f l e c t e d i n the d e f i n i t i o n of aboriginal peoples i n s.35(2) of the 1982 Constitution, a provision which should not be ignored i n i d e n t i f y i n g federal j u r i s d i c t i o n . The fact Parliament chooses not to exercise j u r i s d i c t i o n over c e r t a i n groups of aboriginals i n s.35(2) does not mean they cease to be s.91(24) Indians as Parliament cannot a l t e r the c o n s t i t u t i o n by l e g i s l a t i o n or p o l i c y 6 6 . I t simply means the exercise of j u r i s d i c t i o n i s permissive, not mandatory. The question of j u r i s d i c t i o n has received considerable attention by the M.N.C. and N.C.C. However, resolving the j u r i s d i c t i o n debate w i l l not place a p o s i t i v e o b l i g a t i o n on eithe r government to respond to metis grievances. Such an ob l i g a t i o n w i l l 83 have to have a source i n law (eg. f i d u c i a r y o b l i g a t i o n of the Federal Crown towards Indians) or a r i s e from s p e c i f i c l e g i s l a t i o n (eg. Metis Betterment Act) to be enforceable. As j u r i s d i c t i o n has l i t t l e impact on c i v i l procedure, i f obligations can not be agreed upon, the j u r i s d i c t i o n a l debate w i l l not create an impasse to l i t i g a t i o n . Unfortunately, l i t i g a t i o n may be i n e v i t a b l e i f the federal and p r o v i n c i a l governments continue to associate obli g a t i o n with j u r i s d i c t i o n and refuse to share j u r i s d i c t i o n over the metis as aboriginal c i t i z e n s . For the metis, a reference to the Supreme Court i s of l i t t l e assistance i f i t deals only with j u r i s d i c t i o n and f a i l s to address the question of obliga t i o n . Even so, l i t i g a t i o n i s dangerous because i t may have negative ramifications. Nevertheless, i t i s un l i k e l y shared r e s p o n s i b i l i t y w i l l occur unless a decision i s made about the v a l i d i t y of s c r i p d i s t r i b u t i o n as a method of extinguishing metis r i g h t s . The reason f o r t h i s i s the federal government has indicated i t w i l l accept j u r i s d i c t i o n over metis only i f they are given p r o v i n c i a l lands. Prime Minister Trudeau j u s t i f i e d t h i s p o s i t i o n by saying the fathers of confederation intended to exclude Indian lands when Crown lands went to the provinces. 6 7 However, the issue i s not that simple as metis claims were dealt with on a d i f f e r e n t basis than other Indian lands. Arguably, the p r a c t i c e of i n d i v i d u a l land allotment through federal l e g i s l a t i o n s a t i s f i e d metis claims p r i o r 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 d i d not e x i s t i n the eyes of the law and, i f they did, the federal government believed metis claims were extinguished. 84 Consequently, the question of " e x i s t i n g " metis t i t l e w i l l l i k e l y have to be resolved by the courts before land claims agreements can be reached. I t i s the writer's opinion that the issue of j u r i s d i c t i o n i s best l e f t out of the l i t i g a t i o n process and addressed i n the settlement process once t i t l e issues have been resolved. Given the cost, length and evidentiary problems associated with aboriginal t i t l e l i t i g a t i o n , i t would be i n the i n t e r e s t s of the metis to have t i t l e questions resolved outside of the l i t i g a t i o n process. However, the Dumont l i t i g a t i o n suggests that the federal government, p r o v i n c i a l government of Manitoba, or both are placing s i g n i f i c a n t emphasis on the receipt of s c r i p i n current • • • • 68 • • • Manitoba land claims negotiations. As indicated by Mr. J u s t i c e Twaddle, the purpose of the current l i t i g a t i o n i s Manitoba i s to • 69 help the Manitoba metis reach a land claims settlement. However, Twaddle believes more than l e g a l considerations w i l l have to be addressed to resolve metis claims and thus decides the determination of the c o n s t i t u t i o n a l v a l i d i t y of the s c r i p program w i l l not be determinative i n land claims negotiations. The decision of Mr. J u s t i c e Twaddle i s currently under appeal. 85 CHAPTER 2 ENDNOTES 1. See, f o r example, Clem Chartier, "Indians: An analysis of the Term Used i n s. 91(24) of the B r i t i s h 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): Po l i c y Aspects" chapters i n F i r s t P r i n c i p l e : C o n stitutional Reform with Respect to the Aboriginal Peoples of Canada, 1982 - 1984 (Kingston: I n s t i t u t e of Intergovernmental Relations, Queens University, 1985). 2. Schwartz, i d . at 205-210. 3. Id. at 209. 4. Chartier, supra. note 1 at 42-49. 5. Id. at 51-59. 6. See, f o r example, Metis National Council, Statement on Metis S e l f - I d e n t i t y . 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 B i r t h of Western Canada (Great B r i t a i n : Longman's Green and Co. Ltd., 1936; r e p r i n t , Toronto: University of Toronto Press, 1960) at 48-49; A.S. Morton, "The New Nation: The Metis" i n 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. P e l l e t i e r , A S o c i a l 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, f o r example, A. Morris, The Treaties of Canada with the Indians of Manitoba and the Northwest T e r r i t o r i e s . (Toronto: Bedford, Clarke and Co. 1880) at 294-295; W. F. Pentney, The Aboriginal Rights Provisions i n the Constitution Act. 1982 (Saskatoon: University of Saskatchewan Native Law Centre, 1987) at 88; Schwartz, supra. note 1 at 218-220. 8. See, f o r example, T. Flanagan, "The Case Against Metis Aboriginal Rights," (1983) ix Canadian Public P o l i c y 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" i n 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 d e f i n i t i o n , 14 and 15 V i c t . (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 P r a i r i e Forum 79 at 83. 16. Manitoba Act. S.C. 1870, c. 3, s. 31. Dominion Lands Act. 1879, 42 V i c t . c. 31, s. 125(e). Dominion Lands At. 1883, 46 V i c t . c. 17, s. 81(e) & 83. Of p a r t i c u l a r i n t e r e s t i s the half-breed adhesion to Treaty No. 3. They negotiated separately from the Indians and had separate reserves a l l o t t e d to them but i n 1876 they were forced to j o i n a nearby Indian band. 17. See, f o r 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 i n the Red River Settlement" i n 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, A p r i l 14, 1978, at 11-15. 19. Schwartz, supra. note 1 at 222. 87 20. L e g i s l a t i o n included the Dominion Lands Act of 1879 and 1883, supra. note 16 and various provisions i n early Indian Act l e g i s l a t i o n . There are numerous orders-in-council- passed pursuant to the Manitoba Act and Dominion Lands Act. Some are quoted i n t h i s t h e s i s . An excellent summary can be found i n D. Sanders, "Metis Rights i n the P r a i r i e Provinces and the Northwest T e r r i t o r i e s : A Legal Interpretation" i n 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 i s discussed i n further d e t a i l l a t e r i n t h i s 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 a l 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" i n The Other Natives. Vol. 2, supra. note 6 at 78. See also the discussion of consensual extinguishment i n Chapter 5, Section I I , 2(b). 26. Schwartz, supra. note 1 at 225 and Chartier, supra f 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, f o r 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. S l a t t e r y , "Understanding Aboriginal Rights" (1987) 66 Canadian Bar Review 727 at 769 - 774. 88 St. Catherines' M i l l i n g 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 T i t l e of Metis and Non-Status Indians (Ottawa: Native Council of Canada, 1980) at 12; P.A.C. R.G. 10, Vol. 2313, F i l e 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 i n Alberta: A P o l i t i c a l History (Edmonton: Metis Association of Alberta, 1981) at 159-185; Lacombe, "A Philanthropic Plan to Redeem the Half-Breeds of Manitoba and the Northwest T e r r i t o r i e s " 27 March 1985, P.A.C, R.G. 15, Vol. 708, f i l e 360-530. The Globe, Toronto, 12 February 1896, quoted i n Stanley, i d . at 84. Stanley, i d . at 84-85. See, f o r 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, f o r 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; Po l i c y and Planning Branch, Native A f f a i r s Secretariat, Government of Alberta, Background Paper No. 6 The Metis Betterment Act: History and Current Status (Edmonton: Native A f f a i r s Secretariat, 1985) at 1-6. Attorney General for Quebec v. Attorney General f o r Canada. (1921) 1 A.C. 401; D. Sanders, "Metis Aboriginal T i t l e " , Appendix I i n Metisism. i d . at 58-63. 89 41. Canada Act. 1982 (U.K.), 1982, c. 11 42. S l a t t e r y , supra. note 29 at 773. 43. "Central Farm i s Established to Help Metis", Leader Post. Regina, 14 September 1940; Glen Benedict, Senior Negotiator, Lands, Treaty Entitlement and Resources, Government of SK. to C. B e l l , Oct 28, 1988; Sealey and Lussier, The Metis: Canada's Forgotten People, supra. note 6 at 153-154. 44. Saskatchewan Indian and Native A f f a i r s 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, supra f 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, i d . at 186. 48. D. Opekokew, The P o l i t i c a l and Legal Inequities Among Aboriginal People i n Canada, Aboriginal Peoples and Con s t i t u t i o n a l Reform Series (Kingston: Queen's University I n s t i t u t e of Intergovernmental A f f a i r s , 1987). See also Schwartz, i d . at 187-188; Gaffney, supra note 46 at 71; Chartier, supra. note 9 at 52-53. 49. Schwartz, i d . 50. Opekokew, supra. note 48 at 33-34. 51. See, f o r example, proposals i n Metis National Council, Options for the Implementation of Metis Self-Government. Paper presented at the "Federal-Provincial Meeting of O f f i c i a l s on Aboriginal Constitutional Matters", Working Group 3, Ottawa, Ontario, 14-15 December 1983, at 4. 90 52. Schwartz, supra. note 1 at 184. 53. B i l l 65, Metis Settlements Land Act. 3d. Sess, 21st Leg. A l t a . , 1988; B i l l 64, Metis Settlements Act f 3d., Sess, 21st Leg. A l t a , 1988; Don Thomas, " B i l l s Give New Hope to Metis", Edmonton, The Edmonton Journal, 6 July 1988, B . l . 54. Sanders, supra. note 40. 55. Quoted i n Chartier, supra. note 9 at 47-48. 56. Chartier, i d . at 48 - 49. 57. Id. at 48. 58. Purich, supra. note 22, at 200-201; i d . at 58-59. 59. Supra, note 50. 60. Crown L i a b i l i t y Act. R.S.C. 1970, c. C-38. 61. See, f o r 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 F u l l e r Construction Company 1958 Ltd. [1980] 1 S.C.R. 695 at 173; A.G. Canada v. Law Society of B r i t i s h 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 j u r i s d i c t i o n to the Federal Court where r e l i e f i s claimed against the federal Crown. However, the c o n s t i t u t i o n a l i t y of t h i s section has been challenged and Parliament i s intending to amend the section to allow c i v i l s u i t s against the Federal Government i n P r o v i n c i a l Superior Court. 63. Minister of J u s t i c e v. Berowski [1982] 1 W.W.R. 97 at 99 (S.C.C.). 64. Accepting that metis are s. 91(24) Indians, S l a t t e r y argues aboriginal r i g h t s are within s. 91(24) as they are "intimately connected with the sp e c i a l status and ca p a c i t i e s of Indian peoples and the possession and use of t h e i r 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 f o r aboriginals not covered by the Indian Act, " p r o v i n c i a l laws of general a p p l i c a t i o n which a f f e c t t h e i r 'Indianness 1, •Inuitness 1, or Metisness 1 have to be read down i n order not to c o n s t i t u t i o n a l l y offend s. 91(24). 65. Supra.. note 1 at 118, 119 and 121 (emphasis added). 66. K. Lysyk, "The Unique Constitutional P o s i t i o n 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 C H A P T E R 3 A NATURAL LAW THEORY OF ABORIGINAL TITLE Introduction Generally speaking, commentators on the or i g i n s of aboriginal t i t l e can be divided into two groups. One group adopts a f u n c t i o n a l i s t approach maintaining that B r i t i s h c o l o n i a l p o l i c y and p r a c t i c e i n North America was pragmatic and not necessarily r e l a t e d to the recognition of indigenous r i g h t s as a question of law. The other group l i n k p r i n c i p l e s of in t e r n a t i o n a l law, B r i t i s h c o l o n i a l law, or both, to B r i t i s h p r actice i n the American colonies i n an attempt to develop a coherent theory on the common law doctrine of aboriginal t i t l e . Both groups engage i n c r i t i c a l l e g a l analysis of domestic and international p o s i t i v e law and may make reference to the ro l e of native customary law i n the p o s i t i v i s t l e g a l regime. Very l i t t l e attention has been given to the natural r i g h t s of indigenous peoples and the extent to which these r i g h t s have been recognized or ignored i n the p o s i t i v i s t t r a d i t i o n . The r u l i n g of the Supreme Court of Canada i n Guerin v. R. has reopened the question of the source of aboriginal t i t l e and i t s recognition i n Canadian common law.1 In Guerin. Chief J u s t i c e Dickson wrote an opinion (concurred i n by Beetz, Chouinard and Lamer J.J.) upholding the existence of aboriginal t i t l e as a le g a l r i g h t which both pre-dated and survived claims to sovereignty i n North America by European nations. According to Dickson C.J., abor i g i n a l t i t l e i s a l e g a l r i g h t which arises from h i s t o r i c use and occupation of t r i b a l land independent of Canadian or B r i t i s h 93 acts of recognition. The l e g a l i n t e r e s t created by t h i s r i g h t i s c l a s s i f i e d as " s u i generis" and i s considered inappropriately described by terminology drawn from general property law. 2 Dickson's statement on aboriginal t i t l e has been interpreted i n a v a r i e t y of ways. For example, Douglas Sanders argues Guerin recognizes r i g h t s based on the "pre-contact Indian l e g a l order" and i n t h i s sense "represents a major change i n j u d i c i a l premise." 3 Brian S l a t t e r y suggests that the decision upholds a uniform common law doctrine of aboriginal r i g h t s d i s t i n c t i v e to Canada e x i s t i n g independently of statute or executive order and o r i g i n a t i n g i n English c o l o n i a l law. 4 Others appreciate the s i g n i f i c a n c e of confirming the existence of native t i t l e as a l e g a l i n t e r e s t , but t r i v i a l i z e the statements by Dickson on the source and uniqueness of the r i g h t by reducing i t s "sui generis" nature to a d i f f i c u l t y i n f i n d i n g appropriate d e s c r i p t i v e l e g a l terminology. 5 However, there i s one matter upon which a l l authors are l i k e l y to agree. This i s the willingness shown by the court to reconsider the broad p r i n c i p l e s upon which claims to aboriginal t i t l e are based. The use of the phrase "sui generis" by Chief J u s t i c e Dickson i s not accidental or without meaning. This same terminology i s adopted by him one year l a t e r to describe the l e g a l nature of Indian t r e a t i e s . Assuming as a rule of i n t e r n a t i o n a l law that t r e a t i e s can be terminated by subsequent h o s t i l i t i e s , Dickson C.J. states: While i t may be h e l p f u l i n some instances to analogize the p r i n c i p l e s of international law to t r e a t i e s , these p r i n c i p l e s are not determinative. An Indian t r e a t y i s unique; i t i s an agreement sui generis which i s neither created or terminated according to rules of i n t e r n a t i o n a l law. 6 The c l a s s i f i c a t i o n of aboriginal and treaty r i g h t s as "sui generis" suggests that the law of aboriginal t i t l e i n Canada i s not a closed set of le g a l r e l a t i o n s determined by in t e r n a t i o n a l or common law theories on the or i g i n s and a c q u i s i t i o n of property r i g h t s . Both the Guerin and Simon decisions r a i s e two important questions i n that regard: 1) i n what circumstances w i l l courts apply p r i n c i p l e s of domestic common law and inte r n a t i o n a l law? and 2) what i s the a l t e r n a t i v e source of p r i n c i p l e s to be applied? The alt e r n a t i v e sources which immediately come to mind are natural law and native customary law. This chapter w i l l examine the independent moral v a l i d i t y of aboriginal t i t l e i n the natural law t r a d i t i o n and the extent to which natural theories have been incorporated into domestic and international p o s i t i v e law. My aim i s not only to l i n k the doctrine of aboriginal t i t l e to natural law theories of property, but also to i l l u s t r a t e the cautious return to f i r s t p r i n c i p l e s of natural law by Canadian courts i n the area of aboriginal t i t l e claims. The idea of natural law as a v a l i d basis for l e g a l l y enforceable t i t l e claims becomes c l e a r i n the influence i t has exercised i n shaping the p o s i t i v e law on aboriginal t i t l e . I Introduction to the Natural Law Tr a d i t i o n 1. A General Survey of Basic P r i n c i p l e s Simply stated, natural law can be defined as "a body of primary p r i n c i p l e s governing the obligatory conduct of men towards one another." 7 I t i s "natural" i n the sense that i t "derives from the natural function of man's f a c u l t i e s and the natural i n c l i n a t i o n to exercise them." P r i n c i p l e s of natural law are determined by reason and are innate i n human beings. The capacity to reason that distinguishes humanity from other forms of l i f e . Natural Law t h e o r i s t s d i f f e r i n t h e i r opinions on the r o l e of the divine i n human reasoning. However, a l l p o s i t the existence of a higher l e g a l order from which fundamental p r i n c i p l e s of law governing the correct order of human society are derived. Again, t h e o r i s t s d i f f e r on the r o l e of p o s i t i v e law ( l e g i s l a t e d and judge made) within a natural law regime, but a l l would argue that p o s i t i v e law can be measured against the r a t i o n a l and moral v a l i d i t y of natural law precepts. These precepts are more than public opinion because they are constant and not subject to majority r u l e or the v i c i s s i t u d e s of j u r i d i c a l i n s t i t u t i o n s . Simply put, i n the natural law regime, law i s reason unaffected by desire and humans, as r a t i o n a l creatures, are subject to t h i s law. The theory of natural law finds i t s o r i g i n s i n ancient Greek philosophy and Roman Stoicism. 9 Both introduced a moral and universal aspect to the concept of law i n the a p p l i c a t i o n of a " j u s t " law to a l l men of reason. Both also assume p o s i t i v e law w i l l be made i n a moral framework towards the attainment of a good l i f e . 1 0 A r i s t o t l e explains r e l a t i o n s h i p as follows: I regard law as eit h e r p a r t i c u l a r or universal, meaning by ' p a r t i c u l a r ' the law ordained by a p a r t i c u l a r people for i t s own requirements, and capable of being sub- divided into written and unwritten law, and by 'universal' the law of nature. For there e x i s t s , as a l l men divine more or l e s s , a natural and universal p r i n c i p l e of r i g h t and wrong, independent of any mutual intercourse or compact.11 Later i n t h i s work A r i s t o t l e defines p a r t i c u l a r law as the statutes of a given state and universal law as u n i v e r s a l l y recognized p r i n c i p l e s of morality. 1 2 In Ethics. he admits that i t i s not always obvious which rules of morality or " j u s t i c e " are natural and which are conventional ( i . e . imposed by agreement and no o r i g i n a l natural reason for formation) but that i t remains true there i s both natural and conventional j u s t i c e . 1 3 However, the j u s t i c e or i n j u s t i c e of a p a r t i c u l a r act i s c l e a r l y i d e n t i f i a b l e by i t s voluntariness. We blame the doer and, with that, h i s deed becomes an unjust a c t . " 1 4 Stoicism also assumes that moral law has natural o r i g i n s . However, the Stoics introduced variables into the Greek philosophy of natural law such as the d i s t i n c t i o n between necessary and accidental or circumstantial human nature (the l a t t e r of which i s not considered e s s e n t i a l to the moral nature of man), the concept of "humane" law, the r e j e c t i o n of "unequal moral capacity used to j u s t i f y slaves "by nature," and the idea of man being born into two communities - the cosmopolis or universal r a t i o n a l order (joining men together by universal goodwill, love, and reason) and the native c i t y or state. In the cosmopolis, prejudices associated with race and cla s s are subordinated to a sense of universal kinship shared by men of reason. Stoic philosophy i s the foundation of the p r i n c i p l e s of fairness and fundamental equality of man introduced into the Western l e g a l t r a d i t i o n by Roman law. 1 5 Perhaps the most prominent of the Stoic philosophers was Cicero. According to Cicero, l e g i s l a t i o n which contravenes p r i n c i p l e s of natural law i s not law. Cicero explains t h i s p o s i t i o n as follows: 9 7 There i s i n fac t a true law - namely r i g h t reason - which i s i n accordance with nature, applies to a l l men, and i s unchangeable and eternal. By i t s commands t h i s law summons men to the performance of t h e i r duties; by i t s p r o h i b i t i o n s i t re s t r a i n s them from doing wrong.Its commands and prohibitions always influence good men, but are without e f f e c t upon the bad. To in v a l i d a t e t h i s law by human l e g i s l a t i o n i s never morally r i g h t , nor i s i t permissible ever to r e s t r i c t i t s operation, and to annul i t wholly i s impossible. 1 6 In l i g h t of the eternal law (reason), Cicero views a l l men as equal and deserving of a measure of human d i g n i t y and respect. 1 7 The idea that the moral v a l i d i t y of p o s i t i v e law can be measured against rules of natural law has been maintained throughout the development of the natural law t r a d i t i o n . The natural law t r a d i t i o n i s also heavily influenced by medieval C h r i s t i a n philosophy. Of p a r t i c u l a r influence are the writings of St. Thomas Aquinas which apply C h r i s t i a n p r i n c i p l e s to A r i s t o t e l i a n and Stoic philosophies of law. Aquinas accepts the ancient p r i n c i p l e that natural law measures the actions of men and the guiding p r i n c i p l e of law i s reason. However, he d i f f e r s from the ancients i n the a t t r i b u t i o n of an eternal Divine reason to the Ch r i s t i a n God and the recognition of Divine reason as the ultimate force behind action. According to Aquinas, human reason i s derived from God and i s subject to Divine reason (Eternal Law). Divine reason, or w i l l , i s the d r i v i n g force behind nature and man's natural i n c l i n a t i o n towards perfection and moral order. For Saint Thomas, human reason and eternal law are not synonymous. Rather, man p a r t i c i p a t e s i n eternal law by recognizing through human reason, which actions are r i g h t and wrong (natural law) or through s c r i p t u r e r e v e l a t i o n (divine law). 1 8 98 According to St. Thomas, one of the dic t a t e s of natural law i s "That society i s a demand of nature and . . . the i n d i v i d u a l i s nat u r a l l y a part of s o c i e t y . " 1 9 The assumption of man's natural i n c l i n a t i o n to s o c i a l i z a t i o n i s not a new concept, but takes on si g n i f i c a n c e i n the Thomist t r a d i t i o n because of i t s r e l a t i o n s h i p to the common good. As a member of society, the i n d i v i d u a l goods basic to human nature towards which a moral person w i l l s t r i v e (such as knowledge and s e l f - s u f f i c i e n c y ) may become subject to the common good of society. Legitimate law within a given society i s law ordained to the common good. Pos i t i v e law i n t h i s context i s legitimacy derived from natural law and i s "nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated." 2 0 The concepts of "common good" and basic goods of human nature have survived the evolution of natural law and remain important concepts i n contemporary l e g a l philosophy. In the Thomist t r a d i t i o n common good i s more than the sum of basic i n d i v i d u a l goods. Further, there i s not a si n g l e common good but a hierarchy of common goods ordered i n accordance with r i g h t reason. At the top of the hierarchy i s the common good of the human race which St. Thomas defines i n terms of universal peace and happiness. 2 1 The descending hierarchy of common goods r e f l e c t s the h i e r a r c h i c a l 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 p a r t i c u l a r governments; because i n a l l v i r t u e s and arts, as i s pointed out i n the f i r s t book of Ethics [Chapter 1], there i s an order according to the order of ends. For the common good i s more divine than a s p e c i a l good; 99 and therefore since the whole church i s one body, i f t h i s unity i s to be preserved, i t i s necessary that there be a c e r t a i n governing power above the episcopal power with respect to the whole church, by which each p a r t i c u l a r church i s ruled. . . [I]nasmuch as one congregation or community includes another; j u s t as the community of a province includes the community of a c i t y ; 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.2 2 Philosophies of natural law from the 13th century onward incorporate ancient and Thomist precepts of natural law subject to ce r t a i n modifications. The major change i n the t r a d i t i o n i s the se c u l a r i z a t i o n of natural law precepts and the gradual removal of ethnocentric bias. I t i s beyond the scope of t h i s t h e s i s to give an exhaustive account of the nuances introduced by the various philosophers, but a b r i e f mention of prominent t h e o r i s t s may be useful i n understanding t h e i r contribution to the p o s i t i v e law of nations and, i n p a r t i c u l a r , the a c q u i s i t i o n of aboriginal property discussed l a t e r i n t h i s chapter. Two prominent philosophers of the sixteenth century were Francisco de V i t o r i a and Francis Suarez. V i t o r i a i s e s s e n t i a l l y Thomist i n the emphasis he places on human and Divine reason, but i s unclear on the r e l a t i o n s h i p between the w i l l of the l e g i s l a t o r and natural reason. 2 3 Suarez, on the other hand, emphasizes the ro l e of Divine w i l l , rather than Divine reason i n the creation of le g a l o bligations. Further, Suarez believes i n a need fo r humans to recognize a promulgation of divine w i l l to be bound by moral law and that such law i s not promulgated n a t u r a l l y i n human nature. At the basis of natural law i s natural honesty and man's recognition of the obligatory character of precepts of natural law. 2 4 Major divergences from the Thomist doctrine by p u b l i c i s t s 100 of the sixteenth century include Niccolo Machiavelli who viewed power as the ultimate end of p o l i t i c s and Albericus G e n t i l i s who re j e c t s the concept of eternal law and emphasizes the primacy of jurisprudence and human reason over theology and moral philosophies of law. 2 5 The most prominent advocate of the natural law t r a d i t i o n i n the 17th century was Hugo Grotius. Although Grotius assumes a connection between the dictates of r i g h t reason and the w i l l of God, passages of h i s work hypothesize the elimination of God from the study of natural law and for t h i s reason he i s often credited for beginning the s e c u l a r i z a t i o n or modernization of natural law. Grotius also introduced a d i s t i n c t i o n between absolute and non- absolute natural law. The former i s the equivalent of natural morality concerning matters such as the love of God and the avoidance of harm to the innocent. The l a t t e r are imperfect natural r i g h t s to carry out c e r t a i n acts u n t i l such acts are prohibited by p o s i t i v e law. Grotius also assumes man has a natural i n c l i n a t i o n to s o c i a l i t y and summarizes the law r e l a t i n g to s o c i a l i t y as abstaining from that which i s another's, re s t o r a t i o n of another's property and benefits received therefrom, f u l f i l l i n g promises, making good losses incurred through our f a u l t and i n f l i c t i n g penalties on men according to t h e i r j u s t deserts. At the same time, Grotius advocates i n d i v i d u a l autonomy as a f i r s t p r i n c i p l e and the concept of s o c i a l contract - man v o l u n t a r i l y surrenders personal autonomy for the objective good and the s t a t e . 2 6 In short, Grotius re-introduces A r i s t o t e l i a n and Stoic philosophy into natural law and at the same time r e v i t a l i z e s ideas l a t e r modified by i n f l u e n t i a l p o s i t i v i s t s . For example, Thomas 101 Hobbes advocates the existence of a f i c t i t i o u s agreement among c i t i z e n s that a government or Leviathan should be set up with absolute power over a l l c i t i z e n s . Jeremy Bentham defines public i n t e r e s t or "good" as the greatest good fo r the greatest number. Their shared preference f o r l e g i s l a t i o n over the moralizing of the common law courts i s a hallmark of what i s now known as p o s i t i v i s m . 2 7 Hobbes also introduces a subjective element into natural law by asserting that the natural precept of s e l f preservation r e s u l t s i n a natural state of c o n f l i c t , or i n the case 28 of i n t e r n a t i o n a l r e l a t i o n s , war. The eighteenth century witnessed further modifications to natural law theory by two prominent philosophers - C h r i s t i a n Wolff and Emmerich De V a t t e l . The s i g n i f i c a n t contribution of Wolff i s h i s discussion of the r e l a t i o n s h i p of the law of nature and the law of nations. Wolff a t t r i b u t e s both c o l l e c t i v e w i l l and natural l i b e r t y 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 l a t t e r are laws of nature applied to nations which are immutable, the v i o l a t i o n of which w i l l never be r i g h t , but may have to be tolerated because of the p r a c t i c a l i m p o s s i b i l i t y of s a t i s f y i n g i n a l l d e t a i l natural laws. This ambiguous attitude to the immutability of natural laws i s d i s t i n c t l y d i f f e r e n t from t r a d i t i o n a l natural law theories. As i n the philosophy of Grotius, self-preservation i s given status i n the r e s o l u t i o n of c o n f l i c t s . Further, the common good i n Wolff's philosophy i s d i f f e r e n t i n that i t i s the r i g h t or good of i n d i v i d u a l s taken c o l l e c t i v e l y . 2 9 V a t t e l i s i n many ways an 102 i n t e r p r e t e r of Wolff, but d i f f e r s i n h i s understanding of the voluntary law of nations. 3 0 The views of Wolff and V a t t e l are discussed i n more d e t a i l throughout t h i s chapter. Modern natural law t h e o r i s t s vary i n t h e i r adoption of the ancient and Thomist philosophies of natural law. Of p a r t i c u l a r influence i n the modern t r a d i t i o n are H.L.A. Hart and John F i n n i s . 3 1 Hart argues that the minimum content of natural law i s s u r v i v a l . In order to survive, humans adopt some form of s o c i a l organization. In order to avoid chaos, rules are established to regulate areas such as s o c i a l conduct and property r i g h t s . 3 2 On the Hart ian analysis, "the forms of cooperation which characterize any community properly so c a l l e d , are a manifestation of the basic good of s o c i a b i l i t y . " 3 3 John Finnis assumes the existence of basic human values or "goods" including s u r v i v a l , knowledge, s o c i a b i l i t y and p r a c t i c a l r e a s o n a b i l i t y (personal autonomy). 3 4 The l a t t e r value a s s i s t s people i n choosing actions to further other goods. As Daniel Gormley points out i n h i s discussion of Finnis , the most fundamental p r i n c i p l e of p r a c t i c a l reasoning i s "actions e s s e n t i a l fo r the attainment of human good are to be performed." 3 5 According to Gormley, one of the actions derived from p r a c t i c a l reasoning i s the administration of " j u s t i c e " by persons i n authority, within a community. Gormley synthesizes F i n n i s ' concept of p r a c t i c a l reasoning with the concept of j u s t i c e as follows: We may term as the primary requirement of j u s t i c e the imperative that one ought not to demonstrate a r b i t r a r y preference as to persons. I f one ought to further human goods, then i t follows that one must respect each human being as a focus of actual or possible p a r t i c i p a t i o n i n those goods . . . [I]n any s i t u a t i o n i n which one's 103 decisions may a f f e c t another person's p a r t i c i p a t i o n i n human goods, one takes that person into account of deserving of respect. The primary p r i n c i p l e of j u s t i c e i s therefore of enormous s i g n i f i c a n c e to those i n authority within a community . . . Success i n t h i s endeavour w i l l y i e l d 'the common good': 'the securing of a whole ensemble of material and other conditions which tend to favour the personal development of each i n d i v i d u a l . ' . . . An app l i c a t i o n of the primary p r i n c i p l e of j u s t i c e to human a f f a i r s t e l l s us that within a community, each i n d i v i d u a l i s e n t i t l e d to p a r t i c i p a t i o n i n human goods to an extent that does not r e s t r i c t h i s fellows' p a r t i c i p a t i o n i n them. 3 6 I t i s beyond the scope of t h i s thesis to give an exhaustive account of p r i n c i p l e s of natural law. However, from the general discussions above the following p r i n c i p l e s may be derived: 1. A l l humans are r a t i o n a l beings; 2. Natural law i s reason (whether human or divine i n origin) and a l l humans are subject to i t by v i r t u e of t h e i r r a t i o n a l nature; 3 . Natural law i s universal; 4. Natural laws apply equally to a l l people and are immutable at le a s t i n respect to the question of what i s "r i g h t " , "moral", "good" or " j u s t " ; 5. People have a natural i n c l i n a t i o n to s o c i a l i z a t i o n and the achievement of common good, or at the very l e a s t , have a natural i n c l i n a t i o n to s e l f - preservation or s u r v i v a l which requires some form of s o c i a l organization; and 6. Po s i t i v e laws are not necessarily derived from natural laws. However, the natural v a l i d i t y of a po s i t i v e law may be measured against basic precepts of natural law such as the fos t e r i n g of the common good. 104 Before leaving our discussion of the basic p r i n c i p l e s of natural law, i t i s useful to b r i e f l y examine the concept of ri g h t s and obligations i n the natural law t r a d i t i o n . R. Begin defines " r i g h t " as follows: Right i s the r e l a t i o n e x i s t i n g between one person and the action or omission of another, according to which t h i s person may demand t h i s action or omission as due to him on the strength of equality of men, i n v i r t u e of the common good, goal of happiness toward which a l l men s t r i v e . . .The determinant factors i n the circumscription of Right are the common good of humanity and the means necessary for each i n d i v i d u a l to a t t a i n i t . These factors are evaluated by reason and thus give b i r t h to a 'concretization' of Right expressed i n laws. 3 7 Begin's i n t e r p r e t a t i o n of natural r i g h t s suggests a l l people as r a t i o n a l beings are able to regulate t h e i r own a c t i v i t y and are the subject of ri g h t s (even though h i s t o r i c a l l y they may not have been treated as the subject of r i g h t s ) . Individual r i g h t s are not l i m i t l e s s , but are r e s t r i c t e d by the common good and the r i g h t s of others i n society. States or c o l l e c t i v i t i e s of in d i v i d u a l s created by i n d i v i d u a l s s t r i v i n g f or the common good also have r i g h t s of t h e i r own v i s a v i s t h e i r members and other states, but these r i g h t s are ruled by reason and common good. 3 8 J u s t i c e i n t h i s context i s the "obligation of rendering to others what i s due to them" according to t h e i r r i g h t s which may or may not e x i s t independently of ri g h t s conferred by a p a r t i c u l a r s t a t e . 3 9 For a p o s i t i v e r i g h t to be j u s t or moral, i t must be a r i g h t that concurs with the r a t i o n a l nature of humanity. Those fundamental natural r i g h t s which f i n d t h e i r basis outside the state, such as an in d i v i d u a l ' s r i g h t to l i v e , are only subject to state regulation to the extent that they are regulated to the common good. 4 0 105 2. A N a t u r a l I n t e r p r e t a t i o n o f Pr o p e r t y R i g h t s R i g h t s o f p r o p e r t y can be viewed i n two d i s t i n c t ways - r i g h t s of p r o p e r t y w i t h i n a community and r i g h t s o f p r o p e r t y between communities. 4 1 The r e c o g n i t i o n o f a b o r i g i n a l t i t l e as a p r e - e x i s t i n g l e g a l r i g h t suggests t h a t r i g h t s o f p r o p e r t y w i t h i n an a b o r i g i n a l community may p r o p e r l y be governed by n a t i v e custom r a t h e r than Canadian o r B r i t i s h law. 4 2 The ex t e n t t o which these r i g h t s s u r v i v e d B r i t i s h s e t t l e m e n t and form t h e b a s i s o f a c l a i m t o l a n d i s determined by the r i g h t s and d u t i e s o f communities v i s - a - v i s one another. Consequently, n a t u r a l t h e o r i e s c o n c e r n i n g both the o r i g i n and a c q u i s i t i o n o f p r o p e r t y r i g h t s have b e a r i n g on the n a t u r a l l e g i t i m a c y o f a b o r i g i n a l t i t l e c l a i m s . A c l a i m t o a r i g h t o f p r o p e r t y i s r e a l l y a c l a i m t h a t someone do o r omit t o do something w i t h r e s p e c t t o t h a t p r o p e r t y . In the n a t u r a l law t r a d i t i o n , laws c r e a t i n g o b l i g a t i o n s w i t h r e s p e c t t o p r o p e r t y and c l a i m s a r i s i n g from those laws are o n l y m o r a l l y v a l i d i f they concur w i t h the fundamental p r e c e p t s o f n a t u r a l law. Of primary importance i n contemporary t h e o r i e s i s the a p p l i c a t i o n o f p r i n c i p l e s e q u a l l y t o a l l human beings and the advancement o f the common good. (a) H i s t o r i c a l Views The moral content o f p r o p e r t y regimes has been c o n s i d e r e d by numerous p h i l o s o p h e r s o f law. In a n c i e n t Rome, the S t o i c s advocated t h a t by n a t u r a l law a l l t h i n g were o r i g i n a l l y h e l d i n common and the d i v i s i o n o f p r o p e r t y was i n t r o d u c e d by mankind. 4 3 However, p o s i t i v e laws o f p r o p e r t y were not c o n s i d e r e d c o n t r a r y t o n a t u r a l law t o the ex t e n t t h a t they advanced p r e c e p t s o f n a t u r a l 106 law such as l i v i n g honourably, i n j u r i n g no one and gi v i n g "to every man h i s own."44 Although d i f f e r e n t philosophers have emphasized d i f f e r e n t precepts of natural law, such as common good and s o c i a l s t a b i l i t y , to l e g i t i m i z e property law per se, the view that a l l property was o r i g i n a l l y common has been c a r r i e d through the development of the natural law t r a d i t i o n and remains e s s e n t i a l l y the same today. 4 5 Cicero explained the re l a t i o n s h i p of the natural law of common property and the p o s i t i v e law of private property as follows: But j u s t as though the theatre i s a public place i t i s yet correct to say that a p a r t i c u l a r seat a man has taken belongs to him, so i n the state or i n the universe, though these are common to a l l , no p r i n c i p l e of j u s t i c e m i l i t a t e s against the possession of private property. 4 6 As between communities, c l a s s i c a l Roman law asserted that the o r i g i n and a c q u i s i t i o n of property r i g h t s was governed by the p o s i t i v e law of nations or "ius gentium." To juric o n s u l t a n t s t h i s was universal natural law i n the sense that i t was "everywhere observed among men, according to the dictates of natural reason." 4 7 However, the "ius gentium" was also used by them and others i n a d i s t i n c t 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 i t s p r a c t i c a l a p p l i c a t i o n . Despite the l i n k between Roman philosophy and c l a s s i c a l law, i t i s to be h i s t o r i c a l l y naive to argue that the Romans were ruled by natural philosophy i n the creation and pra c t i c e of acquiring foreign property when expanding the Roman empire. For example, i t i s c l e a r barbarian peoples were not viewed as r a t i o n a l beings capable of asserting natural r i g h t s . 4 9 Nevertheless, the influence of ancient Greek and Roman philosophy i s evident i n the assertion of natural 107 modes of a c q u i s i t i o n found i n the "ius c i v i l e " and the "ius gentium." As discussed below, many of these rules continue to be advocated by natural law t h e o r i s t s subject to c e r t a i n modifications which take into consideration the ethnocentric bias of the Roman Empire i n defining u n i v e r s a l i t y . The a p p l i c a t i o n of the "ius gentium" to a p a r t i c u l a r community was to a c e r t a i n extent dependant on the capacity of the community to enter t r e a t i e s . At the time of Rome's p o l i t i c a l supremacy, the theory developed that i f "there were no t r e a t i e s of any kind with any p a r t i c u l a r community . . . the law of nations, as generally understood, or rather as they themselves understood i t , had not f u l l a p p l i c a b i l i t y to that nation." 5 0 Whatever concessions were granted were connected more with humane sentiments than a sense of l e g a l o b l i g a t i o n . Further, only communities with s u f f i c i e n t p o l i t i c a l organization were viewed as capable of entering t r e a t i e s for the common good of the respective states. 5 1 In that regard, Cicero defined a state as "a body p o l i t i c or society of men united together f o r the purpose of promoting t h e i r mutual safety and advantage by t h e i r combined strength." 5 2 Again, the p r a c t i c e of Rome suggests t h i s d e f i n i t i o n was not always adopted i n the expansion of the Empire. Of p a r t i c u l a r i n t e r e s t i n the context of the doctrine of aboriginal t i t l e are the following rules of a c q u i s i t i o n which f i n d t h e i r o r i g i n s i n Roman law. As w i l l be seen, most of these rules are j u s t i f i a b l e i n the natural law t r a d i t i o n assuming t h e i r equal a p p l i c a t i o n to a l l communities and t h e i r contribution to s o c i a l s t a b i l i t y and peaceful r e l a t i o n s . The development of these rules i n the sixteenth to eighteenth centuries 108 i s discussed i n the context of aboriginal t i t l e claims i n section III of t h i s chapter. 1. Res N u l l i u s [the property of nobody] - What does not belong to anyone becomes the property of the person who f i r s t acquires i t . 5 3 2. There i s . . . no such thing as privat e ownership established by nature, but property becomes privat e e i t h e r through long occupancy (as i n the case of those who long ago s e t t l e d i n unoccupied t e r r i t o r y ) or through conquest (as i n the case of those who took i t i n war) or by due process of law, bargain, or purchase, or allotment . . . 5 4 3. That which cannot be occupied, or which never has been occupied, cannot be the property of any one, because a l l property has arisen from occupation. 5 5 4. Public t e r r i t o r y a r i s e s out of the occupation of nations, j u s t as private property a r i s e s out of occupation by i n d i v i d u a l s . 5 6 5. Possession may be divided into two kinds f o r i t i s acquired eit h e r i n good or bad f a i t h . 5 7 6. Usucupation can not take place without possession. 5 8 Usucupation i s the addition of ownership by means of continuous possession for a time prescribed by law. 5 9 A person can acquire by usucupation the property of which he has possession, thinking that i t belongs to him; even i f t h i s opinion i s f a l s e . 6 0 109 7. P r e s c r i p t i o n based upon long possession i s usually not granted for the a c q u i s i t i o n of places which are public by the Law of Nations. 6 1 P r e s c r i p t i o n based on no matter how immemorial a time, sets up no t i t l e to those things which are recognized as common to the use of mankind [eg. sea] . 6 2 8. Property which becomes ours by de l i v e r y i s acquired by us under the Law of Nations; for nothing i s so comfortable to natural equity as the wish of an owner, who intends to transfer h i s property to another, should be complied with. 6 3 9. When ownership i s transferred to him who receives i t , i t i s transferred i n the same condition that i t was while i n the possession of the grantor. 6 4 Before leaving our discussion of h i s t o r i c a l p r i n c i p l e s , a few words should be said about the p o s i t i v e laws of p r e s c r i p t i o n and conquest as both appear to be i n d i r e c t c o n f l i c t with the f i r s t p r i n c i p l e of v a l i d t i t l e by the o r i g i n a l possessor. The ancient concept of f i r s t occupancy assumes f u l l r i g h t s of dominion are acquired by the occupant who f i r s t takes possession of property with the intention of keeping i t as h i s own.65 P r e s c r i p t i o n finds i t s roots i n the idea of usucupation and holds that property i n the possession of a person for a long period of time becomes the property of the possessor regardless of p r i o r ownership. 6 6 Conquest assumes the r i g h t f u l appropriation of someone else's property by the v i c t o r i o u s party i n a war, without the consent of the lo s i n g party. 110 The apparent c o n f l i c t between p r e s c r i p t i o n and r i g h t s of f i r s t occupancy are explained by Joannes Andreae (1270-1348) by analyzing the r e l a t i o n s h i p between p o s i t i v e and natural law. According to him, p o s i t i v e law s p e c i f i e s natural law and applies i t to concrete s i t u a t i o n s . Where i t i s a concept of natural law that one should not benefit from damage done to another, p o s i t i v e law can specify those cases i n which t h i s can be accomplished without i n j u r i n g someone's natural r i g h t s . The decisive reason i n favour of such l i m i t a t i o n s i s the common good of the community. With respect to pre s c r i p t i o n , the p a r t i c u l a r r i g h t of the o r i g i n a l occupant i s subordinated to the higher common good of peace and security a r i s i n g from c e r t a i n t y of r i g h t f u l ownership. The issue i s not so much the j u s t i c e of t i t l e by p r e s c r i p t i o n as the consequence of sil e n c e or abandonment by the o r i g i n a l owner. Arguments of modern authors remain e s s e n t i a l l y the same.67 For p r e s c r i p t i o n to be e f f e c t i v e , the person acquiring t i t l e by p r e s c r i p t i o n must do so i n good f a i t h . "Good f a i t h may be defined as a prudent judgment according to which a person believes • 68 that the thing he possess i s r i g h t f u l l y h i s . " Philosophers have generally agreed to t h i s l i m i t a t i o n on the p o s i t i v e law of pr e s c r i p t i o n as "pre s c r i p t i o n would c e r t a i n l y be contrary to the Natural Law, inasmuch as i t encouraged widespread dishonesty among c i t i z e n s , a state or condition c e r t a i n l y harmful to the common good, to public peace and s e c u r i t y . " 6 9 The r a t i o n a l i z a t i o n of a c q u i s i t i o n by p r e s c r i p t i o n suggests that the moral legitimacy of p o s i t i v e laws which l i m i t or vary the f i r s t p r i n c i p l e of t i t l e by occupancy of previously unoccupied lands can be measured against the extent to which they promote the I l l common good. Arguably, t h i s standard can be used to measure the legitimacy of a c q u i s i t i o n by conquest. By the time of St. Thomas Aquinas, i t became a rul e of natural law that conquest was only l e g a l l y v a l i d i f i t could be characterized as "j u s t war." In his view the ultimate good was "peace" and offensive war was only legitimate i f three conditions were met - legitimate authority, j u s t cause and r i g h t i n t e n t i o n . 7 0 By the sixteenth century, philosophers were focusing t h e i r attention on the condition of "ju s t cause." The influence of C h r i s t i a n paternalism i n the natural law t r a d i t i o n resulted i n the adoption of ethnocentric views of the common good which were r e f l e c t e d i n arguments l e g i t i m i z i n g war on the grounds of i n f i d e l i t y and lack of s u f f i c i e n t p o l i t i c a l organization. 7 1 Throughout the seventeenth and eighteenth century, the moral and i n t e l l e c t u a l t r a d i t i o n of int e r n a t i o n a l law debated the morality of war and the a c q u i s i t i o n of conquered t e r r i t o r i e s . Under the modern law of war, conquest i s no longer accepted as a morally legitimate basis f o r continued possession of a t e r r i t o r y . 7 2 This r u l e of p o s i t i v e law accords with n a t u r a l i s t philosophy as i t i s hard to r a t i o n a l i z e how f o r c e f u l a c q u i s i t i o n s foster i n t e r - s o c i e t a l s t a b i l i t y , universal happiness and peace. To accept the legitimacy of conquest would mean the acceptance of Machiavellian and Hobbesian philosophies of natural law and "might i s r i g h t " as the primary governing p r i n c i p l e i n human re l a t i o n s h i p s . (b) Contemporary Views Both Hart and Finnis have considered the morality of p o s i t i v e laws concerning the ownership of property. 7 3 Both begin with the 112 assumption of common property because of the simple f a c t that material resources do not "come into the world attached to a p a r t i c u l a r owner."74 However, both appreciate the necessity of est a b l i s h i n g a system of ownership to avoid chaos which would be threatening to i n d i v i d u a l and community s u r v i v a l . Both view rig h t s to s p e c i f i e d property as a creation of p o s i t i v e law. For Finnis , legitimate p o s i t i v e law i s law aimed at achieving basic human "values" or "goods." He favours private ownership because i n hi s view i t i s "most l i k e l y to produce an increase i n the f r u i t s of the common stock and to contribute to the good of personal autonomy."75 In h i s a r t i c l e "Aboriginal Rights as Natural Rights," Gormley argues that F i n n i s 1 theory can be used as a framework to analyze the morality of i n t e r - s o c i e t a l property laws. According to h i s analysis, the governing p r i n c i p l e s would necessarily include: 1. the fos t e r i n g of the common good of a l l communities; 2. an imperative that laws ought not to show a r b i t r a r y preference as to communities; 3 . an ob l i g a t i o n on leaders of powerful communities to exercise power j u s t l y by taking into consideration the common good of communities affected; 4. the freedom of a community to choose i t s own waysdJ furthering i t s common good; 5. the avoidance of violence between communities; 6. the enhancement of s t a b i l i t y which permits human development; and 113 7. the recognition of agreements entered between communities because of t h e i r contribution to i n t e r - s o c i e t a l s t a b i l i t y . 7 6 According to Gormley, the furthering of common good w i l l seldom j u s t i f y interference i n the a f f a i r s of others. Rather, paternalism should be avoided because our knowledge of other communities i s bound to be i n f e r i o r to our knowledge of our own, the autonomy of a community r e f l e c t s the basic human value of personal autonomy and unwanted interference can lead to v i o l e n c e . 7 7 Inherent i n Gormley's analysis i s the assumption of an objective common good and the removal of ethnocentric bias i n i n t e r - s o c i e t a l r e l a t i o n s . Indeed, contemporary views of natural law would i n s i s t on the ap p l i c a t i o n of the above p r i n c i p l e s to a l l communities regardless of race, r e l i g i o n and western forms of p o l i t i c a l organization as these are no longer considered r a t i o n a l reasons for the denial of fundamental r i g h t s . 7 8 (c) Fundamental Property Rights Both ancient and modern t h e o r i s t s agree that some form of property law i s necessary to maintain stable and peaceful s o c i a l r e l a t i o n s h i p s among ind i v i d u a l s and peoples. A l l s t a r t with the fundamental p r i n c i p l e that f i r s t occupation of previously unoccupied property establishes r i g h t s of property i n the occupier. The extent to which t h i s r i g h t can le g i t i m a t e l y be alte r e d by p o s i t i v e law w i l l depend upon the extent to which the law contravenes natural law precepts and whether such contravention can be l e g i t i m i z e d as furthering a greater common good. The ap p l i c a t i o n of t h i s theory to r e l a t i o n s between various communities 114 suggests legitimacy may be upheld on the basis of some int e r n a t i o n a l common good. The following section w i l l i l l u s t r a t e that the predominant views on the a c q u i s i t i o n of aboriginal lands during the c o l o n i z a t i o n of North America concurred with modern precepts of natural law i n the recognition of aboriginal t i t l e based on f i r s t use and occupation. Those views which offended p r i n c i p l e s of natural law f a i l e d to become part of the early t r a d i t i o n of recognition i n B r i t i s h Canada. Rather, p r i n c i p l e s of natural law are evident i n both B r i t i s h Colonial l e g a l theory and practice, subject to c e r t a i n p a t e r n a l i s t i c modification. Although i t i s debated whether B r i t i s h Colonial practice was motivated by i n t e r n a t i o n a l or B r i t i s h jurisprudence, both theory and p r a c t i c e r e f l e c t the following f i r s t p r i n c i p l e s of aboriginal t i t l e : 1. aboriginal t i t l e finds i t s source i n the occupation of land by organized s o c i e t i e s p r i o r to European settlement; and 2. aboriginal t i t l e should be extinguished by consent. II Natural Law and The Origin of Aboriginal T i t l e 1. Natural Law and the Law of Nations Although i t i s debated whether the Greeks had a c l e a r jurisprudence on the law of nations, i n f l u e n t i a l p r i n c i p l e s such as the concept of u n i v e r s a l i t y and the moral v a l i d i t y of independent p o l i t i c a l communities can be a t t r i b u t e d to famous Greek orators such as Plato and A r i s t o t l e . 7 9 Although there was c l e a r h o s t i l i t y toward non-Hellenes or "barbarians" and Greek h i s t o r y 115 affords only few instances of p o l i t i c a l union, i t was perceived that d i f f e r e n t s o c i e t i e s would need d i f f e r e n t laws but " i n so f a r as they were communities of c i v i l i z e d human beings; c e r t a i n laws would be common to a l l , as t h e i r a p p l i c a b i l i t y i s i n e v i t a b l y 80 determined by universal nature." On the other hand, Rome developed a c l e a r jurisprudence on the law of nations referr e d to as the "ius gentium" but, as discussed above, the philosophical precepts of the "ius naturale" were not always adopted i n the p r a c t i c a l a p p l i c a t i o n of the "ius gentium." However, the "ius naturale" c l e a r l y influenced the p o s i t i v e law of nations and Roman juricon s u l t a n t s a l l 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 e t h i c a l element into the realm of i n t e r n a t i o n a l law. St. Thomas recognizes the existence of a transcendant natural law binding states and i n d i v i d u a l s from which the p o s i t i v e law of nations i s derived. By law of nations he does not r e f e r to law between nations determined by agreement, but a law found i n every nation by v i r t u e of reason and experience. In determining s p e c i f i c r i g h t s and duties of nations, St. Thomas applies p r i n c i p l e s which govern r e l a t i o n s between i n d i v i d u a l s . However, St. Thomas has l i t t l e to say about the content of these r i g h t s and duties except 82 • i n the context of the morality of peace and war. At the time St. Thomas was writing, the Catholic Church wielded s i g n i f i c a n t p o l i t i c a l and r e l i g i o u s influence i n Europe and the Pope was considered the secular authority on the law of nations. The r o l e of the Pope i n determining r i g h t s under the law of nations encountered severe c r i t i c i s m i n the sixteenth and seventeenth 116 centuries - a development which allowed the removal of r e l i g i o u s bias i n the ap p l i c a t i o n of the law of nations to non-Christian peoples. 8 3 Of p a r t i c u l a r i n t e r e s t i n the sixteenth century are the views of V i t o r i a as he i s credited with being the f i r s t p u b l i c i s t to deal with the question of aboriginal r i g h t s as a question of morality and i n t e r n a t i o n a l law (then referred to as the law of nations) . V i t o r i a contends that the law of nations i s derived from natural law and the consensus of the majority of the world regarding the common good of a l l . I t s natural o r i g i n s provide s u f f i c i e n t authority to create r i g h t s and obligations known to a l l 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 d i s t i n c t . Unlike natural law, the law of nations i s not universal and i s derived from common judgment and usage. I t i s not observed always and by a l l nations, but only as a general r u l e and i s binding only on those who p a r t i c i p a t e i n i t . The influence of Suarez can be seen i n the work of subsequent p u b l i c i s t s including Grotius, Wolff and V a t t e l . The general p r i n c i p l e s of international law advocated by Grotius are 86 • fundamentally the same as those outlined by Suarez. Grotius sees the w i l l of the people as the o r i g i n of public authority and c a r r i e s a contractual analysis of c i v i l government into his philosophy of int e r n a t i o n a l law. Like the state, any int e r n a t i o n a l authority i s optional and rests fundamentally upon contract. Although the voluntary law of nations may r e f l e c t precepts of natural law, i t may also oppose natural law i n so much as i t 1 1 7 represents the universal practice of mankind. For Grotius, the l e g a l and moral aspects of international law are d i s t i n c t . 8 7 As discussed e a r l i e r , Wolff accepts the idea of a voluntary law of nations and argues that there are two branches i n 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 i s aimed at the promotion of human good. A v i o l a t i o n of necessary law i s not r i g h t , but i t may be l e f t unpunished i f i t does not form part of the voluntary law of nations. Wolff's p o s i t i o n allows for the separation of l e g a l i t y and morality. The v a l i d i t y of the law rests i n the notion of a f i c t i t i o u s supreme state authority and the consent of nations. According to t h i s philosophy, i t may be morally wrong or unjust to exclude aboriginals from the law of nations, but i f a l l nations agreed, i t would be l e g a l . V a t t e l adds l i t t l e to the philosophy of Wolff. The major difference i n t h e i r philosophies i s V a t t e l ' s r e j e c t i o n of the idea 89 • • • • of a supreme state and h i s emphasis on c u l t i v a t i o n as part of a nation's natural o b l i g a t i o n to render i t s condition as perfect as p o s s i b l e . 9 0 The nineteenth century witnessed a s h i f t from an emphasis on man as a s o c i a l and moral being to individualism, u t i l i t a r i a n i s m and l i b e r a l i s m . Views of s o c i a l contract thinkers such as Hobbes, Bentham Austin and Locke, who emphasized law making by l e g i s l a t o r s and morality i n terms of public opinion, became increasingly popular and resulted i n the predominance of a p o s i t i v i s t philosophy i n the nineteenth and twentieth century. Prominent philosophers 118 such as Rousseau asserted the i n f a l l i b i l i t y of the general w i l l and the willingness of r a t i o n a l men to subject themselves to i t . Emmanuel Kant argued that morality i s i n man's autonomous w i l l and that law has i n independent v a l i d i t y i n i t s enactment by the state. John Stuart M i l l advocated freedom of choice as an end i n i t s e l f and elevated the freedom of thought and speech to the p o s i t i o n of society's highest good. 9 1 I t i s i n t h i s philosophical atmosphere that i n t e r n a t i o n a l and domestic j u d i c i a l p r i n c i p a l s were f i r s t formulated on the question of aboriginal t i t l e . As w i l l be seen i n the discussion on the j u d i c i a l doctrine of aboriginal t i t l e , the courts soon l o s t sight of the natural o r i g i n s of aboriginal t i t l e and rendered decisions i n conformity with s e t t l e d general p r i n c i p l e s of English common law and l e g i s l a t i o n . P o l i t i c a l p r a c t i c e turned from the recognition of natural r i g h t s to the promotion of e g a l i t a r i a n and l i b e r a l philosophies which necessitated the denial of sp e c i a l r i g h t s of aboriginal peoples v i s a v i s other Canadian c i t i z e n s . However, the federal government's plan to eliminate s p e c i a l status f a i l e d and, despite the h i s t o r i c a l d i s t o r t i o n of f i r s t p r i n c i p l e s , the Canadian courts began a cautious return to a natural i n t e r p r e t a t i o n of abor i g i n a l r i g h t s . Although i t would be naive to assume the eventual freedom of the courts from the predominant p o s i t i v i s t philosophy of law, the currant blending of natural and p o s i t i v e philosophies of aboriginal t i t l e suggests that compliance or non- compliance with the f i r s t p r i n c i p l e s of p r i o r occupation and surrender of land by consent may now be s u f f i c i e n t to e s t a b l i s h a claim to t i t l e . 119 2. Natural Law and Theories of A c q u i s i t i o n As discussed e a r l i e r , ownership through o r i g i n a l occupation can be l e g i t i m i z e d i n accordance with fundamental precepts of natural law. The a p p l i c a t i o n of t h i s p r i n c i p l e i n the context of the a c q u i s i t i o n of t e r r i t o r i e s by discovering nations suggests that land can only be acquired through occupation i f the land i s ownerless (terra n u l l i u s ) . The c o r o l l a r y of t h i s p o s i t i o n i s land which i s the property of someone, or some nation, must be acquired i n some other manner. Keeping i n mind the natural precept of promoting the common good of i n t e r - s o c i e t a l s t a b i l i t y and peace, the most v a l i d method of acquiring owned property i s with the owner's consent, or i n the case of unoccupied property of a previous owner, through a r i g h t of p r e s c r i p t i o n . The v a l i d i t y of these p r i n c i p l e s was accepted by l e g a l t h e o r i s t s of the sixteenth century i n t h e i r attempts to l e g i t i m i z e European claims to lands already i n the occupation of indigenous peoples i n North America. As a c q u i s i t i o n by European occupancy could only be regarded as lawful i f North America was t e r r a n u l l i u s , the characterization of land as t e r r a n u l l i u s became the subject of j u r i s t i c debate. Another disputed issue was the legitimacy of conquest as a method of a c q u i s i t i o n . I t i s i n the context of these debates that V i t o r i a gave b i r t h to a natural theory of aboriginal t i t l e . While some scholars argue c l a s s i f i c a t i o n of land as t e r r a n u l l i u s by early j u r i s t s depended on the r e l i g i o n of the inhabitants, others argue C h r i s t i a n i t y was relevant only to the question of acquiring t i t l e and sovereignty through j u s t war. Those i n the l a t t e r group considered the c r u c i a l question to be 120 the l e v e l of p o l i t i c a l organization of the inhabitants and t h e i r a b i l i t y to p a r t i c i p a t e i n the voluntary law of nations. 9 2 The f i r s t known l e g a l documents addressing these issues were the Alexandrian B u l l s by which the Pope asserted moral and secular authority over indigenous lands ignoring the p o l i t i c a l and l e g a l r i g h t s of the inhabitants because of t h e i r i n f i d e l i t y . 9 3 These were followed by the t r e a t y of T o r d e s i l l a s which divided the known world between Spain and Portugal upholding t h e i r claims to land and sovereignty i n 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 l e g a l v a l i d i t y of the Papal donations i s subject to severe c r i t i c i s m . The former perspective would require v a l i d a t i o n by the voluntary consent of a l l nations, or at the very l e a s t , the discovering nations. History shows us that European nations competing f o r power i n the new lands ignored papal donations and were f a r from agreement on the Pope's authority over newly discovered land. 9 5 The l a t t e r perspective would require the denial of the c a p a b i l i t y of Indian peoples to reason, and thus a denial of t h e i r humanity, to j u s t i f y t h e i r exclusion from the a p p l i c a t i o n of p r i n c i p l e s of natural law. At the very l e a s t , t h i s view requires the acceptance of some ethnocentric view of the common good, such as the promotion of European c i v i l i z a t i o n , to j u s t i f y a r e f u s a l to recognize natural r i g h t s of aboriginal peoples a r i s i n g from o r i g i n a l occupation. Francisco de V i t o r i a (1480-1546), a Catholic theologian, was one of the f i r s t people to support Indian ownership of the lands they occupied and Indian t e r r i t o r i a l sovereignty. He argued that 121 as true owners of t h e i r lands, Indians could not be deprived of them by discovery, occupation or conquest. He rejected the v a l i d i t y of the papal donations, asserted that only j u s t war or cession gave r i s e to l e g a l t i t l e i n inhabited lands and argued that r e l i g i o n was not a j u s t i f i c a t i o n f o r war. However, he was not completely free from bias i n that he believed i f Indians were incapable of achieving the status of a c i v i l i z e d state, the Spaniards could step i n and control t e r r i t o r i a l sovereignty i f such control was for the benefit and welfare of the o r i g i n a l inhabitants ( i . e . the common good of the community) . 9 6 In De Indis. V i t o r i a j u s t i f i e s h i s views by drawing on fundamental p r i n c i p l e s of natural law as he believes i t i s "by divine law that questions concerning them are to be determined. 1 , 9 7 He argues that the ri g h t s of f i r s t occupants are c l e a r l y derived from natural law which i s capable of creating r i g h t s and * * 98 • • • obligations. Should a nation discover lands which belong to nobody, r i g h t of discovery i s adequate t i t l e because "regions which are deserted become, by the law of nations and the natural law, the property of the f i r s t occupant." 9 9 Accepting that f i r s t occupancy gives dominion to r a t i o n a l creatures, he asserts that Indians cannot be barred from the exercise of true dominion because they have the use of reason. 1 0 0 Further, he asserts that t h e i r non- Ch r i s t i a n b e l i e f s do not a f f e c t the fac t that they are possessed of t h e i r lands i n absolute dominion. In h i s view, to conclude otherwise would be contrary to p r i n c i p l e s of natural law and common 101 p r a c t i c e towards other non-Christian peoples. Consequently, Indian lands are not open to a c q u i s i t i o n by discovery and unless i t can be shown that they are not " i n peaceable possession of t h e i r 1 2 2 goods . . . they must be treated as owners and not be disturbed i n t h e i r possession unless cause be shown."102 V i t o r i a considers other alleged t i t l e s to Indian lands asserted by Spanish j u r i s t s . He r e j e c t s t i t l e based on authority of the Holy Roman Emperor and the Pope as no one, by natural law, has dominion over the world. S i m i l a r l y , he argues r e j e c t i o n of the C h r i s t i a n f a i t h i s not adequate cause to wage war on Indians and deprive them of t h e i r property. 1 0 4 Although V i t o r i a does not dismiss the concept of t i t l e by voluntary surrender, he argues that choice played a very l i t t l e part i n the r e l a t i o n between Indians and Spaniards and asserted that "a consent to the taking of • • • • • 105 possessions i n fear or ignorance i s i n tru t h no consent." Other t i t l e s asserted based on the s i n of aborigines and possession by the Spaniards by spe c i a l grant from God are also rejected as contrary to natural law. 1 0 6 V i t o r i a does not deny that Spaniards may have t i t l e based on arguments other than those rejected. In t h i s context, he looks to the consensus of the majority of nations, measured against the common good, as a source of t i t l e . I t i s here that V i t o r i a ' s paternalism and c u l t u r a l bias i s evident. The f i r s t legitimate t i t l e i s that of natural society and fellowship which allows Spaniards to trade, t r a v e l and s e t t l e i n America. I t i s leg i t i m i z e d by the natural precept i t i s humane and correct to t r e a t v i s i t o r s well and contrary to the natural law to dis s o c i a t e oneself from others without good reason. I t i s assumed that i n the exercise of t h i s t i t l e , the Spaniards do not harm Indian country. 1 0 7 108 A denial of t h i s t i t l e i s j u s t cause f o r war. The second legitimate t i t l e involves r i g h t s of missionaries. Although Indians 123 have a r i g h t to t h e i r own r e l i g i o n , i n V i t o r i a ' s view the Spanish . • . • • 109 p r i e s t s also had the r i g h t to lay t h e i r views before the natives. C h r i s t i a n conversion and inhumane treatment of natives by t h e i r own governments also j u s t i f y intervention i n Indian a f f a i r s as does true and voluntary choice of Spanish r u l e . F i n a l l y , while V i t o r i a upholds the humanity of aboriginals, t h e i r r i g h t to equal p a r t i c i p a t i o n i n fundamental natural r i g h t s , and t h e i r status as nations possessed of in t e r n a t i o n a l r i g h t s ; he i s aware that t h e i r c i v i l i z a t i o n i s v a s t l y d i f f e r e n t from European c i v i l i z a t i o n and upholds the r i g h t of Spaniards to i n t e r f e r e with Indian government i f i t i s " f o r the welfare and i n the i n t e r e s t s of the Indians and not merely f o r the p r o f i t of the Spaniards." 1 1 0 With the exception of voluntary choice, V i t o r i a ' s grounds for legitimate intervention were not incorporated into B r i t i s h c o l o n i a l theory or p r a c t i c e towards aboriginal peoples. 1 1 1 Nor would these views be acceptable i n contemporary natural law theory. Contemporary philosophers would take exception to interference on the grounds set out by Gormley i n section I, 2(b) of t h i s chapter. A modern d e f i n i t i o n of common good presupposes r a c i a l and r e l i g i o u s equality and should attempt to avoid an ethnocentric perspective of c i v i l i z a t i o n . The current emphasis on autonomy and avoidance of c o n f l i c t s suggests interference w i l l only be warranted on humane grounds without consent of the Indian community at issue. The views of V i t o r i a were argued by Bartolome de La Casas (1474-1566) i n one of the most famous debates concerning indigenous r i g h t s . His opponent, Juan Gines de Sepulveda (1490-1573) argued that Spain's conquest of the new world was l e g i t i m i z e d by papal authority, the i n a b i l i t y of Indians to govern themselves and the 124 f a i l u r e of the Indians to y i e l d to the Requirmiento - a proclamation read to American Indians requiring acknowledgement of the supremacy of the Pope and the Spanish Crown. 1 1 2 Numerous j u r i s t s i n various countries supported and expanded on the views of V i t o r i a and La Casas. Eventually a body of jurisprudence emerged supporting the following p r i n c i p l e s : 1. whenever a country i s inhabited by persons connected by some p o l i t i c a l organization, no matter how "primitive", i t i s not res n u l l i u s ; 2. t i t l e to Indian lands can not be acquired simply by discovery and occupation; 3. native t r i b e s i n North America had s u f f i c i e n t p o l i t i c a l and t e r r i t o r i a l sovereignty to enter voluntary agreements for the surrender of t h e i r l e g a l and p o l i t i c a l r i g h t s ; and 4. the doctrine of j u s t war i s not applicable to Indian lands based on the j u s t i f i c a t i o n of i n f i d e l i t y . 1 1 3 Two other theories emerged alongside the recognition of aboriginal t i t l e and sovereignty. The f i r s t follows the views of Sepulveda. Most of the p u b l i c i s t s supporting t h i s view wrote i n 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 c i v i l i z e d state to remove lands from the category of terrae n u l l i u s . Both assert aboriginal t r i b a l organization was u n c i v i l i z e d and i n s u f f i c i e n t to constitute ab o r i g i n a l populations states i n the i n t e r n a t i o n a l sense. 1 1 4 Their views are consistent with the contemporaneous movement i n North America toward domesticating native issues and the i n t e l l e c t u a l 125 patterns of the nineteenth century which were dominated by Darwinistic thinking, economic l i b e r a l i s m and l e g a l p o s i t i v i s m . 1 1 5 The second theory admits native t i t l e but only under c e r t a i n conditions. The most well known p u b l i c i s t of t h i s theory i s V a t t e l (Switzerland, 1758). V a t t e l argues a d i s t i n c t i o n should be drawn between c u l t i v a t e d and uncultivated lands. For V a t t e l , c u l t i v a t i o n i s an o b l i g a t i o n imposed by nature as the earth can only perform i t s function to feed i t s inhabitants i f i t i s c u l t i v a t e d . Every nation i s obliged to c u l t i v a t e the land and has no r i g h t to enlarge i t s boundaries beyond what i s necessary to furnish i t with n e c e s s i t i e s . In h i s view, the hunt i s no longer a s u f f i c i e n t means to provide f o r the human race. Those nations that refuse to recognize t h i s and usurp more extensive t e r r i t o r i e s than would be necessary i f c u l t i v a t i o n was employed might l e g i t i m a t e l y lose possession of uncultivated lands to those who put i t to proper use. In V a t t e l ' s view, r i g h t s of property and dominium are dependant on f u l f i l l i n g the o b l i g a t i o n to c u l t i v a t e . Consequently, nomadic peoples who possess land i n common and f a i l to appropriate and c u l t i v a t e s p e c i f i c parcels of land have i n s u f f i c i e n t possession of the land to acquire t i t l e . 1 1 6 V a t t e l ' s theories of a c q u i s i t i o n mirror those of C h r i s t i a n Wolff. Both agree that when a nation acquires t i t l e to unoccupied t e r r i t o r y through occupancy, i t also acquires sovereignty over the t e r r i t o r y acquired. 1 1 7 In Vattel's view, both ownership and a c q u i s i t i o n require actual possession and c u l t i v a t i o n . Wolff d i f f e r s on t h i s point by recognizing that an " a l t e r n a t i o n of s p e c i f i c lands for hunting and gathering was 'an intended use of lands' s u f f i c i e n t to y i e l d property i n them." 1 1 8 Both also address 126 the concept of j u s t war but t h e i r views w i l l not be discussed here as conquest played l i t t l e r o l e i n the development of Canadian law on aboriginal t i t l e . Of more i n t e r e s t are t h e i r views on p r e s c r i p t i o n which are r e f l e c t e d i n Canadian jurisprudence on aboriginal t i t l e . V a t t e l and Wolff uphold a c q u i s i t i o n through usucupation and p r e s c r i p t i o n as part of the natural law and the voluntary law of nations. In t h i s context Wolff distinguishes between ordinary and immemorial p r e s c r i p t i o n . The l a t t e r assumes that there i s no remembrance of the beginning of present possession and upholds the natural precept that every possessor i s presumed owner unless the contrary i s proven. Ordinary p r e s c r i p t i o n a r i s e s from abandonment, neglect and s i l e n c e on the part of the o r i g i n a l owner fo r a considerable number of years. The loss of r i g h t s through ordinary p r e s c r i p t i o n can be defended against someone, or some nation, that has been i n possession for a long time only i f the o r i g i n a l owner has j u s t reasons for neglecting h i s r i g h t s . 1 1 9 Both immemorial and ordinary p r e s c r i p t i o n are considered part of the voluntary law of nations because they contribute to the common good of c e r t a i n t y of ownership but f o r t h i s reason are also subject to modification by the s t i p u l a t i v e law of nations. The v a l i d i t y of p r e s c r i p t i o n i n the natural law t r a d i t i o n has already been addressed. The arguments that Indians can be denied t i t l e and t e r r i t o r i a l sovereignty based on i n s u f f i c i e n t p o l i t i c a l organization and land use are contrary to t r a d i t i o n a l and contemporary views of natural law. Although Indians have been h i s t o r i c a l l y viewed as i r r a t i o n a l savages, today we do not hesitate to accept that there was a high degree of s o c i a l , r e l i g i o u s and p o l i t i c a l organization among North 127 American t r i b e s . 1 2 1 I t i s true that the form of organization varied from t r i b e to t r i b e and did not necessarily r e f l e c t European forms of community and p o l i t i c a l organization, but i t i s equally true that Indian peoples formed into s o c i e t i e s and confederations. As Gormley points out, the f a i l u r e to recognize them as land- possessing communities because of a foreign method of government and community organization r e f l e c t s an a r b i t r a r y preference as to communities incompatible with contemporary views. 1 2 2 A defence of these positions by persons purporting to uphold precepts of natural law can only be understood i f placed i n proper h i s t o r i c a l perspective and the influence of c u l t u r a l and r e l i g i o u s bias on theories of natural law i s understood. Similar arguments are raised against the exclusion of aboriginal peoples from the enjoyment of r i g h t s a r i s i n g from o r i g i n a l possession due to improper land use. A legitimate concern might be raised i f Indian t r i b e s simply wandered aimlessly and claimed t i t l e to any land they happened to pass over. However, t h i s was not the case. Rather, non-agricultural communities and a g r i c u l t u r a l communities tended to hunt and gather within reasonably defined t e r r i t o r i e s . Further, a focus on c u l t i v a t i o n i s c l e a r l y linked to a c u l t u r a l bias on the question of economic 123 • value. Accepting as a natural precept that there i s a duty to use resources e f f e c t i v e l y to enhance the common good does not necessarily lead to the conclusion that c u l t i v a t i o n i s a more e f f e c t i v e use than hunting and gathering or that the former i s more b e n e f i c i a l to others than the l a t t e r . As Gormley points out, methods of technology and productivity w i l l always vary between communities and a f a i l u r e to recognize t h i s would threaten 128 i n t e r s o c i e t a l s t a b i l i t y . Further, communities are valued today as "more than mere vehicles for the e f f i c i e n t production of wealth." 1 2 4 Only i f a community i s "hoarding and making grossly inadequate use of a large amount of resources while the s u r v i v a l or v i a b i l i t y of other communities i s threatened by t h e i r lack of access to such resources" w i l l land use be a natural j u s t i f i c a t i o n f o r i n t e r f e r i n g with t h e i r property r i g h t s . " In t h i s s i t u a t i o n , interference may very well be j u s t i f i e d for the sake of peace and s t a b i l i t y . In summary, V i t o r i a ' s view on occupancy and conquest are most i n d i c a t i v e of a natural law theory of aboriginal t i t l e . In accordance with t h i s theory Europeans were morally and l e g a l l y obliged to recognize that f i r s t use and occupancy established Indian ownership over Indian lands. Such lands were not capable of a c q u i s i t i o n through discovery and occupation but only through cession or p r e s c r i p t i o n . A l l other j u s t i f i c a t i o n s f o r a c q u i s i t i o n or interference can not be upheld against contemporary views of natural law which attempt to eliminate c u l t u r a l , r e l i g i o u s , r a c i a l and any other subjective bias. 3. Natural Law and B r i t i s h Jurisprudence The r o l e of natural law i n the law of nations and the property r i g h t s of indigenous peoples were considered by S i r William Blackstone (1723-1780) i n h i s Commentaries on the Laws of England. Blackstone's theory i s developed from a s e l e c t i v e a p p l i c a t i o n of p r i n c i p l e s enunciated by preceding philosophers of natural law. However, a d i s t i n c t i v e aspect of Blackstone's philosophy i s h i s r e l i a n c e on the Bible as a source of natural law. Blackstone distinguishes between laws dictated by a superior being that govern 1 2 9 t h e a c t i o n s o f a l l c r e a t u r e s and laws " i n t h e i r more c o n f i n e d sense" (human law) which he d e f i n e s as the "p r e c e p t s by which man . . a c r e a t u r e endowed w i t h both reason and f r e e w i l l , i s commanded t o make use o f those f a c u l t i e s i n the r e g u l a t i o n o f h i s • 126 • • • behaviour." Law i n the former sense i s the law o f nature which i s determined by the w i l l o f the maker and b i n d i n g on a l l c r e a t u r e s . These laws are i n n a t e i n man from t h e date o f h i s c r e a t i o n and r e g u l a t e h i s f r e e w i l l . They are d i s c o v e r e d through the f a c u l t y o f reason and are immutable. These laws have a l s o been r e v e a l e d i n p a r t through the Holy S c r i p t u r e s and d e c l a r e d by God h i m s e l f . Human laws are i n v a l i d i f they a re c o n t r a r y t o e i t h e r the law o f na t u r e o r the law of r e v e l a t i o n . 1 2 7 In B l a c k s t o n e ' s view, i f "man were t o l i v e i n a s t a t e o f nature, unconnected w i t h o t h e r i n d i v i d u a l s , t h e r e would be no o c c a s i o n f o r any o t h e r laws than the law o f nature and the law o f 128 God." However, he accepts t h a t man i s n a t u r a l l y i n c l i n e d t o s o c i a b i l i t y and t h e r e f o r e human laws are necessa r y . Because man i s not u n i t e d i n t o one g r e a t s o c i e t y , but many s o c i e t i e s , he argues t h a t a " t h i r d k i n d o f law" i s necessary t o r e g u l a t e mutual i n t e r c o u r s e . T h i s t h i r d law i s the law o f n a t i o n s which "depends e n t i r e l y upon the r u l e s o f n a t u r a l law, o r upon mutual compacts, t r e a t i e s , leagues, and agreements between s e v e r a l communities" which a r e a l s o r u l e d by the laws o f n a t u r e . 1 2 9 L i k e V i t o r i a , B l a c k s t o n e a c c e p t s the form a t i o n o f law through the consent o f n a t i o n s but views a l l laws as s u b j e c t t o a h i g h e r n a t u r a l a u t h o r i t y . B l a c k s t o n e ' s n a t u r a l p h i l o s o p h y o f law i n f l u e n c e s h i s o p i n i o n s on the o r i g i n s and a c q u i s i t i o n o f p r o p e r t y . B l a c k s t o n e d e f i n e s a 130 r i g h t o f p r o p e r t y a s " t h a t s o l e a n d d e s p o t i c d o m i n i o n w h i c h one man c l a i m s a n d e x e r c i s e s o v e r t h e e x t e r n a l t h i n g s o f t h e w o r l d , i n t o t a l e x c l u s i o n o f t h e r i g h t o f a n y o t h e r i n d i v i d u a l i n t h e u n i v e r s e . " 1 3 0 He a r g u e s t h a t t h e n a t u r a l s t a t e o f p r o p e r t y i s common p r o p e r t y a s t h e e a r t h was g i f t e d t o a l l m a n k i n d b y t h e C r e a t o r . I n a s t a t e o f p r i m e v a l s i m p l i c i t y , n a t u r e a n d r e a s o n g o v e r n r u l e s o f a c q u i s i t i o n s u c h t h a t h e who f i r s t a c q u i r e s t h e u s e o f a t h i n g , a c q u i r e s a " t r a n s i e n t p r o p e r t y " , r i g h t o f p o s s e s s i o n , o r " s o r t o f o w n e r s h i p " w h i c h c o n t i n u e s , t o t h e e x c l u s i o n o f o t h e r s , s o l o n g a s h e i s i n p o s s e s s i o n . I n t h i s p r o p e r t y r e g i m e i t i s u n j u s t , a n d c o n t r a r y t o n a t u r e , t o d r i v e o u t t h e p o s s e s s o r b y f o r c e , b u t o n c e h e q u i t s u s e a n d o c c u p a t i o n , h i s p r o p e r t y c a n b e • • . . . 131 . . . . • s e i z e d w i t h o u t i n j u s t i c e . I n t h i s d e s c r i p t i o n B l a c k s t o n e i s i n a g r e e m e n t w i t h p r e v i o u s l y e s t a b l i s h e d p r e c e p t o f n a t u r a l l a w t h a t f i r s t o c c u p a n c y c r e a t e s o r i g i n a l t i t l e t o p r o p e r t y . The m o s t i n t e r e s t i n g p a r t o f B l a c k s t o n e ' s a n a l y s i s i n t h e c o n t e x t o f h i s t h e o r y o f a b o r i g i n a l t i t l e i s he p o i n t s t o " t h e m a n n e r s o f many A m e r i c a n n a t i o n s when f i r s t d i s c o v e r e d b y t h e E u r o p e a n s " a s a n • 132 e x a m p l e o f t h i s n a t u r a l s t a t e . B l a c k s t o n e ' s t h e o r y o f o w n e r s h i p f o c u s e s o n t h e common g o o d s o f s t a b i l i t y a n d p e a c e . A l t h o u g h h e c l e a r l y a d o p t s t h e p r e c e p t o f r i g h t f u l o c c u p a t i o n o f p r e v i o u s l y u n o c c u p i e d l a n d s b y i n d i v i d u a l s a n d n a t i o n s , h e d i f f e r s f r o m o t h e r p h i l o s o p h e r s b y u s i n g t h e B i b l i c a l s t o r y o f t h e d i s t r i b u t i o n o f l a n d s among t h e s o n s o f A b r a h a m t o l e g i t i m i z e h i s p o s i t i o n . U s i n g t h i s same s t o r y h e a r g u e s f o r t h e r i g h t o f m i g r a t i o n a n d t h e d e v e l o p i n g o f c o l o n i e s when t h e m o t h e r c o u n t r y ( E n g l a n d ) i s o v e r i n h a b i t e d . L i k e V a t t e l , h e l i n k s a g r i c u l t u r e w i t h t h e c r e a t i o n o f a more p e r m a n e n t p r o p e r t y 131 r i g h t than use and occupation because of the necessity to feed an increasing population. 1 3 3 Admitting that seizure of vacant possession could not subsist as the only method of a c q u i s i t i o n i n a c i v i l i z e d society, Blackstone elaborates on the p o s i t i v e law of a c q u i s i t i o n of i n d i v i d u a l property r i g h t s developed i n the English l e g a l t r a d i t i o n such as succession on death, grants of t i t l e from the Crown, perfe c t i o n of t i t l e , t i t l e by descent, t i t l e by occupancy and t i t l e by p r e s c r i p t i o n . With the exception of h i s discussion on "that which i s subject to the laws of England" discussed below, he does not elaborate on the a p p l i c a t i o n of these p r i n c i p l e s i n the i n t e r n a t i o n a l sphere. However, i t i s worth mentioning h i s views on the a c q u i s i t i o n of r i g h t s through custom and p r e s c r i p t i o n as elements of h i s philosophy i n these areas can be seen i n subsequent jurisprudence on the question of aboriginal t i t l e . In h i s discussion of "rules and r e q u i s i t e s of proof r e l a t i n g to a p a r t i c u l a r custom," Blackstone asserts that the following must be established to make a p a r t i c u l a r custom good or l e g a l : 1 3 4 1. The custom must be immemorial; that i s , " i t has been used so long, that the memory of man runneth not to 135 the contrary." A statute to the contrary of a p a r t i c u l a r custom i s proof of a time when the custom did not e x i s t . 2. The custom must have continued without i n t e r r u p t i o n of the r i g h t . Interruption of possession only i s permissable but makes the custom more d i f f i c u l t to prove. 3 . The custom must be p e a c e f u l and a c q u i e s c e d i n ; not s u b j e c t t o c o n t e n t i o n and d i s p u t e . 4. The custom must not be unreasonable i n the sense t h a t a good l e g a l reason cannot be r a i s e d a g a i n s t i t . 5. The custom must be c e r t a i n . 6 . The custom be compulsive even though i t may have i n i t i a l l y been e s t a b l i s h e d by consent. 7. Customs must be c o n s i s t e n t . Two c o n t r a d i c t o r y customs cannot be good or stand t o g e t h e r . B l a c k s t o n e concludes h i s d i s c u s s i o n of custom by a s s e r t i n g t h a t customs i n d e r o g a t i o n of the common law must be c o n s t r u e d s t r i c t l y . 1 3 6 B l a c k s t o n e d i s t i n g u i s h e s custom from p r e s c r i p t i o n by s t a t i n g the former i s p r o p e r l y a l o c a l usage and the l a t t e r i s a p e r s o n a l usage. L i k e custom, the p r e s c r i p t i v e r i g h t i s dependant on immemorial usage. However, i n the case o f p r e s c r i p t i o n , l i m i t a t i o n s on a c q u i s i t i o n p r i o r t o the passage of a s p e c i f i e d p e r i o d of time have been imposed by s t a t u t e . F u r t h e r , the p o s i t i v e law on p r e s c r i p t i o n presupposes a g r a n t o f t i t l e t o have e x i s t e d p r i o r t o the c r e a t i o n o f p r e s c r i p t i v e r i g h t s . 1 3 7 B l a c k s t o n e ' s comments on the a c q u i s i t i o n of I n d i a n lands i n North America are v e r y b r i e f . Of the v a r i o u s t h e o r i e s , B l a c k s t o n e seems t o a c c e p t V a t t e l when he d i f f e r e n t i a t e s between the a b i l i t y t o a c q u i r e c u l t i v a t e d and u n c u l t i v a t e d lands by o c c u p a t i o n . In h i s d i s c u s s i o n o f t h e a p p l i c a t i o n of E n g l i s h laws i n North America, he notes t h a t d e s e r t and u n c u l t i v a t e d lands are c l a i m e d by occupancy o n l y and c u l t i v a t e d lands through conquest on t r e a t i e s o f c e s s i o n . 133 Given Blackstone's general opinion that o r i g i n a l possessor's cannot properly be deprived of t h e i r lands by force, i t i s su r p r i s i n g that he r e f e r s to conquest as a method of a c q u i s i t i o n . However, t h i s apparent c o n f l i c t i s resolved i f one l i m i t s h i s statement to an observation of l i m i t e d p r a c t i c e i n North America. I t i s c l e a r he i s not upholding the legitimacy of conquest when he e x p l i c i t l y states h i s intention not to inquire into the natural j u s t i c e of a c q u i s i t i o n i n t h i s manner.138 By including American Plantations i n the category of conquered or ceded t e r r i t o r i e s , Blackstone removes them from the category of t e r r a n u l l i u s . In doing so, he recognizes the r i g h t of aboriginal peoples to dominion over t h e i r own lands. However, he places l i m i t a t i o n s on t h e i r t e r r i t o r i a l sovereignty based on t h e i r i n f i d e l i t y . Although he does not use r e l i g i o n to deny aboriginals t h e i r natural r i g h t s to property as had been done by many of h i s predecessors, he does not go as f a r as V i t o r i a and attempt to remove r e l i g i o u s bias altogether. According to Blackstone, Indian laws only remain i n f u l l force u n t i l e x p l i c i t l y abrogated by the king. At the same time, Blackstone gives greater v a l i d i t y to aboriginal t i t l e by f a i l i n g to address any of V i t o r i a ' s arguments • • • 139 f o r legitimate t i t l e other than cession. The implications of Blackstone's opinions are that at the time of c o l o n i z a t i o n i n North America, B r i t i s h l e g a l theory supported natural theories of aboriginal t i t l e plus accepted that aboriginal s o c i e t i e s had s u f f i c i e n t p o l i t i c a l organization to assert t e r r i t o r i a l sovereignty. However, because of t h e i r i n f i d e l i t y , the l e g a l i t y of t h e i r own laws i s c a l l e d into question a f t e r the act of conquest or cession. The l a t t e r part of Blackstone's theory i s 134 c l e a r l y bias and unacceptable to modern philosophies of natural law. Further, t h i s aspect of h i s theory i s contrary to the form and content of Indian t r e a t i e s , the Marshall decisions and contemporary views on self-determination. 1 4 0 With the exception of the above r e v i s i o n to the law of nature, Blackstone upholds the two fundamental precepts of a natural law: 1. t i t l e to a s p e c i f i c parcel of land a r i s e s from o r i g i n a l and continued occupation of that land; and 2. i t i s contrary to the law of nature to seize someone else's property by force. Translated into a natural theory of aboriginal t i t l e (taking into consideration the d i s t i n c t i o n Blackstone makes between the natural j u s t i c e and p r a c t i c e of conquest) these precepts can be restated as follows: 1. Aboriginal t i t l e to a s p e c i f i c parcel of land a r i s e s from use and occupation of that land by indigenous s o c i e t i e s p r i o r to European settlement i n North America; and 2. I t i s contrary to the law of nature to extinguish aboriginal t i t l e of an aboriginal society without t h e i r consent. 4. Natural Law and B r i t i s h Practice Although i t may be presumptuous to suggest that natural law influenced government practice toward Indian peoples i n North America, i t i s c l e a r that by the 1700's i t had become s e t t l e d B r i t i s h p o l i c y to accept the l e g a l v a l i d i t y of Indian t i t l e and to acquire Indian lands by formal cession. Upon discovery of North 135 America, the B r i t i s h Crown authorized a c q u i s i t i o n and settlement of lands by issuing royal charters, l e t t e r s and patents to private i n d i v i d u a l s and trading companies. However, i n p r a c t i c e and law, these were held not to a f f e c t the l e g a l r i g h t s of indigenous people. I n i t i a l l y , lands were acquired from the Indians by privat e agreements or conquest. In the former case, agreements soon became more p o l i t i c a l i n nature and were entered between Indian t r i b e s and c o l o n i a l governments. In the l a t t e r case, the loss of land r i g h t s was addressed i n subsequent t r e a t i e s . As settlement progressed, j u r i s d i c t i o n over Indian a f f a i r s became more ce n t r a l i z e d and a formal recognition of B r i t i s h p o l i c y was required. This was accomplished through the promulgation of the Royal Proclamation of 1763 which confirmed treaty making as the method of B r i t i s h c o l o n i a l expansion i n Canada. 1 4 3 This method was eventually abandoned i n the United States, but remained the p r a c t i c e i n Canada u n t i l the mid-twentieth century when the p r a c t i c e was replaced by agreements put into force by l e g i s l a t i o n . In B r i t i s h Columbia, the p r a c t i c e was not adopted and the v a l i d i t y of a b o r i g inal t i t l e claims i s denied. 1 4 4 The Royal Proclamation of 1763 translated natural precepts of Indian t i t l e , t e r r i t o r i a l sovereignty and a c q u i s i t i o n of t i t l e through purchase into p r i n c i p l e s of p o s i t i v e law. At the same time, i t introduced an element of paternalism into the common law doctrine of aboriginal t i t l e by confirming a Crown monopoly on the a c q u i s i t i o n of Indian t e r r i t o r y , c e n t r a l i z i n g Indian a f f a i r s and c o n t r o l l i n g expansion into s p e c i f i e d areas. 1 4 5 Keeping i n mind the fundamental r i g h t to transfer one's own property and V i t o r i a ' s opinion on the issue of voluntary consent, the p a t e r n a l i s t i c 136 elements are d i f f i c u l t to uphold i n natural law without exercising an a r b i t r a r y preference as to community. Granted, the r e s t r i c t i o n on a l i e n a t i o n to private c i t i z e n s might be upheld on the basis of protecting Indian s o c i e t i e s from mistreatment by private c i t i z e n s . I t i s more d i f f i c u l t to uphold the v a l i d i t y of t r e a t i e s with the Crown where land i s given i n fear or ignorance without arguing that the s u r v i v a l of one c i v i l i z a t i o n i s more desirable than another. I t i s beyond the scope of t h i s t h e s i s to examine the moral v a l i d i t y of s p e c i f i c treaty negotiations. The point here i s that recognition of Indian t i t l e and a c q u i s i t i o n through voluntary surrender became a part of B r i t i s h p o s i t i v e law and B r i t i s h p r a c t i c e i n North America. In the Royal Proclamation, B r i t a i n declares sovereignty or suzereignty over a l l Indians "with whom [the Crown] i s connected." One could argue that t h i s assertion of sovereignty does not a f f e c t a b o r i ginal t i t l e but indicates that the B r i t i s h no longer recognized native t e r r i t o r i a l sovereignty and the c a p a b i l i t y of Indian nations to enter international l e g a l r e l a t i o n s . However, given the continued practice of treaty making and the content of t r e a t i e s entered subsequent to 1763, the Proclamation i s best understood as declaring a r i g h t to sovereignty v i s a v i s other colonizers and e s t a b l i s h i n g B r i t i s h p o l i c y of consensual a c q u i s i t i o n of native lands. The language of the Royal Proclamation also suggests that the B r i t i s h may have been declaring a c o l o n i a l protectorate and thus the r i g h t to annex the protected t e r r i t o r i e s to i t s Dominion. This r i g h t was enforceable only against other European powers. Regardless of the Proclamation, the rules of i n t e r n a t i o n a l law required continued and peaceful 137 sovereignty over uninhabited lands, cession or conquest of inhabited lands to accomplish annexation. 1 4 6 This analysis of the proclamation f i t s with the practice of acquiring lands and j u r i s d i c t i o n through treaty as lands were required and the view of the r e l a t i o n s h i p between the Indian nations and the B r i t i s h Government adopted by Chief J u s t i c e Marshall i n the Worcester ~ = 147 case. The form and content of Indian t r e a t i e s v a r i e s throughout North America. In the Maritimes where settlement was prevented because of f i g h t i n g between the B r i t i s h and the Indians, t r e a t i e s were pr i m a r i l y p o l i t i c a l i n nature and were aimed at obtaining peace and a l l i a n c e . 1 4 8 Other t r e a t i e s such as those entered with the Six Nations Confederacy established a l l i a n c e s , trade r e s t r i c t i o n s and boundaries c r u c i a l to the B r i t i s h competition with France i n North America. 1 4 9 Some e x p l i c i t l y address the question of sovereignty. For example, the treaty of 1778 between the United States and the Delaware Nation e x p l i c i t l y recognizes the power of the Delaware to make peace and war, provides f o r the passage of American troops through Delaware country and recognizes the criminal j u r i s d i c t i o n of the Delaware nation over t h e i r own • • 150 . . . • • c i t i z e n s . Early New Zealand and maritime t r e a t i e s have s i m i l a r p o l i t i c a l and inte r n a t i o n a l law c h a r a c t e r i s t i c s . In Canada, the t r e a t i e s entered with the Indians f a l l into s i x general categories; (a) the maritime t r e a t i e s ; (b) the t r e a t i e s concluded i n southern Ontario between 1764 and 1850; (c) the t r e a t i e s concluded on Vancouver Island i n the 1850s 1 (d) the numbered t r e a t i e s and adhesions covering areas of Ontario, the Northwest T e r r i t o r i e s and a l l of the p r a i r i e s provinces; (e) 138 s p e c i f i c t r e a t i e s between authorized i n d i v i d u a l s or companies and the Indians; and (f) modern land claims settlements. Although t r e a t i e s executed by the Government of Canada between 1871 and 1961 expressly indicate a goal of peaceful r e l a t i o n s , only the Maritime t r e a t i e s contain s p e c i f i c provisions on p o l i t i c a l r e l a t i o n s . Most of the t r e a t i e s dealt with the transfer of s p e c i f i c lands. 1 5 1 As i n the United States, the B r i t i s h and Canadian governments passed l e g i s l a t i o n confirming the treaty making process. Unlike the United States, Canada has c o n s t i t u t i o n a l l y recognized the continuing e f f i c a c y of t h i s p o l i c y . 1 5 2 I t has been argued that the practice of entering t r e a t i e s was purely p r a c t i c a l i n i t s inception and cannot be taken as recognition of l e g a l or p o l i t i c a l r i g h t s . Peaceful a c q u i s i t i o n avoided wars which resulted i n loss of l i v e s and money, both scarce resources i n the c o l o n i e s . 1 5 3 Although t h i s argument c a r r i e s some strength i n the context of o r i g i n a l settlement i n New England and the Maritimes, i t weakens i n the context of continual pattern of treaty making i n the United States i n 1871 and Canada u n t i l the present day. Regardless of the "raison d'etre" behind B r i t i s h p r actice, the pr a c t i c e concurs with natural theories of property r i g h t s . 5. Concluding Remarks The above discussion i l l u s t r a t e s that pre-nineteenth century theories of a c q u i s i t i o n and aboriginal t i t l e developed i n the context of fundamental precepts of natural law and a natural i n t e r p r e t a t i o n of p o s i t i v e laws governing property r i g h t s . The d i r e c t l i n k between natural interpretations of property regimes 139 and aboriginal t i t l e was made by philosophers of the sixteenth century who attempted to r a t i o n a l i z e the legitimacy of European settlement i n North America. Although there were c l e a r differences of opinion on the question of aboriginal t i t l e , the views of V i t o r i a and V a t t e l predominated and are r e f l e c t e d i n B r i t i s h l e g a l t r a d i t i o n of the eighteenth century. Despite the influence of V a t t e l , B r i t i s h l e g a l theory recognized the natural r i g h t s of aboriginal peoples a r i s i n g from use and occupation. Although a c l e a r r e l a t i o n s h i p between the theories of V i t o r i a , Blackstone and B r i t i s h c o l o n i a l p r a c t i c e i s yet to be established, taken together or separately, each supports an argument for the natural o r i g i n s of a b o r i g inal t i t l e . The natural o r i g i n s of aboriginal t i t l e are upheld i n early American and contemporary Canadian case law. However, from the mid-nineteenth to mid-twentieth centuries, Canadian courts l o s t sight of the natural o r i g i n s of aboriginal t i t l e and began to d i s t o r t or r e j e c t the natural theory of aboriginal t i t l e . P o sitivism became the p r e v a i l i n g general view of the l e g a l system and the court took on a f a c t - f i n d i n g and law-applying r o l e . In the United States, associated with positivism was the e l e c t i o n of judges "so that judges, l i k e l e g i s l a t o r s , would be more responsive to p u b l i c wishes." 1 5 4 Although the Canadian l e g a l system continued to uphold the separation of the court form the e l e c t o r a l process, the appointment of the j u d i c i a r y by government continues to ensure that the court w i l l uphold the majority view. In the area of t i t l e claims, judges themselves seemed to adopt a more p o s i t i v i s t view by r e l y i n g on l e g i s l a t i o n and a s e l e c t i v e a p p l i c a t i o n of English, American and Canadian precedent to 140 l e g i t i m i z e t h e i r opinions. The " s u i generis" character of Aboriginal t i t l e was l o s t i n the reliance on p o s i t i v e law and a f a i l u r e to consider the legitimacy of aboriginal r i g h t s as independent l e g a l r i g h t s . The d i s t o r t i o n of natural r i g h t s i s p a r t i c u l a r l y evident i n early Canadian decisions on the source of aboriginal t i t l e and more recent decisions on questions of proof and extinguishment. The decision of the Supreme Court of Canada i n Calder v. A.G. of B.C. s i g n a l l e d a s e l e c t i v e movement back to f i r s t p r i n c i p l e s 1 5 5 by recognizing the natural o r i g i n s of t i t l e claims. Subsequent decisions of the lower courts followed t h i s lead, but only i n the area of the source of aboriginal t i t l e . The most recent statement of the Supreme Court i n the Guerin decision suggests that the Court i s w i l l i n g to reconsider the question of aboriginal t i t l e and the appropriateness of applying B r i t i s h and Canadian p o s i t i v e law to define aboriginal r i g h t s . 1 5 6 The remainder of t h i s chapter w i l l i l l u s t r a t e these patterns i n the development of Canadian jurisprudence on aboriginal t i t l e by analyzing decisions frequently r e l i e d upon i n attempts to present a Canadian theory of aboriginal t i t l e . I l l Natural Law and the Common Law Doctrine of Aboriginal T i t l e Canadian law on aboriginal t i t l e i s influenced by two separate p o s i t i v e l e g a l t r a d i t i o n s . S i g n i f i c a n t emphasis i s placed on early American decisions but, as w i l l be seen, a misunderstanding of the evolution of the Marshall court on the o r i g i n s of t i t l e has resulted i n r e l i a n c e on doctrines severely modified by subsequent r u l i n g s . Of l e s s e r influence, but worthy of mention, are more 141 recent Commonwealth au t h o r i t i e s which are inconsistent i n t h e i r treatment of aboriginal t i t l e as a natural r i g h t . 1. The American Doctrine The question of aboriginal t i t l e i n North America was addressed f o r the f i r s t time by the Marshall court i n 1810 i n the case of Fletcher v. Peck. 1 5 7 Although the case was l i t i g a t e d by non-aboriginal p a r t i e s , one of the issues f o r the court to determine was whether the State of Georgia could convey a property i n t e r e s t i n lands that were subject to a claim of Indian t i t l e . Counsel f o r Peck argued that Indians overran, rather than inhabited, the lands and therefore d i d not have true and l e g a l possession of t h e i r lands. These arguments c l e a r l y r e f l e c t V a t t e l ' s c u l t u r a l bias concerning land tenure. This i s not s u r p r i s i n g as one of the counsel for Peck was John Quincy Adams who had been elaborating on V a t t e l ' s theory for some time. 1 5 8 In h i s view, "by v i r t u e of the c u l t u r a l s u p e r i o r i t y of European i n s t i t u t i o n s , the law of nations characterized the t r a n s f e r of lands from aboriginal peoples to the European s e t t l e r colonies as a natural law transaction that should not be impeded." 1 5 9 The opinion of the court was rendered by J u s t i c e Marshall who f e l t the main issue was a p o t e n t i a l f i g h t between Georgia and the United States over j u r i s d i c t i o n of lands. 1 6 0 Although he generally ignored the pleadings on the nature of Indian t i t l e , he asserted that Indian t i t l e should be respected by the courts u n t i l i t i s l e g i t i m a t e l y extinguished and i t i s not repugnant to s e i s i n i n fee on the part of the s t a t e . 1 6 1 Marshall did not elaborate on the l e g a l foundations of t h i s conclusion. In the dissent, J u s t i c e 142 Johnson argued against compatibility and upheld Indians as sovereign nations and absolute owners of t h e i r lands. He argued that the United States acquired nothing but a r i g h t of conquest or purchase exclusive to a l l other competitors. I r o n i c a l l y , the same view i s espoused by Marshall twenty two years l a t e r i n the decision of Worcester v. Georgia, except conquest as a method of a c q u i s i t i o n i s c l e a r l y r e j e c t e d . 1 6 3 The above discussion i l l u s t r a t e s that natural law was argued and accepted by the court as l e g a l argument i n the early 1800s. The extent to which the p o s i t i o n of John Quincy Adams concurs with fundamental precepts of natural law need not be addressed as they are based on the philosophies of V a t t e l which have been examined i n d e t a i l e a r l i e r i n t h i s chapter. Johnson's dissent amounts to an endorsement of natural r i g h t s a r i s i n g from o r i g i n a l use and occupation, but deviates from more contemporary views on the legitimacy of conquest. Marshall's simple statement i s loaded with implications that have been repeated continually i n t i t l e cases namely: Indian t i t l e e x i s t s , the government has power to extinguish i t , and the government has paramount property r i g h t s i n the land. 1 6 4 The extent to which t h i s p o s i t i o n v i o l a t e s p r i n c i p l e s of natural law i s discussed i n the context of the St. Catherine's M i l l i n g case, i n f r a . Chief J u s t i c e Marshall i s given a second opportunity to consider the questions of aboriginal t i t l e i n a s e r i e s of three cases beginning i n 1823. Read together, these decisions r e f l e c t a progression of thought on theories of a c q u i s i t i o n and Indian sovereignty. This reading of the Marshall t r i l o g y i s supported by close examination of the i n d i v i d u a l cases and statements i n the 143 f i n a l decision which c l a r i f y r u l ings or overrule p r i o r inconsistent statement. In i t s f i n a l form, Marshall's theory concurs i n the main with fundamental precepts of natural law and, i n the view of the American scholar F e l i x Cohen, can be traced " p a r t i c u l a r l y to the doctrines of Francisco de V i t o r i a , the r e a l founder of modern int e r n a t i o n a l law." 1 6 5 In Johnson v. M'Intosh (1823), Chief J u s t i c e Marshall invokes the doctrine of discovery to l i m i t the authority of aboriginal people over t h e i r t e r r i t o r i e s . He argues that discovery of lands i n North America gave the European discoverer t i t l e to the lands discovered and the r i g h t to extinguish Indian r i g h t s of occupation by conquest or cession. Assuming the l e g a l v a l i d i t y of t h i s p o s i t i o n , he states that Indian r i g h t s to sovereignty must necessarily be diminished on discovery thereby l i n k i n g the expansion of sovereignty to the a c q u i s i t i o n of t i t l e . Rather than support h i s assertions, he invokes the " p o l i t i c a l question doctrine" s t a t i n g that the courts have not investigated, and should not investigate, the l e g a l v a l i d i t y of the Crown's t i t l e . 1 6 6 I t i s worth considering t h i s decision i n some d e t a i l as Marshall's views on discovery, occupancy, dominion and conquest are continually quoted to l i m i t and even deny aboriginal peoples a proprietary i n t e r e s t i n t h e i r lands despite the f a c t that Marshall overrules himself l e s s than ten years l a t e r . I t i s most often c i t e d i n Canadian decisions as a common law precedent for recognition of a l e g a l r i g h t to sue f o r t r i b a l lands based on a b o r i g i n a l possession. The extensive powers granted to the discovering nation also provide the foundations f o r the p r i n c i p l e that a b o riginal t i t l e can be u n i l a t e r a l l y extinguished by the 144 Crown. The acceptance of the theory of t i t l e set out i n Johnson v. M'Intosh without considering the remainder of the Marshall t r i l o g y i s probably the greatest contributing factor to the subsequent d i s t o r t i o n of f i r s t p r i n c i p l e s by the Canadian courts. In Marshall's i n i t i a l opinion, American t i t l e to Indian lands i s rooted i n discovery. He argues that i n order to avoid c o n f l i c t and war, a l l nations agreed to be bound by p r i n c i p l e s of discovery. According to t h i s p r i n c i p l e : 1. discovery gave t i t l e to the government by whose subject or authority i t was made to the exclusion of other European governments; 2. exclusion of the Europeans gave the discovering nation sole r i g h t of a c q u i s i t i o n and settlement; 3. r e l a t i o n s to e x i s t between the discoverer and the natives were regulated by themselves; 4. discovery necessarily diminishes Indian sovereignty; 5. the r i g h t of Indian peoples to t r a n s f e r t h e i r t i t l e was necessarily l i m i t e d by the f a c t that discovery gave exclusive t i t l e to the discovering nation; 6. the nature of the t i t l e acquired by discovery gave the discoverer r i g h t to grant the s o i l ; and 7. discovery gives the r i g h t to extinguish aboriginal t i t l e by purchase or conquest. 1 6 7 The most basic objection to Marshall's theory i s i t i s contrary to h i s t o r i c a l practice and without l e g a l foundation. F i r s t , the colonization practices of various European nations i l l u s t r a t e s that they were not i n agreement that discovery gave 168 sole r i g h t s to the discoverer. Even i f agreement could be 145 established, p u b l i c i s t s were i n general agreement that i t was purely a d i s t r i b u t i o n a l p r i n c i p l e and had no e f f e c t on Indian t i t l e . There i s nothing e x p l i c i t or i m p l i c i t i n the opinion of p u b l i c i s t s to suggest discovery gave absolute dominion to the discoverer. Further, both p u b l i c i s t s and contemporary in t e r n a t i o n a l jurisprudence assert that discovery alone i s i n s u f f i c i e n t to grant t i t l e , i t must be coupled with e f f e c t i v e occupation, or i n the case of inhabited lands, land must be purchased. 1 7 0 Even England, which i s referred to by Marshall as a supporter of the discovery p r i n c i p l e , modified the p r i n c i p l e to s u i t i t s national purpose. In responding to Spain's claim i n the New World, Queen Elizabeth asserted that symbolic possession i s not enough as p r e s c r i p t i o n without actual possession i s i n v a l i d . 1 7 1 F i n a l l y , even i f one accepts that discovery gives the r i g h t to grant t i t l e , i t was s e t t l e d English law that such grants d i d not a f f e c t Indian t i t l e . In Johnson, Marshall also upholds the legitimacy of conquest. He argues that conquest gives an absolute t i t l e which i s acquired and maintained by force. Rather than support h i s conclusion with precedent or l e g a l theory, he invokes what i s now referred to as the p o l i t i c a l question doctrine. According to t h i s doctrine the courts w i l l not rule on the v a l i d i t y of laws on c e r t a i n subject matters. 1 7 2 Further, Marshall's a p p l i c a t i o n of the theory of conquest to the United States i s d i f f i c u l t to sustain i n face of the f a c t that most of North America was surrendered by cession. Rather than deal with t h i s apparent contradiction, he invokes the p o l i t i c a l question doctrine: 146 However extravagant the pretention of converting discovery of an inhabited country into conquest may appear, i f the p r i n c i p l e has been asserted i n the f i r s t instance, and afterwards sustained; i f a country has been acquired and held under i t ; i f the property of the great mass of the community originates i n i t , i t becomes law of the land and cannot be questioned. 1 7 3 Marshall's manipulation of the discovery p r i n c i p l e and the r i g h t of conquest cannot be attr i b u t e d to an ignorance of the natural law or law of nations as i t was perceived at that time. Not only was t h e i r extensive l i t e r a t u r e on the r i g h t s of non- European peoples, but writings of philosophers such as V a t t e l , Grotius and Puffendorf were introduced i n the pleading of Fletcher v. Peck and Johnson v. M'Intosh. 1 7 4 Marshall's j u d i c i a l c r e a t i v i t y can only be understood i f placed i n i t s h i s t o r i c a l context. As one author puts i t : The Indian t i t l e concept was born i n an era of America's development when the Supreme Court was p o l i t i c a l l y constrained to respect the power of the other branches of Government and to recognize the national imperative to c l e a r the young nation's vast lands of adverse t i t l e s which threatened to impede westward expansion. 1 7 5 The legitimacy of conquest as a precept of natural law has already been examined. T i t l e by discovery of inhabited lands i s c l e a r l y contrary to the assumption that one should respect the ri g h t s of f i r s t occupants without introducing arguments based on land use, nature of community, r e l i g i o n , an ethnocentric view of the common good or some other bias which could not be sustained under contemporary views. Further, the j u s t i f i c a t i o n of the common law p r i n c i p l e that a l l t i t l e derives from a grant of the sovereign by r e l y i n g on theories of discovery and conquest i s contradictory to the assumption that o r i g i n a l occupants have absolute t i t l e i n the s o i l u n t i l t h e i r r i g h t s are abandoned or v o l u n t a r i l y 147 surrendered. The concept of absolute dominion by discovery and conquest i s repudiated by Chief J u s t i c e Marshall only nine years l a t e r i n the Worcester decision. Given Marshall's c l e a r reversal on the questions of discovery, dominion and conquest one i s l e f t wondering whether Johnson v. M'Intosh should be given any weight i n developing a theory of aboriginal t i t l e . I t i s argued that rather than ignore h i s theory outright, i t should be "analyzed i n l i g h t of modern h i s t o r i c a l 176 understanding, so that i t s useful elements may be salvaged." I f one takes t h i s approach, the only useful element of Marshall's theory that can be l e g i t i m i z e d i n both the natural and p o s i t i v i s t t r a d i t i o n s are h i s views on Indian t i t l e . In h i s view, i t i s a l e g a l r i g h t based on aboriginal possession and i t includes a complete prerogative of Indian nations to determine t h e i r own systems of land tenure. 1 7 7 Unfortunately, even t h i s theory of Marshall's has been used to l i m i t the propriety r i g h t s of the Indians by focusing on Marshall's description of Indian t i t l e as a r i g h t of occupancy, which i n p o s i t i v e law i s l e s s than fee simple but i n natural law c a r r i e s the r i g h t s of absolute ownership 178 assuming occupancy i s of previously unoccupied lands. Recognizing that r e s t r i c t i o n s on Indian t i t l e may be opposed to natural r i g h t s , Marshall's stated intention i s only to l i m i t Indian t i t l e to the extent that i t can be transferred to others. 1 7 9 Eight years l a t e r i n the Cherokee case, Marshall addresses the * 180 question of Indian t e r r i t o r i a l and national sovereignty. A motion was brought on behalf of the Cherokee Nation f o r an injunction to prevent the execution of l e g i s l a t i o n passed by the State of Georgia which had the e f f e c t of extending State laws over 148 Cherokee t e r r i t o r y , s e i z i n g Cherokee lands and abolishing Cherokee laws. The motion was brought pursuant to A r t i c l e I I I , section 2 of the United States Constitution which gives the Supreme Court j u r i s d i c t i o n over disputes between "the state or c i t i z e n s thereof, and foreign states, c i t i z e n s or subjects." The Court held that the Cherokee could not invoke the j u r i s d i c t i o n of the court pursuant to t h i s clause because they were not a "foreign state" i n the sense that the term i s used i n A r t i c l e I I I . The merits of the a p p l i c a t i o n were not considered. To support h i s opinion, Mr. J u s t i c e Marshall reasons: nations not owing a l l i a n c e to each other are foreign to each other; by admission, Cherokee t e r r i t o r i e s are within the t e r r i t o r i a l boundaries of the United States; i n foreign dealings Indians are considered within United States j u r i s d i c t i o n ; the t r e a t i e s with the Cherokee evidence common reliance through l i m i t a t i o n s on Cherokee sovereignty and an o f f e r of protection from the United States; A r t i c l e I I I , clause 8 of the Constitution i d e n t i f i e s Indian t r i b e s separate from foreign nations; and the question of approaching the court to remedy a wrong l i k e l y never entered the minds of the Indians when the c o n s t i t u t i o n was framed. Consequently, the framers of the l e g i s l a t i o n could not have intended to include Indian t r i b e s i n the term "foreign nations". This i s "not because a t r i b e may not be a nation, but because i t 181 i s not foreign to the United States." Recognizing the unique r e l a t i o n s h i p of a b original t r i b e s to the United States, Marshall analogizes the r e l a t i o n s h i p to that of a ward to h i s guardian and re f e r s to Indian nations as "domestic 182 • dependant nations." Although t h i s statement i s quoted to support 149 l i m i t a t i o n s on, or denial of, Indian sovereignty; i t i s best understood as a geographical conclusion which i s l e g a l or p o l i t i c a l to the extent that i t recognizes the protectorate status of the Cherokee nation. The tenor of the judgment i s most c l e a r l y stated i n the dissent of Mr. J u s t i c e Thompson as follows: . . . I do not understand i t i s 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 C o n s t i t u t i o n . 1 8 3 The proposed reading i s supported by the judgments of Marshall and Johnson. At the beginning of h i s opinion, Chief J u s t i c e Marshall states counsel has been "completely successful" i n persuading the court that the Cherokee are a " d i s t i n c t p o l i t i c a l society" and that t r e a t i e s and laws enacted pursuant thereto " p l a i n l y recognize the Cherokee Nation as a State." 1 8 4 Mr. J u s t i c e Johnson takes exception to t h i s f inding and argues that the Cherokee do not have the character of a state consistent with e n t i t i e s admitted to the family of nations; i f they were recognized as a state, they were not recognized by any nation other than the United States (which i s i n s u f f i c i e n t to p u l l them within the family of nations); and they were incapable of becoming a state because Great B r i t a i n acquired sovereignty upon discovery of North America. 1 8 5 These arguments are addressed one year l a t e r by Chief 186 J u s t i c e Marshall i n Worcester v. Georgia. The s i g n i f i c a n c e of t h i s decision i n the area of property r i g h t s i s twofold. As explained e a r l i e r , a school of thought was developing at t h i s time l e g i t i m i z i n g the exclusion of Indians from p r i n c i p l e s of the law of nations (derived from laws of nature) on the ground of i n s u f f i c i e n t p o l i t i c a l organization to be recognized 1 5 0 as states i n the international sense. I n s u f f i c i e n t p o l i t i c a l organization also meant t h e i r lands were terrae n u l l i u s and t i t l e and sovereignty could be acquired by a discovering nation through 187 • • • occupancy. The Cherokee decision can be used i n 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 v a l i d method of acquiring t h e i r lands i s through treaty, a p r a c t i c e that predominated i n i n t e r n a t i o n a l r e l a t i o n s of that time. Before leaving the Cherokee decision, a b r i e f word should be said about the characterization of the Cherokee as a domestic dependant nations which seems incompatible with t h e i r recognition as a nation i n the international sense. This inconsistency can be resolved through a temporal d i s t i n c t i o n on the basis that external sovereignty i s l o s t 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 s t i l l be considered an i n t e r n a t i o n a l agreement). Afterwards, they are dependant i n the sense that sovereignty i s l o s t . However, Marshall's statements i n Worcester suggest t h i s i s reading too much into the analogy. He elaborates on the p e c u l i a r i t y of the r e l a t i o n s h i p between the Indians and the United States as follows: . . .the s e t t l e d doctrine of the law of nations i s that a weaker power does not surrender i t s independence - i t s r i g h t to self-government by associating with a stronger and taking i t s protection . . Examples of t h i s kind are not wanting i n Europe. 'Tributary and feudatory states' says V a t t e l , 'do not thereby cease to be sovereign and independent states so long as self-government and sovereign and independent authority are l e f t i n the 151 Marshall concludes that the Cherokee retained c e r t a i n aspects of sovereignty which could not l e g a l l y be removed by the State i n absence of agreement. His p o s i t i o n on l i m i t e d external sovereignty i s consistent with the concept of sovereignty or protectorate status i n i n t e r n a t i o n a l law. The case of Worcester v. Georgia represents a culmination of an evolving theory on aboriginal t i t l e and sovereignty. In Worcester,, a missionary was charged with r e s i d i n g i n Cherokee t e r r i t o r y contrary to the laws of Georgia. The court held that the laws of Georgia were inapplicable within Cherokee t e r r i t o r y . Marshall r e j e c t s h i s e a r l i e r theory that t i t l e and sovereignty were acquired by the B r i t i s h at the time of discovery. He emphasizes that discovery may have affected r i g h t s v i s - a - v i s the European powers, but Indian r i g h t s could only be diminished through voluntary purchase and surrender. By overruling h i s previous views on discovery, he removes the j u s t i f i c a t i o n f o r the assumption that sovereignty i s necessarily diminished. Rather, he suggests that aspects of sovereignty may be surrendered pursuant to terms of a treaty (eg. r e s t r i c t i o n s on trade and alienation) but t h i s does not necessarily have the e f f e c t of destroying i n t e r n a l self-government or preventing Indian nations from exercising powers not relinquished. Considering both the terms of the various t r e a t i e s with the Cherokee and the fact of repeated t r e a t i e s with them, he upholds Cherokee sovereignty. This reasoning r e f l e c t s the natural philosophies of V i t o r i a and accords with p r i n c i p l e s of 189 i n t e r n a t i o n a l law r e l a t i n g to dependant or vassal states. Marshall begins h i s repudiation of the theory that dominion and sovereignty were acquired on discovery by admitting i t i s 152 d i f f i c u l t to comprehend the legitimacy of a proposition that "the inhabitants of ei t h e r quarter of the globe could have r i g h t f u l o r i g i n a l claims of the dominion over the inhabitants of the other, or over the lands they occupied" or that the discoverer acquired r i g h t s "which annulled the pre-existing r i g h t s of i t s ancient 190 • • possessors." Although he continues to assert that discovery was a p r i n c i p l e respected by European nations he c l a r i f i e s that i t did not a f f e c t the ri g h t s of those already i n possession "as aboriginal occupants, or as occupants by v i r t u e of discovery made before the 191 • • * • • • memory of man." By t h i s q u a l i f i c a t i o n , Marshall upholds o r i g i n a l occupation and p r e s c r i p t i o n as legitimate o r i g i n s of property r i g h t s . However, because he continues to uphold discovery as a legitimate exclusionary p r i n c i p l e , he does not change h i s p o s i t i o n on the i n a b i l i t y of aboriginals to tra n s f e r t h e i r lands to anyone other than the discovering nation. The r i g h t of the discoverer was • • • • • 192 not dominion, but simply a pre-emptive r i g h t of purchase. Marshall removes the second basis for upholding absolute dominion i n the Crown by s p e c i f i c a l l y repudiating h i s previous views on conquest. He c l a r i f i e s that the p o l i c y of B r i t a i n was not one of t i t l e by conquest but t i t l e by purchase. Although he admits the existence of some Indian warfare, he analyzes the r i g h t of the government to make war i n the context of "just cause" rather than conquest. 1 9 3 The Worcester decision also contains s i g n i f i c a n t statements on the question of aboriginal sovereignty. I t i s beyond the scope of t h i s t h e s i s to examine sovereignty i n any depth. However, a summary of Marshall's views on t h i s point are r e f l e c t e d i n the 153 following quotation upholding the natural r i g h t of the Cherokee Nation: The Indian nations had always been considered as d i s t i n c t , independent p o l i t i c a l communities r e t a i n i n g t h e i r o r i g i n a l natural r i g h t s , as the undisputed possessors of the s o i l from time immemorial, with the single exception of that imposed by i r r e s i s t i b l e power, which excluded them from intercourse with any other European potentate than the f i r s t discoverer of the coast of the p a r t i c u l a r region claimed: and t h i s was a r e s t r i c t i o n 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 i n our diplomatic and l e g i s l a t i v e proceedings, by ourselves, having each a d e f i n i t e 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 a l l i n the same sense. 1 9 4 The court notes that f i n a l word of the concept of t i t l e a r i ses from modes of usage foreign to European systems and includes communal tenure as an aspect of occupancy r i g h t s . The court affirms that Indians were considered to own t h e i r lands i n common • . 1 9 5 • • by a "perpetual r i g h t of possession" and that Indian possession or occupation was considered with reference to t h e i r modes of l i f e ; " t h e i r hunting-grounds were as much i n t h e i r actual possession as the cleared f i e l d s of the whites." The above discussion reveals that natural law played a s i g n i f i c a n t r o l e i n developing the f i r s t p o s i t i v e law on aboriginal t i t l e . Not only were precepts of natural law r e c i t e d i n the pleadings before the court, they were also eventually mirrored i n p r i n c i p l e s enunciated by the Marshall court. By 1832, the United States Supreme Court upheld the pre-existing natural r i g h t s of Indian peoples and translated V i t o r i a ' s views on occupancy into p o s i t i v e law. The only c o n f l i c t i n g p r i n c i p l e with contemporary philosophies was the acceptance of discovery as an exclusionary 154 p r i n c i p l e accepted by nations and the r e s t r i c t i o n placed on a l i e n a t i o n . Even t h i s p o s i t i o n i s hard to r a t i o n a l i z e as l i m i t i n g a b o r i ginal r i g h t s because the effectiveness of the exclusionary p r i n c i p l e l i e s i n the absence of other buyers, not the i n a b i l i t y of the Indians to s e l l . By 1835, the d i s t i n c t i o n between c u l t i v a t e d lands and uncultivated lands introduced by V a t t e l was rejected. The f i n a l theory enunciated i n Worcester i s i n complete harmony with contemporary philosophies of natural law which re j e c t s ethnocentric bias, upholds i n t e r - s o c i e t a l agreements and emphasizes the r o l e of community autonomy i n the d e f i n i t i o n of "common good." Unfortunately, t h i s doctrine was formalized at a time when the p o l i t i c a l p r a c t i c e of the United States was moving toward domestication of Indian a f f a i r s . In 1830, Congress passed the Indian Removal Act. 4 Stat. 211, which provided f o r the removal of t r i b e s from the eastern shores. Despite the r u l i n g i n Worcester, president Jackson f o r c i b l y removed the Cherokee from t h e i r lands. 1 9 7 P o l i c y changed to favour the exercise of d i r e c t c o l o n i a l power over native nations. This p o l i c y was augmented through l e g i s l a t i o n which had the e f f e c t of gradually wearing away Indian sovereignty 198 and eventually the treaty making process was brought to an end. 2. The Commonwealth Doctrine The s i g n i f i c a n t decisions rendered by courts of the B r