"Law, Peter A. Allard School of"@en . "DSpace"@en . "UBCV"@en . "Bell, Catherine Edith"@en . "2010-08-13T03:33:44Z"@en . "1989"@en . "Master of Laws - LLM"@en . "University of British Columbia"@en . "This thesis is a legal analysis of the origin and persistence of Metis aboriginal title as an independent legal right. The popular doctrine of aboriginal title is rejected in favour of the natural rights of the Metis and first principles of aboriginal title. A theory of Metis title is developed through the examination of:\r\n1. the inclusion of Metis peoples in s.35(2) of the Constitutional Act. 1982;\r\n2. jurisdiction over Metis claims;\r\n3. natural rights of indigenous peoples and the recognition of natural rights in domestic and international positive law;\r\n4. natural rights of the Metis Nation of Manitoba; and\r\n5. the persistence of Metis title in the face of unilateral and consensual acts of extinguishment.\r\nThe examination of natural rights reveals an increased importance of natural theories in aboriginal title cases. These theories provide the basis upon which Metis claims to title can be linked to aboriginal title claims and doctrines of extinguishment can be re-examined."@en . "https://circle.library.ubc.ca/rest/handle/2429/27349?expand=metadata"@en . "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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 90 i \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 # 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 103 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 . . . 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 68 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 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, \u00E2\u0080\u00A2Inuitness 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 . \u00E2\u0080\u00A2 . \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 126 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 . . . 131 . . . . \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 150 . . . \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 * \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 \u00E2\u0080\u00A2 . 1 9 5 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 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 i t i s h Commonwealth are divided between those that uphold natural o r i g i n s of a b o r i g i n a l t i t l e and those that assert the need f o r l e g i s l a t i v e recognition or at l e a s t elements of t i t l e provable i n a court of law. In Symmonds. Mr. J u s t i c e Chapman upholds that aboriginal t i t l e does not originate i n the sovereign, but i n occupancy since 155 time immemorial. In h i s view, the law requires i f such t i t l e i s to be extinguished, i t must be by f a i r purchase. This doctrine was approved by the privy council i n Nireaha Tamaki v. Baker which at the same time refused to consider the Marshall d e c i s i o n s . 2 0 0 This r e f l e c t e d the 19th century practice of the J u d i c i a l Committee of the Privy Council and B r i t i s h courts to consider United States a u t h o r i t i e s . Two more recent cases d i s t o r t natural p r i n c i p l e s i n attempts to e s t a b l i s h recognition of aboriginal t i t l e i n the common law. > \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 201 In re Southern Rhodesia involved a dispute over unalienated land. The undeveloped nature of t r i b a l land was held not to d i s q u a l i f y natives from possessing l e g a l r i g h t s , a p r i n c i p l e c l e a r l y v a l i d i n the natural law t r a d i t i o n . However, the decision assumes that the t r i b e should prove that t h e i r property r i g h t s have survived the English assertion of sovereignty so that the native system can be reconciled with i n s t i t u t i o n s of non-native s o c i e t y . 2 0 2 In Millirpum v. Nabalco Property Ltd.. the court conceptualized native t i t l e i n terms of English t i t l e despite i t s express intention not to do so. 2 0 3 A property r i g h t i s defined as \"the r i g h t to use or enjoy, the r i g h t to exclude others, and the r i g h t to a l i e n a t e \" and the court concludes that the Indians do not have a l e g a l propriety r i g h t . This decision has been subject to much c r i t i c i s m and has been rejected i n Canada by Mr. J u s t i c e H a l l on the grounds that i s presupposes the necessity of recognition a f t e r discovery or \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 205 conquest to e s t a b l i s h a l e g a l r i g h t . 156 3. Canadian Decisions As previously stated, a natural i n t e r p r e t a t i o n of aboriginal t i t l e upholds the following fundamental p r i n c i p l e s : 1. aboriginal t i t l e i s an independent l e g a l r i g h t derived from o r i g i n a l occupation; and 2. aboriginal t i t l e may only be extinguished by consent. The American doctrine of aboriginal t i t l e adds the following two p r i n c i p l e s , the second of which i s questionable i n natural law: 1. aboriginal t i t l e i s derived from aboriginal (original) occupation or occupancy by v i r t u e of discovery p r i o r to the memory of man (prescription) ; and 2. aboriginal t i t l e i s inalienable to anyone other than the Crown. For the remainder of t h i s thesis the term \" f i r s t p r i n c i p l e s \" w i l l be used to r e f e r to the f i r s t three above named p r i n c i p l e s which are not only legitimate when measured against contemporary philosophies of natural law, but have been translated into p o s i t i v e law f i r s t i n the Worcester case and l a t e r , with s l i g h t modification i n the Canadian decisions Calder v. A.G. of B.C. and Guerin v. R. The remainder of t h i s chapter w i l l trace the extent to which these p r i n c i p l e s have been upheld i n the s i g n i f i c a n t cases on aboriginal t i t l e i n Canadian law. The f i r s t decision i n Canadian law i s St. Catherine's M i l l i n g and Lumber Co. v. The Queen (1888) , 2 0 6 In St. Catherine's, the Privy Council made three major statements concerning the doctrine of aboriginal t i t l e i n Canada namely: the source of a l e g a l r i g h t 157 to a b o r i ginal t i t l e i s the Royal Proclamation of 1763, aboriginal t i t l e i s dependant on the good w i l l of the sovereign and the nature of a b o r i ginal t i t l e i s personal and usufructuary. Although the f i r s t p r i n c i p l e i s no longer upheld by the Canadian courts, i t i s worth discussing because i t r e f l e c t s the influence of pos i t i v i s m on the i n i t i a l development of aboriginal r i g h t s theory i n Canada. Judges who accept a p o s i t i v s t philosophy are bound to render decisions i n conformity with s e t t l e d p r i n c i p l e s of English law, applicable l e g i s l a t i o n and precedent. To the extent that r i g h t cannot be found i n the royal prerogative, commonlaw or statute, i t does not give r i s e to a l e g a l l y enforceable i n t e r e s t i n the English 207 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 system. The predominance of t h i s philosophy i n the l a t e nineteenth and early twentieth centuries explains why the Privy Council defined the nature and scope of Indian t i t l e based on an 208 i n t e r p r e t a t i o n of the Royal Proclamation. I f a source could not be found i n English law, they could not uphold aboriginal t i t l e as a l e g a l i n t e r e s t i n land. The v a l i d i t y of the Royal Proclamation as the source of Indian t i t l e r e sts on two assumptions - the l e g a l reception of English law i n Canada and the need for r i g h t s a r i s i n g from independent l e g a l systems to be recognized and implemented by domestic l e g i s l a t i o n . Both of these assumptions are based on the exercise of sovereignty by the B r i t i s h Crown. Although the former i s l e f t unchallenged by the Canadian courts, the l a t t e r has been e x p l i c i t l y \u00C2\u00AB \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 209 overruled i n the area of aboriginal t i t l e . The second p r i n c i p l e that t i t l e e x i s t s at the sufferance of the Crown forms the basis of the Canadian p o s i t i o n on the legitimacy of u n i l a t e r a l extinguishment. The court reaches t h i s 158 conclusion by emphasizing possessive terminology i n the Royal Proclamation implying property i n the B r i t i s h Crown as well as passages that suggests the sovereign may not continue to recognize the legitimacy of aboriginal t i t l e at a l a t e r date. This i n t e r p r e t a t i o n of the Proclamation has been challenged on the grounds that emphasis on other passages support the charac t e r i z a t i o n of a l l lands as Indian t e r r i t o r i e s u n t i l they are 210 \u00E2\u0080\u00A2 # \u00E2\u0080\u00A2 purchased. The l a t t e r i n t e r p r e t a t i o n i s argued to be the most appropriate i f one considers the h i s t o r i c a l context i n which the Proclamation was made. I t was a time when a moratorium had been placed on westward expansion and the B r i t i s h were formalizing t h e i r p o l i c y of expansion through consensual a c q u i s i t i o n . I t was not intended to be a source of Indian r i g h t s but a statement of when and how B r i t a i n intended to move westward. 2 1 1 Argument on the d i f f e r e n t interpretations of the Royal Proclamation i s endless and the question of i t s scope, meaning and le g a l e f f e c t are yet to be resolved by the court. 2 1 2 The issue of scope i s addressed to a li m i t e d extent l a t e r i n t h i s t h e s i s . At t h i s point, s u f f i c i e n t discussion has been given to i l l u s t r a t e the d i f f i c u l t y i n r e l y i n g on the Proclamation as a source of sovereign r i g h t s . The t h i r d p r i n c i p l e also finds i t s o r i g i n s i n p o s i t i v e law. The characterization of aboriginal t i t l e as \"personal and usufructuary\" and a mere \"burden\" on the underlying t i t l e of the Crown. The concept of usufruct finds i t s o r i g i n s i n p o s i t i v e Roman law on land tenure. 2 1 3 In Smith v. R. the court defined usufruct as follows: 1. Law: The r i g h t of temporary possession, use, on enjoyment of the advantages of property belonging 159 to another, so f a r as may be had without causing damage or prejudice to i t . 2. Use, enjoyment, or p r o f i t a b l e possession (of something). 2 U This characterization has lead some to argue that aboriginal t i t l e i s not a property r i g h t but t h i s argument has been e f f e c t i v e l y discounted i n the Star Chrome case where the Privy Council explained that Indian t i t l e i s \"a personal r i g h t i n the sense that i t i s i n i t s nature inalienable except by surrender to the Crown. 1 , 2 1 5 The St. Catherine's case i s probably the c l e a r e s t example of the movement away from the f i r s t p r i n c i p l e s of a b original t i t l e . Although the Supreme Court recognized the v a l i d i t y of the Marshall decisions as an attempt to state the pre-existing l e g a l regime before America was formed, these decisions were not d i r e c t l y c i t e d by the Privy Council i n t h e i r attempt to r a t i o n a l i z e aboriginal t i t l e within a p o s i t i v i s t regime . The c o n f l i c t between the St. Catherine p r i n c i p l e s and f i r s t p r i n c i p l e s of aboriginal t i t l e are so c l e a r they need not be s t i p u l a t e d . The most obvious i s the assumption that B r i t a i n could acquire ultimate t i t l e by discovery, conquest or some other manner than purchase; that somehow B r i t a i n gained absolute dominion and sovereignty without the consent of the o r i g i n a l occupants; that B r i t i s h laws replace Indian laws regardless of t h e i r consent; and that the sovereign and proprietary r i g h t s of the aboriginals could not survive without recognition a f t e r the assertion of B r i t i s h sovereignty. Not only are these propositions questionable i n the context of B r i t i s h l e g a l theory 160 and p r a c t i c e , they are contrary to fundamental p r i n c i p l e s of 217 natural law. The next major opinion on the question of aboriginal t i t l e occurred almost ninety years l a t e r i n the decision of Calder v. 218 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 A.G. of B.C.. In t h i s case the Supreme Court of Canada s i g n a l l e d a movement back to f i r s t p r i n c i p l e s by f i n d i n g that the Royal Proclamation was not the exclusive source of aboriginal t i t l e , but that aboriginal t i t l e had i t s o r i g i n s i n the p r i o r use and occupation of s p e c i f i e d lands by aboriginal s o c i e t i e s . However, a misunderstanding of the Marshall t r i l o g y , other American case law and the nature of Indian t i t l e leads the court to uphold u n i l a t e r a l extinguishment and s p l i t on the question of methodology. Consequently, Calder opens the door to natural philosophies of aboriginal t i t l e but at the same time reaffirms l i m i t a t i o n s introduced by the p o s i t i v i s t regime. Both Mr. J u s t i c e Judson (speaking for three) and H a l l deny the need f o r aboriginal t i t l e to be recognized by the Crown before i t 2 1 8 can be enforced as a l e g a l r i g h t . J u s t i c e Blackburn expands on t h i s point by saying that to decide otherwise would be to assume that natives have no r i g h t s except those recognized a f t e r conquest \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 * 219 \u00E2\u0080\u00A2 on discovery, a p r i n c i p l e which i n h i s opinion i s wrong. J u s t i c e H a l l denies the same p r i n c i p l e on the ground that the Act of State \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 220 doctrine i s inapplicable to aboriginal t i t l e cases. Both H a l l and Judson trace the source of aboriginal t i t l e to a pre-existing \u00E2\u0080\u00A2 221 \u00C2\u00AB \u00E2\u0080\u00A2 r i g h t of possession. Mr. J u s t i c e Judson summarizes the concept of a b o r i g inal t i t l e as follows: 161 Although I think i t i s c l e a r that Indian t i t l e i n B r i t i s h Columbia cannot owe i t s o r i g i n s to the Proclamation of 1763, the fac t i s that 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 the land as t h e i r forefathers had done f o r centuries. This i s what Indian t i t l e means and i t does not help one i n the so l u t i o n of t h i s problem to c a l l i t a 'personal and usufructuary r i g h t . ' This simple statement of Mr. J u s t i c e Judson reaffirms the f i r s t p r i n c i p l e of the natural theory of aboriginal t i t l e \u00E2\u0080\u0094 aboriginal t i t l e i s derived from o r i g i n a l occupation. The reference to organized s o c i e t i e s r e f l e c t s the h i s t o r i c a l f a c t that aboriginal lands were held i n common. I t i s important to note that he does not add the same q u a l i f i c a t i o n found i n Worcester that t i t l e may also be acquired through immemorial possession. Rather, i t i s s u f f i c i e n t that the land be i n the possession of the Indians when the s e t t l e r s came. I t i s Mr. J u s t i c e H a l l who introduces the concept of immemorial possession i n h i s explanation of why the Nishga claim i s not a p r e s c r i p t i v e claim. He does not exclude p r e s c r i p t i o n as a method of acquiring t i t l e , but argues i t s i n a p p l i c a b i l i t y because the Crown has admitted immemorial possession and a p r e s c r i p t i v e r i g h t presupposes a p r i o r r i g h t i n some other person or \u00E2\u0080\u00A2 223 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 authority. H a l l f a i l s to pick up on the point that p r e s c r i p t i o n may also be based on immemorial possession i f one accepts the natural philosophies of Wolff and V a t t e l i n t h i s area. 2 2 4 This point was c l e a r l y understood i n Worcester. The natural law p r i n c i p l e that aboriginal t i t l e may only be extinguished by consent i s rejected by both Mr. J u s t i c e Judson and H a l l . Instead, both uphold the p r i n c i p l e enunciated i n St. Catherine's that aboriginal t i t l e i s dependent on the good w i l l of 162 \u00E2\u0080\u00A2 225 the sovereign. Both r e f e r to Johnson v. M'Intosh and Worcester v. Georgia to uphold the description of the nature of Indian t i t l e i n St. Catherine's. In Judson's opinion, St. Catherine's was influenced by the above named judgments. In p a r t i c u l a r , he quotes a passage from Johnson v. M'Intosh which upholds absolute t i t l e i n 226 the crown, subject to the Indian r i g h t of occupancy. Judson f a i l s to appreciate that t h i s statement assumes that the Crown obtained t i t l e and sovereignty through discovery and conquest. The reformulation of these concepts i n Worcester resulted i n the recognition of absolute t i t l e and sovereignty i n Indian nations with the exception of a r e s t r i c t i o n on t h e i r r i g h t of a l i e n a t i o n . This confusion could be due to the fact that counsel f o r the Nishga lumped the Marshall decisions together as representing a uniform approach to recognition of t i t l e as do most American texts and a r t i c l e s . H a l l r e f e r s to Johnson v. M'Intosh as the \"locus c l a s s i c u s of \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 227 \u00E2\u0080\u00A2 the p r i n c i p l e s governing aboriginal t i t l e . \" Like Judson, he quotes i t i n support of a l e g a l and j u s t claim to aboriginal t i t l e , but f a i l s to appreciate t h i s i s a l l Johnson can stand f o r . Mr. J u s t i c e H a l l ' s error can be seen i n the following passage: The dominant and recurring proposition stated by Chief J u s t i c e Marshall i n Johnson v. M'Intosh i s that on discovery or on conquest the aborigines of newly-founded lands were conceded to be r i g h t f u l occupants of the s o i l with a l e g a l as well as j u s t claim to r e t a i n possession of i t and to use i t according to t h e i r own d i s c r e t i o n . \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 H a l l would have accurately summed up the natural philosophy of a b o r i g i n a l t i t l e endorsed by the Marshall t r i l o g y i f he stopped there, but he went on to say: 163 . but t h e i r r i g h t s to complete sovereignty as independent nations were necessarily diminished and t h e i r power to dispose of the s o i l of t h e i r own free w i l l to whomsoever they pleased was denied by the o r i g i n a l fundamental p r i n c i p l e that discovery of conquest gave exclusive t i t l e to those who made i t . 2 2 8 The acceptance of absolute power and t i t l e i n the Crown lays the necessary t h e o r e t i c a l foundation f o r the doctrine of u n i l a t e r a l extinguishment. In Mr. J u s t i c e Judson's opinion, extinguishment may be accomplished by l e g i s l a t i o n allowing alienations inconsistent with the existence of aboriginal t i t l e and does not give r i s e to a r i g h t to compensation i n absence of a statutory \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 229 \u00E2\u0080\u00A2 d i r e c t i o n to pay. Relying on some of the same precedents, Mr. J u s t i c e H a l l concludes that Indian t i t l e must be presumed to e x i s t unless the sovereign indicates a \"clear and p l a i n \" intention to extinguish Indian t i t l e and that land should not be expropriated without compensation unless there i s l e g i s l a t i o n to that e f f e c t . 2 3 0 A more d e t a i l e d analysis of extinguishment i s given i n Chapter 5 of t h i s t h e s i s . The point her i s that a misunderstanding of the Marshall t r i l o g y , which upholds cession as the only v a l i d method of extinguishing t i t l e , has resulted i n a d r a s t i c movement away from f i r s t p r i n c i p l e s beyond the single l i m i t a t i o n on the r i g h t of a l i e n a t i o n upheld i n the Worcester decision. The next decision worthy of note i s Hamlet of Baker Lake v. Minister of Indian A f f a i r s and Northern Development. Although t h i s opinion was delivered at the federal court t r i a l l e v e l , i t has been subsequently applied with approval by the Ontario High Court 232 of J u s t i c e and the B r i t i s h Columbia Court of Appeal. The decision has also been used by opponents of Metis t i t l e to i l l u s t r a t e the i m p o s s i b i l i t y of Metis successfully proving a claim 164 to aboriginal t i t l e . F i n a l l y , i t adopts the commonwealth perspective that aboriginals should be able to prove t h e i r claims and attempts to set out a serie s of proofs that must be met. In doing so, Mr. J u s t i c e Mahoney not only misinterprets common law precedent, but takes Canada further away from a natural philosophy of a b o r i g i n a l t i t l e . For a l l of these reasons, the case i s worth examining i n some d e t a i l . Mr. J u s t i c e Mahoney upholds the proposition that the Royal Proclamation i s not the only source of aboriginal t i t l e . He quotes Calder and Worcester v. Georgia to support the general proposition that \"the law of Canada recognizes the existence of an aboriginal t i t l e independent of the Royal Proclamation or any other prerogative Act or l e g i s l a t i o n . \" 2 3 4 Had Mahoney appreciated that the four to three s p l i t i n Calder on the recognition of Indian t i t l e as an independent r i g h t , he may have looked into the American decisions i n more depth and come to terms with the f i r s t p r i n c i p l e s of aboriginal t i t l e . Instead, he jumps from t h i s i n i t i a l p roposition to the elements of proof that must be proven by the p l a i n t i f f to e s t a b l i s h aboriginal t i t l e cognizable at common law. These are: 1. That they and t h e i r ancestors were members of an organized society. 2. That the organized society occupied the s p e c i f i c t e r r i t o r y over which they assert the aboriginal t i t l e . 3. That the occupation was to the exclusion of others. 4. That the occupation was an established f a c t at the time sovereignty was asserted by England. 2 3 5 165 The f i r s t requirement i s derived from the reference to organized s o c i e t i e s by Mr. J u s t i c e Judson i n Calder and the reference to the l e v e l of Indian p o l i t i c a l organization i n Worcester. In Mahoney's view, the l e v e l of organization need not be more \"than i s necessary to demonstrate that there existed among the aborigines a recognition of the claimed r i g h t s , s u f f i c i e n t l y defined to permit t h e i r recognition by the common law upon i t s \u00E2\u0080\u00A2 236 \u00E2\u0080\u00A2 advent to the t e r r i t o r y . \" The l e v e l of organization i s not to be measured against European structures, but the needs of the group asserting the claim taking into consideration t h e i r physical surroundings. The e f f e c t i v e date for determining the l e v e l of organization i s the date England asserted sovereignty and the fact that t h e i r society has changed since then i s i r r e l e v a n t . 2 3 7 The requirement of organization l i k e l y finds i t s source i n the argument that i n s u f f i c i e n t p o l i t i c a l organization renders lands t e r r a n u l l i u s and open to occupation. As discussed e a r l i e r , t h i s view was adopted to j u s t i f y the taking of lands of nomadic peoples with l i m i t e d s o c i a l structure. I t i s i n response to t h i s t r a d i t i o n that the element of organization was b u i l t into o r i g i n a l theories on aboriginal t i t l e . In Calder. Mr. J u s t i c e Judson and was not attempting to delineate c r i t e r i a , but to eliminate c u l t u r a l bias and accept Indian forms of p o l i t i c a l organization as s u f f i c i e n t to remove t h e i r lands from t e r r a n u l l i u s . Be that as i t may, Mahoney i s not acting contrary to p r i n c i p l e s of natural law when he incorporates the defence of organization into a c r i t e r i o n of p o s i t i v e law because he does not impose an a r b i t r a r y preference to community or adopt a s o c i a l darwinistic approach to defining p o l i t i c a l organization. Rather, he accepts as v a l i d forms of 166 organization r a d i c a l l y d i f f e r e n t from European standards. Further, the requirement of organization r e f l e c t s the communal nature of aboriginal t i t l e which i s acknowledged by scholars of natural law to be the natural state of property holding and which has been advocated by aboriginal groups themselves. However, i t i s important to note that a requirement of organization i s not inherent i n the f i r s t p r i n c i p l e s of o r i g i n a l occupation of unoccupied lands or p r e s c r i p t i v e r i g h t s to previously occupied lands and that organization need not mean more than \"community\" or \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 239 \"group\" i n the natural law t r a d i t i o n . The second c r i t e r i a that the group occupy the t e r r i t o r y claimed i s i n accordance with a natural philosophy of aboriginal t i t l e based on p r i o r possession. Again, Mahoney adopts a subjective t e s t and applies the t e s t at the date of asserting sovereignty. In doing so, he r e j e c t s arguments based on \"quality of use\" such as those i n i t i a l l y introduced by V a t t e l and recognizes the central feature i n a natural i n t e r p r e t a t i o n to aboriginal t i t l e - occupation or possession. 2 4 0 I t i s i n the t h i r d an fourth c r i t e r i a that Mahoney introduces concepts of B r i t i s h law which are foreign to a natural i n t e r p r e t a t i o n of aboriginal r i g h t s . According to Mahoney, occupation must be to the exclusion of others. In natural law, (and i n Canadian property law) e x c l u s i v i t y i s a r i g h t of property and not an o b l i g a t i o n . 2 4 1 I t i s not contrary to natural precepts for groups to share t h e i r lands by agreement or to hold d i s t i n c t but overlapping t i t l e s i f such arrangements promote the o v e r a l l common good of aboriginal communities. Further, as Professor S l a t t e r y points out \"the courts should endeavour to give e f f e c t to 167 the actual patterns of use e x i s t i n g among the groups i n question, i n keeping with t h e i r s u i generis character. 1 , 2 4 2 The Americans have done t h i s to a c e r t a i n extent by recognizing lands held i n j o i n t and amicable possession. As authority f o r t h i s proposition Mahoney c i t e s United States v. Santa Fe P a c i f i c Railway Co. 2 4 4 However, e x c l u s i v i t y was not an issue i n Santa Fe and there i s nothing i n the decision to suggest that t e r r i t o r i e s mutually used by aboriginal groups were excluded. Whether j u s t i c e Mahoney i s conscious of i t , the a p p l i c a t i o n of t h i s c r i t e r i a originates i n early English law on the l e g a l i t y of custom and p r e s c r i p t i v e r i g h t s both of which emphasize uninterrupted and exclusive exercise of the r i g h t asserted. The a p p l i c a t i o n of these p r i n c i p l e s are no longer appropriate i n l i g h t of the Guerin case discussed i n f r a . The influence of B r i t i s h customary law and doctrines of immemorial pre s c r i p t i o n s are most evident i n the fourth c r i t e r i a enunciated by Mahoney i n which he asserts that the group must have had possession since \"time immemorial\" and he defines \"time immemorial\" as the date of assertion of English sovereignty over the t e r r i t o r y claimed. 2 4 6 This c r i t e r i o n can be attacked on several grounds. From the perspective of natural r i g h t s , i t confuses r i g h t s a r i s i n g from o r i g i n a l occupation with r i g h t s a r i s i n g from immemorial p r e s c r i p t i o n . Further, i n c o l l a p s i n g o r i g i n a l and p r e s c r i p t i v e r i g h t s , i t f a i l s to take into account ordinary p r e s c r i p t i v e r i g h t s which a r i s e based on possession f o r a substantial period of time. As indicated previously, the l a t t e r concepts are not contrary to natural law because they contribute ?A7 to the common good of s o c i a l s t a b i l i t y . 168 The acknowledgment of three sources of r i g h t s - o r i g i n a l occupation, immemorial p r e s c r i p t i o n and ordinary p r e s c r i p t i o n was f i r s t suggested i n Worcester and continues to receive recognition i n contemporary American law. In the United States i t i s s u f f i c i e n t to possess the land for a \"long time\" or long enough to transform the area into domestic t e r r i t o r i e s . This view i s c l e a r l y more r e f l e c t i v e of natural p r i n c i p l e s than one which refuses to recognize any form of t i t l e that does not pre-date the assertion of English sovereignty. Calder can not be used as precedent f o r t h i s l a t t e r c r i t e r i a . Judson simply states that \"when the s e t t l e r s came\" the aboriginals had been i n possession of t h e i r land \" f o r centuries.\" He does not state that r i g h t s could not be acquired a f t e r settlement i f such settlement occurred as a r e s u l t of wrongful appropriation of Indian lands. Further, i t i s not c l e a r what Mahoney means by assertion of sovereignty, although i t has been assumed that he means the date of European settlement. Other cases c i t e d by Mahoney i n support of the c r i t e r i a of \"time immemorial\" may r e f e r to the f a c t that the aboriginal group at issue had possession since time immemorial, but none of the cases referred to holds t h i s as an e s s e n t i a l proof of f ^ f 1 o 250 t i t l e . F i n a l l y , t h i s requirement does not make sense i n the context of a b o r i g inal h i s t o r y . As professor Sanders points out, not a l l Indian groups that have s e t t l e d t i t l e claims can assert occupation p r i o r to settlement. For example, neither of the two major Indian communities i n Southern Quebec were i n control of t h e i r t r i b a l 251 lands i n those areas p r i o r to French settlement. Further, groups which have moved away from t r a d i t i o n a l lands are not excluded from 169 advancing claims. For example, i n the p l a i n s t r i b e s can only trace t h e i r occupation back to the introduction of the horse by the Spaniards and migration from t r a d i t i o n a l lands, yet they have not \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 252 \u00E2\u0080\u00A2 l i f t * been denied aboriginal r i g h t s . Given the above c r i t i c i s m s , i t i s u n l i k e l y that t h i s l a s t c r i t e r i o n would survive a d i r e c t challenge i n the courts. Before leaving Hamlet of Baker Lake, the \"frozen t i t l e theory\" and question of extinguishment should be addressed. Mahoney focuses on the date of assertion of sovereignty to determine the nature and existence of aboriginal t i t l e . The theory assumes that the claimant group must \"be i n possession at the relevant date and i t cannot i n h e r i t t i t l e from e a r l i e r occupants or tack i t s 252 possession on to t h e i r s . \" As S l a t t e r y points out, t h i s theory i m p l i c i t l y t r e a t s aboriginal t i t l e as f i n d i n g i t s o r i g i n s i n a Crown grant by assuming dominion i n the Crown and i t s permissive p o l i c y toward use and occupation of lands by Indian peoples. The basic objection to t h i s approach i s i t forces aboriginal t i t l e into a \"mold f a m i l i a r to English law, while disregarding factors p e c u l i a r to i t s o r i g i n . \" Further, the theory freezes aboriginal r i g h t s at a point i n h i s t o r y by l i m i t i n g the l e g a l r i g h t s of the group to those exercised at the relevant date. This approach refuses to recognize aboriginal peoples as evolving cultures with changing needs. Mahoney also upholds the v a l i d i t y of u n i l a t e r a l extinguishment but introduces a new twist into the question of methodology. He argues that i f \"the necessary e f f e c t of l e g i s l a t i o n i s to extinguish aboriginal t i t l e then the courts must give e f f e c t to 170 i t . \" 2 5 4 In h i s view the intention need not be set f o r t h e x p l i c i t l y \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 255 i n the l e g i s l a t i o n . The f i n a l decision to be considered i s Guerin v. R. In t h i s decision, Chief J u s t i c e Dickson resurrects the concept of t i t l e upheld i n Worcester by recognizing the o r i g i n of a b original t i t l e i n a pre-existing r i g h t of possession and l i m i t i n g the l e g a l nature of a boriginal t i t l e only to the extent that i t i s i n a l i e n a b l e to the Crown. In doing so, he moves away from the narrow legalism c h a r a c t e r i s t i c of St. Catherine's and Hamlet of Baker Lake. In Dickson's view, aboriginal t i t l e i s \"a l e g a l r i g h t derived from the Indian's h i s t o r i c occupation and possession of t h e i r t r i b a l lands.\" 2 5 6 He does not q u a l i f y t h i s possession by imposing c r i t e r i a of possession p r i o r to settlement since \"time immemorial.\" Rather, he points to Johnson v. M'Intosh as authority f o r the proposition that aboriginal t i t l e predates and survives claims to sovereignty by Europeans and emphasizes that portion of the judgment upholding t h e i r l e g a l and j u s t claim to r e t a i n possession. Unfortunately, he also quotes passages i n Johnson which have been overruled, but he only expressly r e l i e s on these passages to the extent they support the argument that change i n sovereignty over a given ( \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 257 t e r r i t o r y does not a f f e c t pre-existing r i g h t s . Dickson upholds the characterization of aboriginal t i t l e as personal and usufructuary c i t i n g St. Catherine's. Star Chrome. 258 Admodu T i i a n i and Johnson v. M'Intosh to support h i s views. However, he does not deny i t i s a proprietary i n t e r e s t . Recognizing the existence of a debate on the personal nature of the r i g h t he states: 171 . . . there i s not r e a l c o n f l i c t between the cases which characterize Indian t i t l e as a b e n e f i c i a l i n t e r e s t of some sort, and those which characterize i t as a personal, usufructuary r i g h t . Any apparent inconsistency derives from the f a c t that i n describing what constitutes a unique i n t e r e s t i n land the courts have almost i n e v i t a b l y found themselves applying a somewhat inappropriate terminology drawn from general property law. 2 He goes on to characterize t h e i r i n t e r e s t as \" s u i generis\" and states: The nature of the Indians i n t e r e s t i s therefore best characterized by i t s general i n a l i e n a b i l i t y , coupled with the f a c t that the Crown i s under an o b l i g a t i o n to deal with the land on the Indians' behalf when the i n t e r e s t i s surrendered. Any description of Indian t i t l e which goes beyond these two features i s both unnecessary and p o t e n t i a l l y misleading. 2 6 0 The views of Chief J u s t i c e Dickson on the o r i g i n of aboriginal t i t l e t r a n s l a t e the f i r s t p r i n c i p l e of t i t l e from o r i g i n a l or h i s t o r i c occupation and possession into p o s i t i v e law. The removal of l i m i t a t i o n s on possession other than r e s t r i c t i o n s on a l i e n a t i o n suggests that there i s room i n Canadian law to recognize t i t l e from o r i g i n a l occupation, immemorial occupation and perhaps ordinary p r e s c r i p t i o n depending on the i n t e r p r e t a t i o n given to \" h i s t o r i c . \" The reference to t i t l e as \" s u i generis\" suggests the frozen t i t l e theory and l e g a l i s t i c r e s t r i c t i o n s on the nature of possession introduced i n the Baker Lake case w i l l be rejected i n favour of actual patterns of occupancy and land tenure recognized by Indian s o c i e t i e s , a l l of which accords with the natural precept that t i t l e i n found i n possession. Whether the Canadian courts w i l l go so f a r as to uphold the necessity of consent for the purpose of extinguishment i s yet to be determined. The emphasis placed on Johnson v.M'Intosh suggests that the court does not yet completely understand the natural 172 o r i g i n s of aboriginal t i t l e or the American doctrine on aboriginal sovereignty and dominion. On the other hand, the r e f u s a l to l i m i t a b o r i g inal t i t l e beyond r e s t r i c t i o n s on a l i e n a t i o n and the c l a s s i f i c a t i o n of aboriginal r i g h t s as \"su i generis\" suggests that the Canadian courts are open to argument on the proper reading of the Marshall t r i l o g y and natural theories of aboriginal t i t l e . The acceptance of i n a l i e n a b i l i t y was c r u c i a l i n t h i s decision i n order to e s t a b l i s h a foundation for the Crown's f i d u c i a r y o b l i g a t i o n (or t r u s t as characterized by Madame J u s t i c e Wilson). However, as Worcester i l l u s t r a t e s , t h i s l i m i t a t i o n may continue to be adopted without upholding the proposition that t i t l e i s \"dependant on the good w i l l of the sovereign.\" The l a t t e r conclusion i s contrary to natural law p r i n c i p l e s and the law of nations. IV Summary of a Natural Theory on Aboriginal T i t l e In summary, my theory on the natural p r i n c i p l e s of aboriginal t i t l e i s : 1. The characterization of aboriginal r i g h t s as \"su i generis\" suggests that the Canadian courts are w i l l i n g to reconsider the foundations upon which claims to aboriginal t i t l e are based. 2. The common law doctrine of aboriginal t i t l e i s derived from p r i n c i p l e s of natural law. This f a c t was recognized by early p u b l i c i s t s considering the ac q u i s i t i o n of lands i n North America, B r i t i s h c o l o n i a l theory, and the j u d i c i a l opinion of the Marshall court. Respect for natural p r i n c i p l e s of aboriginal t i t l e i s also evidenced i n the B r i t i s h 173 pr a c t i c e of treaty making, but a l i n k between pr a c t i c e and contemporaneous jurisprudence i s not proven. 3. The idea of natural law as a v a l i d basis f o r l e g a l l y enforceable claims i s legitimate given the influence i t played i n shaping the o r i g i n a l doctrine of aboriginal t i t l e . 4. P o s i t i v e laws governing 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 are not contrary to natural law to the extent they promote s t a b i l i t y and peaceful s o c i a l r e l a t i o n s h i p s . The fundamental p r i n c i p l e at the basis of a j u s t property regime i s that f i r s t occupation of previously unoccupied land establishes r i g h t s of property i n the occupant. The extent to which t h i s p r i n c i p l e can be l e g i t i m a t e l y a l t e r e d by p o s i t i v e law w i l l depend on the extent to which the law contravenes natural precepts and whether contravention can be l e g i t i m i z e d as furthering the common good. 5. V i t o r i a * s views on a c q u i s i t i o n are most i n d i c a t i v e of a natural law theory of aboriginal property r i g h t s . In accordance with h i s theory, Europeans were morally and l e g a l l y bound to recognize that f i r s t use and occupancy established Indian ownership over Indian lands. V i t o r i a 1 s views on p a t e r n a l i s t i c intervention are contrary to contemporary philosophies of natural law. 174 A natural i n t e r p r e t a t i o n of aboriginal r i g h t s upholds the following p r i n c i p l e s : (a) 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 o r i g i n a l occupation of that land by organized s o c i e t i e s ; (b) aboriginal t i t l e may only be extinguished by consent. Despite the i n i t i a l tendency of the Canadian courts to positivism, the f i r s t of these two p r i n c i p l e s has been upheld by the Supreme Court of Canada. The second i s currently the subject of l i t i g a t i o n . A natural i n t e r p r e t a t i o n of t i t l e recognizes t i t l e a r i s i n g from ordinary or immemorial p r e s c r i p t i o n against the o r i g i n a l occupant, but does not impose immemorial possession as a c r i t e r i o n . The reference to \" h i s t o r i c \" occupation i n Guerin suggests immemorial and ordinary p r e s c r i p t i o n may also be recognized i n p o s i t i v e law as a legitimate basis f o r aboriginal t i t l e . Rights a r i s i n g from possession for a substantial period of time have been recognized i n the American t r a d i t i o n . The legitimacy of t i t l e acquired p r i o r to surrender of aboriginal t i t l e to a discovering sovereign depends on i t s legitimacy v i s a v i s the r i g h t s of the o r i g i n a l occupants. P r e s c r i p t i v e r i g h t s acquired against the o r i g i n a l occupant are v a l i d assuming good f a i t h and possession f o r a substantial period of time. Discovering nations are morally 175 obliged to recognize them as a d e r i v a t i v e form of aboriginal property r i g h t s . 10. A natural i n t e r p r e t a t i o n of aboriginal t i t l e would require the following proofs of t i t l e : the existence of an i d e n t i f i a b l e group and occupation of a t e r r i t o r y as o r i g i n a l occupants or f o r a substantial period of time. These c r i t e r i a are based on current occupation. I f a group was wrongfully displaced, t h i s c r i t e r i a should be applied at the date of dispossession. 11. U n i l a t e r a l extinguishment without compensation i s contrary to natural law. 176 CHAPTER 3 ENDNOTES Guerin v. R. [1984] 2 S.C.R. 335. Id. at 377-79; 382. D. Sanders, \"Pre-Existing Rights: The Aboriginal Peoples of Canada,\" (Vancouver: University of B r i t i s h Columbia, Faculty of Law, 1988) 35, photocopied, at 1. B. Sla t t e r y , \"Understanding Aboriginal Rights\" 66 Canadian Bar Review 727 at 736-741. See, f o r example, M. Mossman, \"Developments i n Property Law. The 1984-1985 Term.\" (1986) 8 Supreme Court Law Review 319 at 335. Simon v. R. (1985) 24 D.L.R. 390 at 404 (S.C.C.). R. Begin, Natural Law and Po s i t i v e Law (Washington: Catholic University of America Press, 1959) at 50. Id. at 56. Contemporary t h e o r i s t s also point to the influence of Greek s c i e n t i f i c and mathematical thought on the r a t i o n a l approach to r e a l i t y prevalent i n o r i g i n a l theories of natural law and the creation of universal p r i n c i p l e s some of which could be stated mathematically. See, for example, J.C. Smith and D. Weistub, The Western Idea of Law (Toronto: Butterworths and Co. (Canada) Ltd., 1983)) at 242-243. In the discussion of s p e c i f i c natural law p u b l i c i s t s the term \"men\" or \"man\" i s used i n the same sense as intended by the p u b l i c i s t s named. The author recognizes the h i s t o r i c a l context i n which these philosophies developed and the consideration of \"reason\" as part of the \"male\" nature. Contemporary natural law t h e o r i s t s would extend the app l i c a t i o n of t h e i r theories to include a l l humans, male or female. 177 11. Quoted i n C. P h i l l i p s o n , The International Law and Custom of Ancient Greece and Rome. Vol. I (London: MacMillan and Co., Ltd., 1911) at 53-54. 12. Id. at 54. 13. A r i s t o t l e , E t h i c s . Book V, trans. J.A.K. Thompson (London: Penguin Books, 1955) at 157-159 i n Smith and Weistub i d . at 279-280. 14. Id. at 280. 15. See, fo r example, Ernst Cassirer, The Myth of the State (New Haven: Yale University Press, 1946) at 100-104; E. Vernon Arnold, Roman Stoicism (Oxford: Clarendon Press, 1936) at 273-385; George Sabine, A History of P o l i t i c a l Theory (New York: Holt, Rinehart and Winston, 1937) at 163-173; a l l of the above quoted i n Smith and Weistub, supra. note 12 at 288-289, 290-292 and 345-352 respectively. 16. Quoted i n Sabine, i d . at 345. 17. Sabine, i d . 18. There are many sources of St. Thomas' view of natural law. See, f o r example, Thomas Aquinas, \"Treatise on Law\" i n Summa Theologica (Indiana: Regnery/Gateway Inc., 1963) at 1-19; E.B.F. Midgley, The Natural Law T r a d i t i o n and the Theory of International Relations (London: Elek Books Ltd., 1975) at 1-55; W.F. Roemer, The E t h i c a l Basis of International Law Phd. Thesis, University of Notre Dame, 1927 (London: University Microfilms International, 1981) at 53-69. 19. Roemer, i d . at 59. 20. Aquinas, supra. note 18 quoted i n Smith and Weistub, supra. note 13 at 382. 21. Midgley, supra. note 18 at 23. 22. Quoted i n Midgley, i d . at 23-24. 178 23. Midgley, i d . at 69-71. 24. Id. at 72-79. 25. For a general discussion see chapter 3 of Midgley, i d . at 95-120; see also G. Van Der Molen, Alberico G e n t i l i . 2 ed. (Leyden: A.W. S i j t h o f f , 1968) at 114-116. 26. Midgley, i d . at 137-167; D. H i l l , \"Introduction\" i n H. Grotius, The Rights of War and Peace, trans, by A.C. Campbell (Washington: M. Walter Dunne, 1901) at 9-11. 27. A. D'Amato, \"Towards a R e c o n c i l i a t i o n of Positivism and Naturalism: A Cybernetic Approach\" [1975] 14 Western Ontario Law Review 171 at 174-175; Roemer, supra. note 18 at 99. 28. Midgley, supra. note 18 at 168-171; Roemer, i d . 29. Midgley, i d . at 175-184; C. Wolff, Ius Gentium Methodo S c i e n t i f i c o Pertractatum. trans, by J . H. Drake i n C l a s s i c s of International Law, ed. J . B. Scott (Oxford: Clarendon Press, 1934) at 10-19. 30. Midgley, i d . at 184-195; Foemer, supra. note 18 at 99-100; E. V a t t e l , The Law of Nations, trans, unnamed (London: G.G. and J . Robbinson, Patemoster-Row, 1797) at i v - i v i i . 31. See, f o r example, H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) and J . Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980). 32. Hart, i d . at 188. 33. D. Gormley, \"Aboriginal Rights as Natural Rights\" (1984) 1 The Canadian Journal of Native Studies IV, 29 at 33. 34. J . Finn i s , supra. note 31 at chapter 4. 35. Supra. note 7 at 14-15. 36. Id. 179 37. Supra. note 7 at 14-15. 38. Id. at 29-31 and 36. 39. Id. at 37. 40. Id. at 37-41. There are numerous theories on the concept of r i g h t i n natural law. With the exception of h i s discussion on the r o l e of the State i n the natural law regime, Begin provides a general d e f i n i t i o n of r i g h t common to most natural law t h e o r i s t s as i t i s understood i n the context of r a t i o n a l equality, the common good and the r e l a t i o n s h i p to human nature and human development. For further discussion on r i g h t s see for example J . Finnis \"Some Professional F a l l a c i e s About Rights\" (1971-72), 4 Adelaide Law Review 377; H.N. H o f f i e l d , Fundamental Legal Conceptions as Applied i n J u d i c i a l Reasoning (New Haven: Yale University Press, 1923) and R. Dworkin, Taking Rights Seriously (Cambridge Mass.: Harvard University Press, 1978). 41. J.C. Smith, \"The Concept of Native T i t l e \" (1974) 24 University of Toronto Law Journal 1 at 4. 42. R. v Guerin. supra, note 1; Sanders, supra. note 3; Slattery, supra. note 4 at 745. 43. See, for example, Cicero, De O f f i c i a s I. v i i 21 quoted i n J . Scott, Law, the State and the International Community. Vol. II (New York: Columbia University Press, 1939) at 161-162. 44. Ulpian, quoted i n Sabine, supra note 15 at 349; see also Digest X L I . i . l and Ins t i t u t e s H i . 11 quoted i n Scott, i d . at 163. 45. See, fo r example, the views of St. Thomas Aquinas, Suarez and Francisco de V i t o r i a quoted i n Scott, supra. note 35 at 161-163, 250; H.L.A. Hart, supra note 31; Finnis , supra. note 31. 46. De Finibus. I I I . xx. 67 i n Scott, supra. note 43 at 160. 47. Digest XLI. i . l i n Scott, i d . at 163; see also P h i l l i p s o n , supra. note 11 at 78-81. 180 48. Supra. note 11 at 92. 49. Roemer, supra note 18 at 30-31; T. Lawrence, The P r i n c i p l e s of International Law (D.C. Heath & Co., 1985) at 29. 50. Supra, note 11 at 378. 51. Id. at 379. 52. Quoted i n F. Snow, International Law (Washington: Government P r i n t i n g O f f i c e , 1895) at 19. 53. Digest XLI. 1. 3 i n Scott, supra, note 43 at 164. 54. Cicero, supra. note 43. 55. Grotius, Mare Liberum. Introduction i n Scott, supra. note 43 at 160. 56. Id. 57. Digest XLI. i i . 3 i n Scott, supra. note 43 at 164. 58. Digest XLI i i i . 25 i n Scott, i d . at 167. 59. Digest XLI. i i i . 3 i n Scott, i d . 60. Digest XLI. x. 5. par 1 i n Scott, i d . 61. Digest XLI. i i i d . 45 i n Scott, i d . at 165. 62. Grotius, supra. note 46 chapter v i i i n Scott, i d . at 167. 63. Digest XLI. i . 9 par 3 i n Scott, i d . 64. Digest XLI. i . 20 par 1 i n Scott, i d . at 168. 181 65. S i r H.S. Maine, Ancient Law (London: Oxford University Press, reprinted 1959, copyright 1861) at 237. 66. Id. at 275, 278. 67. Supra. note 7 at 140-142. 68. Id. at 142. 69. Id. at 143. 70. Midgley, supra. note 18 at 43. 71. See, f o r example the discussion of Juan Gines de Sepulveda and p u b l i c i s t s supporting h i s views at page 120 of t h i s chapter i n Section I I , 2 of t h i s chapter. 72. D. Sanders, \"The Re-emergence of Indigenous Questions i n International Law\" (1983) 4 Canadian Human Rights Yearbook 3 at 27 and Lawrence, supra. note 49 at 368. 73. For general discussion see M. McCoubray, The Development of N a t u r a l i s t Legal Theory (New York: Croom Helm, 1987) at 169-186. 74. Gormley, supra. note 33 at 34. 75. Id. 76. Id. at 34-36. 77. Id. at 35. 78. See, f o r example, Western Sahara (1975) I.C.J. Reports 6 at 39; Sanders, supra. note 72 at 38. 79. For a summary of these views see P h i l l i p s o n , supra. note 11 at 46-42. 182 80. Id. at 53; see also Roemer, supra. note 18 at 26-28. 81. For a discussion of the influence of ancient Greek and Roman law, philosophy and pra c t i c e on the development of int e r n a t i o n a l law, see generally, P h i l l i p s o n , i d . 82. Roemer, supra. note 18 at 60-64. 83. See the discussion of the views of Francisco de V i t o r i a and h i s followers at pages 114-118 of t h i s chapter. 84. Midgley, supra. note 18 at 83-85. 85. Id. at 85-86. 86. Roemer, supra. note 18 at 78. 87. Id. at 84-95 and Midgley, supra. note 18. 88. Supra. note 29. 89. Midgley, supra. note 30. 90. V a t t e l , supra. note 30 at 35-36. 91. See generally Midgley, supra f note 18 at 276-304 and McCoubry, supra. note 73 at 85-94. 92. M.F. Lindley, The Ac 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 10; G. Morris, \"In Support of the Right of Self-Determination for Indigenous Peoples under International Law\" (1986) German Yearbook of International Law 277 at 280. 93. Alexandrian B u l l s , May 3 and 4, 1493 reprinted i n Paul Goltschalk, E a r l i e s t Diplomatic Documents of America (Berlin: 1927) at 21. 94. Morris, supra. note 92 at 281. 183 95. D. Sanders, \"The Extent of Recognition of Pre-Existing Rights of Indigenous Peoples i n the Legal History of Canada\" (Vancouver: U.B.C. Faculty of Law, 1988), 28, photocopied at 5. 96. Francisco de V i t o r i a , De Indes et de Jure B e l l i : Reflectiones. trans by J.P. Bates i n J.B. Scott ed., The C l a s s i c s of International Law (Washington: Carnegie I n s t i t u t i o n 1917; re p r i n t , Oceana Publications Inc., 1964) at 217-268. 97. Id. quoted i n Scott, supra note 43 at 119. 98. Id. at 250. 99. Id. at 276. 100. Supra. note 87. 101. Supra. note 97 at 108. 102. Id. at 109. 103. Id. at 276. 104. Id. at 116. 105. Id. at 148. 106. Scott, supra. note 43, Vol. I at 315. 107. Id. at 316-318. 108. Grotius, Mare Liberum. quoted i n Scott, supra. note 43 at 275. 109. Scott, supra. note 106 at 318-319. 110. Id. at 319-320; Scott, supra. note 43 at 320. 184 111. See discussion i n Sections I I , 2 and I I , 3 of h i s chapter. 112. Morris, supra, note 92 at 286-287, Sanders, supra f note 72 at 5. 113. P u b l i c i s t s supporting these views are l i s t e d i n Lindley, supra. note 92 at 12-17. 114. Id. at 18. 115. Supra. note 3, at 18. 116. V a t t e l , supra, note 30 at 35-37, 98. 117. Wolff, supra. note 29 at 50-51; V a t t e l , i d . at 99. 118. Gormley, supra. note 33 at 38, Wolff, i d . at 140-143. 119. V a t t e l , supra, note 30 at 187-192; Wolff, i d . at 186-190. 120. Wolff, i d . at 188-190. 121. See, for example, D. Jenness, Indians of Canada. 7th ed (Toronto: University of Toronto Press, 1977). 122. Gormley, supra. note 118 at 38. 123. Id. at 39. 124. Id. 125. Id. at 40-41. 126. S i r William Blackstone, Blackstone 1s Commentaries. Vol. 1, ed. St. George Tucker (Philadelphia: Birch and Small, 1830) at 34. Note that Blackstone seems to use the phrases \"law of Revelation,\" \"Divine Law\" and \"law of God\" interchangeably to reveal to that part of the natural law revealed i n the Bible as d i s t i n c t from natural law revealed i n the Bible as d i s t i n c t from natural law known innately or stated by e t h i c a l writer. 185 127. Id. at 34-43. 128. Id. at 43. 129. S i r W. Blackstone, Blackstone 1s Commentaries. ed. J . E h r l i c h (Wesport: Greenwood Press, 1959) at 777. 130. Id. at 113. 131. Id. at 114-115, 118, 276. 132. Id. at 114. 133. Id. at 117. 134. Id. at 27-28. 135. Id. at 27. 136. Id. at 28. 137. Id. at 280-281. 138. Id. at 36. 139. Id. at 35-36. 140. See, f o r example, discussions of Marshall decisions i n Section I I I , 1 of t h i s chapter; Sanders, supra. note 72; Morris, supra. note 92; Western Sahara, supra. note 78 and Sanders, supra. note 3, at 25-28. 141. Supra. note 95 at 4; supra. note 129 at 335. 142. Sanders, i d . at 5-9; Royal Proclamation of 1763 reprinted i n R.S.C. 1970, Appendices, at 127-129. For a general discussion of treaty practice i n North America, see, f o r example, R. Fumoleau, As Long as t h i s Land S h a l l Last (Toronto: McLelland 186 & Stewart Ltd., 1973) and A. Morris, The Treaties of Canada with the Indians (Toronto: Belford, Clarke & Co., 1880; rep r i n t , Toronto: Cotes Publ. Co., 1971). 143. Supra. note 142. 144. Supra. note 3 at 5-6 and 28. 145. Supra. note 142. 146. Palmas Island A r b i t r a t i o n (1928), 2 R.I.A.A. 831; The Legal Status of Eastern Greenland (1933) P.C.I.J. Report Series A/B, No. 53; Lindley, supra. note 92 at 182-185. 147. Worcester v. Georgia. 8 L. ed 483 (1832). 148. Reprinted i n Cumming and Mickenberg, eds. Native Rights i n Canada, 2 ed. (Toronto: Indian-Eskimo Assoc. i n assoc. with General Publishing Co., 1972) appendix I I I . 149. Sanders, supra. note 141 at 8. 150. Reprinted i n Worcester, supra. note 147 at 497-498. 151. Sanders, supra. note 141. For an example of the numbered t r e a t i e s see Cumming and Mickenberg, supra. note 148 appendix IV. Note the Sask. Indian Federation asserts the numbered t r e a t i e s are not j u s t land cessions but also e x p l i c i t l y recognize Indian government. Some of the Maritime t r e a t i e s do not deal with land. 152. The Constitution Act (U.K.), 1982, c. 11, ss. 25 and 35. 153. Sanders, supra. note 72 at 6; St. Catherine's M i l l i n g v. R. (1887) 13 S.C.R. 577 at 609. 154. D'Amato, supra. note 27 at 178. 155. Calder v. A.G. of B.C. [1973] R.C.S. 313. 187 156. Guerin. supra. note 1. 157. 10 U.S. (6 Cranch) 87 (1810). 158. H. Berman, \"The Concept of Aboriginal Rights i n the Early Legal History of the United States\" (1978) 27 Buffalo Law Review 637 at 639. 159. Id. at 640. 160. Id. 161. Supra, note 157 at 142-143. 162. Id. at 146-147. 163. Supra. note 147. 164. Supra. note 158 at 641. 165. F. Cohen, \"Original Indian T i t l e \" (1947) 32 Minnesota Law Review 28 at 43-44. 166. 5 L ed. 541, 692-693 (1823). 167. Id. at 548-560, 562. 168. Supra. note 158 at 651-653, Sanders, supra. note 72 at 16-19; R. Barsch, \"Indigenous North America and Contemporary International Law\" (1982) 62 Oregon Law Review 73 at 74-75. 169. Lindley, supra, note 92 at 131. 170. Id.; see also Island of Palmas. supra, note 146 and Western Sahara. supra note 78. 171. Supra, note 158 at 652. 188 172. Supra. note 166 at 560-561. 173. Id. 561. 174. Supra. note 58, at 646. 175. D.G. Ke l l y , \"Indian T i t l e : The Rights of American Indians i n Lands they Have Occupied Since Time Immemorial\" (1975) 75 Columbia Law Review 655 at 656. 176. W.F. Pentney, The Aboriginal Rights Provisions i n the Constitution Act. 1982 (Saskatoon: University of Saskatchewan: Native Law Centre, 1987) at 204. 177. Supra, note 166 at 693. 178. See, f o r example, St. Catherines M i l l i n g Co. v. R. (1888) 14 A.C. 46 (P.C.). 179. Supra. note 166 at 561. 180. Cherokee Nation v. Georgia, 8 L ed. 25 (1831). 181. Id. at 32. 182. Id. at 31. 183. Id. at 44. 184. Id. at 30. 185. Id. at 33-34. 186. Supra. note 147 at 500-501. 187. See discussion of p o l i t i c a l organization i n Section I I , 2 of t h i s chapter. 189 188. Supra. note 147 at 501. 189. Id. at 494-495; 500-501; per McLean J . at 508; Lindley, supra. note 92 at 181-187. 190. Supra. note 147 at 494 (emphasis added). 191. Id. at 495. 192. Id. 193. Id. at 495 and 497. 194. Supra. note 186. 195. 34 U.S. (9 Pet.) 711 (1835) 196. Id., at 745. 197. Berman, supra. 158 at 665; Morris, supra note 92 at 300. 198. See, for example, Major Crimes Act. 23 Stat. 385 (1885) and the Dawes Severalty Act. 24 Stat. 388(1887). The practice of treaty making was ended by an Act of Congress of 3 March 1871 which provided \"No Indian nation or t r i b e , within the t e r r i t o r y of the United States, s h a l l be acknowledged or recognized as an independent nation, t r i b e , or power, with whom the United States may contract by treaty.\" 199. (1847) N.Z.P.C. 390. 200. (1901) A.C. 561 at 579. See also Amodu T i i a n i v. the Sec, of State [1921] A.C. 399 at 409-410 (P.C.). 201. [1919] A.C. 211 (P.C.). 202. Supra. note 176 at 206. 203. (1971) F.L.R. 141. 190 204. Pentney, supra, note 176 at 272. 205. Calder v. A.G.B.C. (1973) 34 D.L.R. (3d) 145 at 218 (S.C.C.) For c r i t i c i s m s , see G. Lester and G. Parker, \"Land Rights: The Aus t r a l i a n Aborigines Have Lost a Legal Battle, But . . .\" (1973) 11 A l t a . L. Review 189; L.J. P r i e s t l y , \"Communal Native T i t l e and the Common Law: Further Thoughts on the Gove Land Rights Case\" (1974) 6 Federal Law Review 150 and Dr. Hookey, \"Chief J u s t i c e Marshall and the English Oak: A Comment\" (1974) 6 Federal Law Review 174. 206. (1888) 14 A.C. 46 ( P . C ) . 207. D. E l l i o t t , \"Aboriginal T i t l e \" i n Aboriginal Peoples and the Law: Indian. Metis and Inuit Rights i n Canada, ed. Bradford Morse, 48-121 (Ottawa: Carleton University PRess, 1985). 208. Supra, note 65 at 46. 209. See, f o r example, Calder. supra. note 205 and Guerin. supra. note 1. 210. See, f o r example, Slattery, supra. note 4; M. Jackson, Memorandum submitted to the A.G. of the United Kingdom on behalf of the Union of B.C. Indian Chiefs i n M. Jackson, Materials for Native Peoples and the Law, 1989, photocopied, 597 at 98, and 101-104; The Royal Proclamation, supra. note 143. 211. Jackson, i d . ; Plan f o r the Future Management of Indian A f f a i r s . 1775 i n A Statement of Claim Based on Aboriginal T i t l e of Metis and Non-Status Indians (Ottawa: Native Council of Canada, 1980) appendix 5. 212. The in t e r p r e t a t i o n of the Royal Proclamation i s i n issue i n l i t i g a t i o n brought by the Gitskan and Wet'suwet'en against the A.G. of B.C See statement of claim f i l e d i n action No. 0843, May 14, 1987 reprinted i n Jackson materials, i d . at 374-394. 213. Scott, supra. note 43 at 113 and 121. 214. (1983) 147 D.L.R. (3d) 237 at 249 (S.C.C). 191 215. A.G. Quebec v. A.G. Ontario [1921] A.C. 401 at 408. 216. (1886) 13 S.C.R. 577 at 610 per Strong J . 217. See summaries of fundamental p r i n c i p l e s i n Sections I, 1 and I, 2(b) of t h i s chapter. 218. Supra. note 205 at 328 and 390. 219. Id. at 416. 220. Id. at 404-405. 221. Id. at 390 per H a l l J . 222. Id. at 328. 223. Id. at 353. 224. See discussion at pages 105 to 106 of t h i s chapter. 225. Supra. note 205 at 328 per Judson C. J . ; at 383-384 and 402 per H a l l J . 226. Id. at 320-322. 227. Id. at 380. 228. Id. at 383 (emphasis added); See also 380-385. 229. Id. at 344. 230. Id. at 404. 231. (1979) 107 D.L.R. (3d) 513 (F.C.T.D.). 192 232. A.G. Ontario v. Bear Island Foundation (1984) 15 D.L.R. (4th) 321; R. v Dick [1989] 1 C.N.L.R. 132 (B.C. Prov. C t . ) . 233. See, f o r example, T. Flanagan, \"The Case Against Metis Aboriginal Rights\" (1983) IX Canadian Public P o l i c y 314. 234. Supra. note 231 at 541. 235. Id. at 542. 236. Id. at 543. 237. Id. at 543-544. 238. There was a s i m i l a r trend i n inte r n a t i o n a l law at the same time. See, for example, Western Sahara. supra. note 78; Sanders, supra, note 72 at 25-29. 239. Supra, note 187. 240. Supra, note 231 at 545. 241. See, f o r example, Wolff, supra, note 29 at 144; Blackstone, supra, note 129 at 113. 242. Supra, note 4 at 758. 243. F.S. Cohen, Handbook of Federal Indian Law Albuquerque: Unive r s i t y of New Mexico Press, 1942) at 294. 244. (1941) 314 U.S. 399. 245. See discussion of p r e s c r i p t i o n on customary law i n Section I I , 3 of t h i s chapter. 246. Supra, note 231 at 546. 247. Supra, note 224. 193 248. U.S. v. Seminole. 180 Ct. CI. 375 (1967); Confederated Tribes V . U.S.. 177 Ct. CI. (1966). 249. S l a t t e r y , supra. note 4 at 759; supra. note 141 at 6. 250. S l a t t e r y , i d . at note 126. 251. Supra. note 249. 252. Sl a t t e r y , i d . at 759. 253. Id. 254. J . Bickenbach, \"The Baker Lake Case: A P a r t i a l Recognition of Inuit Aboriginal T i t l e \" (1980) 38 University of Toronto Law Review 232 at 251. 255. Supra. note 231 at 551-552. 256. Guerin. supra. note 1 at 551-552. 257. Id. at 376. 258. Id. at 377-378. 259. Id. at 379-380. 260. Id. at 382. 194 CHAPTER 4 NATURAL RIGHTS OF THE METIS NATION OF MANITOBA I n t r o d u c t i o n The i d e n t i f i c a t i o n of the metis people i s d i s c u s s e d a t l e n g t h i n c h a p t e r 1 o f t h i s t h e s i s . In t h a t chapter, contemporary r e v i s i o n i s m of t r a d i t i o n a l h i s t o r i c a l accounts and views o f s e l f -i d e n t i f y i n g metis groups are examined t o i l l u s t r a t e some of the d i f f i c u l t i e s a s s o c i a t e d w i t h i d e n t i f y i n g a \"metis\" people. The phrase \"Metis N a t i o n \" i s used t o d e s c r i b e French and E n g l i s h speaking h a l f - b r e e d s who emerged as a d i s t i n c t c u l t u r a l group i n Manitoba, Saskatchewan and A l b e r t a . Some i n s i s t t h a t membership i n the N a t i o n i s dependant on descendancy from M e t i s i n h a b i t i n g t e r r i t o r y i n Manitoba (Rupert's Land) p r i o r t o 1870. Others extend membership t o M e t i s o r i g i n a t i n g i n the h i s t o r i c North West T e r r i t o r i e s who shared a common p o l i t i c a l w i l l and o t h e r persons a c c e p t e d by descendants of the M e t i s N a t i o n . Although descendants o f the M e t i s N a t i o n share c e r t a i n a s p e c t s of t h e i r h i s t o r y such as modes o f s u r v i v a l , p o l i t i c a l o r g a n i z a t i o n , r e s i s t a n c e t o f o r e i g n s e t t l e m e n t and u n i l a t e r a l i m p o s i t i o n of government, advancement of l a n d c l a i m s and p a r t i c i p a t i o n i n s c r i p programs; the h i s t o r i e s of the M e t i s of Manitoba and the M e t i s of t h e North West T e r r i t o r i e s are a l s o unique. Of p a r t i c u l a r s i g n i f i c a n c e i n Manitoba h i s t o r y i s the f o r m a t i o n of a P r o v i s i o n a l Government i n 1869 and the r o l e of t h a t government i n the c r e a t i o n of the Manitoba A c t . S.C. 1870, c.3. For t h i s reason, the n a t u r a l r i g h t s o f the Manitoba M e t i s are examined se p a r a t e from those of 195 the North West T e r r i t o r i e s . This does not mean that arguments derived from the h i s t o r y of the Manitoba Metis w i l l not, i n some instances, apply to Metis i n the North West T e r r i t o r i e s or that subsequent a c t i v i t i e s i n the North West T e r r i t o r i e s do not a f f e c t claims of the Manitoba Metis. The l a t t e r point i s i l l u s t r a t e d i n the discussion of extinguishment i n chapter 5. Nor does i t mean the Metis i n the h i s t o r i c North West T e r r i t o r i e s , or contemporary s e l f - i d e n t i f y i n g metis groups, do not have natural r i g h t s . Rather, the intention i s to i l l u s t r a t e the app l i c a t i o n of a natural theory of aboriginal t i t l e to a metis group by way of examination of a sample population. This examination recognizes c e r t a i n l i m i t a t i o n s . F i r s t , the focus i s natural r i g h t s within an i n t e r - s o c i e t a l property regime. The concern i s not with property systems within s p e c i f i c Metis communities except to the extent that those systems define natural r i g h t s to be respected by others. Second, although some reference i s given to primary h i s t o r i c a l sources, considerable reference i s made to secondary sources. I f a claim was advanced i n Canadian courts based on natural r i g h t s , the tru t h of h i s t o r i c a l evidence would be at issue unless admitted. This would necessitate the compilation of ar c h i v a l evidence and the u t i l i z a t i o n of expert evidence by hi s t o r i a n s , genealogists, anthropologists, archaeologists, etc. The purpose here i s simply to outline an argument f o r natural r i g h t s drawing inferences from facts repeated i n both primary and secondary sources. These are l i s t e d i n Appendix I of t h i s chapter. Where the opinion or in t e r p r e t a t i o n of a p a r t i c u l a r author i s r e l i e d upon, such r e l i a n c e i s indicated. Third, the discussion of p o s i t i v i s t arguments may seem cursory. 196 The intent i s not to c r i t i q u e t h e i r v a l i d i t y i n d e t a i l , but to outline f o r the reader popular arguments concerning Metis t i t l e and issues that need to be addressed to develop a coherent theory. F i n a l l y , the reader w i l l r e c a l l from the discussion i n chapter three, two fundamental p r i n c i p l e s of aboriginal t i t l e . These are: 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 o r i g i n a l occupation of that land by organized s o c i e t i e s ; and 2. aboriginal t i t l e may only be extinguished by consent. This chapter i s concerned with the f i r s t of these two p r i n c i p l e s . Chapter f i v e i s concerned with the second. I P o s i t i v i s t Arguments For and Against Metis T i t l e Legal and p o l i t i c a l commentators on the question of Metis t i t l e have centred t h e i r energies on developing a theory of Metis t i t l e which can be upheld i n the context of the common law doctrine of a b o r i g inal t i t l e . Consequently, the l i m i t e d l e g a l opinion i n t h i s area has focused on esta b l i s h i n g that the Metis are Indians and that Canada recognized a claim by the Metis to aboriginal t i t l e . 1 With the exception of tr a c i n g aboriginal r i g h t s of use and occupation through maternal l i n e s , l i t t l e attention has been paid to the o r i g i n s or source of Metis t i t l e . Rather, the debate has focused on the Manitoba Act and Dominion Lands Acts as sources or, at the very l e a s t , l e g i s l a t i v e recognition of the existence of Metis t i t l e . 2 The central issue debated i s not whether Metis ab o r i g i n a l r i g h t s e x i s t , but whether they have been lawfully extinguished. This approach i s pragmatic within the context of a 197 p o s i t i v i s t philosophy on aboriginal t i t l e claims and continues to be s i g n i f i c a n t given the court's current reluctance to abandon the notion that t i t l e e x i s t s at the sufferance of the Crown. Opponents to Metis t i t l e have also argued within the boundaries of p o s i t i v e law. The government asserts that the Metis are not Indians and any ri g h t s they may have had, f o r whatever reason, were extinguished through the land grant and s c r i p system established under the Manitoba Act. 3 Challenges to the legitimacy of Metis t i t l e focus on l i f e s t y l e , a b o r i g i n a l i t y , federal recognition of \" s p e c i a l \" Metis r i g h t s , the concept of t i t l e i n B r i t i s h c o l o n i a l law, the a b i l i t y of the Metis to prove t i t l e i n accordance with Canadian common law, the legitimacy of the s c r i p system and the establishment of the Metis as makers of t h e i r own misfortune. 4 As w i l l be seen, these arguments are challenging i n the context of the common law doctrine of aboriginal t i t l e , but are d i f f i c u l t to sustain i n the natural law t r a d i t i o n . 1. Share i n Aboriginal Ancestry This theory asserts that the Metis are a d i s t i n c t aboriginal nation who, by v i r t u e of t h e i r aboriginal ancestry and p a r t i a l Indian blood, are e n t i t l e d to recognition of t h e i r aboriginal r i g h t s including r i g h t s to land and self-government. This p o s i t i o n was advocated by Louis R i e l , 5 placed before the Canadian government by Father Ritchot when negotiating Manitoba into confederation, 6 and according to some authors, motivated the formation of the Provi s i o n a l Government and the Metis resistance to the u n i l a t e r a l imposition of t i t l e and sovereignty i n the Red River Area. 7 The theory r e j e c t s an a r b i t r a r y preference for p a t r i l i n e a l descent and 198 government d e f i n i t i o n s of who i s , and i s not, an Indian for the purposes of j u r i s d i c t i o n and r e s p o n s i b i l i t y . Rather, the assumption i s the r i g h t to t i t l e by a l l o r i g i n a l nations, regardless of the l e v e l of c i v i l i z a t i o n or percentage of Indian blood, i s q u a l i t a t i v e l y the same. The focus i s on the Metis as an ethnic c o l l e c t i v i t y , or nation, i n common possession of \"Metis\" lands. The subsequent recognition of Metis t i t l e as a c o l l e c t i v e or i n d i v i d u a l r i g h t by the federal government i s treated as a separate issue and a v i o l a t i o n of Metis r i g h t s . Because of the tendency to use the words \"a b o r i g i n a l \" and \"Indian\" interchangeably i n reference to \" t i t l e \" claims, advocates of Metis t i t l e develop a concept of \"Indian\" that goes beyond r a c i a l , c u l t u r a l and l i f e s t y l e d e f i n i t i o n s . Arguments fo r the i n c l u s i o n of Metis within t h i s concept are outlined i n chapter two and need not be repeated here except to remind the reader of two points. F i r s t , a l l d e f i n i t i o n s accept that the core of the group i d e n t i f y i n g as Indian must be of native descent. Second, while there i s c l e a r disagreement on whether a l l Metis are Indians, there seems to be no opposition to the argument that half-breeds who l i v e d among the Indians and were e n t i t l e d to take treaty are legitimate b e n e f i c i a r i e s of the c o l l e c t i v e t i t l e of the bands with whom they reside. For advocates of Metis t i t l e , t h i s compromise i s i n s u f f i c i e n t because i t excludes most Metis and f a i l s to recognize the existence of d i f f e r e n t aboriginal ways of l i f e . Consequently a theory of inheritance has evolved Metis have abor i g i n a l r i g h t s by v i r t u e of t h e i r Indian blood and inheritance from t h e i r Indian ancestors. 8 S t a r t i n g with t h i s premise, 199 arguments are made to i l l u s t r a t e the conformity of Metis hi s t o r y and culture with common law proofs of aboriginal t i t l e . At t h i s point i t i s important to d i s t i n g u i s h between p o l i t i c a l , h i s t o r i c a l and l e g a l analysis of Metis t i t l e . Legal opinion has paid l i t t l e attention to proof of t i t l e at common law. Rather, once \"Indianness\" i s established, the emphasis i s placed on express recognition of the Metis share i n Indian t i t l e to land i n l e g i s l a t i o n , acts of recognition by the federal and p r o v i n c i a l governments, and the v a l i d i t y of land grants and s c r i p as a method to extinguish Indian t i t l e . 9 As l e g a l opinion i n t h i s area has been aimed at achieving r e s u l t s within the e x i s t i n g l e g a l system, the f a i l u r e to devote more time to o r i g i n s and proof i s r e a d i l y understood. However, unless entitlement can be established outside of recognition, the courts may have d i f f i c u l t y recognizing l e g a l (versus p o l i t i c a l and moral) obligations of the Crown. The need for the development of a more comprehensive theory on o r i g i n s i s i l l u s t r a t e d i n the following statement of Mr. J u s t i c e Twaddle i n the Dumont case: The l e g a l basis of the [Metis] land claim i s a matter of great uncertainty. Unlike the Nishga Indian Tribe i n Calder v. Attorney-General of B r i t i s h Columbia (1973) , 34 D.L.R. (3d) 145, the Metis people did not occupy a c l e a r l y defined area of land and only on one side of t h e i r f a m i l i e s can they show descent from persons who inhabited the land from time immemorial. Even i f they had aboriginal r i g h t s p r i o r to July 15, 1870, these r i g h t s may have been extinguished by the Manitoba Act on i t s subsequent v a l i d a t i o n . The issue of extinguishment divided the Supreme Court of Canada i n the Calder case. I t cannot be assumed that i t w i l l be resolved i n favour of the Metis. 1 0 Some attention has been paid to the question of proof i n p o l i t i c a l and h i s t o r i c a l writings. In some instances emphasis i s placed on the s i m i l a r i t y of Metis culture and subsistence 200 a c t i v i t i e s to t r a d i t i o n a l views of the Indian way of l i f e . These writings emphasize the importance of a c t i v i t i e s such as hunting, f i s h i n g and trapping and the impact of the Indian culture on the Metis i d e n t i t y . 1 1 Most focus on the blending of the Indian and European cultures into a d i s t i n c t aboriginal culture enjoyed by the Metis as a \"people\" and incidents i n Metis h i s t o r y that evidence t h e i r attempt to continue i n possession of t h e i r lands to the exclusion of others. Incidents c i t e d include the b a t t l e of Grand Coteau, the b a t t l e of Seven Oaks, the t r i a l of Guillame Sayer, the opposition to survey, the r e j e c t i o n of McDougall's government, the 1870 insurrection and the formation of the Provisional Government.12 Both approaches evidence the existence of d i f f e r e n t Metis l i f e s t y l e s and communities within a given geographic t e r r i t o r y when Manitoba was transferred to Canada i n the 1870*s. Other commentators focusing on the question of indigenous r i g h t s add that the Metis are Canada's only true \"natives\" as both Indians and Europeans emigrated to Canada from other countries. 1 3 The writer i s aware of three attempts to tr a n s l a t e these arguments into l e g a l proofs of t i t l e . 1 4 Two i n favour of Metis t i t l e are cursory and emphasize the d i f f i c u l t i e s that the Metis w i l l face i f the court i n s i s t s on compliance with the c r i t e r i a enunciated i n the Baker Lake case. 1 5 Of p a r t i c u l a r concern are the c r i t e r i a of exclusive occupation and possession since time immemorial. In h i s discussion of exclusive occupation, Steven Carter attempts to f i t the mode of Metis land tenure into B r i t i s h property law. He suggest the issue of e x c l u s i v i t y i s not v i s a v i s Europeans, but other Indians as the Metis were i n e f f e c t 201 claiming dominion over land that at one point was i n the possession of others. The sol u t i o n proposed i s to recognize degrees of aboriginal t i t l e and to accept a \" l e g a l i n t e r e s t i n land akin to, perhaps, a tenant at w i l l or sufferance holding the land from other aboriginal landlords.\" 1 6 The immediate p o s i t i v i s t rebuttal to t h i s argument i s the i n a l i e n a b i l i t y of Indian t i t l e , but the idea of degrees of t i t l e i s one worth pursuing should the Baker Lake c r i t e r i a continue to be of influence. The Metis Association of Alberta has also considered the p o t e n t i a l d i f f i c u l t i e s i n meeting these c r i t e r i a but concludes: Fortunately, the Metis i n the P r a i r i e s don't have to e s t a b l i s h an aboriginal t i t l e under the circumstances outlined by the court, since the Manitoba Act. and several successive Dominion Lands Acts have already acknowledged t h e i r r i g h t s to Indian T i t l e . 1 7 With the exception of Carter's challenge to the concept of time immemorial, the inherent weakness i n both of these opinions i s the acceptance of the v a l i d i t y of the Baker Lake c r i t e r i a . This i s of c r u c i a l importance i n l i g h t of the Manitoba Court of Appeal's scepticism regarding the l e g a l basis of Metis t i t l e outside of l e g i s l a t i o n and the emphasis placed on these c r i t e r i a by opponents to Metis t i t l e . I f the source of t i t l e i s l e g i s l a t i o n , there i s nothing preventing u n i l a t e r a l abrogation by the Crown. I f l e g i s l a t i o n recognizes a pre-existing r i g h t , that r i g h t must have a source. I f the source i s common law and entitlement i s determined i n accordance with the legalism of Mr. J u s t i c e Mahoney i n the Baker Lake case, arguments against Metis t i t l e below suggest the Metis w i l l have a d i f f i c u l t time e s t a b l i s h i n g a l e g a l claim independent of statutory promises. Identifying the source of t i t l e i s also s i g n i f i c a n t i f the Metis wish to obtain c o l l e c t i v e 202 compensation i n the form of a land base. Reliance on l e g i s l a t i v e recognition may not l o g i c a l l y give r i s e to the remedy desired. For these reasons, the Metis must challenge Baker Lake and develop a theory on the o r i g i n s of t h e i r r i g h t s . 2. Recognition of Metis T i t l e Advocates of Metis r i g h t s argue that the government can not deny the existence of Metis t i t l e at common law i n face of e x p l i c i t recognition i n s. 31 of the Manitoba Act, equivalent sections of 18 the Dominion Lands Act and s. 35 of the Constitution Act. 1982. Opponents to Metis t i t l e w i l l immediately argue the Constitution i s not a source of r i g h t s and the in c l u s i o n of the term \" e x i s t i n g \" may mean that the reference to Metis i n s. 35(2) has no e f f e c t as t h e i r r i g h t s , whatever they are, have been extinguished. Thomas Flanagan suggests that t h e i r i n c l u s i o n i n s. 35(2) i s a \"thoughtless elevation of the Metis to the status of a d i s t i n c t \u00E2\u0080\u00A2 a b o r i g i n a l 1 people\" and that the damage caused i n the name of p o l i t i c a l expediency i s best solved by emphasizing the word \" e x i s t i n g . 1 , 1 9 The in c l u s i o n of the word \" e x i s t i n g \" i n s. 35(2) suggests that c o n s t i t u t i o n a l recognition w i l l only be given to \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 20 r i g h t s that e x i s t i n law and are not yet extinguished. Manitoba Metis argue t h e i r r i g h t s are not a question of p o l i t i c s . Rather, they r e l y on s. 31 of the Manitoba Act as evidence of the existence of Metis aboriginal t i t l e . The Act i s viewed as part of a t r a d i t i o n of recognition of aboriginal r i g h t s established i n the Royal Proclamation of 1763.21 Section 31 reads: 203 31. And whereas, i t i s expedient, towards the extinguishment of the Indian T i t l e to the lands i n the Province, to appropriate a portion of such ungranted lands, to the extent of one m i l l i o n four thousand acres thereof, f o r the benefit of families of half-breed residents, i t i s hereby enacted, that, under regulations to be from time to time made by the Governor General i n Council, the Lieutenant Governor s h a l l s e l e c t such l o t s or t r a c t s i n such parts of the province as he may deem expedient, to the extent aforesaid, and divide the same among the half-breed heads of families r e s i d i n g i n the province at the time of the said t r a n s f e r to Canada, and the same s h a l l be granted to the said c h i l d r e n respectively, i n such mode and on such conditions as to settlement and otherwise, as the Governor General i n Council may from time to time determine (emphasis added). Further support i s drawn from s i m i l a r language i n Orders-in-Council passed under the Act, 2 2 the extension of treaty entitlements to half-breeds and subsequent acts of recognition by the federal and p r o v i n c i a l governments such as the establishment of St. Paul de Metis and the Alberta Metis settlements. 2 3 In face of these acts of recognition. Unfortunately, doubts have been cast on the intention of the l e g i s l a t i o n to recognize Indian t i t l e and thus the existence of Metis Aboriginal r i g h t s . The a l t e r n a t i v e source examined i s the common law which increases rather than decreases the doubts surrounding the existence of Metis r i g h t s . The important phrase i n s. 31 i s \"towards the extinguishment of Indian t i t l e . \" The use of t h i s phrase gives r i s e to some in t e r p r e t a t i o n problems. The claims of the Metis may very well be c o l l a t e r a l claims (rather than aboriginal t i t l e claims) a r i s i n g from the surrender of lands by Indian bands. The s a t i s f a c t i o n of the proprietary i n t e r e s t of the Metis, whatever i t i s , i s a l o g i c a l step \"towards\" the tran s f e r and extinguishment of Indian t i t l e . I n order to obtain c l e a r t i t l e to Indian lands, i t was necessary for the Crown to discharge a l l l e g a l and equitable encumbrances on 204 Indian t i t l e . T i t l e would have to be completely cleared before a l i e n a t i o n through sale of grant was possible. This i n t e r p r e t a t i o n i s supported by subsequent orders-in-council which make i t cle a r the d i s t r i b u t i o n of land grants and s c r i p i s i n \" s a t i s f a c t i o n of\" Metis claims. However, with a few exceptions, the basis of the claim i s never c l e a r l y stated. 2 4 Consequently the basis of the claim could vary among the Metis depending on the l i f e s t y l e enjoyed by a p a r t i c u l a r group or i t could be uniform a r i s i n g from the fac t that they were o r i g i n a l s e t t l e r s with possessory r i g h t s . The l a t t e r argument receives some support from the fac t that s i m i l a r grants were subsequently made to the o r i g i n a l white s e t t l e r s of the Red River V a l l e y . 2 5 I d e n t i f y i n g the basis of the claim i s important i f the Metis assert a c o l l e c t i v e r i g h t to aboriginal t i t l e . Without a theory to support c o l l e c t i v e entitlement to a land base independent of the l e g i s l a t i o n , i t i s very d i f f i c u l t to prove that the l e g i s l a t i o n and subsequent acts of the government are contrary to the intention to e s t a b l i s h a land base expressed to the Metis or, that u n i l a t e r a l extinguishment by i n d i v i d u a l compensation i s i l l e g a l . On i t s face, i t i s d i f f i c u l t , i f not impossible, to construe s. 31 as conferring a c o l l e c t i v e entitlement to a land base. A p l a i n reading suggests a basis f o r i n d i v i d u a l claims rather than a c o l l e c t i v e claim by a \"people.\" The l o g i c a l consequence of i l l e g a l i t y i s to compensate the descendants as in d i v i d u a l s , each i n d i v i d u a l claim asserted having examined on i t s own merits. Again, these concerns are expressed i n the opinion of Mr. J u s t i c e Twaddle: 205 I t i s , i n any event, impossible to construe s. 31 of the Manitoba Act as conferring on half-breed c h i l d r e n generally a community of i n t e r e s t i n the 1,400,000 acres appropriated for the benefit of the families of h a l f -breed residents. The section makes i t quite c l e a r that the land was to be divided \"among the chi l d r e n of the half-breed heads of families r e s i d i n g i n the Province\" and \"granted to the said chi l d r e n r e s p e c t i v e l y . \" The p l a i n t i f f s argue that, by reason of the loss of in d i v i d u a l land r i g h t s , t h e i r forbears were unable to assemble the land which should have been t h e i r s into townships . . . That argument i s purely speculative of what might have been. I t o f f e r s no j u s t i f i c a t i o n f or a find i n g that the p l a i n t i f f s have a community of i n t e r e s t i n some unspecified land or that t h e i r own r i g h t s are at iss u e . 2 6 Taken alone, arguments against recognition based on int e r p r e t a t i o n are weak but coupled with arguments against the existence of Metis t i t l e they gain i n strength. For these reasons, l e g a l opinion must move beyond a dependence on l e g a l recognition to develop a coherent theory on the or i g i n s and persistence of Metis aboriginal t i t l e . Two alt e r n a t i v e s immediately come to mind. The f i r s t i s to develop a theory within the confines of the popular doctrine of aboriginal t i t l e . The second i s to r e j e c t the legalism introduced into the theory of aboriginal t i t l e and develop a theory supporting the natural r i g h t s of the Metis people based on f i r s t p r i n c i p l e s of aboriginal t i t l e . The d i f f i c u l t i e s encountered by the Metis i n the p o s i t i v i s t t r a d i t i o n and arguments advanced i n favour of a natural i n t e r p r e t a t i o n of aboriginal r i g h t s law suggest that a natural theory of Metis t i t l e may be more h e l p f u l i n advancing t h e i r cause. 3. Arguments Against Metis T i t l e Government lawyers have focused on the question of extinguishment and Indian status i n t h e i r defence to Metis t i t l e claims. With the exception of the proposed Dene/Metis land agreement i n what i s now the North West T e r r i t o r i e s , the s e t t i n g aside of land f o r metis c o l l e c t i v i t i e s has been done under the guise of welfare l e g i s l a t i o n and, i n the opinion of the p a r t i c i p a t i n g government, without recognition of claims to a b o r i g i n a l t i t l e . 2 7 Convinced that claims have been s a t i s f i e d , u n t i l recently the federal government excluded metis peoples from the land claims negotiation process and paid l i t t l e attention to the o r i g i n s and nature of t h e i r claim. 2 8 Increased a c t i v i t y on the part of metis p o l i t i c a l organizations has re-opened negotiations, but the issues raised i n the Dumont case suggest that the federal government i s hesitant to admit l e g a l obligations that may a r i s e independent of defects i n the s c r i p d i s t r i b u t i o n system. Further, during the F i r s t Ministers conferences on aboriginal t i t l e , the federal government indicated a willingness to a s s i s t the metis as disadvantaged peoples, but would not accept r e s p o n s i b i l i t y f o r them as s. 91(24) \"Indians\" unless the provinces provided them with a land base. The author i s not aware of a change i n t h i s p o s i t i o n . 2 9 The existence and proof of Metis t i t l e at common law has been challenged by Thomas Flanagan, a professor of p o l i t i c a l science at the U n i v e r s i t y of Calgary. Flanagan's views are worth examining i n some depth as they challenge trends i n academic l i t e r a t u r e concerning Metis h i s t o r y and land claims. In h i s book, R i e l and the Rebellion: 1885 Reconsidered. Flanagan inquires into the events that lead to the 1885 insurrection and casts doubt on the v a l i d i t y of the Metis claim to aboriginal t i t l e . 3 0 Although h i s focus i s the land question i n the North West T e r r i t o r i e s and R i e l ' s involvement 207 i n the 1885 \" r e b e l l i o n , \" he does examine the legitimacy of claims i n Manitoba i n h i s discussion of aboriginal t i t l e . According to Flanagan, the government erred i n \"gratuitously introducing the concept of aboriginal t i t l e \" i n the land grant provisions of the Manitoba Act and the Dominion Lands Act. 3 1 He reasons that i n Manitoba the Metis wanted control of a l l public land by l o c a l government. This was unacceptable to John A. MacDonald because i t was contrary to h i s plans f o r railway expansion and nation b u i l d i n g i n the North-West. Ritchot, a delegate from the Provisional Government established by R i e l , acted outside the scope of his authority when he accepted the land grant compromise contained i n s.31 of the Manitoba Act. C i t i n g Ritchot's diary as evidence of these assertions, Flanagan argues that i t was Ritchot who was the f i r s t to claim that the Metis had aboriginal r i g h t s as descendants of the Indians. He states that i n c l u s i o n of the phrase \"towards the extinguishment of Indian t i t l e \" i n s.31 i s not evidence that the government accepted Ritchot*s view. Pointing to the vagueness of s.31, the numerous orders i n council required to c l a r i f y the section, l a t e r statements of John A. MacDonald, and the f a c t that o r i g i n a l white s e t t l e r s eventually got the same concessions, Flanagan concludes that the i n c l u s i o n of the f a t e f u l phrase was a thoughtless concession and quick s o l u t i o n to get Manitoba lands into the Dominion of Canada so that the railway could proceed. The s i g n i f i c a n c e of Flanagan's argument i s he reduces the a b o r i g i n a l i t y of the Metis to a mistake i n the Manitoba Act. This mistake was c a r r i e d over into the provisions of the Dominion Lands Act dealing with the claims of the North-West half-breeds. As w i l l 208 be seen i n the discussion of Metis natural r i g h t s given below, the evidence c i t e d by Flanagan to reach t h i s conclusion can be used to support the opposite view. That i s , the Manitoba Act i s a treaty negotiated between two governments and s.31, with i t s subsequent implementation, does not r e f l e c t the agreement reached. Turning h i s attention to the method of s c r i p d i s t r i b u t i o n , Flanagan argues that there were l i m i t e d cases of fraud, t h e f t and impersonation. In his view, Metis e n t i t l e d to s c r i p under the Manitoba Act l o s t t h e i r s c r i p through speculation. He notes that the government attempted to avoid t h i s problem when i t passed the Half-Breed Land Grant Protection Act but l a t e r amended the Act to f a c i l i t a t e the sale of s c r i p at the request of the Metis. He re j e c t s the theory that the speculators were v i l l a i n s and sees them as the \"benefactors both of the half-breeds, whom they provided with sizeable amounts of cash, and of po t e n t i a l farmers, f o r whom they created a market land as an al t e r n a t i v e to the government's requirement f o r homesteading.\" 3 2 This view of the Metis as makers of t h e i r own misfortune i s also applied to the system of s c r i p d i s t r i b u t i o n under the Dominion Lands Act. Comparing the ac q u i s i t i o n of Manitoba and the North-West to a complicated r e a l estate transaction, Flanagan asserts that the Hudson's Bay company was the le g a l vendor and Indian t i t l e was a mere encumbrance which had to be removed before the sale could be completed to the government. \"From the o f f e r of purchase through taking possession and f i n a l l y c l e a r i n g t i t l e , everything was based on the v a l i d i t y of the Hudsons Bay Charter and the contemporary understanding of aboriginal r i g h t s . \" 3 3 He argues that the view of aboriginal t i t l e found i n the St. Catherine's case was i m p l i c i t i n 2 0 9 t h e d e a l i n g s w i t h t h e M e t i s . 3 4 I n d i a n t i t l e was n o t s e e n a s s o v e r e i g n t y o r o w n e r s h i p , b u t a mere e n c u m b r a n c e w h i c h r e q u i r e d c o m p e n s a t i o n p r i o r t o r e m o v a l . I n d i a n t i t l e was l i m i t e d a n d stemmed f r o m t h e b e n e v o l e n c e o f t h e s o v e r e i g n . A c c o r d i n g t o t h i s v i e w t h e M a n i t o b a A c t i s n o t a t r e a t y , b u t a u n i l a t e r a l a c t o f t h e g o v e r n m e n t t o c l e a r t i t l e . T h e m a i n w e a k n e s s e s i n t h e F l a n a g a n ' s a r g u m e n t i s a c c e p t a n c e o f c o n t r o v e r s i a l p o s i t i o n s a s \" g i v e n s . \" F l a n a g a n a s s u m e s t h a t t h e j u d i c i a l v i e w s p r e s e n t e d i n t h e S t . C a t h e r i n e ' s c a s e a r e c o r r e c t , t h a t t h e s o u r c e o f M e t i s t i t l e a n d a b o r i g i n a l i t y i s i n t h e w o r d i n g c o n t a i n e d i n t h e M a n i t o b a A c t a n d D o m i n i o n L a n d s A c t , a n d t h a t t h e H u d s o n ' s Bay Company was t h e l e g a l o w n er o f R u p e r t ' s L a n d a n d t h e N o r t h - W e s t . Two o f t h e s e a s s u m p t i o n s h a v e b e e n r e f u t e d p r e v i o u s l y i n t h i s t h e s i s a n d c l e a r l y f o r m a weak b a s i s f o r a r g u m e n t . 3 5 The a s s e r t i o n t h a t M e t i s a b o r i g i n a l i t y a r i s e s f r o m a m i s t a k e i n h i s t o r y a l s o r e s t s o n weak l e g a l f o u n d a t i o n s i f one c o n s i d e r s t h e n a t u r a l o r i g i n s o f t i t l e c l a i m s a n d t h e s t r e n g t h o f a c a d e m i c o p i n i o n a g a i n s t F l a n a g a n ' s a c c e p t a n c e o f B a k e r L a k e . 3 6 I t a l s o l o s e s g r o u n d i n F l a n a g a n ' s d i s c u s s i o n o f t h e M a n i t o b a A c t . I f t h e M e t i s a r e n o t a b o r i g i n a l s a n d w e r e i n t e n d e d t o b e t r e a t e d a s a l l o t h e r w h i t e s e t t l e r s a s he c o n t e n d s , why d i d t h e g o v e r n m e n t c o m p e n s a t e t h e m f o r t h e i r i n t e r e s t i n t h e l a n d i n a s e p a r a t e p r o v i s i o n r e f e r r i n g t o \" I n d i a n t i t l e ? \" Why was i t n e c e s s a r y t o \" c l e a r t i t l e \" b e f o r e t h e c o n v e y a n c e f r o m t h e H u d s o n ' s Bay Company t o C a n a d a c o u l d b e c o m p l e t e d ? F l a n a g a n s a y s t h e a n s w e r i s one o f p o l i t i c a l e x p e d i e n c y n o t r e c o g n i t i o n o f r i g h t s . I t i s e m p h a s i s o n t h e p o l i t i c a l e x p e d i e n c y a r g u m e n t s e v i d e n c e s h i s f a i l u r e t o u n d e r s t a n d t h a t r e c o g n i t i o n i s a r e d h e r r i n g i f one a c c e p t s t h e e x i s t e n c e o f 210 aboriginal r i g h t s independent of l e g i s l a t i o n . The issue i s not recognition, but the legitimacy of extinguishment. The author's f a i l u r e to address the existence of a unique Metis culture p r i o r to the introduction of survey to Manitoba and the North-West and to question the accountability of the government f o r incompetence and mishandling of Metis claims i s addi t i o n a l evidence of h i s f a i l u r e to understand the important l e g a l issues. However, i n fairness to Flanagan, one must recognize h i s opinions were given p r i o r to the Supreme Court's c l e a r recognition of the independent existence of aboriginal t i t l e and i n response to predominant l e g a l and p o l i t i c a l arguments concerning l e g a l recognition of Metis r i g h t s . Flanagan develops h i s theory against Metis t i t l e and addresses the question of the emergence of the Metis as a d i s t i n c t society i n h i s a r t i c l e the \"The Case Against Metis Aboriginal Rights.\" 3 7 Flanagan defends h i s case by examining Metis h i s t o r y i n Rupert's Land. He argues that p r i o r to the Manitoba Act, they were not considered a d i s t i n c t people. Rather \"half-breeds could claim a share of aboriginal t i t l e to the extent that they were w i l l i n g to be c l a s s i f i e d as Indians and that Indians would accept them as such.\" 3 8 He argues that there was never a demand fo r s p e c i a l treatment of the Metis as a group and summarizes h i s argument on the reason f o r including s.31 of the Manitoba Act as evidence of t h i s assertion. Flanagan contends even i f one accepts recognition of t i t l e i n the Manitoba Act and Dominion Lands Act. i t i s not enough to e s t a b l i s h Metis t i t l e . He applies the theory of Ivor Jennings that the mere existence of precedents i s not enough to create a binding 211 c o n s t i t u t i o n a l convention. Rather one must ask what are the precedents, \"did the actors i n the precedents believe they were bound by a r u l e \" and \" i s there a reason for the r u l e ? \" 3 9 Flanagan agrees that there are precedents recognizing extinguishment of Metis t i t l e , but contends John A. MacDonald considered t h i s a matter of p o l i c y and not r i g h t . More s i g n i f i c a n t , he argues, i s the f a c t that there i s no reason f o r the r u l e . According to Flanagan, the reason should be found i n the d e f i n i t i o n of aboriginal r i g h t s and Canadian law on aboriginal r i g h t s . Accepting that \"aboriginal r i g h t s are those r i g h t s which native people r e t a i n as a r e s u l t of t h e i r o r i g i n a l possession of the s o i l , \" he argues that the Metis could not have had o r i g i n a l possession i n the usual sense of pre-dating European contact. 4 0 Although he acknowledges the trend i n the United States to accept long term possession as s u f f i c i e n t , he argues t h i s could not be applied to the Metis because t h e i r \"presence was so obviously a r e s u l t of white i n t r u s i o n . \" 4 1 Flanagan then examines the proofs necessary to e s t a b l i s h an aboriginal r i g h t s claim set out i n the Baker Lake case and concludes that the Metis f a i l on a l l four accounts. He contends that the Metis were an organized society but not a d i s t i n c t society to themselves; that i s , \"a separate society i n the c l a s s i c s o c i o l o g i c a l sense for a s e l f - s u f f i c i e n t group of people l i v i n g under common rules of conduct.\" 4 2 According to Flanagan they were never s e l f - s u f f i c i e n t demographically, economically or c u l t u r a l l y . Although the Metis claimed a r i g h t to go anywhere they chose, they had exclusive t e r r i t o r y over which they roamed. To accept a concept of Indian and Metis t i t l e to the land would be contrary to 212 Mahoney's concept of exclusive use and occupancy. F i n a l l y , he argues that the Metis are the product of intermarriage between whites and Indians so they cannot claim to have been i n possession of Rupert's Land p r i o r to the assertion of sovereignty. Flanagan states an argument favouring Metis t i t l e i s even more d i f f i c u l t i f one accepts aboriginal t i t l e as a l e g a l theory to allow f o r the adjustment required i n the contact between a g r i c u l t u r a l and nomadic peoples. Pointing to the more European c u l t u r a l tendencies of the Metis, Flanagan argues that the Metis were v a s t l y d i f f e r e n t from the Indians and were not a nomadic people. He contends that aboriginal r i g h t s are given to Indians because of t h e i r l e v e l of s o c i a l development to re c o n c i l e them as a nomadic people to the demands of European c i v i l i z a t i o n . Thus, aboriginal r i g h t s are determined by way of l i f e and not r a c i a l extraction. Therefore, he concludes, to \"speak of a b o r i g i n a l t i t l e being passed on to the Metis through inheritance from the Indians, even though the Metis way of l i f e was very d i f f e r e n t from that of the Indian, contradicts the nature of aboriginal t i t l e . \" 4 3 Flanagan completes h i s case with a discussion of the s c r i p system and current l i t i g a t i o n i n Manitoba challenging the l e g a l i t y of the system. He argues that even i f Metis r i g h t s were not e f f e c t i v e l y extinguished, they are asking for more than they were o r i g i n a l l y e n t i t l e d to i n law. He argues the l o g i c a l consequence of i l l e g a l i t y would be to compensate descendants of the Manitoba Metis as i n d i v i d u a l s and not the establishment of a continuing corporate e n t i t y as demanded by contemporary Metis p o l i t i c i a n s and l i t i g a n t s . 213 The strengths of Flanagan's argument l i e i n h i s analysis of section 35 of the Constitution and h i s a p p l i c a t i o n of the Baker Lake case to a claim to aboriginal t i t l e . He i l l u s t r a t e s the importance of defining the Metis as a people, determining the e f f e c t s of alleged extinguishment and the d i f f i c u l t y of applying t r a d i t i o n a l aboriginal r i g h t s t e s t s to the Metis people. However, the weakness i n h i s analysis l i e s i n h i s misunderstanding of the l e g a l o r i g i n s of aboriginal t i t l e and h i s s t a t i c view of e t h n i c i t y . An understanding of the h i s t o r y and development of aboriginal r i g h t s and a recognition of e t h n i c i t y evolving over time through the s e l e c t i o n and adaptation of d i f f e r e n t c u l t u r a l forms, forces one to question the appropriateness of Flanagan's d e f i n i t i o n of an organized society and an aboriginal culture. Arguments fo r a broad d e f i n i t i o n of aboriginal peoples have been outlined i n some d e t a i l i n chapter one of t h i s thesis and w i l l not be repeated here. The point i s a d e f i n i t i o n of an aboriginal people should not depend on a l i f e s t y l e d i s t i n c t i o n . In applying the Baker Lake c r i t e r i a , Flanagan misinterprets Mahoney's t e s t for an organized society. Mahoney saw the t e s t as a subjective t e s t and held that the society must be s u f f i c i e n t l y defined to e s t a b l i s h a r e l a t i o n s h i p with the land. The key i s whether there i s 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 organization or group because aboriginal t i t l e i s viewed by him as a c o l l e c t i v e r i g h t . The d i f f i c u l t y i n meeting the c r i t e r i a of exclusive t e r r i t o r i a l occupation and possession since the assertion of time immemorial are more d i f f i c u l t issues to address. As discussed i n chapter three, these c r i t e r i a do not have a s o l i d foundation i n p o s i t i v e 214 law on aboriginal t i t l e and cannot be sustained i n the n a t u r a l i s t t r a d i t i o n . Further, one can point out that Mahoney did not have to address the issue of equal or shared occupation. F i n a l l y , recent case recognition by the Courts of aboriginal t i t l e as s u i generis may allow the courts to be more f l e x i b l e i n t h i s area. 4 4 Most d i f f i c u l t to accept i s Flanagan's argument that the doctrine of aboriginal t i t l e was created to allow f o r adjustment by nomadic peoples. This theory would deny t i t l e to large numbers of s e t t l e d Indian communities that did not p a r t i c i p a t e i n a nomadic l i f e s t y l e . 4 5 This theory has h i s t o r i c a l l y been raised to d i s c r e d i t Indian claims and r e f l e c t s the white stereotype that Indians have no culture or a single l i f e s t y l e . I t i s also contrary to the reasoning of the courts i n the development of the doctrine and i s impossible to maintain i n face of the Supreme Court's recognition of Indian t i t l e as a pre-existing l e g a l r i g h t . However, i t i s f a i r to say that the o r i g i n a l doctrine has been d i s t o r t e d to enhance settlement and l e g i t i m i z e colonization practices i n North America. 4 6 I t i s beyond the scope of t h i s t h e s i s to develop a de t a i l e d response to Flanagan's arguments r e l y i n g on established p r i n c i p l e s of common law. Although some of the most obvious problems i n the p o s i t i v i s t analysis of Metis t i t l e have been addressed, our concern i s to b u i l d an argument for Metis t i t l e i n accordance with f i r s t p r i n c i p l e s . Taking t h i s approach, most of Flanagan's arguments become i r r e l e v a n t . A b o r i g i n a l i t y i s not defined by r a c i a l , ethnic, or c u l t u r a l c r i t e r i a . I t simply means \"indigenous.\" The o r i g i n of the r i g h t i s not r a c i a l or dependant on a p a r t i c u l a r l i f e s t y l e . Rather, the basis of the claim i s o r i g i n a l occupation or r i g h t s v i s a v i s the o r i g i n a l occupant. The requirement of the existence of 215 a group r e f l e c t s the natural state of property as common property and recognizes the existence of group r i g h t s , i n addition to i n d i v i d u a l r i g h t s , i n natural law. E x c l u s i v i t y i s a r i g h t , not an o b l i g a t i o n . Recognition of the r i g h t i n l e g i s l a t i o n i s i r r e l e v a n t . The issue i s whether the l e g i s l a t i o n has a l e g a l e f f e c t on the pre-e x i s t i n g natural r i g h t . In essence, the only s i g n i f i c a n t objections raised by Flanagan are the d i f f i c u l t y of defining Metis t e r r i t o r y , the characterization of the Manitoba Act as a u n i l a t e r a l act of parliament and the legitimacy of the s c r i p d i s t r i b u t i o n system. Each of these objections w i l l be addressed i n the following discussion of Metis natural r i g h t s or the discussion on legitimate methods of extinguishment i n Chapter 5. II Natural Rights of the Manitoba Metis 1. Proof of T i t l e Chapter three i l l u s t r a t e s that the doctrine of aboriginal t i t l e o r iginates i n natural theories concerning 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 . A n a t u r a l i s t i n t e r p r e t a t i o n accepts aboriginal t i t l e i s an independent l e g a l r i g h t derived from occupation of land by i d e n t i f i a b l e peoples p r i o r to European a c q u i s i t i o n . The most secure t i t l e a r i s e s from continuous occupation of previously unoccupied lands. However, t i t l e a r i s i n g from immemorial and ordinary p r e s c r i p t i o n may be l e g i t i m a t e l y asserted against f i r s t occupants and subsequent claimants assuming c e r t a i n conditions are met such as good f a i t h and possession for a substantial period of time. In each instance, recognition i s given to t i t l e based on occupation and possession rather than some 216 form of d e r i v a t i v e t i t l e through grant, or agreement. The legitimacy of the t i t l e at issue depends on i t s d e r i v a t i o n from the o r i g i n a l or \" a b o r i g i n a l \" occupant and not the discovering sovereign i f such t i t l e i s acquired p r i o r to voluntary surrender of the underlying aboriginal r i g h t . I t i s through t h i s layering of o r i g i n a l t i t l e that Metis r i g h t s are linked to r i g h t s of f i r s t occupants. Both f i n d t h e i r o r i g i n s i n p r i n c i p l e s of natural law regarding the o r 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 . This chapter w i l l i l l u s t r a t e that Metis t i t l e i s acquired from the f i r s t occupants through acquiesence and p r e s c r i p t i o n . Proof of t i t l e can be established by meeting three c r i t e r i a : (a) the existence of an i d e n t i f i a b l e group, (b) o r i g i n a l or p r e s c r i p t i v e r i g h t s against the o r i g i n a l occupant and (c) an i d e n t i f i a b l e t e r r i t o r y . The r i g h t of e x c l u s i v i t y i s important i n the context of voluntary abandonment of land r i g h t s and t e r r i t o r i a l sovereignty, but need not be determinative i n the event of shared j u r i s d i c t i o n . Natural theory requires f l e x i b i l i t y i n the s e l e c t i o n of an e f f e c t i v e date f o r the a p p l i c a t i o n of the above c r i t e r i a to d i f f e r e n t groups. For example, a group claiming to have been unlawfully dispossessed of i t s lands may not be i n present occupation of the lands claimed and might have d i f f i c u l t y i d e n t i f y i n g a contemporary c o l l e c t i v i t y . Although descendants can be i d e n t i f i e d to assert the claim, the dispossession may have resulted i n the breakdown of t r i b a l organization and the cohesiveness of the group. I f the e f f e c t i v e date i s the date a l e g a l claim i s commenced, groups or descendants of groups advancing 217 claims on a basis other than current possession might be barred from compensation for i l l e g a l a c t i v i t y . Although t i t l e i s based on possession, natural t h e o r i s t s would f i n d i t repugnant to ignore claims of those wrongfully dispossessed. The preference given to surviving communities and the contemporary property regime inherent i n a f a i l u r e to adjust the e f f e c t i v e date f o r dispossessed groups not only necessitates an ethnocentric bias, but endorses power, rather than j u s t i c e , as the governing p r i n c i p l e i n human rel a t i o n s h i p s . Further, ignoring the r i g h t s of disadvantaged communities i s contrary to the moral o b l i g a t i o n of powerful communities and persons i n authority to consider the common good of weaker communities that may be harmed by t h e i r d e c i s i o n s . 4 7 For these reasons, natural j u s t i c e requires that the c r i t e r i a be applied at the date of dispossession or loss of r i g h t s . One could argue that i t i s i n the best i n t e r e s t of the Canadian community that the l e g a l i t y of t i t l e s held under the current regime be upheld without subject to challenge because of the chaos and s o c i a l i n s t a b i l i t y that would r e s u l t i f lands were returned to groups i l l e g a l l y dispossessed. This argument echoes the p o l i t i c a l question doctrine invoked by the Marshall court to l e g i t i m i z e actions of the Crown towards indigenous peoples that were without l e g a l foundation. 4 8 At the same time, i t addresses the p r a c t i c a l problems associated with the resolution of t i t l e claims to s e t t l e d lands. However, natural law w i l l not simply deem unjust acts j u s t because the act now seems i r r e v e r s i b l e . A n a t u r a l i s t approach attempts to overcome p r a c t i c a l d i f f i c u l t i e s . This may be accomplished by considering questions such as contemporary i d e n t i t y and a v a i l a b i l i t y of h i s t o r i c land holdings i n the determination of 218 an appropriate method of compensation, rather than denying the existence of a r i g h t or the occurrence of an i n j u s t i c e . Compromise w i l l be necessary on both sides and the res o l u t i o n of these d i f f i c u l t i e s may mean monetary compensation rather than the creation of a contemporary land base. The point i s natural law w i l l not condone ignoring the r i g h t because of the pragmatic problem of formulating a remedy. Determining the date of dispossession i s not without i t s own d i f f i c u l t i e s . The view one has on sovereign t i t l e and legitimate methods of extinguishment w i l l a f f e c t her i n t e r p r e t a t i o n of \"dispossession.\" Those who ascribe to the view that the Crown obtained an inchoate t i t l e upon discovery that i s somehow perfected by e f f e c t i v e occupation, conquest or purchase might argue the date of discovery i s the e f f e c t i v e date of loss even though the o r i g i n a l inhabitants remained i n actual possession. Others might argue the need f o r an overt action asserting sovereignty such as the enactment of l e g i s l a t i o n incompatible with the existence of Indian t i t l e . Both of these views are contrary to p r i n c i p l e s of natural law. Natural theory r e j e c t s the notion of underlying t i t l e i n the discovering sovereign and the notion that t i t l e e x i s t s at the sufferance of the discovering Crown. Rather, i t recognizes t i t l e i n the p r i o r possessor u n t i l i t i s v o l u n t a r i l y surrendered or abandoned. Therefore, a n a t u r a l i s t might argue the e f f e c t i v e date of loss i s the date a treaty i s signed or land i s v o l u n t a r i l y abandoned. The natural c o r o l l a r y i n the event of wrongful dispossession i s the date of the i l l e g a l agreement or forced abandonment. 219 The s i t u a t i o n of the Manitoba Metis i s p a r t i c u l a r l y d i f f i c u l t . Because there i s considerable disagreement among authors concerning the nature of the Manitoba Act and i t s a f f e c t on Metis claims. As discussed i n further d e t a i l below, some argue i t was a u n i l a t e r a l act of Parliament, some argue i t represents a negotiated settlement that was l a t e r dishonored through amending l e g i s l a t i o n and orders i n council, and some argue the Act does not represent the agreement reached. I f the l e g i s l a t i o n i s viewed as an agreement gone bad, i t i s reasonable to sel e c t as the e f f e c t i v e date the date the agreement was reached, or given the short period of time between the agreement and i t s enactment, the date the Manitoba Act received royal assent. However, the appropriateness of t h i s s e l e c t i o n can be challenged i f one considers the method and duration of implementation. Selecting the date of dispossession as the e f f e c t i v e date assumes the a b i l i t y to pin point a date when r i g h t s were extinguished or land was i n v o l u n t a r i l y l o s t . Unfortunately neither i s e a s i l y ascertainable. For example, the ambiguous phraseology contained i n s. 31 of the Manitoba Act and subsequent l e g i s l a t i o n suggests the intention of parliament was not to extinguish t i t l e with a l e g i s l a t e d statement to that e f f e c t . Consequently, the date of the enactment of the Manitoba Act i s not the date the Metis were dispossessed. Rather, s. 31 i s a statement of intent to s a t i s f y Metis claims at a future date on an i n d i v i d u a l basis. Dispossession was purportedly accomplished through a land grant and s c r i p d i s t r i b u t i o n process. Some Metis were issued and received s c r i p or patent or both, some never received e i t h e r and some never located t h e i r lands. The majority were eventually displaced and 220 l o s t t h e i r t r a d i t i o n a l lands. 4 9 Unlike Indian t r i b e s , the Metis were not removed as a group to designated lands or given reserve lands i n exchange for the surrender of t h e i r c o l l e c t i v e r i g h t s enjoyed as an indigenous society. Rather, i n p r a c t i c e e x t i n c t i o n was an on-going process aimed at compensating i n d i v i d u a l claimants. Consequently the alleged cessation of Metis r i g h t s d i d not occur at once but at d i f f e r e n t times for d i f f e r e n t i n d i v i d u a l s over a period of several years. A natural theory of Metis t i t l e may help to resolve some of the confusion surrounding the i d e n t i f i c a t i o n of the date of dispossession. F i r s t , theories based on the p r i o r i t y of sovereign t i t l e over that of f i r s t occupants p r i o r to legitimate a c q u i s i t i o n are rejected. Second, the existence of Metis r i g h t s i s not dependent on the in t e r p r e t a t i o n i n s. 31. Therefore, a d i s t i n c t i o n i s drawn between the existence of Metis r i g h t s and the decision r e f l e c t e d i n l e g i s l a t i o n to extinguish those r i g h t s through i n d i v i d u a l compensation. Assuming the independent existence of Metis c o l l e c t i v e r i g h t s (discussed below) dispossession i s properly viewed as the loss of dominion and t e r r i t o r i a l sovereignty of the Metis Nation over i t s lands. The issue i s not when i n d i v i d u a l Metis l o s t t h e i r respective land holdings pursuant to terms contained i n s. 31, but when the Metis Nation l o s t i t s r i g h t to assert ownership and sovereignty within i t s t e r r i t o r i e s . The determination of the date of loss s t i l l v aries depending on whether the Manitoba Act i s viewed as an agreement or a u n i l a t e r a l act of parliament. The former perspective supports the conclusion that c o l l e c t i v e r i g h t s were surrendered or l o s t when an agreement was approved by Canada and the Metis Nation. The l a t t e r perspective traces the loss of r i g h t s to the imposition of martial law i n the Red River area immediately a f t e r the Manitoba Act was proclaimed and the breakdown of the Provisional Government. P r a c t i c a l l y speaking, the choice i s more s i g n i f i c a n t i n r e f l e c t i n g one's perspective on the question of negotiation versus u n i l a t e r a l imposition than a f f e c t i n g the date of loss as both events occurred i n 1870 within a couple of months of each other. The following analysis of Metis natural r i g h t s uses June, 1870 as the e f f e c t i v e date for the application of c r i t e r i a to the Metis. This date i s chosen because i t i s the month i n which the Provisional Government approved the terms of the Manitoba Act and stopped asserting c o l l e c t i v e r i g h t s to Metis lands and s e l f -government i n exchange f o r c e r t a i n guarantees. From t h i s day forward land holding within Metis communities was regulated by the Canadian government. In August of 1870, Canadian troops entered the Red River area without opposition and imposed Canadian r u l e . 5 0 Although actual dispossession began several years l a t e r , t h i s date r e f l e c t s a loss of control by the Metis Nation. 2. I d e n t i f i a b l e Group (a) A b o r i g i n a l i t y Natural r i g h t s of property are possessory r i g h t s without r a c i a l or c u l t u r a l d e f i n i t i o n . To suggest a p a r t i c u l a r race i s e n t i t l e d to property rig h t s due to ethnic o r i g i n , l i f e s t y l e or method of land tenure v i o l a t e s natural precepts of equality and u n i v e r s a l i t y . To deny r i g h t s of occupancy based on any of these reasons i s to deny the humanity of the group deprived and to 2 2 2 a t t r i b u t e s p e c i a l or \"supernatural\" r i g h t s to the beneficiary. Consequently, the extent to which the p o s i t i v e law on aboriginal t i t l e i s affected by a r a c i a l or way-of-life d i s t i n c t i o n i s the extent to which i t deviates from i t s o r i g i n a l and natural a p p l i c a t i o n . The issue i s not one of race or culture, but the moral o b l i g a t i o n of a l l races and cultures to respect pre-existing r i g h t s a r i s i n g from legitimate possession. 5 1 This point i s s i g n i f i c a n t to the Metis people who are of p a r t i a l Indian ancestry and who, as an en t i r e people, d i d not enjoy a s i n g l e way of l i f e . Rather, by 1870 there were at l e a s t three d i s t i n c t classes of Metis l i v i n g i n what was then Manitoba - those who l i v e d as Indians and were recognized as members of a p a r t i c u l a r Indian t r i b e ; the hivernants, who continued to pursue the nomadic l i f e of the buffalo hunter and those who engaged i n farming. Those who farmed continued the t r a d i t i o n a l pursuits of hunting, f i s h i n g and trapping and some pa r t i c i p a t e d i n communal buff a l o hunts i n the summer. In addition to these groups were Metis who continued to l i v e as voyageurs, tradesmen fre i g h t e r s and employees of the Hudson's Bay Company.52 Those who l i v e d among the Indians were viewed as Indians and t h e i r aboriginal r i g h t s are generally not disputed. The remaining Metis eventually united and i d e n t i f i e d as a Nation d i s t i n c t from the Indians and the European immigrants. 5 3 The Nation formulated i n response to threats to the e x i s t i n g way of l i f e and i n order to achieve common p o l i t i c a l and economic goals. Some of the threats included r e s t r i c t i o n on trade, changes i n the economic base a r i s i n g from rapid settlement and the loss of lands f o r which l e g a l t i t l e s had not been issued. Members of the nation shared several s i g n i f i c a n t bonds - aboriginal ancestry, 223 t i t l e to i n d i v i d u a l lands and common property (eg. hunting grounds) based on t r a d i t i o n a l occupancy rather than some form of deriv a t i v e t i t l e from the Crown, indifference to the Hudson's Bay government (as long as i t did not i n t e r f e r e with t h e i r economic and proprietary rights) and eventually formation of t h e i r own government when the e x i s t i n g government f a i l e d to meet t h e i r needs. 5 4 The d i v e r s i f i e d land use, economy and l i f e s t y l e s of the communities forming the Metis Nation and the s i m i l a r i t i e s between the l i f e s t y l e s of many Metis to the contemporaneous European f r o n t i e r culture i s c i t e d as evidence that the Metis Nation, i f i t did e x i s t , i s not an aboriginal Nation capable of asserting a claim to a b o r i g inal t i t l e . This view has been d i s c r e d i t e d previously and w i l l not be examined here except to i l l u s t r a t e the d i s t o r t i o n of ri g h t s which occurs by equating the term aboriginal with the term Indian. The term \"aboriginal\" changes from a simple reference to native inhabitants of a country and gains r a c i a l , c u l t u r a l and le g a l dimensions because of s t a t i c and ethnocentric views of what i t means to be an Indian. The term \"Indian\" was f i r s t used by Christopher Columbus to describe the aborigines - the o r i g i n a l inhabitants of North America. 5 5 In i t s attempts to s a t i s f y a b o r i ginal claims and expand settlement i n the West, the federal government fragmented o r i g i n a l inhabitants into sub-groupings. I n i t i a l l y the d i v i s i o n appears to have been based on race and on a way of l i f e d i s t i n c t i o n determining group membership through paternal l i n e s - i f a person l i v e d among and was accepted by an Indian t r i b e she was e n t i t l e d to take treaty and p a r t i c i p a t e i n the reserve system established to s a t i s f y aboriginal claims. 5 6 The 2 2 4 Indian Act evolved to administer reserve communities and defined the Indian population e n t i t l e d to l i v e on reserves. Status was not determined by a r a c i a l c r i t e r i a , but according to the status of the father r e s u l t i n g i n the exclusion c e r t a i n o r i g i n a l peoples and the i n c l u s i o n of non-aboriginals. 5 7 In the government scheme, connection to Indian blood through family t i e s or ancestry was s i g n i f i c a n t , but a percentage of Indian blood d i d not automatically make a person an Indian. The problem with u t i l i z i n g the term \"Indian\" i n aboriginal r i g h t s theory i s the tendency to lose sight of i t s i n i t i a l meaning and to define i t i n accordance with government p o l i c y and prac t i c e . This approach i s understandable i f entitlement i s based on recognition, but not i f entitlement i s based on pre-existing l e g a l r i g h t s . In the l a t t e r scenario government pr a c t i c e i s relevant only to the question of legitimate extinguishment. A focus on government p o l i c y and the implementation of a reserve system fosters arguments based on r a c i a l c h a r a c t e r i s t i c s and a p a r t i c u l a r way of l i f e . The t r a n s l a t i o n of t h i s perspective into aboriginal r i g h t s theory can r e s u l t i n a t o t a l misunderstanding of the basis of entitlement. A c l e a r example of t h i s d i s t o r t i o n i s seen i n Flanagan's understanding of the l e g a l basis of entitlement. In h i s view entitlement makes no sense unless a d i s t i n c t i o n i s drawn between a g r i c u l t u r a l and nomadic existence. The doctrine evolved i n B r i t i s h law to obtain land from nomadic, hunting, food-gathering peoples f o r the purposes of \" c i v i l i z a t i o n \" without resorting to force. Aboriginal r i g h t s are not \"merely or even c h i e f l y , a question of who was here f i r s t ; they a r i s e rather as an adjustment 225 i n the contact between a g r i c u l t u r a l and nomadic peoples.\" 5 8 Unlike the Indians, the Metis were not a nomadic people. Their way of l i f e was not aboriginal and so they cannot claim aboriginal r i g h t s . 5 9 Reliance on d e f i n i t i o n s i n the Indian Act also r e s u l t s i n a 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 fragmentation of the native population into status and non-status groups has resulted i n j u r i s d i c t i o n a l tangles which complicate the advancement of t i t l e claims. This i s of p a r t i c u l a r s i g n i f i c a n c e to the Metis who are excluded from the Indian Act regime and, u n t i l recently, were excluded from the land claims negotiation process. Rather than ask i f the Metis were i n legitimate possession of the t e r r i t o r i e s claimed and thus e n t i t l e d to recognition of t h e i r pre-existing r i g h t s by European colonizers, the argument has centred on whether the Metis are \"Indians\" as the term was understood by the government i n 1867, the date i t assumed j u r i s d i c t i o n over \"Indians and lands reserved f o r Indians.\" 6 0 Although the majority of academic opinion agrees that \"Indian\" i n the 1867 and 1982 Constitutions has a d i f f e r e n t meaning than \"Indian\" i n the Indian Act, many w i l l not transcend the r a c i a l and c u l t u r a l boundaries of the term. 6 1 Restraint i s l i k e l y due to a focus on recognition as a basis of e n f o r c e a b i l i t y of r i g h t s and assumption of r e s p o n s i b i l i t y over s p e c i f i c aboriginal groups. The natural t h e o r i s t would say the question of whether Metis are \"Indians\" i s a red herring because recognition i s not necessary for l e g a l entitlement. The issue i s whether there i s a l e g a l and moral o b l i g a t i o n to recognize the claims of the Metis as p r i o r possessors and not whether the federal government chooses to recognize and assume r e s p o n s i b i l i t y f o r t h e i r claims as \"Indians.\" I f the answer to the former question i s yes, natural j u s t i c e demands that t h e i r claims be treated on equal footing with other occupancy based claims and that the federal and p r o v i n c i a l governments, when exercising t h e i r decision making power, take into consideration the common good of the Metis community. This argument echoes the equality argument advanced by the Metis people but i s not dependant on t h e i r c l a s s i f i c a t i o n as an Indian people but t h e i r natural r i g h t s derived from possession. 6 2 Fewer r e s t r i c t i o n s are placed on natural r i g h t s i f the term \"indigenous\" i s incorporated into aboriginal r i g h t s theory. \"Indigenous\" simply means native to a p a r t i c u l a r land or region or \"born or produced nat u r a l l y i n a land or region.\" 6 3 The term i s commonly used i n contrast to the word \"immigrant\" which r e f e r s to populations that originate i n countries other than those i n which they l i v e . The Metis people are indigenous to North America i n the sense that \"they came into being as a d i s t i n c t people on t h i s content.\" 6 4 Although t h e i r paternal ancestors were immigrants, the Metis are indigenous because they became a d i s t i n c t people independent of t h e i r aboriginal and immigrant ancestors. In p a r t i c u l a r , they are indigenous to Rupert's Land and the Northwest as i t i s within these regions they evolved into a people. 6 5 Like other indigenous peoples, they enjoy natural property r i g h t s i f they can e s t a b l i s h f i r s t occupation of previously unoccupied lands or legitimate t i t l e against the o r i g i n a l possessor p r i o r to European occupation of t h e i r t e r r i t o r i e s . Unfortunately, the use of the term \"indigenous\" can also r e s u l t i n non-compliance with the natural precepts underlying the 227 concept of aboriginal t i t l e . This occurs i f emphasis i s place on the characterization of a group as indigenous without understanding the foundation of indigenous rather than understanding that the l e g a l foundation of indigenous r i g h t s i s o r i g i n a l occupation. For example, one might argue that the characterization of Metis as indigenous depends on the ancestry of the population and not the bir t h p l a c e of the nation. A focus on the ancestry without placing temporal r e s t r i c t i o n s renders every person born i n Canada indigenous to Canada. Consequently, the term i s to be used to r e f e r to populations o r i g i n a t i n g i n Canada p r i o r to i t s col o n i z a t i o n . Indigenous r i g h t s are r i g h t s which accrue to the populations o r i g i n a t i n g i n a p a r t i c u l a r area p r i o r to European immigration. These r i g h t s may, or may not, continue to survive depending upon the legitimacy of acts of extinguishment by the co l o n i z i n g power. In t h i s sense of the term i t i s impossible for Metis to have indigenous r i g h t s because t h e i r existence does not pre-date European immigration. The problem with t h i s i n t e r p r e t a t i o n i s i t focuses on the existence of a people p r i o r to European contact rather than 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 i n unoccupied and occupied lands. Further, the emphasis on the date of European contact assumes the legitimacy of doctrines of discovery, conquest and u n i l a t e r a l extinguishment which cannot be sustained i n natural law. Rather, r i g h t s can only be acquired by cession or p r e s c r i p t i o n . Natural law i s concerned with the recognition of r i g h t s a r i s i n g from legitimate possession not the date a people comes into being. The entitlement to recognition or property r i g h t s i s not dependant on the o r i g i n s of the r i g h t holder so much 228 as the o r i g i n of the property r i g h t i n legitimate possession p r i o r to l e g a l a c q u i s i t i o n . I t j u s t so happens that the c l e a r e s t r i g h t i s one a r i s i n g from o r i g i n a l occupancy by o r i g i n a l peoples. However, r i g h t s may also a r i s e against the o r i g i n a l occupant i n natural theory \"indigenous\" comes to mean r i g h t s of, or a r i s i n g from the r i g h t s of, f i r s t occupants. I t can not be established that the Metis are o r i g i n a l occupants or inhabitants of the lands i n which t h e i r nation was born p r i o r to European contact, i t does not mean they d i d not acquire legitimate r i g h t s of property enforceable against Canadian claims to t i t l e and sovereignty over t h e i r lands. I t simply means t h e i r r i g h t s a r i s e against the o r i g i n a l inhabitants p r i o r to legitimate a c q u i s i t i o n rather than by v i r t u e of t h e i r own o r i g i n a l inhabitation or Crown grant. Because of the etymological debates concerning the c l a s s i f i c a t i o n of Metis as Indian, aboriginal or indigenous and the tendency of these debates to d i s t o r t the natural basis of aboriginal t i t l e , n a t u r a l i s t s should avoid l a b e l l i n g c o l l e c t i v e occupancy based r i g h t s through the use of inappropriate terminology. The terms \"Indian,\" \"ab o r i g i n a l \" and \"indigenous\" have been created within the p o s i t i v i s t regime to explain the recognition of c e r t a i n r i g h t s by colonizing nations and cannot be tr a n s l a t e d into natural theory without being accompanied by undesirable p o s i t i v i s t baggage. For t h i s reason i t i s best to r e f e r to the natural r i g h t s of s p e c i f i c peoples a r i s i n g from legitimate possession rather than attempting generic categorizations. The issue i s not wether a people are Indian, indigenous or aboriginal but the i d e n t i f i c a t i o n of a \"people\" possessing natural r i g h t s a r i s i n g from o r i g i n a l occupation or 2 2 9 derived from the f i r s t occupants p r i o r to legitimate a c q u i s i t i o n of the o r i g i n a l t i t l e by the Crown. Thus, we are concerned here with Metis r i g h t s or natural r i g h t s of the Manitoba Metis rather than categorizing the Metis as aboriginal, indigenous or Indian people. (b) The Metis People The emergence of the Metis as a \"people\" i s s i g n i f i c a n t i n the natural t r a d i t i o n f or two reasons. F i r s t , i t i s l o g i c a l that a group e x i s t before one can speak of group r i g h t s . Second, the law of nations requires some form s o c i a l organization to p u l l lands not i n actual physical possession of a person or community out of the category of terrae n u l l i u s and into the category of national public lands. 6 6 The d e f i n i t i o n of \"people\" and \"nation\" have been examined i n Chapter one and w i l l not be repeated here. Rather, we are concerned with one question. As of June, 1870 d i d the Metis of Manitoba have s u f f i c i e n t coherence, permanence, p o l i t i c a l organization and s e l f - i d e n t i t y to q u a l i f y as a group? The natural r u l e against a r b i t r a r y preference to communities requires that i d e n t i f i c a t i o n c r i t e r i a be applied f l e x i b l y i n l i g h t of varying l e v e l s and forms of organization among d i f f e r e n t s o c i e t i e s 6 7 . I f the existence of a group i s confirmed, the primary concern i s i d e n t i f i c a t i o n of Metis occupation of Metis t e r r i t o r y and not the private land holdings of i n d i v i d u a l Metis. I f i t i s denied, the analysis of natural ri g h t s must focus on the legitimacy of in d i v i d u a l property r i g h t s or s p e c i f i c Metis community based rig h t s and assume t e r r i t o r i e s not i n actual possession of Metis people or under the j u r i s d i c t i o n of l o c a l governments are open to a c q u i s i t i o n 230 by mere occupation and assertion of sovereignty by the Crown. The l a t t e r conclusion necessitates negotiating Metis claims on an i n d i v i d u a l or community basis where as the former allows negotiations with representatives of a sing l e people. As i t i s impossible to i d e n t i f y the exact date that the mixed blood population emerged into a \"people\" a b r i e f examination of t h e i r s o c i a l and p o l i t i c a l h i s t o r y i s necessary to determine t h e i r existence as a sing l e group or d i s t i n c t groups. P r i o r to 1835, the Metis enjoyed three d i s t i n c t l i f e s t y l e s geared at the maintenance 68 of the f a m i l i a l unit rather than making a p r o f i t . Those who secured employment with fur trading companies tended to s e t t l e close to the trading posts. Although the men had duties that took them from the s e t t l e d areas, t h e i r families stayed permanently i n one l o c a t i o n . A second group l i v e d semi-settled l i v e s spending part of the year on small farms and part of the year hunting buf f a l o to feed and clothe t h e i r f a m i l i e s . The t h i r d group sustained themselves by hunting and trapping. They l i v e d a nomadic l i f e s t y l e and l i v e d i n temporary settlements of tepees and log shacks. 6 9 By the beginning of the 19th century two d i s t i n c t c u l t u r a l groups also emerged - the French and English speaking Metis. Generally, the former were nomadic or semi-settled and the l a t t e r permanently s e t t l e d at the posts or i n a g r i c u l t u r a l communities. 7 0 By 1810, numerous Metis communities l i v e d s e t t l e d , semi-s e t t l e d or nomadic l i v e s i n Rupert's Land but the communities existed independently of each other and not as a cohesive group. 7 1 However, the economic stresses experienced by these communities between 1812 and 1820 fostered the development of a u n i f i e d 231 p o l i t i c a l consciousness p a r t i c u l a r l y among the french-speaking Metis i n the Red River area as t h e i r l i v e l i h o o d s were more dependant on hunting and trading. Of p a r t i c u l a r s i g n i f i c a n c e was the united opposition to r e s t r i c t i o n s on trade and armed resistance under the leadership of Cuthbert Grant to the establishment of the S e l k i r k colony. 7 2 The resistance to economic change coupled with geographic i s o l a t i o n fostered a sense of ownership and n a t i o n a l i t y among the d i f f e r e n t groups concentrated i n the Red River area. However, the primary c u l t u r a l and economic d i v i s i o n between French and English speaking Metis remained and was eventually recognized p o l i t i c a l l y through equal representation i n R i e l ' s p r o v i s i o n a l government. 7 3 George Stanley describes the national unity f e l t by French and English speaking Metis as follows: In s p i t e of these differences there was a common bond between the English and French half-breeds. Both sprang from a common race, both claimed t e r r i t o r i a l r i g h t s to the North-West through t h e i r Indian ancestry; both i n large measure, spoke t h e i r mother tongue i n addition to French and English. The half-breeds as a race never considered themselves as humble hangers-on to the white population, but were proud of t h e i r blood and t h e i r deeds. Cut o f f , as they were, from European expansion by the accident of geography and by the deliberate p o l i c y of the Hudson's Bay Company, they developed a resolute f e e l i n g of independence and keen sense of t h e i r own i d e n t i t y which led them to regard themselves as a separate r a c i a l and national un i t and which found expression i n t h e i r name \"The New Nation.\" 7 4 In 1821, the Hudson's Bay Company and the North West Company combined under the name of the Hudson's Bay Company. Numerous trading posts were shut down and persons s e t t l e d i n those areas were moved to the Red River area. Numerous settlements were formed along the Red and Assiniboine v i l l a g e s . Those Metis who refused to move to the Red River colony moved to Pembina or formed small v i l l a g e s at various parts on the p l a i n s . Later, a f t e r the drawing 232 of the 49th p a r a l l e l , many Metis i n Pembina moved back to Red River and established Grantown (St. Francois Xavier). Between 1821-25 missionaries also came to the colony and introduced the i n s t i t u t i o n s of Catholicism, formal education and domestic farming. Acculturation toward a more European l i f e s t y l e began but the community continued to depend on t r a d i t i o n a l forms of subsistence and i n p a r t i c u l a r , the buffalo hunt. 7 5 By 1835 predominantly Metis communities i n the Red River area included St. V i t a l , St. Norbert, Ste. Agathe, St. Paul, St. Charles, Grantown, Selkirk, High B l u f f and Portage l a P r a i r i e . 7 6 Economically, the communities were semi-autonomous. \"Their subsistence household economy was based on the b u f f a l o hunt, small scale c u l t i v a t i o n and seasonal labour for the Hudson's Bay Company.\"77 During the 1840s there was increased Metis involvement i n the c a p i t a l i s t i c fur trade and i n p a r t i c u l a r the b u f f a l o trade. The emerging buffalo robe trade became a r u r a l industry upon which most communities were dependant. The establishment of trading posts i n the Dakotas, Montana and Minnesota resulted i n an a l t e r n a t i v e market f o r the Metis. By 1840, they r e l i e d heavily on these posts. Freighting of buffalo hides and other goods by way of red r i v e r cart to trading posts and other settlements over land trade routes and hunting t e r r i t o r i e s were established. This development also provided a communication system strengthening t i e s between the Red River and other, metis communities. 7 8 The change i n the Metis economy was s i g n i f i c a n t f o r three reasons. F i r s t , many Metis l e f t the s e t t l e d communities i n the Red River Valley and began wintering on the p l a i n s . By 1856, the phenomena of wintering v i l l a g e s became widespread. 7 9 Second, 2 3 3 a g r i c u l t u r a l production i n the Red River V a l l e y suffered during t h i s time and the communities became increasingly dependant on the buffa l o hunt. 8 0 Third, the common reliance on trade resulted i n u n i f i e d Metis opposition i n the Red River settlement to r e s t r i c t i o n s on free trade with Americans imposed by the Hudson's Bay Company and threats by the Company to dispossess them of t h e i r 81 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 lands should they p a r t i c i p a t e i n i l l e g a l trade. Once again Metis nationalism was sparked as evidenced i n the following opening words of a Metis p e t i t i o n presented to the Council of Assiniboine i n August, 1845 demanding a d e f i n i t i o n of t h e i r s p e c i a l status: S i r - Having at t h i s moment a very strong b e l i e f that we, as natives of t h i s country, and as half-breeds, having the r i g h t to hunt furs i n the Hudson's Bay Company's t e r r i t o r i e s whenever we think proper, and again s e l l those furs to the highest bidder; likewise having a doubt that natives of t h i s country can be prevented from trading and t r a f f i c k i n g with one another; we would wish to have your opinion on the subject, l e a s t we should commit ourselves by doing anything i n opposition, e i t h e r to the laws of England, or the honourable companies p r i v i l e g e s . . . , 8 2 The Council of Assiniboine denied that the Metis had sp e c i a l r i g h t s . From 1846-1849 an imperial army was stationed i n the settlement and resistance to the Company's action was i l l i c i t rather than overt. However, upon the removal of the regiment i n 1849, the ru l e of the Hudson's Bay Company was d i r e c t l y challenged. The turning point was the t r i a l of Guillaume Sayer for i l l e g a l trading. The Metis armed themselves and surrounded the courthouse during h i s t r i a l . Although Sayer was found g u i l t y , no penalty was imposed and the Metis, r e a l i z i n g the Company's rules were unenforceable, declared v i c t o r y . 8 3 During t h i s period a sp e c i a l committee was also set up by the B r i t i s h Colonial O f f i c e to investigate the Company's dealings i n the North West. Although the 234 company was exonerated of wrongdoing, i t ' s monopoly on trade was broken. 8 4 During t h i s period various forms of p o l i t i c a l organization developed. In 1835, the Hudson's Bay Company established the Council of Assiniboine to govern i n the Red River Colony. L i t t l e resistance was shown towards the Council once the trade issue was resolved and Metis representatives were added u n t i l the 1860s when i t f a i l e d to successfully defend Metis i n t e r e s t s affected by settlement and the transfer of Rupert's Land by the Company to Canada. 8 5 Outside the colony courts were held to deal with c i v i l and criminal matters. Otherwise, communities were l e f t alone to ru l e themselves. 8 6 Local Metis governments i n the Red River area and elsewhere organized around the buffalo hunt. Organization within the community p r i o r to, and a f t e r , the hunt i s described by Tremaudan as \"a sort of simple, equitable communism based above a l l on the i n t e r e s t s of the majority.\" 8 7 However, fo r the duration of the hunt a council was formed which acted as both government and t r i b u n a l with j u r i s d i c t i o n over the p a r t i c i p a n t s i n the hunt. A leader and twelve c o u n c i l l o r s were elected. In addition, a public c r i e r was made responsible for bringing rules, orders and recommendations to persons i n the hunting camps. The remaining men were organized into groups of ten s o l d i e r s and placed under the d i r e c t i o n of captains selected by the Council. Guides were also chosen. Captains and s o l d i e r s were responsible f o r the carrying out of the Councils orders. However, the authority of the Council was l i m i t e d i n that i t required the consent of the e n t i r e camp i t governed. 8 8 235 For a period of approximately ten years Metis communities continued to organize under the hunt and p e r s i s t under d i f f e r e n t l o c a l economies. However, the threat of settlement and loss of lands caused Metis communities i n the Red River area to unite once again to r e s i s t the Hudson's Bay tr a n s f e r of Rupert's Land to Canada. The resistance began with opposition to government survey and culminated i n the formal e l e c t i o n of a p r o v i s i o n a l government representative of both the French and English half-breeds of the Red River Settlement. I t i s t h i s government which negotiated the terms of entry of Rupert's Land into Confederation i n A p r i l of 1870.89 By 1870 the majority of the population i n the area was Metis. In 1871, a census described the population of Red River as co n s i s t i n g of 5,720 French-speaking half-breeds, 4,080 English \u00E2\u0080\u00A2 90 speaking half-breeds and 1600 white s e t t l e r s . A c l e a r sense of Metis ownership and n a t i o n a l i t y had developed by t h i s time and manifested i t s e l f i n the establishment of the Provisional Government and armed resistance to the assumption of t i t l e and j u r i s d i c t i o n by the Canadian government. At the very l e a s t , those Metis l i v i n g within the Red River settlement as i t existed i n 1870 can i d e n t i f y as a sing l e people united by a common national p o l i t i c a l consciousness despite the semi-autonomous economic and p o l i t i c a l structures of the component communities and parishes. The more d i f f i c u l t issue i s whether the Metis who l i v e d i n hivernant v i l l a g e s and other settlements outside the area were part of the national consciousness. Movement from trading post settlements into the Red River area, migration out of the area with the expansion of the buffalo trade and f r e i g h t i n g routes between 236 various settlements suggests that communications were maintained between Metis communities but t h i s i s mere speculation. More ce r t a i n are studies on pre-1870 migration patterns which suggest that many of the nomadic communities with which we are concerned originated i n the Red River area. 9 1 These groups would have p a r t i c i p a t e d i n the evolution of the Metis c o l l e c t i v e consciousness p r i o r to 1840 and perhaps c a r r i e d with them the sense of unity fostered by the organized resistance to trade r e s t r i c t i o n s . C l e a r l y , a l l groups shared the common bonds of aboriginal ancestry, possessory t i t l e , r e l i a nce on the fur trade economy and resistance to intervention i n t h e i r variant s o c i a l systems. However, not a l l p a r t i c i p a t e d i n the armed resistance to Canadian intervention i n 1870 and the e l e c t i o n of the Provisional Government. Some assistance may be obtained i f one considers the people over whom the Provisional Government claimed j u r i s d i c t i o n . Although the government was formed and conducted business i n the Red River settlement, i t had the in t e r e s t s of other Metis communities at heart when negotiating the entry of Rupert's Land into Manitoba. For example, the provisions pertaining to in d i v i d u a l occupancy based r i g h t s and possessory t i t l e i n section 32 of the Manitoba Act were intended to protect the in t e r e s t s of those inhabitants who established temporary residences but did not make s u f f i c i e n t improvements to the land to q u a l i f y f o r homestead r i g h t s . 9 2 The l i s t of ri g h t s formulated by the Provisional Government demanded the formation of a p r o v i n c i a l l e g i s l a t u r e responsible to a l l inhabitants of Rupert's Land. I t also demanded that \" a l l properties, r i g h t s , and p r i v i l e g e s enjoyed by the people\" be respected and \"that the arrangement and confirmation of a l l 237 customs, usages, and p r i v i l e g e s be l e f t e x c l u s i v e l y to the Local L e g i s l a t u r e . \" 9 3 These expressions of i t s w i l l suggest that the Provisional Government was attempting to address concerns of a l l Metis inhabitants i n Rupert's Land and not j u s t those concentrated i n the Red River area. Although a l l Metis could not have p a r t i c i p a t e d i n i t s formation, i t i s not s u r p r i s i n g the government was born i n the Red River area as t h i s i s where the majority of the population dwelled. The lack of resistance by outside Metis communities to i t s actions could mean they endorsed the government, but i t could also mean they d i d not know about i s formation or d i d not care. The actions of communities outside of the Red River area i n response to t h e i r entitlement under the Manitoba Act suggests a l l Metis i n Rupert's Land shared a sense of unity with the Red River Metis. Those who temporarily resided outside of Manitoba i n 1870 put forward claims to a share of the lands set aside under s. 31 of the Act \"towards the extinguishment of Indian t i t l e \" as did other Metis l i v i n g throughout the province. On the other hand, one can also argue p a r t i c i p a t i o n i n the land grant scheme was motivated by s e l f -i n t e r e s t and e l i g i b i l i t y was based on mixed blood rather than membership i n a d i s t i n c t p o l i t i c a l community.95 Another d i f f i c u l t issue i s determining the permanence of the Metis as a community. The pro v i s i o n a l government remained i n power u n t i l August of 1870 at which time R i e l f l e d to the United States fearing the a r r i v a l of Canadian troops and aware of the 96 \u00C2\u00AB \u00E2\u0080\u00A2 government's r e f u s a l to grant him amnesty. Although h i s t o r i a n s dispute the reasons f o r migration, s i g n i f i c a n t numbers of Metis l e f t Rupert's Land between 1870 and 1881. Some moved to pre-238 e x i s t i n g settlements i n the North West T e r r i t o r i e s , some continued hivernant l i f e s t y l e s i n the North West and some migrated south to the United State. 9 7 When the land grant system was f i n a l l y complemented, grants were given on an i n d i v i d u a l basis and many Metis never located t h e i r lands. At the same time, Canada was encouraging settlement i n Rupert's Land and immigrants were fl o c k i n g i n . 9 9 The end r e s u l t was the Metis became a minority i n t h e i r own lands. The persistence of the Metis as a people i s examined i n chapter one and w i l l not be repeated here. The point i s strong arguments can be made fo r and against the persistence of the Metis Nation. Subsequent a c t i v i t i e s i n response to Canadian settlement i n the North West, i n p a r t i c u l a r the resistance of 1885, suggest that the national consciousness survived at l e a s t u n t i l that point i n time. Contemporary p o l i t i c a l a c t i v i t y suggests that the consciousness also e x i s t s today. However, the continuous existence of the Nation i s subject to much debate as i s i t s contemporary i d e n t i f i c a t i o n . The d i f f i c u l t i e s raised seem to lead to the conclusion that the i d e n t i f i c a t i o n of a single Metis group as of June, 1870 i s impossible. Rather, at best one can acknowledge the existence of various groups the largest and most i n f l u e n t i a l being the one centred i n the Red River Area. Any ri g h t s accruing to these groups must be determined on a group by group basis. Any lands not subject to use, occupation or j u r i s d i c t i o n a l control by a group or groups must be considered vacant. Canada's moral o b l i g a t i o n did not extend to vacant lands despite any agreements reached with the Pro v i s i o n a l Government. 239 In the author's opinion t h i s conclusion i s contrary to the s p i r i t of natural law. F i r s t , i t f a i l s to assume f l e x i b i l i t y i n the a p p l i c a t i o n of i d e n t i f i c a t i o n c r i t e r i a . The l e v e l of p o l i t i c a l organization and unity must be assessed within the context of the f r o n t i e r . Emphasis on r a c i a l , economic and p o l i t i c a l t i e s as opposed to the i s o l a t i o n of in d i v i d u a l communities balances the evidence i n favour of a united people. The conclusion of non-a l l i a n c e also runs contrary to 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 and achievement of the common good, or at the very l e a s t preservation of the e x i s t i n g system. A united front i s f a r more e f f e c t i v e than a divided one. Although i t may have ultimately f a i l e d , the Provisional Government attempted to exercise power j u s t l y and take into consideration a l l of the communities l i v i n g i n Rupert's Land that might be affected by i t s decisions. Although ignorance of the pro v i s i o n a l government i s a l o g i c a l reason f o r non-alliance, i t would be unreasonable f o r Metis communities not to i d e n t i f y with a consciousness and government advocating protection of t h e i r i n t e r e s t s unless they were unaware of threats to t h e i r way of l i f e . For a substantial number of Metis communities, t h e i r involvement i n the f i g h t f o r tree trade and resistance to settlement i l l u s t r a t e s they perceived a threat. F i n a l l y , natural law recognizes the importance of allowing a community to determine i t s own good. For t h i s reason, s i g n i f i c a n t weight must be given opinions of s e l f - i d e n t i f y i n g descendants of the Manitoba Metis. These views are predominantly i n support of the existence of a united Metis Nation. 1 0 0 For these reasons, natural law supports a conclusion that as of 1870 the Manitoba Metis q u a l i f i e d as a group composed of various economic, s o c i a l and 240 p o l i t i c a l communities united by a national consciousness and government. 3. O r i g i n a l or P r e s c r i p t i v e Rights There are two p o t e n t i a l arguments f o r Metis t i t l e based on f i r s t p r i n c i p l e s . The f i r s t i s the Metis are the true owners of Rupert's Land by v i r t u e of o r i g i n a l occupation of vacant lands. The legitimacy of t h i s argument i s dependant upon the i n a b i l i t y to e s t a b l i s h occupation i n another community p r i o r to Metis occupation. The second i s that the Metis acquired a form of j o i n t a b o r i g inal t i t l e a r i s i n g from p r e s c r i p t i v e r i g h t s against the o r i g i n a l occupants by v i r t u e of the l a t t e r ' s f a i l u r e to assert t h e i r r i g h t s to the exclusion of the Metis, abandonment or consent. In the event of shared occupation, natural law would recognize equal r i g h t s i n the Metis and the group with whom the t e r r i t o r y at issue i s shared. In the event of abandonment, absolute t i t l e would be vested i n the Metis. These are the only two a l t e r n a t i v e s as there i s no evidence the Metis purchased t e r r i t o r i e s from o r i g i n a l occupants and a c q u i s i t i o n by conquest i s not legitimate i n natural law. 1 0 1 The basis of Metis t i t l e i s best understood by comparing i t to the t i t l e s held by other inhabitants of Rupert's land and claims to ownership of Rupert's Land i n 1870. Of p a r t i c u l a r i n t e r e s t are the entitlement of Indian peoples, the Hudson's Bay Company, the o r i g i n a l white s e t t l e r s , the Canadian government and the B r i t i s h Government. An examination of the legitimacy of the Metis claim to t i t l e as against each of these groups reveals that the Metis had a legitimate claim to t i t l e derived from the o r i g i n a l native 241 inhabitants which the B r i t i s h Crown and Canadian government were morally bound to recognize. From t h i s perspective the armed resistance of the Metis people against the imposition of Canadian sovereignty and assumption of t i t l e q u a l i f i e s as a \"j u s t war\" i n defence of Metis r i g h t s and i s improperly l a b e l l e d a r e b e l l i o n . Peace was obtained, Metis land r i g h t s properly purchased and s e l f -government recognized by treaty which was translated into p o s i t i v e law through the enactment of the Manitoba Act. In the i n t e r e s t of s o c i a l s t a b i l i t y , natural law requires that the agreement between the Metis and the Canadian government be recognized and maintained. The extent to which t h i s agreement has been honoured and i t s e f f e c t on the continuance of Metis t i t l e are the subject of the f i n a l chapter of t h i s t h e s i s . (a) Rights of the Cree. Assiniboine and Saulteaux The Metis i n Rupert's Land were not i t s f i r s t occupants nor were a l l of them descendants of the f i r s t occupants. P r i o r to European immigration, the area now known as Manitoba was occupied by t r i b e s known as the Chippewa (Ojibwa), Cree and Assiniboine -the l a t t e r two groups i n i t i a l l y populating the central and southern portions of the t e r r i t o r y . Those Chippewa o r i g i n a t i n g from the Lake Superior Region were also c a l l e d Saulteaux. The area northwest of Lake Winnipeg between the Red and Saskatchewan r i v e r s i s thought to have been occupied by the Cree as early at the 16th century. By the 18th century, they co n t r o l l e d Northern Manitoba. By t h i s time the Assiniboine also l i v e d northwest of Lake Winnipeg and i n the southern portion of the v a l l e y of the Assiniboine River. Both groups claimed the Canadian p r a i r i e s as t h e i r hunting grounds 242 and r e l i e d on the buffalo hunt f o r subsistence. By the mid-1800s some Cree remained i n the Red River area but most had moved on to new areas or were f o r c e f u l l y driven out by the Saulteaux. 1 0 3 Although the maternal forbears of some Metis included the Cree and Saulteaux, many of the Metis i n the area were not descended from e i t h e r of these groups but migrated to Rupert's Land from elsewhere i n Canada. 1 0 4 By the 1840*s, the Sioux and the Saulteaux l i v e d i n the areas immediately surrounding the Red River Settlement. The Sioux t e r r i t o r i e s were mostly i n the Dakotas and Saulteaux shared t h e i r t e r r i t o r i e s with the remaining Cree i n Manitoba. Both of these groups competed with the Metis f o r hunting, trading and f i s h i n g lands. Although Metis p o l i t i c a l organization on the hunt served i n part to be on guard against unfriendly Indians, the Metis generally maintained good r e l a t i o n s with the Indians sharing unsettled areas i n a free r i v a l r y of hunting, f i s h i n g and trapping. 1 0 5 However, the t r i b e s also had defined t e r r i t o r i e s which were defended against unauthorized i n t r u s i o n and acquired by conquest. In the 1840's the Sioux made several v i s i t s to the Red River area r e s u l t i n g i n confrontations with the Saulteaux and Metis. In 1845 the Metis went so fa r as to treaty with the Sioux to ensure the maintenance of peace. 1 0 6 The most s i g n i f i c a n t confrontation between the Metis and the Sioux occurred i n July of 1851. The Metis dependant on the United States market f o r furs and needing to move further south to pursue buffalo, extended t h e i r hunting expeditions and trade routs across the t e r r i t o r i e s of the Sioux. In July of 1851, the Sioux attacked a Metis hunting party on t h e i r lands but t h e i r attack was 243 unsuccessful. Although the Metis d i d not defeat the e n t i r e Sioux Nation, the b a t t l e was s i g n i f i c a n t because i t established new hunting t e r r i t o r i e s i n the Dakotas and Eastern Montana and secured a trade route through Sioux t e r r i t o r y to St. Paul. 1 0 7 Although the Metis claimed ownership to Rupert's Land, they accepted that they were not the o r i g i n a l occupants and acknowledged the land r i g h t s of the indigenous t r i b e s . This i s evident from the l i s t of r i g h t s which demands t r e a t i e s be concluded between Canada and the d i f f e r e n t Indian t r i b e s i n the proposed province of 108 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 Assiniboine. However, i n t h e i r view p r i o r to 1870 some t r e a t i e s had been made with the wrong t r i b e s . T r a d i t i o n a l l y the Cree and Assiniboine owned the Red River area but they had been driven out by the Saulteaux. The S e l k i r k treaty signed with Indians i n the area included a recently arrived Saulteaux band. Both the Cree and the Metis objected because they viewed the Saulteaux as i n t e r l o p e r s . The Saulteaux, on the other hand, did not recognize \u00C2\u00AB \u00E2\u0080\u00A2 109 a Metis claim to the land. Despite i s o l a t e d incidents of violence, the Metis existed peacefully among the Cree, Assiniboine and l a t e r the Saulteaux. No s i g n i f i c a n t attempt was made by any of these t r i b e s to prevent Metis settlement or land use within Rupert's Land. Rather, the t r i b e s s e t t l e d i n t h e i r own designated areas and shared the resources of unsettled lands i n Rupert's Land with the Metis. This pattern of existence continued f o r more than a hundred years p r i o r to the assertion of sovereignty by the Metis Nation i n 1870. During t h i s time the Metis respected the r i g h t s of the indigenous peoples but at the same time developed t h e i r own feelings of ownership towards the land. The concept of shared use and possession makes sense i f one considers the metamorphic nature of t r i b a l boundaries p r i o r to European settlement and implementation of the reserve system i n North America. I t also makes sense i f one considers that t r i b e s were often not i n immemorial possession of the lands they occupied when they t r e a t i e d with the Crown. S l a t t e r y describes the pre-e x i s t i n g pattern of landholding as follows: Native people migrated i n response to such factors as war, epidemic, famine, dwindling game reserves, a l t e r e d s o i l conditions, trade and population pressure. Lands that were vacant at one period might l a t e r be occupied, and boundaries between groups s h i f t e d over time. The i d e n t i t i e s of the groups themselves changed, as weaker ones withered or were absorbed by others, and new ones emerged. Far from ending t h i s f l u i d i t y , the coming of the Europeans i n some cases increased i t , as novel trade opportunities, technologies, and means of transport upset e x i s t i n g a l l i a n c e s and balances of power and stimulated fresh forms of competition and c o n f l i c t . . The Indian t e r r i t o r i e s remained as before, an area open to movement and change, where the land r i g h t s of a native group rested on possession and t i t l e was gained by appropriation or agreement and l o s t by abandonment.110 Natural law recognizes the authority of the Metis to appropriate Indian lands assuming i t i s done with consent or the lands are no longer subject to the r i g h t s of previous occupants. Given the nomadic l i f e s t y l e of the Indian population i n Rupert's Land and the nature of t h e i r land use, i t i s d i f f i c u l t to assess what lands they cease to occupy at a given point i n time and what lands are temporarily out of t h e i r possession. At the very l e a s t some kind of time l i m i t would have to be imposed to mark the loss of possessory r i g h t s . Similar d i f f i c u l t i e s are associated with the issue of consent. In the absence of t r e a t i e s , consent must be implied based on a v a r i e t y of factors including f r i e n d l y r e l a t i o n s , 245 l i m i t e d incidences of violence, and use and occupation without int e r r u p t i o n by p r i o r possessors. Unless there i s evidence of bad f a i t h , natural law w i l l presume the legitimacy of t i t l e i n groups that have possessed lands f o r a substantial period of time. This presumption i s legit i m i z e d because of i t s contribution to s o c i a l s t a b i l i t y and peace. However, the presumption can be rebutted with evidence of forced abandonment or dispossession and absence of choice on the question of consent. Although the Metis can not demonstrate immemorial possession, natural law recognizes t h e i r p r e s c r i p t i v e r i g h t s of ownership a r i s i n g from occupancy of Rupert's Land for a su b s t a n t i a l l y long period of time. 1 1 1 By 1870, they became the dominant nation i n Rupert's Land. Their good f a i t h i s i l l u s t r a t e d and moral obligations are met i n t h e i r recognition of shared j u r i s d i c t i o n and t h e i r attempt to protect indigenous r i g h t by way of treaty when they negotiated Rupert's Land into confederation. As the more powerful nation, they took into consideration the rig h t s of the weaker indigenous nations and consequently cannot be accused of knowingly acquiring r i g h t s that c o n f l i c t with a t t a i n i n g the common good of the t e r r i t o r i a l community. The absence of bad f a i t h coupled with a h i s t o r y of r e l a t i o n s evidencing the implied consent of the p r i o r occupants of Rupert's Land support the legitimacy of t h e i r claims to Rupert's Land i n natural law. The foundation of t h e i r r i g h t s i s a p r e s c r i p t i v e claims against the o r i g i n a l occupants. This same analysis can not be applied to hunting t e r r i t o r i e s and trade routes acquired from the Sioux as the mode of a c q u i s i t i o n employed was conquest. As discussed e a r l i e r i n t h i s t h esis, a c q u i s i t i o n by conquest i s only legitimate i n the eyes of natural law i n the context of \"j u s t war.\" 1 1 2 The concept of j u s t war presumes the i l l e g i t i m a c y of offensive war unless i t i s occasioned by the severe i n j u s t i c e of an enemy and advances the common good of humanity. This a r i s e s from the ob l i g a t i o n of communities to respect the r i g h t s of others and promote peaceful r e l a t i o n s . In e f f e c t , natural law reduces the warring r i g h t s of Nations to s e l f -defence. 1 1 3 Although the actions of the Sioux may not be legitimate under a natural analysis of self-defence, t h e i r immoral action and m i l i t a r y f a i l u r e does not j u s t i f y non-consensual appropriation of t h e i r lands. Their f a i l u r e to defend t h e i r lands subsequent to t h e i r defeat can not be interpreted as implied consent as intimidation may have played a s i g n i f i c a n t r o l e i n t h e i r subsequent actions. One might consider i n defence of Metis expansion the argument of necessity and the obl i g a t i o n of communities to foster the common good of humanity as a whole. This argument could lead to an o b l i g a t i o n on the part of the Sioux to share lands that are not necessary f o r the l i v e l i h o o d . However, i t i s c l e a r a l l t r i b e s were s u f f e r i n g from the depletion of buffalo herds so i t i s d i f f i c u l t to take t h i s argument any further than the allowance of ri g h t s of crossing. This i s p a r t i c u l a r l y evident i f one compares the opportunities of the Metis to d i v e r s i f y t h e i r economy as compared to those of the Sioux. For these reasons, i t i s d i f f i c u l t to uphold Metis t i t l e to Sioux t e r r i t o r y with the exception of some form of easement r i g h t to cross Sioux lands on t h e i r journeys to St. Paul. 247 (b) Hudson 1s Bay Company T i t l e Assuming the M e t i s had l e g i t i m a t e p r e s c r i p t i v e r i g h t s t o Rupert's Land, one must ask i f these r i g h t s c o u l d be a s s e r t e d a g a i n s t t h e t i t l e o f the Hudson's Bay Company and, i f so, whether they were abandoned by the M e t i s . In t h i s c o n t e x t , the i s s u e o f e x c l u s i v i t y i s r e l e v a n t t o e n t i t l e m e n t and the a c q u i s i t i o n o f r i g h t s by t h e Company, but i s not i n i t s e l f a c r i t e r i a f o r l e g i t i m a c y . A comparison o f the found a t i o n s o f the s e two competing t i t l e s and the r e a c t i o n o f the M e t i s t o Company r u l e suggests t h a t the M e t i s , l i k e t h e i r I n d i a n b r o t h e r s , allowed shared occupancy but a t t he same time a s s e r t e d t h e i r independence and ownership r i g h t s . Based on t h e i r l e n g t h y s t a y i n Rupert's Land, the Hudson's Bay Company may v e r y w e l l have a c q u i r e d p r e s c r i p t i v e r i g h t s o f t h e i r own r e s u l t i n g i n a t r i p l e l a y e r o f t i t l e t o the l a n d . P o s i t i v e law ma i n t a i n s t h a t the Company's t i t l e o r i g i n a t e s i n a g r a n t o f lands by the E n g l i s h S o v e r e i g n i n 1670 pursuant t o the Ch a r t e r , the Company r e c e i v e d t i t l e t o l a n d s , and r e s o u r c e s ; monopoly over t r a d e ; and c o n t r o l o f l o c a l government, law making and law enforcement i n the watershed areas o f Hudson' s Bay the t e r r i t o r i e s o f Rupert's Land. The t i t l e and s o v e r e i g n t y granted t o t h e company was s i m i l a r t o t h a t e x e r c i s e d by a f e u d a l l a n d over h i s fiefdorn p l a c i n g i n the Hudson's Bay Company Governor and Committee i n London the same r u l i n g p r i v i l e g e s o f the f e u d a l l a n d . The c h a r t e r a l s o empowered the company t o c r e a t e s e t t l e m e n t s and e s t a b l i s h l o c a l government i n those s e t t l e m e n t s capable of 11 A. e x e r c i s i n g j u d i c i a l and a d m i n i s t r a t i v e f u n c t i o n s . Pursuant t o the C h a r t e r , the Company e s t a b l i s h e d t r a d i n g p o s t s i n the area, g r a n t e d i n d i v i d u a l t i t l e s and d i s t r i c t t i t l e s , promulgated laws 248 c o n t r o l l i n g the fur trade and established the Council of Assiniboine to govern the Red River Settlement. T i t l e and j u r i s d i c t i o n granted to the Company covered lands not yet surrendered to the English Crown by the o r i g i n a l occupants. Rather, the foundation of the Company's t i t l e i s England's assertion of sovereignty over North America which, according to Canadian law, placed absolute t i t l e to the s o i l i n the Crown. The i l l e g i t i m a c y of t h i s assertion i n natural law has already been examined. At most, one can say the Charter protected English r i g h t s i n North America against other discovering nations, but i t did not a f f e c t the r i g h t s of p r i o r inhabitants. Although t h i s conclusion i s more i n tune with a proper i n t e r p r e t a t i o n of c o l o n i a l law, i t stretches precepts of natural law because i t assumes European nations have the r i g h t to r e s t r i c t the r i g h t s of a l i e n a t i o n of other nations. To grant Europeans t h i s power i s to grant them a \"super natural\" power based on a preference for European c i v i l i z a t i o n and an ethnocentric view of the best i n t e r e s t s of indigenous nations. R e s t r i c t i o n s on a l i e n a t i o n are also contrary to the natural presumptions against interference and i n favour of self-determination, or to put i t another way, the community's r i g h t to determine for i t s e l f i t s own good. 1 1 5 For these reasons, natural law would give p r i o r i t y to the r i g h t s of o r i g i n a l inhabitants over those granted to the Company by the English Crown. As natural law does not recognize l i m i t a t i o n s on native r i g h t s of a l i e n a t i o n p r i o r to surrender or t h e i r a b i l i t y to gain r i g h t s to new lands p r i o r to legitimate a c q u i s i t i o n , t i t l e s derived from that of o r i g i n a l occupants should also be given p r i o r i t y over t i t l e s derived from the i l l e g i t i m a t e 249 claims to sovereignty by the English Crown. Consequently, natural law favours the recognition of Metis t i t l e over that of the English Crown, the Hudson's Bay Company or any other non-aboriginal d e r i v a t i v e t i t l e unless Metis rig h t s are l o s t through abandonment, consent or p r e s c r i p t i o n . The loss of Metis r i g h t s does not automatically a r i s e from t h e i r f a i l u r e to occupy t e r r i t o r i e s to the exclusion of the Hudson's Bay Company and o r i g i n a l white s e t t l e r s . Rather, i f i t can be shown they did not abandon t h e i r r i g h t s , but coexisted with the Indians and white s e t t l e r s as an independent nation sharing t h e i r resources with other nations, the proper conclusion i s t h e i r natural r i g h t s continued to e x i s t i n June of 1870 but were burdened by r i g h t s accruing to the Company and the b e n e f i c i a r i e s of Company t i t l e by v i r t u e of shared j u r i s d i c t i o n for a substantial period of time. Consequently, any legitimate t r a n s f e r would have to compensate f o r the o r i g i n a l t i t l e plus the der i v a t i v e Metis t i t l e , Company t i t l e and o r i g i n a l white s e t t l e r t i t l e s a r i s i n g from shared occupation f o r a substantial period of time. The persistence of Metis r i g h t s i s supported by t h e i r opposition to economic and trade sanctions and settlement; in d i f f e r e n c e to Company rul e so long as i t promoted Metis economic and employment in t e r e s t s and non-interference with Metis s o c i a l and p o l i t i c a l organization; lack of p a r t i c i p a t i o n i n the Company land grant system; and resistance to the tran s f e r of Rupert's Land to Canada without protection of the e x i s t i n g land holding system and provis i o n of self-government for the predominantly Metis province of A s s i n i b o i a . As colonization was not an important goal for the Company, there was v i r t u a l l y no European settlement i n Rupert's 250 Land p r i o r to the 19th Century except for trading posts ruled by governors and chief factors. The f i r s t major change i n t h i s p r a c t i c e occurred when the Company granted t i t l e to the D i s t r i c t of A s s i n i b o i a to Lord S e l k i r k for the purpose of Scottish settlement. Se l k i r k ' s grant was f o r approximately 116,000 square miles and covered the area commonly referred to as the Red River V a l l e y but r i g h t s of government i n the area were reserved i n favour of the Company. Three major migrations contributed to the settlement i n t h i s area - the f i r s t two from Scotland i n 1812 and 1813 (returning a f t e r being driven out i n 1817) and the t h i r d between 1820-25 from various trading posts throughout Rupert's Land. Farm lands were a l l o t t e d by S e l k i r k to i n d i v i d u a l Scottish s e t t l e r s and l a t e r Metis s e t t l e r s , but many Metis simply took possession. 1 1 6 In 1835, the Company purchased t i t l e to the Red River Area back from S e l k i r k and established t h e i r own land d i s t r i b u t i o n system. 1 1 7 I n i t i a l l y the Metis did not appose the a r r i v a l of the S e l k i r k S e t t l e r s and the establishment of a settlement i n the Red River area. However, due to the shortage of food throughout the area, Miles Macdonell, the newly appointed governor of A s s i n i b o i a issued a proclamation i n January of 1814 p r o h i b i t i n g the export of pemmican except by license from himself. Not only was t h i s a threat to the s u r v i v a l of North West Company trading posts, i t also angered the Metis because the proclamation was issued without regard to the r i g h t s and wishes of the inhabitants. The s i t u a t i o n was exacerbated i n July of the same year when the governor issued a proclamation forbidding the running of buffalo. The Metis rose i n anger under the leadership of Cuthbert Grant. They systematically harassed c o l o n i s t s whom the North West Company could not persuade to leave and persisted i n continuous attacks on the settlement. F i n a l l y i n June of 1815 a peace treaty was negotiated between the Metis and Peter F i d l e r , acting governor of the settlement. Under the terms of t h i s treaty the s e t t l e r s were to leave the area, peace was restored between a l l p a r t i e s and traders, Indians and Metis were not to be molested i n t h e i r lawful pursuits of t r ade. 1 1 8 The Metis resistance to trade and hunting r e s t r i c t i o n s i s the f i r s t i n a ser i e s of incidents evidencing assertion of t i t l e and sovereign r i g h t s . Although some h i s t o r i a n s a t t r i b u t e the i n i t i a l spark of unrest to the influence of the North West Company, c r e d i t i n g the Company with fostering Metis n a t i o n a l i t y , Metis writers disagree. Regardless of the cause, a l l agree a national consciousness and sense of ownership arose and per s i s t e d i n t h e i r r e l a t i o n s with the Company and s e t t l e r s . 1 1 9 Tremaudan's book Hold Your Heads High, commissioned by the Metis H i s t o r i c a l Society, describes the Metis reaction to interference as follows: These provocations seemed unjust to them - these requirements of the Hudson's Bay Company which, through Lord S e l k i r k , had taken possession of what the Metis considered t h e i r country . . . when they saw the s e t t l e r ' s c u l t i v a t i n g the s o i l , they discussed i t together and said that perhaps, a f t e r a l l , t h i s might be to t h e i r i n t e r e s t . But when they were forbidden to hunt, f i s h , or cut wood without permission, things began to be s i n g u l a r l y annoying and they became angry - s t i l l only i n words. But, f i n a l l y , when t h e i r age old way of l i f e , an i n t e g r a l part of t h e i r being, such as hunting the bison on horseback was to be changed, t h e i r indignation r e a l l y began to r i s e . . . [T]he Bourgeois of the North-West Company . . . could never have succeeded i n arousing so much resentment. 1 2 0 He goes on to explain that the Metis avoided armed confrontation as long as possible because of t h e i r love f o r peace. 252 In 1815 the s e t t l e r s returned to the colony under the governorship of Lord Semple. Grant was ordered to surrender to the new governor the North West f o r t at Qu'Appelle and i t s supply of pemmican. Once again violence broke out between the s e t t l e r s and the Metis, who joined the Nor'westers i n the f i g h t f o r free trade. The b a t t l e s culminated with the b a t t l e of Seven Oaks i n June of 1816. The s e t t l e r s were defeated and on June 22 a l l c o l o n i s t s l e f t the Red River. 1 2 1 Again, Metis writers point to these b a t t l e s as assertion of Metis sovereignty. 1 2 2 At t h i s point, a diversion from Metis h i s t o r y i s warranted i n order to consider the s i g n i f i c a n c e of the genesis of Metis feelings of n a t i o n a l i t y and ownership i n the natural law t r a d i t i o n . In natural law, intent i s primarily relevant to abandonment and a c q u i s i t i o n from previous occupants. Regardless of the o r i g i n s of t h e i r b e l i e f s , Metis feelings of n a t i o n a l i t y and ownership coupled with acts asserting t h e i r r i g h t s i s contrary to an intent to abandon. Their i n d i v i d u a l possessory r i g h t s do not o r i g i n a t e i n Metis n a t i o n a l i t y , but the existence of a group i s necessary to assert public and c o l l e c t i v e r i g h t s to land and entitlement to t e r r i t o r i a l j u r i s d i c t i o n . The issue i n natural law i s not the reason f o r the o r i g i n of the nation or group but i t s existence at the date of dispossession or assertion of sovereignty by a subsequent possessor. The roots of Metis b e l i e f s are only s i g n i f i c a n t i f one ascribes to the p o s i t i v i s t theory of recognition and then only as evidence that the government could not have intended to recognize the Metis as a nation asserting national r i g h t s recognized by p r i n c i p l e s of in t e r n a t i o n a l law. 253 By 1817 the Hudson's Bay Company regained i t s hold i n the v a l l e y and s e t t l e r s began to return to the Colony. Although trade wars continued between the two companies the Metis remained neutral as a nation perhaps because they did not experience immediate threats to t h e i r r i g h t s . 1 2 3 Between 1821 and 1825 many of the Metis moved to the Colony and t h e i r economy began to change. By 1835 Governor Simpson was attempting to make the Council i n Assiniboia more representative. Council members were chosen from r a c i a l and r e l i g i o u s groups including the Metis. However, Metis representation was minimal and i n e f f e c t i v e i n protecting Metis r i g h t s . Consequently, the l e g i s l a t i v e power of the Council was recognized only to the extent that i s promoted Metis i n t e r e s t s and non-interference with p r e v a i l i n g economic l i f e s t y l e s . Free trade became increasingly important to the Metis and between 1835 and 1850 they continued to oppose any r e s t r i c t i o n s on t h e i r economic r i g h t s . As discussed e a r l i e r , t h e i r disobedience to trade r e s t r i c t i o n s helped break the Company monopoly on trade. 1 2 4 In 1835 the Company regained t i t l e i n the Colony and introduced a formal land purchase and leasing system. Land holding i n the form of r i v e r front l o t s continued to be predominant and the t r a n s f e r was made without prejudice to those who held t i t l e from S e l k i r k . Many of the Metis s e t t l e d i n the area claimed t h e i r i n d i v i d u a l l o t s by v i r t u e of possession and had no paper or document to show they held t h e i r land from the Company or Sel k i r k . Although the Company p o l i c y was to s e l l land, they made no e f f o r t to d i s turb Metis possession. 1 2 5 At the same time, the Metis exercised what one author has l a b e l l e d \"passive resistance\" by \"squatting\" on company land and trading as they pleased. 1 2 6 George 2 5 4 Stanley a t t r i b u t e s t h i s resistance to \"the view that the land was t h e i r s by natural law and that there was no need to bother about the Company's t i t l e . \" Stanley concludes that the lack of systematic land tenure contributed to unrest among the squatters when Rupert's Land was transferred to Canada. In 1868 the Company agreed to tran s f e r t i t l e to Canada i n exchange f o r \u00C2\u00A3300,000.00 without consulting the inhabitants of the t e r r i t o r y . P r i o r to the transfer taking e f f e c t surveyors entered the Red River area but were prevented by the Metis from carrying out t h e i r duties. Angered at the audacity of the Company and concerned f o r the protection of t h e i r r i g h t s the Metis organized against the a c q u i s i t i o n of t i t l e and imposition of sovereignty by Canada. 1 2 8 The d e t a i l s of the resistance are examined i n the following section. The b r i e f account given of Metis r e l a t i o n s with the Company and o r i g i n a l white s e t t l e r s suggests they were w i l l i n g to share Rupert's Land provided shared j u r i s d i c t i o n and occupation advanced t h e i r best i n t e r e s t s . Throughout the period of shared possession they asserted t h e i r independence, maintained control over t h e i r economic based and continued organizing under t r a d i t i o n a l hunting governments. The existence of a shared property regime with the Europeans i s legitimate for the same reasons as a shared regime between Indians and the Metis. The extent to which the Metis allowed encroachment on t h e i r r i g h t s over a long period of time i s the extent to which the Europeans gained r i g h t s as against the Metis. This system avoided unnecessary violence and accords with man's natural i n c l i n a t i o n toward s o c i a l i z a t i o n and peace. 2 5 5 Thomas Flanagan has described the a c q u i s i t i o n of Rupert's Land and the North West as a complicated r e a l estate transaction. In return f o r monetary compensation, the Company surrendered i t s lands to the Crown. The sale assumed that the Company was the r i g h t f u l owner of the land based on the Royal Charter of 1670. Indian t i t l e i n the area was an encumbrance on the underlying t i t l e and had to be extinguished before the Crown could alienate the land to private owners. \" L o g i c a l l y , the s i t u a t i o n was not d i f f e r e n t from other r e a l estate conveyances where an encumbrance exited upon a t i t l e , 129 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 as from mortgage or other debt.\" The Indians were dealt with through the subsequent numbered t r e a t i e s and the Metis through the land grant provisions of the Manitoba Act. From the o f f e r of purchase to the taking of possession the transaction was based on a contemporaneous understanding of aboriginal r i g h t s and the concession to the metis was made i n the name of peace and expediency. 1 3 0 Natural law would reverse the l e v e l s of entitlement to Rupert's Land. A v a l i d conveyance must recognize the r i g h t s of the o r i g i n a l occupants as the foundation f o r d e r i v a t i v e t i t l e . The Hudson's Bay entitlement would be based on a p r e s c r i p t i v e r i g h t against the Indians and Metis rather than the Royal Charter. Pre-e x i s t i n g t i t l e would not be recognized i n the Crown but i n d i v i d u a l r i g h t s of occupancy may have accrued to her subjects l i v i n g for s u b s t a n t i a l l y long periods of time i n Rupert's Land. Although the Royal Proclamation of 1763 prevented the s e t t l e r s from acquiring Indian lands through p r e s c r i p t i o n i n p o s i t i v e laws, natural law would require some recognition of t h e i r possessory r i g h t s . In the a c q u i s i t i o n of t i t l e each of these in t e r e s t s would have to be taken 256 into consideration. The main part i e s to the transaction are those with the most secure t i t l e -the Indians and the Metis. Upon an agreement being reached with a l l interested p a r t i e s , the Crown would be free to assert t i t l e and j u r i s d i c t i o n over Rupert's Land. According to t h i s analysis, the Company's t i t l e i s an encumbrance on Metis and Indian t i t l e and not v i c e versa. Although the Company i s e n t i t l e d to compensation for i t s i n t e r e s t , the f a i l u r e to conduct the transaction without consulting a l l of the proper pa r t i e s i n v a l i d a t e s the i n i t i a l t r a n s f e r v i s a v i s the Indians and Metis and subsequent u n i l a t e r a l acts of extinguishment by the Crown. (c) T i t l e i n the Crown The assumption of t i t l e to and sovereignty over Rupert's Land by the Canadian government p r i o r to the enactment of the Manitoba Act was founded i n the sale of Rupert's Land and the North West to the Imperial Government which i n turn vested these r i g h t s i n the Colon i a l government pursuant to p r i n c i p l e s of c o l o n i a l law. Assuming the legitimacy of the a c q u i s i t i o n , natural law does not place r e s t r i c t i o n s on the voluntary a l i e n a t i o n of r i g h t s to Canada by the Crown. However, the Crown could not t r a n s f e r greater r i g h t s than i t possessed. Consequently terms of a c q u i s i t i o n agreed to between the Crown and the Company were binding on Canada. 1 3 1 I t has been argued that natural law would disregard the sale of Rupert's Land at l e a s t to the extent that i t purports to a f f e c t Metis and Indian t i t l e . Consequently, i n absence of consent or abandonment of r i g h t s by the Indian and Metis peoples, Canada's assertion of sovereignty p r i o r to an agreement being reached with 257 a l l relevant p a r t i e s i s i n v a l i d to the extent i t over-reaches the parameters of the r i g h t s which have been acquired pursuant to the t r a n s f e r by the Company The only r i g h t s acquired were those of the Company. As the Company t i t l e co-existed with Metis and Indian r i g h t s , so too must the r i g h t s of Canadian government u n t i l the consensual surrender or abandonment of these r i g h t s . An examination of consensual a c q u i s i t i o n of Indian r i g h t s i s beyond the scope of t h i s thesis except to mention that moral oblig a t i o n was placed on the Metis as the more powerful Nation occupying Rupert's Land i n 1870 to take into consideration the r i g h t s of less powerful nations i n i t s dealings with Canada. The recognition of t h i s o b l i g a t i o n by the Metis has already been discussed. The concern of t h i s section i s to examine the foundation of Canada\u00E2\u0080\u00A2s assumption of Metis t i t l e and j u r i s d i c t i o n i n natural law. There are three possible foundations for Canadian assumption of Metis r i g h t s i n 1870. Although abandonment may be worthy of examination i f the e f f e c t i v e date for analysis i s challenged, i t i s c l e a r l y ruled out as of 1870 given the armed resistance of the Metis and the formation of the Provisional Government i n order to organize against the Canadian government. The issue of consensual a c q u i s i t i o n r e s t on the i n t e r p r e t a t i o n given to the Manitoba Act. I f i t i s viewed as the enactment of an agreement between the Metis and the Canadian government, the Canadians can be sai d to have gained legitimate r i g h t s to Rupert's Land unless they are the improper p a r t i e s to the agreement, the Act does not r e f l e c t the agreement reached or the agreement has been breached. Each of these provisos i s examined i n chapter f i v e . The t h i r d p o s s i b i l i t y i s the assumption of r i g h t s by force evidenced by the control of 258 the area by Canadian m i l i t a r y immediately a f t e r the passing of the \u00E2\u0080\u00A2 132 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 Manitoba Act. For the reasons discussed throughout t h i s paper, f o r c e f u l a c q u i s i t i o n of Metis r i g h t s cannot be upheld i n the natural law t r a d i t i o n . Consequently, by process of elimination we are l e f t to examine the issue of consent. In pursuit of t h i s issue four questions w i l l be addressed: (1) Is the resistance i n 1870 properly referred to as a \" r e b e l l i o n ? \" (2) Was the Provisional Government a legitimate party to the treaty? (3) Does the Manitoba Act represent a negotiated settlement or i s i t a u n i l a t e r a l act of the Canadian government? and (4) How does a natural law analysis compare to the views espoused by Louis Riel? The word \" r e b e l l i o n \" implies resistance or defiance to legitimate authority. Because the Company could not pass more ri g h t s than i t had i t s e l f , the Canadian government did not have authority to assume t i t l e to lands used and occupied by the Metis. However, an argument can be made that Metis acquiesence to and p a r t i c i p a t i o n i n the Company government and general adherence to Company laws (with the exception of trade laws) placed l i m i t e d sovereign powers i n the Company which i t was e n t i t l e d to t r a n s f e r to the Crown. The Crown's sovereign authority would remain subject to Metis property r i g h t s and those aspects of Metis sovereignty that had not been surrendered such as independent l o c a l governments organized around the hunt and freedom of trade. This argument assumes that t e r r i t o r i a l sovereignty i s open to a c q u i s i t i o n by a process analogous to that by which property can be acquired. The degree of p o l i t i c a l development of the inhabitants of the t e r r i t o r y determines whether they have proprietary and sovereign r i g h t s . In natural law, p o l i t i c a l 259 organization w i l l not be measured against European standards as t h i s necessitates bias and preference to community. Rather, i t i s s u f f i c i e n t that a group have s u f f i c i e n t organization and unity to assert r i g h t s as a group. 1 3 3 This same standard i s found i n n a t u r a l i s t philosophies of the law of nations and contemporary in t e r n a t i o n a l law which recognize varying forms of p o l i t i c a l structures accommodating to the p a r t i c u l a r l i f e s t y l e s of the group at i s s u e . 1 3 4 Assuming p o l i t i c a l organization, r i g h t s can only be acquired by consent or p r e s c r i p t i o n . Arguably, Metis acquiescence gave r i g h t s to c e r t a i n p r e s c r i p t i v e sovereign r i g h t s i n the company. One response to t h i s argument i s the Metis only supported the Company government to the extent i t continued to represent Metis i n t e r e s t s . Both the Governor of the Company and the Council of Assi n i b o i a f a i l e d to protect Metis i n t e r e s t s i n the sale of Rupert's Land and during the tran s f e r process. Consequently i t l o s t j u r i s d i c t i o n over the Metis because i t no longer had t h e i r implied authority. Although some objection was made to premature survey i n the Red River area p r i o r to the tr a n s f e r taking e f f e c t , no e f f e c t i v e steps were taken by the Company to protect Metis lands and t h e i r e x i s t i n g pattern of existence i n Rupert's Land. Instead, the Company decided to leave the question of trespass on Metis lands premature assumption or exclusive p o l i t i c a l authority by Canada i n the hands of the Imperial Government and continued negotiations with Canada, an agreement was f i n a l l y reached i n A p r i l , 18 69. 1 3 5 The continuance of survey i n 1869 created unrest among the French Metis i n p a r t i c u l a r who began meeting i n small groups and 260 l a t e r larger p o l i t i c a l assemblies to discuss the defence 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 . The reasons f o r the growing resistance are debated among commentators. Some emphasize feel i n g s of ownership and n a t i o n a l i t y , some emphasize insecure land tenure, some emphasize the wish for control by a l o c a l p u b lic government reducing the si g n i f i c a n c e of any desire for lands outside those i n immediate possession and some emphasize a concern f o r compensation f o r a b original r i g h t s . Whatever the reasons, by September of 1869 a National Committee was organized to r e s i s t the Canadians and s p e c i f i c a l l y to prevent the Canadian Lieutenant Governor's entry into Canada. The Lieutenant Governor had been appointed under the Act For The Temporary Government of Rupert's Land passed by Canadian parliament before the tran s f e r was complete. 1 3 6 When the Committee's actions were challenged by the Council of Assiniboia t h e i r response was that they were \"breaking no laws, but merely defending t h e i r r i g h t s and the communities l i b e r t i e s . \" 1 3 7 Another argument i s the Metis were obliged to support the Company government, and no other, unless they could negotiate terms of acknowledgement. Assuming the concern of the Metis was to ensure no r i g h t s beyond those surrendered to the Company by the Metis were to be assumed by a new government without t h e i r consent, t h i s p o s i t i o n i s also legitimate i n natural law because the Company cannot t r a n s f e r greater r i g h t s than i t possesses. This view also gains support by the statements of the Metis National Committee to the Council of Assiniboia. They explained to the council they would not accept a Governor not appointed by the Company \"unless Delegates were previously sent with whom they might negotiate as to the terms and conditions under which they would acknowledge 261 138 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 h i m . \" R a t h e r t h a n meet t h i s c h a l l e n g e , t h e C o u n c i l o f A s s i n i b o i a a d j o u r n e d a n d , w i t h t h e e x c e p t i o n o f a f e w c o u n c i l l o r s who j o i n e d t h e M e t i s c a u s e , was p r e p a r e d t o a c c e p t C a n a d a ' s u n c o n d i t i o n a l 139 t a k e - o v e r o f t h e C o l o n y . F o r t h e a b o v e r e a s o n s , n a t u r a l l a w r e c o g n i z e s t h e l e g i t i m a c y o f M e t i s o p p o s i t i o n t o u n c o n d i t i o n a l a s s u m p t i o n o f s o v e r e i g n t y b y C a n a d a . C o n s e q u e n t l y , t h e s u b s e q u e n t f o r m a t i o n o f a P r o v i s i o n a l G o v e r n m e n t t o r e p r e s e n t M e t i s i n t e r e s t s i n f a c e o f t h e Company's aba n d o n m e n t o f M e t i s c o n c e r n s c a n n o t b e j u s t l y l a b e l l e d a \" r e b e l l i o n \" a s t h e M e t i s , a n d n o t t h e C a n a d i a n s , h a d l e g i t i m a t e a u t h o r i t y o v e r R u p e r t ' s L a n d . The p r o p e r s o v e r e i g n j u r i s d i c t i o n r e v e r t e d t o t h e s h a r e d j u r i s d i c t i o n o f t h e I n d i a n s a n d M e t i s p e o p l e , o r a t t h e v e r y l e a s t , t h e M e t i s h a d t h e r i g h t t o t a k e s t e p s t o e n s u r e t h e C a n a d i a n g o v e r n m e n t w o u l d n o t assume g r e a t e r j u r i s d i c t i o n t h a n t h a t e n j o y e d b y t h e Company. The r e p r e s e n t a t i o n o f t h e E n g l i s h s p e a k i n g M e t i s a n d w h i t e s e t t l e r p o p u l a t i o n i n t h e P r o v i s i o n a l G o v e r n m e n t p r i o r t o t h e n e g o t i a t i o n s o f e n t r y w i t h C a n a d a g a v e i t a u t h o r i t y t o s p e a k o n t h e i r b e h a l f a s w e l l . A r g u a b l y , t h e g o v e r n m e n t d i d n o t h a v e a u t h o r i t y t o s p e a k o n b e h a l f o f t h e C a n a d i a n o c c u p a n t s o f R u p e r t ' s L a n d who s u p p o r t e d S h u l t z , h a d f o r m a l l y b e e n s u b j e c t s o f Company r u l e a n d a c q u i r e d t h e i r r i g h t s t h r o u g h t h e Company o r t h e C rown. H o w e v e r , t h e r e was a m o r a l o b l i g a t i o n o n t h e M e t i s g o v e r n m e n t a s t h e d o m i n a n t g o v e r n m e n t i n 1870 t o k e e p t h e s e i n t e r e s t s o f a l l o c c u p a n t s i n m i n d when n e g o t i a t i n g t h e i r t e r m s o f s u r r e n d e r . U n f o r t u n a t e l y , t h e r e - a s s u m p t i o n o f s o v e r e i g n t y was n o t w i t h o u t v i o l e n c e b e c a u s e o f o p p o s i t i o n b y C a n a d i a n s u p p o r t e r s i n t h e a r e a n d C a n a d a ' s i n i t i a l r e f u s a l t o r e c o g n i z e M e t i s r i g h t s . 262 Under the leadership of Dr. Schultz, Canadians organized English support f o r the new Canadian government and against Metis government. Small b a t t l e s were fought between the Metis and the English r e s u l t i n g i n the arrest of Schultz and h i s supporters. The Metis took up arms and defended t h e i r government against t h e i r opposition. They established t h e i r own m i l i t a r y court and enacted punishment i n accordance with rules established by the Metis government. 1 4 1 I t i s beyond the scope of t h i s t h e s i s to examine the morality of s p e c i f i c incidences of violence such as the execution of Thomas Scott by the Metis court. However, a general consideration of the use of arms to defend Metis r i g h t s per se i s relevant to the determination of whether t h e i r actions constitute \" r e b e l l i o n \" and are l e g a l i n natural law. As natural law views t h e i r resort to violence as means to e s t a b l i s h the Metis Government and oppose u n j u s t i f i e d assumption of authority by the Canadian government, r e b e l l i o n i s c l e a r l y an inappropriate d e s c r i p t i o n of Metis a c t i v i t y . However, the legitimacy of resorting to violence i s a separate issue which i s resolved by considering the natural precepts of \" j u s t war\" between two competing national i n t e r e s t s . As indicated e a r l i e r , natural law recognizes a r i g h t to s e l f -defence. Theorists argue d i f f e r e n t natural o r i g i n s of the r i g h t ranging from an innate tendency for s e l f - p r o t e c t i o n to a natural duty on a state to preserve i t s e l f and provide f o r i t s subjects those thing required f o r l i f e , peace and security. Further, there i s no unanimity of opinion as to the precise r i g h t s or i n t e r e s t s that may be protected by self-defence. However, a l l extend the r i g h t to protect property and r i g h t s of ownership and l i m i t the defence to the nation i n f l i c t i n g the injury. Some scholars also place an obl i g a t i o n on the defending party to measure the protection of i t s ri g h t s against a threat to the global community.143 According to Bowett, the fundamental j u s t i f i c a t i o n put forward by n a t u r a l i s t s i s \"a r i g h t to e x i s t , a r i g h t of s e l f -preservation, and the l i m i t s of the r i g h t of self-defence are di s c e r n i b l e by a p r i o r argument from t h i s postulate, r e c o n c i l i n g the r i g h t of one state with the ri g h t s of others on the basis of equality and mutual recognition of r i g h t s . \" 1 4 4 On t h i s analysis, the Metis would not be j u s t i f i e d i n using force to e s t a b l i s h t h e i r government against opposition by i t s own subjects as the r i g h t s of the state are dependant on authority from the people, but i t i s j u s t i f i e d i n r e s i s t i n g interference with i t s r i g h t s by other nations. However, the global common good of peace and s t a b i l i t y would require that they use no more force than reasonably necessary and that violence be u t i l i z e d only i f other means have proven to be i n e f f e c t i v e . I t i s c l e a r from the beginning of the resistance that the intent of the Metis was to r e s i s t assumption of t i t l e and j u r i s d i c t i o n without agreement on Metis issues. Arguably, any violence was spurred by offensive actions on the part of the Canadians, t h e i r r e f u s a l to recognize the legitimate r i g h t s of the Metis, and t h e i r unlawful intervention i n Metis a f f a i r s . Once rebels against Metis authority were placed under guard and Canada began discussing terms of entry with the Metis, incidents of violence were s u b s t a n t i a l l y minimized u n t i l the imposition of m i l i t a r y rule by Canada a f t e r the passing of the Manitoba Act. 1 4 5 For these reasons, the Metis can be said to have 2 6 4 acted i n defence and i n accordance with t h e i r moral obligations toward the offending nation. The issue of wether Canada recognized the legitimacy of R i e l ' s Provisional Government when i t negotiated terms of surrender with delegates from the Provisional Government i s a matter of great debate. Some who argue i t d i d not r a i s e t h i s issue i n support of in t e r p r e t i n g the Manitoba Act as a u n i l a t e r a l act of Parliament which grat u i t o u s l y introduced c e r t a i n \"Metis r i g h t s \" and l i m i t r i g h t s of the Metis to those s p e c i f i e d by l e g i s l a t i o n . 1 4 6 Others argue t h i s point to i l l u s t r a t e bad f a i t h on the part of the Canadian government i n negotiations with the Metis. 1 4 7 In natural law, the issue of recognition i s a red herring except to the extent i t evidences bad f a i t h . This follows from the precept that Metis r i g h t s have t h e i r o r i g i n s i n natural r i g h t s of property which e x i s t independently of recognition by the Crown. Consequently, the intent of Parliament to recognize Metis r i g h t s i s i r r e l e v a n t to the basis of t h e i r claim. The Manitoba Act i s not relevant to the ori g i n s of Metis r i g h t s but to t h e i r persistence. I f i t does not represent a negotiated agreement, i t cannot a f f e c t t h e i r r i g h t s i n natural law. I f i t does, i t does not a f f e c t t h e i r r i g h t s to the extent i t deviates from the agreement reached. There i s substantial support for the argument that the Manitoba Act represents the enactment of an agreement reached between two nations. Arguments for Metis n a t i o n a l i t y have been made elsewhere i n t h i s thesis and w i l l not be repeated here. Rather, our focus here i s to e s t a b l i s h the consensual a c q u i s i t i o n of Rupert's Land as the legitimate basis f o r Canadian t i t l e and 265 j u r i s d i c t i o n . H i s t o r i c a l evidence supporting t h i s conclusion i n c l u d e : 1 4 8 1. The drawing of a L i s t of Rights by the Provisional Government to be presented to the Canadian government. Although there i s some contention over which d r a f t formed the basis of negotiations, there i s general agreement among commentators that the L i s t of Rights provided the basis f o r negotiation. 2. The e l e c t i o n of delegates by the Provisional Government to go to Ottawa and negotiate terms of entry on behalf of the Metis people. The diary of one of the delegates, Father Ritchot, provides an account of the negotiations and indicates that delegates were chosen to represent i n t e r e s t s of English and French Metis. Pursuant to the L i s t of Rights, delegates also sought recognition on pre-e x i s t i n g forms of land tenure enjoyed by a l l occupants of Rupert's Land. 1 4 9 3. Correspondence between o f f i c i a l s and speeches to the l e g i s l a t u r e evidence Canada's recognition of the delegates, i t s intention to negotiate terms to s a t i s f y Metis claims and i t s view of the Manitoba Act as the culmination of negotiations with the delegates. Although there i s some debate as to t h e i r recognition of Metis r i g h t s derived from Indian ancestry, i t i s evident the government recognized claims by v i r t u e of possession. 1 5 0 Of p a r t i c u l a r i n t e r e s t i s the following explanation 266 g i v e n by S i r W i l f r e d L a u r i e r when a d d r e s s i n g h a l f -breed g r i e v a n c e s i n the North West: . . . They r e b e l l e d ; they o b j e c t e d t o the f u r t h e r p r o g r e s s o f the Canadian Government i n t o what they c o n s i d e r e d t h e i r country, u n t i l t h e i r r i g h t s were r e c o g n i z e d and guaranteed; and a f t e r the r e b e l l i o n , the Government had t o admit and d i d admit, t h a t the same prudent p r i n c i p l e s t h a t a p p l i e d t o the I n d i a n s s h o u l d apply t o the H a l f - b r e e d s . The Government admitted t h a t as o r i g i n a l p o s s e s s o r s o f t h e s o i l they were e n t i t l e d t o the same compensation as the Indians . . . Though the p r i n c i p l e was the same, i t s a p p l i c a t i o n i n the two cases c o u l d not be i d e n t i c a l , because o f the d i f f e r e n c e i n the s t a t e o f \u00C2\u00BB \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 151 c i v i l i z a t i o n o f the two r a c e s . 4. The endorsement of the Manitoba A c t by the P r o v i s i o n a l Government and i t s enactment by the Government o f Canada. A d d i t i o n a l support can be drawn from a comparison o f the Manitoba A c t and the f i n a l L i s t o f R i g h t s . Although some demands from the L i s t are excluded and new demands i n c l u d e d the essence of the A c t r e f l e c t s M e t i s demands. The e x t e n t t o which the A c t d e v i a t e s from i n i t i a l demands i s e x p l a i n e d i n R i t c h o t ' s account of the n e g o t i a t i o n s and has t r i g g e r e d debate on the q u e s t i o n of d e l e g a t e s a c t i n g beyond the scope of t h e i r a u t h o r i t y and the i n t e n t i o n o f the P r o v i s i o n a l Government t o e s t a b l i s h a l a n d base f o r the M e t i s . 1 5 2 In p a r t i c u l a r , the A c t concedes t o the major p o l i t i c a l demand, t h a t of p r o v i n c i a l s t a t u s , the demand f o r 267 recognition of i n d i v i d u a l possessory r i g h t s , and the demand for protection of both the English and French languages. 1 5 3 The argument that the Manitoba Act i s a t r e a t y also finds support i n the views of Louis R i e l . In h i s view, the formation of the Provisional Government was j u s t i f i e d by the Law of Nations which allows r i g h t f u l inhabitants of a land to form a government for the protection of l i f e and property. He argued the sale of Rupert's Land may have affected Company r i g h t s , but i t did not a f f e c t the r i g h t s of the Metis. As the Metis were the true owners of the land, t h e i r entitlement was not dependant on the English sovereign and t r a n s f e r r i n g lands without t h e i r consent v i o l a t e d the law of nations. He also argued that the Company's abandonment of government gave the people a r i g h t to form a government to negotiate on t h e i r behalf. Subsequent union with Canada was not a u n i l a t e r a l action by declaration i n Ottawa, but a treaty i n the sense of an international agreement between two independent nations. The treaty had two parts - the written text and an oral promise of amnesty. Breach of the treaty l e g i t i m i z e d subsequent resistance to the Canadian expansion i n the North West i n 1885. The foundation of R i e l ' s argument was natural law and the law of nations he saw the Metis struggle as an e f f o r t to protect t h e i r national and natural r i g h t s . 1 5 4 The main arguments against t h i s i n t e r p r e t a t i o n are the Metis lacked s u f f i c i e n t coherence to assert national r i g h t s , t i t l e did not r e s t with the Metis Nation, and Metis r i g h t s existed subject to the w i l l of the sovereign. 1 5 5 As each of these arguments can not be sustained when measured against p r i n c i p l e s of natural law and 268 h i s t o r i c a l evidence supports the existence of an agreement, natural law favours i n t e r p r e t i n g the Act as a treaty. (d) Conclusion In summation, Metis t i t l e i s properly viewed as a r i s i n g from a p r e s c r i p t i v e r i g h t against the o r i g i n a l occupants. P r i o r to 1870 the Metis enjoyed shared occupancy r i g h t s and j u r i s d i c t i o n with the o r i g i n a l Indian occupants, and the Hudson's Bay Company. The r e s u l t was the creation of layered entitlement based on the acquiesence or indifference or abandonment of the o r i g i n a l occupants. The further away the entitlement from the o r i g i n a l source, the l e s s secure that t i t l e i s i n natural law because of the presumption i n favour of r i g h t s of o r i g i n a l occupants. Upon the Company ceasing the represent Metis i n t e r e s t s i n 1870, t h e i r j u r i s d i c t i o n over Metis people was revoked, but any r i g h t s to land they may have acquired through occupation over a substantial period of time remained. The r e s u l t was a return to shared sovereignty between the Indians and Metis but a quadruple layer of land entitlement (including s e t t l e r t i t l e s derived from the Company). The entitlements were not j u s t i f i e d by v i r t u e of Sovereign recognition, but possession by the claimants. Although the tra n s f e r of Rupert's Land may have affected the Company's proprietary r i g h t s and those derived from Company grant, i t d i d not a f f e c t Metis r i g h t s . Rather, the surrender of Metis r i g h t s was affected through negotiations between Canada and the Metis Provisional Government. The persistence of Metis rig h t s subsequent to an agreement begin reached depends on the terms of 269 the agreement and the extent to which those terms have been honoured. The theory of layered entitlement also receives some support from the land provisions i n the Manitoba Act. I t i s c l e a r the Metis were concerned about a v a r i e t y of proprietary i n t e r e s t s i n t h e i r negotiations. These int e r e s t s were intended to be protected by sections 31 and 32 of the Act. Where s. 31 i s a general land grant provision i n s a t i s f a c t i o n of Metis claims, section 32 was intended to embrace in d i v i d u a l Metis and s e t t l e r claims a r i s i n g from peaceful possession. 1 5 6 These provisions coupled with a payment to the Company and t r e a t i e s with the Indians, would e f f e c t i v e l y cover a l l possessory claims derived from the o r i g i n a l Indian t i t l e . 4. Metis T e r r i t o r y The f i n a l , and perhaps most d i f f i c u l t , c r i t e r i a to e s t a b l i s h Metis natural r i g h t s i s the i d e n t i f i c a t i o n of Metis t e r r i t o r y i n Rupert's Land. Some assert entitlement to the e n t i r e t e r r i t o r y known as Rupert's Land p r i o r to i t s surrender i n 1870. This area \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 157 c o n s i s t i n g of approximately 123,000 square miles or 78,848 acres. The d i f f i c u l t y with t h i s p o s i t i o n i s i t f a i l s to take into consideration entitlement a r i s i n g from the layering of t i t l e s ; shared use of public lands for hunting, f i s h i n g and trapping; exclusive Indian t e r r i t o r i e s and shared sovereign r i g h t s to unclaimed public lands. A second option i s to l i m i t t e r r i t o r y to Metis settlements established i n 1870. I f t h i s approach i s taken at l e a s t 33 communities can be i d e n t i f i e d along the Assiniboine River, Red River, Whitemouth River, Siene River and along Lake 270 \u00E2\u0080\u00A2 158 \u00E2\u0080\u00A2 Manitoba. The problem with t h i s approach i s i t f a i l s to take into consideration the extent of hunting t e r r i t o r i e s and trade routes, lands traversed by hivernant groups of Metis, and public lands shared with the other inhabitants of Rupert's Land. The d i f f i c u l t y i n i d e n t i f y i n g t e r r i t o r y i s compounded by the l i f e s t y l e of the Metis. Although some were s e t t l e d , many lead semi-settled and nomadic l i v e s . Further, land use d i d not necessarily r e s u l t i n c u l t i v a t i o n or other recognizable forms of improvement so i t would be very d i f f i c u l t to obtain evidence of possession other than Metis claims to use. For example, i n addition to hunting the Metis engaged i n fur trapping, gathering, f i s h i n g , maple sugaring, limestone production and s a l t mining. Although predominant s i t e s for these a c t i v i t i e s can be i d e n t i f i e d such as Lake Winnipeg, the limestone b e l t from the southern part of the province to the north of the Pas, the wild r i c e patches and the seneca root harvest areas; the Metis were free to pursue these \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 159 uses throughout Manitoba along with t h e i r Indian neighbours. The d i f f i c u l t y of i d e n t i f y i n g t e r r i t o r y i s further complicated by the migration patterns of the Metis p r i o r to and immediately a f t e r 1870. Af t e r 1870 many Metis l e f t settlements to purse the hunt and l i v e a hivernant l i f e s t y l e . The lo c a t i o n of hivernant v i l l a g e s and camps can be ascertained through archaeological research, but i t i s cl e a r the Metis d i d not reside i n these locations f o r a substantial period of time. 1 6 0 A f t e r 1870, many migrated out of Rupert's Land f o r various reasons. Although the intimidation of the Woolsey reign of t e r r o r i n the Red River Area, the rapid settlement of Rupert's Land, the s c a r c i t y of the buffalo and the loss of land through s c r i p are legitimate arguments against 271 voluntary abandonment by the Metis; subsequent migration adds to the d i f f i c u l t y i n i d e n t i f y i n g a permanent t e r r i t o r y . The f l u i d i t y of Metis boundaries and t h e i r mode of existence has caused p o s i t i v i s t s to cast doubt on the a b i l i t y of the Metis to e s t a b l i s h a claim to t i t l e . 1 6 1 Although natural law recognizes the d i f f i c u l t i e s of estab l i s h i n g t h e i r exclusive entitlement to a l l of Rupert's Land given the layer of t i t l e s i n the area, i t would determine i t equally unjust to bar a claim to t i t l e when patterns of settlement and land use throughout Rupert's Land are undisputed. The s o l u t i o n to the d i f f i c u l t y does not l i e i n denial, but i n the recognition of j o i n t t i t l e and peaceful co-existence. As there i s s u f f i c i e n t evidence to i l l u s t r a t e shared t i t l e and j u r i s d i c t i o n , natural law would r e j e c t showing preference to one claim to the exclusion of the other. Rather, the Indians, and Metis would be equally capable of asserting claims to the en t i r e area. However, t h i s does not mean the appropriate compensation i n the event of tra n s f e r i s a reservation of the entir e area to one or the other group as t h i s would be impossible without g i v i n g preference to one community over the other. Consequently the i d e n t i f i c a t i o n of s p e c i f i c t e r r i t o r i e s within Rupert's Land i s properly dealt with as a question of compensation and not entitlement to claim compensation. The problem i s a pragmatic one i n the a c q u i s i t i o n of r i g h t s and not one of entitlement of the p r i o r possessor. I l l Summary of a Natural Theory of Metis T i t l e In summary, my theory on the natural o r i g i n s of Metis T i t l e i s : With the exception of t r a c i n g aboriginal r i g h t s of use and occupation through maternal l i n e s , l i t t l e attention has been paid to the o r i g i n s or source of Metis t i t l e . Contemporary arguments raised against the existence of Metis t i t l e are d i f f i c u l t to sustain within the natural law t r a d i t i o n . The focus on l e g i s l a t i v e recognition and common law proofs of t i t l e r e s u l t s i n a f a i l u r e to understand the natural o r i g i n s of Metis t i t l e and i t s c l a s s i f i c a t i o n as an aboriginal r i g h t . The s i g n i f i c a n t l i n k between the Metis and Indian peoples i s not just ancestry, but the f a c t that t h e i r r i g h t s are, or are derived from the natural r i g h t s of o r i g i n a l occupants (aboriginals). Proof of t i t l e can be established by meeting three c r i t e r i a : (a) the existence of an i d e n t i f i a b l e group; (b) o r i g i n a l r i g h t s or p r e s c r i p t i v e r i g h t s against the o r i g i n a l occupant; and (c) an i d e n t i f i a b l e t e r r i t o r y . The e f f e c t i v e date of a p p l i c a t i o n of these c r i t e r i a to the Manitoba Metis should be June, 1870. The terms \"Indian,\" \"a b o r i g i n a l , \" and \"indigenous\" have been created within the p o s i t i v i s t regime to explain the recognition of c e r t a i n r i g h t s by colonizing nations and cannot be translated into natural theory without being accompanied by undesirable p o s i t i v i s t baggage. Consequently, i t i s best to r e f e r to natural r i g h t s of s p e c i f i c 273 peoples rather than attempting generic categorizations. The issue i s not whether a people f i t s within one of the mentioned groups, but the i d e n t i f i c a t i o n of a people possessing natural r i g h t s derived from the o r i g i n a l occupants p r i o r to the legitimate a c q u i s i t i o n of o r i g i n a l t i t l e by the Crown. 5. As of June, 1870, the Metis had s u f f i c i e n t coherence, permanence, p o l i t i c a l organization and s e l f - i d e n t i t y to q u a l i f y as a sing l e group. The group was composed of various economic, s o c i a l and p o l i t i c a l communities united by a national consciousness and government. 6. Metis t i t l e i s a form of aboriginal t i t l e a r i s i n g from p r e s c r i p t i v e r i g h t s against the o r i g i n a l inhabitants of Rupert's Land by v i r t u e of the l a t t e r ' s f a i l u r e to assert r i g h t s to the exclusion of the Metis. The absence of bad f a i t h on the part of the Metis coupled with a h i s t o r y of r e l a t i o n s evidencing the implied consent of the o r i g i n a l occupants to share t i t l e and j u r i s d i c t i o n to Rupert's Land l e g i t i m i z e s the foundation of t h e i r claim i n natural law. However, p r i n c i p l e s of natural law would exclude from Metis t e r r i t o r i e s those t e r r i t o r i e s outside of Rupert's Land acquired from the Sioux Nation through conquest. 7. P r i o r to June of 1870 the Metis Nation shared possession of Rupert's Land with the o r i g i n a l occupants, the Hudson's Bay company and eventually the S e l k i r k s e t t l e r s . Entitlement of the Company and white s e t t l e r s i s not based on Crown grant, but p r e s c r i p t i v e r i g h t s against the o r i g i n a l occupants and the Metis. The further away from the source, the l e s s secure the t i t l e i n natural law. The r e s u l t i s a layering of possessory t i t l e s derived from the o r i g i n a l occupants. The tr a n s f e r of Rupert's Land did not a f f e c t Metis r i g h t s . Rather, the surrender of Metis r i g h t s was affected by an agreement between Canada and the Provisional Government. The persistence of Metis r i g h t s depends on the terms of the agreement and the extent to which i t i s honoured. Natural Law would recognize a l l of Rupert's Land as the j o i n t t e r r i t o r i e s of the Indians and Metis. The i d e n t i f i c a t i o n of s p e c i f i c areas within Rupert's Land i s best dealt with as a question of compensation rather than entitlement. CHAPTER 4 ENDNOTES See, f o r example, 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\" and \"Legal Basis of Metis Claims: An Interview with Douglas Sanders\" i n H. Daniels, The Forgotten People (Ottawa: Native Council of Canada, 1979) 5-22 and 94-99; C. Chartier, \"Aboriginal Rights and Land Issues: The Metis Perspective\" i n The Quest for J u s t i c e eds. M. Boldt and J . Long (Toronto: University of Toronto Press, 1985) 54-61; C. Chartier, \"Indian: An Analysis of the Term as used i n Section 91(24) of the B r i t i s h North America Act, 1867\" (1978-79) 43 Saskatchewan Law Review 39; \"Aboriginal T i t l e \" chap, i n 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 Assoc. of Alberta, 1981) 53-78; Native Council of Canada, A Statement of Claim Based on Aboriginal T i t l e of the Metis and Non-Status Indians (Ottawa: Native Council of Canada, 1980). B. Morse, Aboriginal Peoples and the Law: Indian. Inuit and Metis Rights i n Canada (Ottawa: Carleton University Press, 1985) at 4-5; P. Cumming and N. Mickenberg, Native Rights i n Canada. 2d ed. (Toronto: General Publishing Co. Ltd., 1972) at 200-204. Manitoba Act. S.C. 1870, c. 3, s. 31; There were various Dominion Lands Acts which contained s p e c i f i c reference to the Metis. Of p a r t i c u l a r i n t e r e s t are Dominion Lands Act. 1879, 42 V i c . c. 31, s. 125; 1883, 46 V i c . c. 17, s. 81. 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 (Kingston: Queen's University I n s t i t u t e of Intergovernmental Relations, 1985) at 184; P.E. Trudeau, \"Statement by the Prime Minister of Canada to the Conference of F i r s t Ministers on Aboriginal Constitutional Matters, 8-9 March 1984\" i n The Quest for J u s t i c e , supra. note 1 at 153; Metis Association of Alberta, supra. note 1 at 246-247. See, f o r example, Schwartz, i d . at 203-228; T. Flanagan, \"Metis Aboriginal Rights: Some H i s t o r i c a l and Contemporary Problems\" i n The Quest for J u s t i c e , supra. note 1 at 230-245; T. Flanagan, \"The Case Against Metis Aboriginal Rights\" (1983) IX Canadian Public P o l i c y 314. Metis Assoc. of Alberta, supra. note 1 at 72-73; T. Flanagan, R i e l and the Rebellion: 1885 Reconsidered (Saskatoon: Western Producer P r a i r i e Books, 1983) at 77-85. 276 6. Father Ritchot's Diary (1870), trans. B e r l i t z Translation Service, Public Archives of Canada, Ottawa, photocopied, 14. A l l commentators on the Manitoba Act acknowledge that negotiations centred on a Metis L i s t of Rights approved by the Provisional Government. However, there i s disagreement on whether the L i s t was intended to deal with Indian t i t l e and Ritchot's authority to negotiate t h i s claim. See, for example, Flanagan, i d . at 59-61; Association of Metis and Non-Status Indians of Saskatchewan (A.M.N.I.S.) \"The Nationhood Claim of the Metis - The H i s t o r i c a l and Empirical Basis of the Claim i n 1870\" (Saskatchewan: July 15, 1979) 44 photocopied, at 21-31; Metis Association of Alberta, supra. note 1 at 70-72; Native People and the Constitution of Canada, by H. Daniels, Commissioner (Ottawa: Mutual Press, 1981) at 56-58. Regardless of disagreement on the question of authority and understanding, i t i s c l e a r Ritchot explained the t i t l e question to the Provisional Government p r i o r to i t s approval of the Manitoba Act. See discussion i n Chapter 5, Section I I , 2. 7. See, f o r example, D.B. Sealey Statutory Land Rights of the Manitoba Metis (Winnipeg: Manitoba Metis Federation Press, 1975) at 50-63; Native Council of Canada, supra. note 1; A.S. Morton, \"The New Nation, The Metis\" i n The Other Natives: The Metis. Vol I., A. Lussier and D.B. Sealey, eds. (Winnipeg: Manitoba Metis Federation Press and Editions Bois-Brules, 1978) 27-37 at 34-37; Tremaudan, A.H. Hold Your Heads High: History of the Metis i n Western Canada, trans. E. Maguet (Winnipeg: Pemmican Publications, 1982) at 51-98; H. Adams, Prison of Grass: Canada From a Native Point of View (Toronto: General Publishing, 1975) at 54-61. Other authors recognize the contributions of Metis views on ownership and n a t i o n a l i t y but place more emphasis on the threat of c i v i l i z a t i o n to the Metis way of l i f e . See, for example, G. Stanley, The B i r t h of Western Canada. A History of the R i e l Rebellions (Great B r i t a i n : Longman's, Green and Co. Ltd., 1936; re p r i n t , Toronto: University of Toronto Press, 1960, at 18, 48-49 and 61. 8. See, f o r example, supra. note 1. 9. Id. 10. Dumont et a l v. A.G. of Canada (17 June 1988) Winnipeg 152/87 at 15 (C.A.). On appeal to the Supreme Court of Canada. 11. See, f o r example, 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 Press, 1974). 277 12. See, f o r example, R. McKay, \"History of West Never Complete U n t i l Interpreted by Metis People\" i n The Forgotten People. supra. note 1 at 23-31; Alberta Federation of Metis Settlement Associations, Metisism: A Canadian Identity (Edmonton: Alberta Federation of Metis Settlement Assoc., 1982) at 1-6; D.B. Sealey, \"One Plus One Equals One\" i n The Other Natives: The Metis, Vol. I I , supra. note 7 at 1-14. D. Sealey and A. Lussier, The Metis: Canada's Forgotten People (Winnipeg, Manitoba Metis Federation Press, 1975). This i n t e r p r e t a t i o n of Metis h i s t o r y i s also adopted by l e g a l scholars but has not been incorporated into a l e g a l theory on o r i g i n s or proof. Rather, these incidents are usually c i t e d to support the argument of recognition. 13. Sealey and Lussier, i d . at 9; D. Redbird, We are Metis: A Metis View of the Development of Native Canadian People (Willowdale: Ontario Metis and Non-Status Indian Association, 1980) at 55. 14. S. Carter, \"Metis Aboriginal T i t l e \" (Saskatoon: University of Saskatchewan College of Law, 1978) 41, Photocopied; Metis Association of Alberta, supra f note 1 at 78-81; Flanagan, supra. note 4. 15. Hamlet of Baker Lake v. Minister of Indian A f f a i r s and Northern Development (1979) 107 D.L.R. (3d) 513 (F.C.T.D.). 16. Carter, supra. note 14 at 23. 17. Metis Assoc. of Alberta, supra. note 14 at 81. 18. Constitution Act. 1982 (U.K.), 1982, c. 11. 19. Flanagan \"The Case Against Metis Aboriginal Rights,\" supra. note 4 at 314. Flanagan's arguments against recognition are discussed i n Section 3 of t h i s chapter. 20. See note 16 i n the endnotes to Chapter one of t h i s t h e s i s . 21. R.S.C., 1970, Appendices, p. 123. 22. See, f o r example, the following Orders-in-Council which make s p e c i f i c reference to aboriginal or Indian t i t l e : PC No. 369, 3 A p r i l 1873; PC No. 821, 18 A p r i l 1885; PC No. 918, 6 May 1899; PC No. 438, 2 March 1900; PC No. 1182, 6 June 1901; PC 278 No. 1060, 29 May 1909; PC No. 1172, 12 A p r i l 1921; PC No. 471, 26 March 1924; and PC No. 1409, 6 August 1906. Of these, PCs Nos. 406 and 438 r e f e r to Manitoba half-breeds. The remainder implement provisions of the Dominion Lands Act or deal with half-breed claims i n s p e c i f i c treaty areas. The l a t t e r contain the l e a s t ambiguous phraseology concerning Metis aboriginal t i t l e . Reference i s made to aboriginal t i t l e \"of\" or \"preferred by\" the half-breeds. 23. Id. See also the discussion at pages 63 to 72 i n Chapter two of t h i s t h e s i s . 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, 12 September 1875 which e x p l i c i t l y recognizes Metis aboriginal t i t l e . Reprinted i n A Statement of Claim Based On Aboriginal T i t l e of the Metis and Non-Status Indians, supra. note 1, appendix 13. 24. Supra. note 22. See also PC No. 238(a), 19 March 1876 which simply r e f e r s to s a t i s f a c t i o n of \"claims under the Act.\" Regarding the question of Indian blood, see PC No. 1202, 2 July 1885, which defines \"children of half-breed heads of f a m i l i e s \" to include \" a l l those of mixed blood, p a r t l y white and p a r t l y Indian, and who are not heads of f a m i l i e s . \" Other Orders-in-Council r e f e r r i n g to claims a r i s i n g i n r e l a t i o n to Indian blood deal with claims s a t i s f i e d i n conjunction with treaty negotiations. See, for example: PC No. 2675, 14 December, 1888; 1899 and PC No. 438, 2 March 1900. 25. See, f o r example, An Act to Authorize Free Grants of Land to Certain O r i g i n a l S e t t l e r s and t h e i r Descendants, i n the T e r r i t o r y Now Forming the Province of Manitoba (1873), 36 V i c . c. 37; An Act Respecting the Appropriation of Certain Dominion Lands i n Manitoba (1874), 37 V i c . c. 20; PC No. 1102, 28 November 1872; PC No. 406, 26 A p r i l 1875; PC No. 895, 7 October 1876; PC No. 794, 27 August 1877; PC No. 1464, 10 December 1879; PC No. 810, 20 A p r i l 1885; PC No. 630, 12 March 1892; PC No. 485, 28 February 1894. See also T. Flanagan, \"The Case Against Metis Aboriginal Rights,\" supra. note 4, at 318-319. The argument that Metis t i t l e i s the same as that enjoyed by o r i g i n a l white s e t t l e r s i s discussed within a p o s i t i v i s t framework i n Chapter two Section I of t h i s t h e s i s . 26. Supra. note 10 at 10. 27. 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; Regarding the farm colonies i n Saskatchewan and the Metis Settlements i n Alberta, see the discussion i n Chapter 2, Section II of t h i s t h e s i s . The p o s i t i o n of the Alberta government i s also discussed i n Alberta Native A f f a i r s , Alberta's Metis 279 Settlements: A Compendium of Background Documents, compiled by H. Beharry (Edmonton: Native A f f a i r s Secretariat, 1984); D. Sanders, \"A Legal Analysis of the Ewing Commission and the Metis Colony System i n Alberta,\" Paper prepared for the Metis Association of Alberta (Edmonton: A p r i l 4, 1978) 36 Photocopied, at 6-7; Alberta Federation of Metis Settlement Assocs, supra. note 12 at 8-9. 28. Exclusion from the land claims negotiation process followed from the federal government's p o s i t i o n on j u r i s d i c t i o n and extinguishment. However, research conducted by the Indian Claims Commission i n 1975 admits three possible categories of claims. See, Metis Assoc. of Alberta, supra. note 1 at 243-247. 29. Schwartz and Trudeau, supra. note 3. 30. Supra f note 5. 31. Flanagan, i d . at 59. 32. Id. at 68. 33. Id. at 80. 34. St. Catherine's M i l l i n g Co. v. R. (1888), 14 A.C. 46 ( P . C ) . 35. See the discussion of St. Catherines, i d . at pages 152 to 155 i n Chapter 3 of t h i s thesis and the v a l i d i t y of the Company's t i t l e at page 131 of the same chapter. 36. See Chapter 3, Section I I I , 3 of t h i s t h e s i s . 37. Supra. note 4. 38. T. Flanagan, \"The Case Against Metis Aboriginal Rights,\" supra. note 4 at 316; see also B. Schwartz, supra f note 3 at 218-220. 39. Id. at 319. 280 40. Id. 41. Id. at 320. 42. Id. 43. Id. at 322. 44. Guerin v. R. [1984] 2 S.C.R. 335. 45. See, fo r example, D. Jenness, The Indians of Canada. 7th ed. (Toronto: University of Toronto Press, 1977) at 327-376. 46. See, f o r example, G. Morris, \"In Support of the Right of S e l f -Determination for Indigenous Peoples under International Law\" (1986) German Yearbook of International Law 277; D. Sanders, \"The Re-Emergence of Indigenous Questions i n International Law\" (1983) 4 Canadian Human Rights Yearbook. 29; See also pages 137 to 168 of Chapter 3 of t h i s t h e s i s . 47. Regarding the moral oblig a t i o n of powerful communities see D. Gormley, \"Aboriginal Rights as Natural Rights\" (1984) 1 The Canadian Journal of Native Studies IV, 29 at 33-35 and 37. Choosing the date of dispossession has also been promoted as the \" j u s t \" approach f o r dealing with claims of dispossessed people by the Canadian Bar Association and well known academics. See, Aboriginal Right i n Canada: An Agenda for Action: Report of the C.B.A. Committee on Aboriginal Rights i n Canada, by A. Thompson, Chairman (Ottawa: The Canadian Bar Association, 1988) at 26-27; B. Sla t t e r y , \"Understanding Aboriginal Rights\" (1987) 66 Canadian Bar Review 727 at 756. 48. See discussion of the Marshall cases i n Chapter 3, Section I I I , 1 of t h i s t h e s i s . 49. See, f o r example, E. P e l l e t i e r , The E x p l o i t a t i o n of Metis Lands (Winnipeg: Manitoba Metis Federation Press, 1975); Sealey, supra. note 7 at 67-79; D. Sealey, \"Statutory Land Rights of the Manitoba Metis\" i n The Other Natives. Vol. I I . , supra. note 7 at 1; Metis Assoc. of Alberta, supra. note 1 at 87-158. 50. See, D. Sanders, supra, note 1 at 10; Stanley, supra. note 7 at 124 and 139-143; Sealey and Lussier, supra. note 12 at 87 281 and 92-94; Sealey, \"One Plus One Equals One,\" supra. note 12 at 23-25; Tremaudan, supra. note 7 at 95-107. 51. For a more de t a i l e d discussion of the conclusions see Chapter 3 of t h i s t h e s i s . 52. Sealey, \"One Plus One Equals One,\" supra. note 12 at 24. See also Metis Assoc. of Alberta, supra. note 1 at 18-20; Tremaudan, i d . Chapters 1 and 2; P e l l e t i e r , supra. note 11. 53. See, f o r example, Stanley, supra. note 7 at 10 and 48-49; Morton, supra. note 7; Tremaudan, i d . Chapters 1 to 3; Metis Assoc. of Alberta, i d . at 20-39. For a general discussion of Metis n a t i o n a l i t y see the discussion at pages 10 to 16 i n Chapter one, Sections I, 1(b) and I I . 54. Although some of the English half-breeds purchased t i t l e from the Hudson's Bay Company, most were \"squatters\" under the eyes of English law claiming r i g h t s by v i r t u e of possession. For these half-breeds and most white s e t t l e r s t h e i r central concern was responsible government. Both groups, with the exception of the Canadians led by Shultz, eventually supported the Provisional Government. For a discussion of the u n i f i c a t i o n of the French and English speaking populations see Stanley, i d . at 62-63, 71-83 and 98-99. Sealey and Lussier, The Metis: Canada's Forgotten People, supra. note 12 at 80-84 and Tremaudan, i d . at 61-99. Regarding the close s o c i a l r e l a t i o n s h i p s between the two groups and t h e i r i d e n t i f i c a t i o n as a s i n g l e community see I. Spry, \"The Metis and Mixed-Bloods of Rupert's Land before 1870\" i n The New Peoples: Being and Becoming Metis i n North America, eds. J . Peterson and J . Brown (Winnipeg: The University of Manitoba Press, 1985) 95-118. 55. Tremaudan, supra. note 7 at 1; D. Jenness, supra. note 45 at 2. 56. See the discussion i n Chapter 2, Section II of t h i s t h e s i s . 57. D. Sanders, \"P r i o r 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 252-253. 58. Flanagan, supra. note 38 at 321. 282 59. Id. at 321-322. 60. B r i t i s h North America Act. 1867, 30 & 31 V i c t . , c. 3, s. 91(24). 61. See, f o r example, the l i m i t a t i o n s placed by B. Schwartz on the term \"Indian\" i n s. 91(24) of the B.N.A. Act, i d . at pages 59 to 67 i n Chapter 2 of t h i s t h e s i s and the i n t e r p r e t a t i o n of the word \"Indian\" i n s. 35(2) of the Constitution Act. 1982 (U.K.), 1982, c. 11 at pages 26 to 27 i n Chapter 1 of t h i s t h e s i s . 62. Gormley, supra. note 47 re o b l i g a t i o n of powerful communities. See also the discussion of Opekokew's equality arguments i n Chapter two, Section I I I , 1 of t h i s t h e s i s . 63. Shorter Oxford English Dictionary. 3d, Vol. II (Oxford: Clarendon Press, 1975) at 1057. 64. Schwartz, supra. note 3 at 228. This view has also been adopted by c e r t a i n Metis authors. See also H. Daniels, We Are the New Nation (Ottawa: Native Council of Canada, 1978) at 6; supra. note 13. 65. Those who support a d e f i n i t i o n of metis people beyond descendants of the Metis Nation defined i n Chapter one would extend the argument to say the Metis originated where the f i r s t mixed-blood c h i l d was born and became a people indigenous to North America. See Chapter 1 of t h i s thesis f o r a discussion of the debate and i t s e f f e c t on the i d e n t i f i c a t i o n of Metis t e r r i t o r y . 66. See discussion at pages 114 to 124 i n Chapter 3 of t h i s t h e s i s . 67. Supra. note 47. 68. G. Ens, \"Dispossession or Adaptation? Migration and Persistence of the Red River Metis 1835-1890,\" Paper presented at the \"CHA Annual Meeting\" Ontario, University of Windsor, 9-11 June 1988, 33 photocopied at 5; see also supra. note 52; Sealey and Lussier, supra f note 54 at 13-14. 69. Supra. note 52; Sealey and Lussier, i d . at 13-14. 283 70. Stanley, supra f note 7 at 9; Tremaudan, supra. note 7 at 8. 71. Sealey and Lussier, supra. note 54 at 29. 72. See generally, Sealey, Statutory Land Rights of the Manitoba Metis, supra. note 7 at 20-31; Stanley, supra. note 7 chapters 1 and 3; Tremaudan, supra. note 7 at 24-36; Morton, supra. note 7 and supra. note 12. 73. Supra. note 54. 74. Stanley, supra, note 7 at 10. 75. See generally, Sealey and Lussier, supra. note 54 at 44-45; Tremaudan, supra. note 7 at 36-39; A.M.N.I.S. supra. note 6 at 9-11 Ens, supra. note 68; Sealey, supra, note 72 at 30-38. 76. Sealey and Lussier, i d . at 58-59. 77. Ens, supra. note 68 at 5-6. 78. Id. at 7-10; Sealey and Lussier, supra. note 54 at 60-64; Metis Assoc. of Alberta, supra. note 1 at 16-18; A.M.N.I.S., supra. note 75 at 10. 79. Ens, i d . at 10. 80. Supra. note 78. See also H.S. Sprague, \"The Metis Nation: Buffalo Hunting vs Agriculture at the Red River Settlement\" i n The Other Natives: The Metis, supra. note 7 at 115-130. 81. Sealey and Lussier, supra. note 54 at 60-62; See also, supra. note 72. 82. Quoted i n Sealey and Lussier, i d . at 62. Other p e t i t i o n s were forwarded to the Crown and the Hudson's Bay Government between 1835 and 1850 concerning free trade, Metis representation on the Council and french language r i g h t s . See Adams, supra. note 7 at 52; Stanley, supra. note 7 at 44-47; Tremaudan, supra. note 7 at 44-46. 284 83. Sealey and Lussier, i d . at 63-64; Stanley, i d . at 46-47; Tremaudan, i d . at 46-49. 84. A.M.N.I.S. supra. note 75 at 11; C. Chartier \"Indian: An Analysis of the term . . .,\" supra, note 1 at 44, Sealey and Lussier, supra. note 54 at 68. 85. See discussion i n Section I I , 3(b) of t h i s chapter. 86. A.M.N.I.S., i d . at 10-11; Tremaudan, supra. note 7. 87. Tremaudan, i d . at 14. 88. There are numerous accounts of p o l i t i c a l organization around the hunt. See, for example, Sealey and Lussier, supra, note 54 at 51-53; H.S. Sprague, supra. note 80; Metis Assoc. of Alberta, supra, note 78; Tremaudan, i d . at 12-14. 89. Morton, supra. note 7 at 35; See also discussion i n Section I I , 3(c) of t h i s chapter and Chapter 5, Section I I , 2. 90. Sanders, supra. note 1 at 8. 91. Ens, supra. note 68 at 7-20. 92. D.N. Sprague, \"Government Lawlessness i n The Administration of Manitoba Land Claims, 1870-1887\" (1980) 10 Manitoba Law Journal 415 at 416-418; Letter from A. Archibald to Secretary of State (Dec. 27, 1870), P.A.C. R.G. 15, Volzza. 93. Reprinted i n Metis Assoc. of Alberta, supra. note 1 appendix 2. There i s some debate whether Ritchot based negotiations on the f i n a l l i s t of r i g h t s . However, the difference between the two l i s t s was i n s i g n i f i c a n t . See Stanley, supra, note 7 at 113-114. 94. See, f o r example, Metis Assoc. of Alberta, supra. note 1 at 87-158; P e l l e t i e r , supra. note 49. 95. See, for example, Flanagan, supra. note 5 at 74. 285 96. Stanely, supra. note 7 at 141; Tremaudan, supra f note 7 at 99-109. 97. See Ens, supra note 68 at 20-33; Metis Assoc. of Alberta, supra. note 1 at 35-38; Sealey and Lussier, supra f note 54 at 91-101. 98. Supra, note 49. 99. See, f o r example, Sealey and Lussier, supra. note 72 at 93; debates, colonization Co. a r t i c l e . 100. Supra. note 53. 101. See Chapter three, Section I, 2. 102. Supra. note 11 at 2; Jenness, supra. note 45 at 277, 284, 308, 316-317. 103. Tremaudan, supra. note 7 at 45; Sealey and Lussier, supra, note 54 at 43. 104. See, f o r example, supra. note 54 at 99; P. Dickason, \"From 'One Nation' i n the Northeast to 'New Nation' i n the Northwest: A Look at the Emergence of Metis\" and J . Peterson, \"Many Roads to Red River: Metis Genesis i n the Great Lakes Region, 1680-1815\" i n The New Peoples: Being and Becoming Metis i n North America, supra. note 54. 105. Tremaudan, supra. note 7 at 19-20. 106. Id. at 45; Sealey and Lussier, supra. note 72 at 43-49. 107. There are numerous accounts of the b a t t l e of Grand Coteau. See, f o r example, W.L. Morton, \"The Battle of Grand Coteau\" i n The Other Natives: The Metis, supra, note 7 at 47-62. Regarding the expansion of Metis t e r r i t o r i e s see McKay, supra, note 12 at 25 and D. McLean, F i f t y H i s t o r i c a l Vignettes: Views of the Common People (Regina: Gabriel Dumont I n s t i t u t e of Native Studies and Applied Research, 1987) at 30-32. 108. Metis Assoc. of Alberta, supra. note 1 at 252. 286 109. Sealey and Lussier, supra. note 54 at 43. 110. S l a t t e r y , supra. note 47 at 741-742. 111. Supra. note 101. 112. Id. 113. See, f o r example the views of V i t o r i a i n De Indes et de Jure B e l l i ; Reflectiones. trans, by J.P. Bates i n J.B. Scott, ed., The C l a s s i c s of International Law (Washington: Carnegie I n s t i t u t i o n 1917; r e p r i n t , Ocean Publications Inc., 1964) at 163-187. The numerous theories leading eventually to the predominance of t h i s p o s i t i o n are discussed i n E. Midgley, The Natural Law T r a d i t i o n and the Theory of International Law (London: Elek Books Ltd., 1975). Modern writers often s t a r t with V i t o r i a ' s proposition that j u s t war must be considered i n r e l a t i o n to the common good of the global community. See Midgley at 257-258 and D. Bowett, Self-Defence i n International Law (Manchester: Manchester University Press, 1958) at 4-5. 114. Excerpts of the Charter are reprinted i n Sealey, supra. note 72 at 4-7. 115. A d i f f e r e n t conclusion might be reached i f r e s t r i c t i o n s were placed a f t e r the legitimate assumption of authority by the Crown. Once the Crown assumes authority, r e s t r i c t i o n s may be l e g i t i m a t e l y imposed as protective measures. 116. See, f o r example, Sealey, supra f note 72 at 9-17; Sealey and Lussier, supra. note 54 at 34; Stanley, supra. note 7 at 10-11 and 14. 117. Stanley, i d . at 14. 118. Sealey and Lussier, supra. note 54 at 37-40. 119. Supra. note 53. 120. Tremaudan, supra. note 7 at 28. 287 121. Sealey and Lussier, supra. note 54 at 41-42; Stanley, supra. note 7 at 11-12; Tremaudan, supra, note 7 at 31-36. 122. Supra. note 12. 123. Lussier and Sealey, supra. note 54, at 42-43. 124. Supra. note 72; M. Hudson and M. F l a d e l l \"The Development of Government i n Red River,\" paper prepared f o r the Native Council of Canada, 35 photocopied at 17-18. 125. Stanley, supra. note 7 at 14-15; Sealey, supra. note 72 at 40-43. 126. Quoted i n McKay, supra, note 12 at 24. 127. Id. at 14. 128. Sealey and Lussier, supra, note 54 at 76. 129. Supra. note 5 at 79. 130. Id. at 77-80. 131. See Chapter three, Section I I , 4. 132. Supra. note 50. 133. See discussion of p o l i t i c a l organization i n Chapter three, Section I I , 2. 134. See, f o r example the views of V i t o r i a discussed i n Section I I , 2 and the Western Sahara Case (1975) I.C.J. Reports 6 at 39. 135. Hudson and F l a d e l l , supra. note 124 at 15; Stanley, supra. note 7 at 68-71, 75-85. 288 136. Id. at 21-24; Sealey and Lussier, supra f note 54 at 78-80; Stanley, supra. note 7 at 75-86; Tremaudan, supra. note 7 at 57-71. 137. Supra. note 124 at 24; See also Louis R i e l 1 s Case (1874) P.A.C, R.G. 7, G. 18, Vol. 26 (1) reprinted i n Native Council of Canada, supra. note 1 appendix 10. 138. L. Dorge \"The Metis and Canadian Councillors of A s s i n i b o i a \" Part III (1974, Winter) Beaver 51 at 54. 139. Id.; Hudson and F l a d e l l , supra f note 124 at 25-27; 29; See also, Stanley, supra, not 7 at 85 which suggests the council disbanded because of McDougall's premature assumption of authority. 140. Supra. note 54; Hudson and F l a d e l l , i d . at 25-30. Stanley. 141. See, f o r example, Stanley, supra. note 7 at 98-106; Tremaudan, supra. note 7 at 71-89; Sealey and Lussier, supra. note 54 at 80-89. 142. Bowett, supra. note 113 at 4-6. 143. Midgley, supra, note 113. 144. Bowett, supra. note 113 at 7. 145. Supra. note 141. 146. See, f o r example, supra. note 5 at 61. 147. See, f o r example, Native People and the Constitution of Canada, supra, note 6 at 54-60. 148. See generally, Stanley, supra. note 7 Chapters VI and Tremaudan, supra. note 7 at 52-110. 149. Supra. note 56 and 93; Stanley, supra. note 7 Chapter 4. 289 150. See, fo r example, House of Commons Debates. 9 May 1870, pp. 1488-89 (per Cartier) ; 4 May 1870, p. 1355 (per MacDonald) ; 6 July 1885, p. 3114 (per MacDonald); 6 July 1885, p. 3076 (per Blake); 20 A p r i l 1886, p. 810 and 7 Jul y 1885, p. 3122 (per L a u r i e r ) ; Letter of Ritchot to John A. MacDonald, January 1881, photocopied. 151. House of Commons Debates. 20 A p r i l 1886, p. 810. 152. See, fo r example, Flanagan, supra. note 5 at 58-67 and Metis Assoc. of Alberta, supra. note 1 at 71. 153. See discussion i n Stanley, supra, note 148 and Tremaudan, supra f note 7 at 89-95. 154. Stanley, i d . at 85; Flanagan, supra. note 5 at 80-84; R i e l 1 s Case, supra. i d . at 78-79. 155. 156. Supra, note 92. 157. See, for example, Tremaudan, supra, note 7 at 19; Native Peoples and the Constitution of Canada, supra. note 6 at 52; P e l l e t i e r , supra. note 11 at 1. 158. P e l l e t i e r , i d . at 4-5. 159. Id. (entire book). See also, Metis Assoc. of Alberta, supra. note 1 at 16-20; Tremaudan, supra. note 7 at 9-18; Sealey and Lussier, supra. note 54 at 8-30. 160. See, fo r example, Sealey, supra. note 72 at 32-36 and Metis Assoc. of Alberta, supra. note 1 at 19. 161. See, for example, Dumont. supra. note 10 and Flanagan, supra. note 38 at 320. A P P E N D I X TO C H A P T E R 4 H i s t o r i c a l Outline Hudson's Bay Charter granting r i g h t s of c i v i l government and exclusive trade i n Rupert's Land. Royal Commission of James I of 1688 i n s t r u c t s the Hudson's Bay Company (H.B.C.) to treaty with the Indians. Pierre Gaultier de Varennes spearheads fur trade i n the Northwest. Trading posts are established westward toward Lake Winnipeg and l a t e r at Cedar Lake and The Pas. The Royal Proclamation of George I I I . The North West Company (N.W.C.), an amalgamation of fur trading i n t e r e s t s operating from the St. Lawrence, i s formed. From t h i s time forward the N.W.C. competes with H.B.C. for control of the fur trade i n Rupert's Land. Both companies have from 1,500 to 2,000 white men permanently stationed i n the North West. Relationships were established with Native women. Grant of the d i s t r i c t of Assiniboia by H.B.C. to Lord Se l k i r k . The land amounted to 116,000 square miles l y i n g mostly within the present day Manitoba but including some of the present province of Saskatchewan and the states of Minnesota and North Dakota. The f i r s t S e l k i r k s e t t l e r s a r r i v e and begin to e s t a b l i s h a settlement at Point Douglas, two miles north of the forks of the Red and Assiniboine r i v e r s . A second group of Sel k i r k s e t t l e r s a r r i v e . Miles Macdonell, governor of the D i s t r i c t of Assiniboia issues the pemmican proclamation r e s t r i c t i n g export of pemmican and r e s t r i c t i n g hunting, f i s h i n g and wood cutting r i g h t s . Macdonell issues proclamation forbidding the running of buffal o . Macdonell advises N.W.C. they must surrender Fort G i b r a l t a r and other trading f o r t s within s i x months. Cuthbert Grant of N.W.C. appointed Captain of the Metis. Macdonell seizes supplies at Desmarais' post and Fort Brandon. Grant and h i s followers systematically harass s e t t l e r s to drive them out. Peter Fiddler, temporarily i n charge of the colony, enters a treaty with the Metis a f t e r several attacks on the colony by the Metis. The H.B.C. was allowed to remain but s e t t l e r s were to leave the colony. S e t t l e r s and new governor, Robert Semple, return to Red River. Semple seizes Fort G i b r a l t a r and cuts o f f the N.W.C. trade route. Metis f i g h t Semple under the leadership of Grant at the Battle of Seven Oaks. A l l c o l o n i s t s leave the Red River Valley. S e l k i r k captures N.W.C. f o r t s of Fort William and Fort Douglas cutting o f f N.W.C. trade i n pemmican. Grant v o l u n t a r i l y surrenders i n June. Colonists return. S e l k i r k signs treaty with the Saulteaux f o r the Red River area. A r r i v a l of p r i e s t s Provencher and Dumoulin. Establishment of Catholicism i n Red River Settlement. H.B.C. and N.W.C. amalgamate. Many Metis families relocate from elsewhere i n Rupert's Land to Red River and Pembina. Several Metis communities established including Grantown (St. Francois Xavier), Pembina, St. Boniface. H.B.C. declares trade i n buffalo with Americans i l l e g a l and the Metis protest. H.B.C. responds by placing levy on goods coming i n from the United States. Punishments enacted for i l l i c i t trading. Metis dependant on American trade. Company censors mail to control trade. Trading post established at Pembina. Sel k i r k ' s h e i r s t r a n s f e r Red River lands back to the H.B.C. Metis p e t i t i o n the Council of Ass i n i b o i a asking for representation i n the government and d e f i n i t i o n of sp e c i a l status as natives of the Red River area. Representation and r i g h t s are denied. H.B.C. imposes martial law. T r i a l of Guillame Sayer. Clash between Metis and H.B.C. breaks H.B.C. fur trade monopoly. (More Metis become involved with fur trade and abandon a g r i c u l t u r a l pursuits due to expansion of buffalo robe trade and poor a g r i c u l t u r a l conditions experienced i n 1840's). 293 1852 Battle of Grand Coteau against the Sioux Nation. Trade route to Pembina secured. 1857 Hind expedition to North West gives favourable reports on settlement prospects i n Red River area. Select committee appointed to consider a c q u i s i t i o n of H.B.C. lands and to investigate complaints against them. 1858 Draft B i l l to f a c i l i t a t e t r a n s f e r of H.B.C. lands and colonization. H.B.C. and Canada are not i n agreement so B i l l i s not introduced. 1865 Colonial Secretary recommends annexation of Rupert's Land to Canada subject to ri g h t s H.B.C. can e s t a b l i s h . 1866 The United States government passes a B i l l regarding annexation of the Sel k i r k colonies and Saskatchewan and the compensation of H.B.C. claims. 1867 B r i t i s h North America Act anticipates admission of Rupert 1 s Land and the North West T e r r i t o r i e s into Canada. 1868 Agreement to surrender Rupert's Land to Canada for payment of \u00C2\u00A3300,000. 1869 William McDougall appointed Lt. Governor pursuant to the Act for the Temporary Government of Rupert's Land and the Northwestern T e r r i t o r y When United with Canada (1869) 2 Vic . C. 3. In August McDougall sends Dennis to survey the Red River Settlement. 1869 Louis R i e l h a l t s surveyors between Lots 12 and 13 i n (Oct.) the Parish of St. V i t a l . The National Committee i s organized to r e s i s t the Canadians and McDougall's entry into the Settlement. 294 (Nov.) Louis R i e l and h i s followers seize Fort Gary and gain control of the settlement. R i e l c a l l s f o r a council of 24 (12 English speaking and 12 French speaking) representatives. Governor McTavish c i t i e s the insur r e c t i o n as unlawful. On November 23rd the Provisional Government i s established and replaces the Council of Assiniboia. (Dec.) McDougall issues proclamation appointing himself Lieutenant-Governor of Rupert's Land. Louis R i e l i s elected President of the Provisional Government. 1870 Donald Smith presents the case f o r Canada at a public (Jan.) meeting. On the 26th a newly elected convention draws up and approves the Metis L i s t of Rights. Delegates of the Provisional Government are chosen to present and negotiate the l i s t i n Ottawa. (March) Thomas Scott i s executed. Delegates are dispatched to Ottawa. (April) Delegates negotiate terms of entry with S i r George C a r t i e r and John A. MacDonald. (May) The Manitoba Act, S.C. 1870, c. 3 receives royal assent. The Provisional Government r a t i f i e s the provisions of the Manitoba Act. The Woolsey expedition a r r i v e s . R i e l f l e e s . 1870 - Many Metis leave the Red River area f o r wintering s i t e s . 1871 Some migrate south and north west. An o f f i c i a l census i s taken i n the Red River Settlement. 295 1871 The B r i t i s h North America Act (1871), 34 and 35 V i c , C. 28 (U.K.) affirms the legitimacy of the Manitoba Act and declares Parliament incompetent to a l t e r i t . 1871 - Supplementary l e g i s l a t i o n and numerous Orders-In-Council 1889 passed r e v i s i n g and implementing sections 31 and 32 of the Manitoba Act. 1874 Parliament passes the Se l k i r k S e t t l e r s Act (1874), 36 V i c . C. 37 and subordinate l e g i s l a t i o n providing land grants to o r i g i n a l white s e t t l e r s i n addition to s. 32 claims. 1879 - Second major migration from Red River area to s e t t l e d 1880 communities i n the North West. 1880 L e g i s l a t i o n passed enabling the creation of colonization companies. 296 CHAPTER 5 PERSISTENCE OF METIS TITLE Introduction Pursuant to s. 31 of the Manitoba Act, land grants and s c r i p were d i s t r i b u t e d to Metis children and heads of Metis families to s a t i s f y claims a r i s i n g from \"the extinguishment of Indian T i t l e to the lands i n the Province\" of Manitoba. 1 The administration of the s. 31 land grant and i t s e f f e c t on the continuance of Metis aboriginal t i t l e i s a matter of controversy currently debated i n p o l i t i c a l negotiations and before the courts. In a report issued by the Indian Claims Commission i n 1975, three p o t e n t i a l categories of claims a r i s i n g from the administration of the s. 31 land grant were i d e n t i f i e d . These are: (1) land and s c r i p issued were unjustly administered, (2) s c r i p was an inadequate form of compensation to s a t i s f y Metis claims, and (3) the Metis are \"Indians\" and are therefore e n t i t l e d to s p e c i a l consideration by the federal government.2 Since 1975, further l e g a l argument has been developed by both Metis and academics. The additional claims f a l l into one of two general categories. Claims i n the f i r s t category uphold parliamentary sovereignty but place l i m i t a t i o n s on the r i g h t s of the sovereign v i s a v i s her subjects. An example of claims f a l l i n g within t h i s category are: (1) i n t e n t i o n a l destruction of Metis communities and p o l i t i c a l organization through i n d i v i d u a l land compensation and the subsequent r e f u s a l to provide them with a land base i s i n v i o l a t i o n of t h e i r human r i g h t s ; 3 (2) the government i n t e n t i o n a l l y implemented a system that would not, and did not, 297 b e n e f i t the Metis and i n doing so was i n breach of i t s f i d u c i a r y o b l i g a t i o n towards the Metis; 4 and (3) the orders-in-council implementing the land grant and s c r i p system are u l t r a v i r e s the powers of the federal government because they a l t e r the intention of s. 31 of the Manitoba Act. 5 Claims i n the second category focus on the i l l e g a l i t y of the d i s t r i b u t i o n system rather than sovereign r i g h t s and obligations. Included i n t h i s category are claims that: (1) the Canadian government v i o l a t e d the national r i g h t s of the Metis by u n i l a t e r a l l y imposing terms of extinguishment; 6 (2) the Canadian government i s i n breach of treaty, or contractual obligations, owed to the Metis; 7 and (3) the government encouraged and p a r t i c i p a t e d i n fraudulent schemes f o r lo c a t i n g Metis lands. 8 Should claims be taken out of the p o l i t i c a l arena and into the courts two ce n t r a l questions w i l l need to be addressed: What i s the l e g a l basis of Metis t i t l e ? Has Metis t i t l e i n Manitoba been extinguished? Advocates of Metis r i g h t s have paid l i t t l e attention to the f i r s t question r e l y i n g on the theory of recognition as a defence to the assertion that a source i n law must be i d e n t i f i e d . Instead, the predominance of research and argument has focused on the question of extinguishment. Although arguments of recognition are important and worthy of l e g a l consideration, the Dumont case suggests that the Courts w i l l have d i f f i c u l t y f i n d i n g i n favour of the Metis on the question of extinguishment i n absence of a theory on the o r i g i n s and l e g a l e n f o r c e a b i l i t y of Metis aboriginal t i t l e . The absence of theory, regardless of recognition, makes i t d i f f i c u l t to i d e n t i f y federal obligations toward the Metis independent of obligations imposed by l e g i s l a t i o n . The e f f e c t i s 298 not only to narrow the basis of the Metis claim, but to cast doubt on the independent l e g a l r i g h t s of the Metis. 9 This t h e s i s has been concerned with i d e n t i f y i n g the Metis people and developing a theory on the or i g i n s of Metis aboriginal t i t l e . The l i n k between the Metis and other aboriginal peoples i s both common r a c i a l ancestry and the legitimate assertion of o r i g i n a l t i t l e , or r i g h t s derived from the o r i g i n a l occupants, p r i o r to the legitimate a c q u i s i t i o n of o r i g i n a l t i t l e by the Canadian government. Rather than consider the r e l a t i v e merits of arguments that Metis aboriginal t i t l e p e r s i s t s , the f i n a l chapter of t h i s t h e s i s i s concerned with connecting the questions of o r i g i n and extinguishment through theory focusing on the natural rig h t s of the Manitoba Metis. Although each of the l i s t e d arguments on extinguishment i s worthy of analysis, t h i s chapter w i l l l i m i t the examination of the issue of extinguishment to three questions: 1. Can the u n i l a t e r a l imposition of p o s i t i v e law leg i t i m a t e l y abrogate the natural r i g h t s of the Metis? 2. Assuming an agreement was reached between the Canadian government and the Provisional Government, what arguments can be made i n support of the persistence of Metis t i t l e ? 3. To what extent can arguments founded i n natural law be translated into p o s i t i v e l e g a l obligations? 299 I The Question of U n i l a t e r a l Extinguishment 1. Common Law The St. Catherine 1 s case i s continually c i t e d f o r the proposition that the sovereign has the exclusive r i g h t to extinguish aboriginal t i t l e . This p o s i t i o n r e f l e c t s a general premise of B r i t i s h l e g a l positivism that parliament may extinguish common law r i g h t s . I t i s known i n the common law t r a d i t i o n as the doctrine of parliamentary sovereignty. I t i s maintained i n pre-charter case law and l e g i s l a t i o n such as the Royal Proclamation of 1763 which states that aboriginal t i t l e i s \"dependent on the good w i l l of the sovereign.\" 1 1 This statement also appears i n the St. Catherines decision. Reference to t h i s poer of parliament may mean aboriginal t i t l e i s more vulnerable to extinguishment than other forms of t i t l e or i t may simply be a Statement of Parliamentary competence. Arguments concerning the proper i n t e r p r e t a t i o n of the Royal Proclamation supporting the p o l i c y of consensual a c q u i s i t i o n and the r e l a t i o n s h i p between doctrines of discovery, conquest and legitimate assertion of sovereign r i g h t s have been addressed i n chapter three of t h i s thesis and w i l l not be repeated here. Rather, the intent i s to remind the writer of two s i g n i f i c a n t points. F i r s t , Canadian p o s i t i v e law has t r a d i t i o n a l l y upheld the doctrine of parliamentary sovereignty i n the context of aboriginal t i t l e claims. Second, p o s i t i v e law on u n i l a t e r a l extinguishment of Indian t i t l e i s founded on theories which are d i s c r e d i t e d i n the natural law t r a d i t i o n including the theories of discovery (as an 300 exclusionary p r i n c i p l e ) , conquest, and the denial of the legitimate exercise of t e r r i t o r i a l sovereignty by aboriginal peoples. 1 2 The method of u n i l a t e r a l extinguishment i s not c l e a r l y defined i n Canadian law. In Calder. the Supreme Court J u s t i c e s disagreed on the extent to which l e g i s l a t i o n can e f f e c t i v e l y extinguish aboriginal r i g h t s . 1 3 Where Mr. J u s t i c e H a l l adopted the p o s i t i o n that the intention to extinguish must be \"clear and p l a i n , \" Mr. J u s t i c e Judson held that aboriginal t i t l e can be impliedly extinguished by the existence of inconsistent l e g i s l a t i o n . 1 4 To a r r i v e at these conclusions both r e l i e d on selected passages from American case law. In doing so both missed an important development i n American law: the i n i t i a l tendency of the American court to recognize cession as the only legitimate method of a c q u i s i t i o n . A second development was accepted by Mr. J u s t i c e H a l l but not Mr. J u s t i c e Judson. This was the tendency of the American court to presume that the government acts i n an equitable manner when extinguishing aboriginal t i t l e and that aboriginal t i t l e cannot be extinguished without compensation. 1 5 The doctrine of u n i l a t e r a l extinguishment i s i n keeping with the l e g a l p o s i t i v i s m c h a r a c t e r i s t i c of English and Canadian law i n the 19th and early 20th centuries. The founding fathers of English l e g a l p o s i t i v i s m were Jeremy Bentham (1748-1832) and h i s d i s c i p l e John Austin (1790-1859) . For both law breaks down into three basic elements: (1) a declaration of w i l l , (2) by a p o l i t i c a l l y supreme i n d i v i d u a l or body (sovereign), and (3) obedience to which i s motivated by sanctions. As the sovereign i s the source of law, r e s t r a i n t s placed on the sovereign contrary to her w i l l are i l l e g a l . As law making i s a p o l i t i c a l act requiring obedience, 301 rather than a moral act generating duties and obligations, no moral or other obligations can be placed on the sovereign. However, l i m i t s can be self-imposed through declaration i n the domestic forum through constitutions or through the execution of t r e a t i e s i n the in t e r n a t i o n a l arena. The l e g a l e n f o r c e a b i l i t y of these l i m i t a t i o n s i s a separate i s s u e . 1 6 Although Guerin did not deal with the issue of extinguishment d i r e c t l y , the decision may have some impact on the development of t h i s doctrine. In Guerin. the Supreme Court moves away from t r a d i t i o n a l precepts of l e g a l p o s i t i v i s m by placing duties and obligations on the Crown which are not i n t e n t i o n a l l y self-imposed. The o r i g i n of the f i d u c i a r y o b l i g a t i o n of the Crown towards the Indian peoples i s found i n the inalienable nature of aboriginal t i t l e and the statutory scheme governing i t s surrender. 1 7 The foundation and scope of the Crown's ob l i g a t i o n i s discussed i n further d e t a i l below. The point here i s that the court i s showing a tendency to impose l e g a l and moral obligations on the Crown contrary to i t s w i l l . This approach coupled with the recognition of \"pre-existing\" aboriginal r i g h t s may sign a l a cautious movement away from \"law as w i l l \" back to natural theories of l e g a l r i g h t s , duties and obligations e x i s t i n g independent of the Sovereign's w i l l . This movement may r e s u l t i n more favourable approaches to extinguishment requiring consensual a c q u i s i t i o n , or at the very l e a s t r e s u l t i n the a b o l i t i o n of the theory of implied extinguishment without compensation raised by Mr. J u s t i c e Judson. These arguments are currently before the B r i t i s h Columbia Supreme Court. 1 8 302 2. Natural Law Analysis L e g i s l a t i o n and j u d i c i a l opinion i n the area of aboriginal r i g h t s i l l u s t r a t e the willingness of governments and courts to create p o s i t i v e laws which abrogate or derogate from the natural r i g h t s of aboriginal peoples. Whether they \"ought\" to and whether such a c t i v i t y i s \" j u s t \" are separate questions. Opponents of natural law w i l l argue that these questions are of academic i n t e r e s t only because natural r i g h t s e x i s t i n g without recognition i n the p o l i t i c a l or l e g a l systems are impotent and not useful i n a p r a c t i c a l sense. Although t h i s p o s i t i o n may hold true i n some areas of the law, i t i s d i f f i c u l t to maintain i n the context of aboriginal t i t l e claims. The cautious return of the Canadian courts to f i r s t p r i n c i p l e s suggests that questions of \"ought\" and \"legitimacy\" are becoming increasingly important i n the development of the common law doctrine of aboriginal t i t l e . In natural law, the legitimacy of p o s i t i v e law i s not determined by successful enforcement, but by i t s moral claim to obedience. 1 9 Rather than focus on power of the successful assertion of sovereign w i l l , n a t u r a l i s t s are concerned with the authority of the sovereign and the moral obli g a t i o n to obey the sovereign's laws. In more modern terms, the issue might be framed as one of \"abuse of the sovereign's law making power.\"20 The discussion of property systems i n chapter three suggests that i n some circumstances p o s i t i v e law may abrogate natural r i g h t s and maintain a moral claim to obedience. I t was argued that the legitimacy of p o s i t i v e law can be measured against i t s contravention of natural precepts and the extent to which contravention can be viewed as furthering the common good. This 303 theory was born i n the philosophies of A r i s t o t l e and Plato who defined the proper r o l e of l e g i s l a t e d law as f a c i l i t a t i n g the attainment of a \"good\" of moral l i f e . 2 1 Cicero developed t h i s theory by examining law on three d i f f e r e n t l e v e l s : lex c a e l e s t i s (divine or cosmic reason), r e f l e c t e d i n human reason as lex naturae, which i n turn may be translated into lex vulgus (positive law). To the extent that lex vulgus embodied the lex naturae i t was considered \"good law\" worthy of obedience. 2 2 St. Thomas translated these theories into the following d e f i n i t i o n of law: \"an ordinance of reason made and promulgated for the good of the community by the person to whom i t s care i s entrusted.\" 2 3 This d e f i n i t i o n has provided three basic elements of \"true\" law, or law worthy of obedience, common to t r a d i t i o n a l and contemporary n a t u r a l i s t opinion: \" r a t i o n a l aim for the common good; enactment by authority; and promulgation.\" 2 4 Keeping i n mind that the d e f i n i t i o n of common good varies i n a h i s t o r i c a l and contemporary context, the aim for common good i s a useful yardstick to measure the legitimacy of the doctrines of u n i l a t e r a l extinguishment and parliamentary sovereignty. The common good achieved by placing authority i n one sovereign to determine the r i g h t s of people within i t s t e r r i t o r i e s can be r a t i o n a l i z e d through s o c i a l contract theory and i t s contribution to stable and peaceful s o c i a l r e l a t i o n s . The good achieved by the u n i l a t e r a l assumption of authority by one sovereign over another, or extending sovereign authority into newly discovered inhabited lands without consent, i s more d i f f i c u l t to r a t i o n a l i z e . Arguments based on r e l i g i o u s conversion, c i v i l i z a t i o n of p r i m i t i v e peoples, method of land use (resource and economic development) and the 304 absence of e f f e c t i v e p o l i t i c a l organization t r a d i t i o n a l l y invoked to j u s t i f y the u n i l a t e r a l imposition of the sovereign's w i l l are no longer acceptable within a contemporary society. Rather, the removal of ethnocentric bias reveals that these perceptions of the \"common good\" are based on r a c i s t ideologies and assumptions of c u l t u r a l s u p e r i o r i t y . Further, these ideologies do not r e f l e c t the prac t i c e of the Crown at the time of colonization and arguably the p o l i c y of a c q u i s i t i o n promulgated i n the Royal Proclamation of 1763.25 Traditions d e f i n i t i o n s of the common good resurfaced i n early j u d i c i a l opinion on the l e g a l and p o l i t i c a l r i g h t s of aboriginal peoples through the doctrines of discovery, conquest and parliamentary sovereignty. The extent to which these doctrines are founded on p r i n c i p l e s contrary to natural law has already been examined. 2 6 Generally speaking, deviations from p r i n c i p l e s of natural law served the p o l i t i c a l and economic goals of the colonizing nation. A blatant example of t h i s i s the development of the \" p o l i t i c a l question\" doctrine i n the United States which prevents the court from examining the l e g a l v a l i d i t y of the Crown's t i t l e . 2 7 In Canada, the doctrines of parliamentary sovereignty and i n a l i e n a b i l i t y are invoked to j u s t i f y Parliament's exclusive r i g h t \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 28 to purchase or u n i l a t e r a l l y extinguish Indian t i t l e . In both countries, the ap p l i c a t i o n of these doctrines has been detrimental to the recognition and su r v i v a l of aboriginal r i g h t s and aboriginal peoples. For example, i n Canada the aboriginal r i g h t s of the Nishga people were recognized but t h e i r e n f o r c e a b i l i t y was placed i n question because of the court's d i v i s i o n on the question of extinguishment. 2 9 In the United States, the p o l i t i c a l question 305 doctrine was invoked to support l e g a l r i g h t s of the United States that had no foundation i n law. Eventually the court d i d \"question\" but i t s decision favouring Indians was rendered i n e f f e c t i v e by p o l i t i c a l a c t i o n . 3 0 Despite the a f f e c t of these doctrines on aboriginal peoples of the past and present, one might argue that contemporary circumstances j u s t i f y t h e i r retention and a t t e s t to t h e i r contemporary v a l i d i t y . A law which was i l l e g i t i m a t e i n the eyes of natural law i n the 1800s may be legitimate now because of new factors that have to be considered i n i d e n t i f y i n g the o v e r a l l common good of the e x i s t i n g American or Canadian community. For example, a challenge to the sovereign authority of the Canadian Parliament must now take into consideration the r i g h t s of non-aboriginals l i v i n g within Canada's t e r r i t o r i e s , the common good of Canada as a nation, and the a f f e c t of recognizing aboriginal sovereignty on national and international s o c i a l s t a b i l i t y . This does not mean the ri g h t s of aboriginals disappear i n a contemporary context or that previous unlawful acts become lawful. I t does mean the choice of enforcement or compensation of t h e i r r i g h t s must be determined i n l i g h t of present day conditions. 3 1 Despite these considerations, i t i s d i f f i c u l t to sustain the legitimacy of u n i l a t e r a l extinguishment. Supporters of the doctrine might argue that the retention of absolute parliamentary authority i s necessary to maintain c e r t a i n t y i n the law and s t a b i l i t y i n the Canadian and inte r n a t i o n a l community. Consequently, only Parliament should be able to place l i m i t s on i t ' s own powers through c o n s t i t u t i o n a l documents or other s e l f -denying l e g i s l a t i o n . A r e j e c t i o n of Parliament's power to 3 0 6 extinguish could lead to the conclusion that Parliament only has t i t l e to those lands, and j u r i s d i c t i o n over these matters, v o l u n t a r i l y surrendered to the Crown. A l l laws a f f e c t i n g a b o r iginal r i g h t s or lands not the subject of agreement would be u l t r a v i r e s Parliament's j u r i s d i c t i o n and subject to pre-existing property and l e g a l regimes. Given the substantial amount of law i n v i o l a t i o n of t h i s conclusion, one might argue circumstances now e x i s t that require the retention of the doctrine of u n i l a t e r a l extinguishment and the absolute power of Parliament. To avoid disruption, the absolute power of the l e g i s l a t u r e s of the provinces would also have to be upheld. Denying Parliament t h i s power might conceivably r e s u l t i n a p r o l i f e r a t i o n of r i g h t s , the compensation of which would bankrupt the country and the enforcement of which would threaten s o c i a l , economic, l e g a l and p o l i t i c a l s t a b i l i t y . The r e s u l t i n g chaos i s bound to give r i s e to prejudice and violence between aboriginal and non-aboriginal communities. The obvious reply i s the retention of u n i l a t e r a l extinguishment as a general p r i n c i p l e i s not necessary to avoid the anticipated e v i l s . Rather, the legitimacy of non-consensual extension of authority of a c q u i s i t i o n of r i g h t s should be measured by examining the common good achieved by a p a r t i c u l a r law and the p a r t i c u l a r e f f e c t of i t s a b o l i t i o n . For example, an aboriginal people may not have surrendered i t s r i g h t to hunt, but a p o s i t i v e r e s t r i c t i o n on t h i s r i g h t might le g i t i m a t e l y be placed without t h e i r consent i f the object of the r e s t r i c t i o n i f an endangered species. S i m i l a r l y , an aboriginal people may own resources necessary f o r the s u r v i v a l of other communities or members of the Canadian community (eg. a root that can be used to cure cancer). 307 In absence of consent, use or a c q u i s i t i o n by force might be j u s t i f i e d to further the common good of the larger non-aboriginal community. The issue then becomes one of adequate compensation. The above analysis suggests that the c r i t e r i o n of \" r a t i o n a l aim f o r the common good\" applied i n a modern context requires an examination of p a r t i c u l a r laws rather than general p r i n c i p l e s . Chapter three argues that the correct s t a r t i n g point i s to assume the need fo r consent i n acquiring natural r i g h t s . The extent to which t h i s p r i n c i p l e may be v i o l a t e d depends on the extent to which the v i o l a t i o n promotes the common good. The common good can only be measured by examining the e f f e c t of a p a r t i c u l a r law on a aboriginal people within the context of a p a r t i c u l a r community. This approach necessitates the a b o l i t i o n of general p r i n c i p l e s for and against u n i l a t e r a l extinguishment. Where the common good of a larger non-aboriginal community p r e v a i l s , the issue i s one of ju s t or f a i r compensation. The weakness i n t h i s approach i s i t i s dependant upon the opinion of non-aboriginal decision makers who may be influenced by t h e i r own c u l t u r a l bias or the pragmatic d i f f i c u l t y associated with compensating substantial t i t l e claims and recognizing entitlement to self-government. This i s of p a r t i c u l a r concern i n B r i t i s h Columbia where treaty making was not generally u t i l i z e d to acquire a b o r i g i n a l t i t l e or to extinguish s p e c i f i e d a b o r i g i n a l r i g h t s . This may be one reason why Mr. J u s t i c e Judson was prepared to make broad statements on the issue of u n i l a t e r a l extinguishment i n the Calder decision without examining the doctrine's t h e o r e t i c a l foundations. The elevation of t h i s general statement to a p r i n c i p l e of law without examining the basis of the Sovereign's 308 authority, or at le a s t the common good achieved by v i o l a t i n g p r i n c i p l e s of natural law, i s from the perspective of natural opinion an example of the abuse of law making power. Returning to the o r i g i n a l question: \"Can p o s i t i v e law abrogate the natural r i g h t s of aboriginal peoples?\" The answer i s yes, i f the abrogation can be j u s t i f i e d i n terms of the common good. The general p r i n c i p l e of u n i l a t e r a l extinguishment can not be upheld on t h i s basis, but p a r t i c u l a r laws a f f e c t i n g aboriginal r i g h t s may because of the need to consider more than aboriginal r i g h t s i n the determination of the \"good\" of contemporary Canadian society. II The Persistence of Metis Land Rights Opinions on the le g a l nature of the Manitoba Act are divided into two schools \u00E2\u0080\u0094 those who argue the Act was a u n i l a t e r a l action of the Canadian Parliament made i n response to the demands of the Metis and those who contend that the act represents a treaty between two nations promulgated through l e g i s l a t i o n . The perspective adopted a f f e c t s the a v a i l a b i l i t y of natural law defenses to the extinguishment of Metis land r i g h t s which were purportedly dealt with i n sections 31 and 32 of the Act. Arguments for the proper in t e r p r e t a t i o n of the Act as an agreement or u n i l a t e r a l action by the Canadian government have been made i n chapter four. Here, the concern i s to i d e n t i f y defenses o r i g i n a t i n g i n the natural law. 1. Defence to U n i l a t e r a l Extinguishment The u n i l a t e r a l imposition of the Crown's intent to extinguish Metis r i g h t s i s l e g a l i n natural law i f i t can be j u s t i f i e d i n 309 terms of the common good of the p a r t i e s involved or some higher common good of the international community. The promulgation of s. 31 of the Manitoba Act which purported to extinguish Metis t i t l e claims took place during a period of European co l o n i z a t i o n and more s p e c i f i c a l l y within the context of Prime Minister MacDonald's National P o l i c y f o r the development of Canada as an independent Nation. MacDonald's goad was to \"stimulate new economic growth through various means; two of which were extensive settlement of the North West and construction of an intercontinental r a i l r o a d . \" 3 2 In order to accomplish these goals i t was necessary to obtain c l e a r t i t l e to the land, e s t a b l i s h law and order to a t t r a c t s e t t l e r s , create a climate to encourage the investment of c a p i t a l , and obtain control of the land and i t s resources. 3 3 The benefits to Canada were obvious including a larger land base and t e r r i t o r i a l j u r i s d i c t i o n , a stronger economy and an increase i n power within the i n t e r n a t i o n a l community through wealth and numbers. The bene f i t of Canada's action to the i n t e r n a t i o n a l community i s d i f f i c u l t to determine when the action i s viewed alone, but not when i t i s viewed i n the context of the customs and practices of nations towards aboriginal peoples. According to some schools of i n t e r n a t i o n a l law, i f \" c i v i l i z e d \" nations recognized by the i n t e r n a t i o n a l community agree to deny an o b l i g a t i o n to respect pre-e x i s t i n g r i g h t s of indigenous peoples, or denial i s the customary p r a c t i c e of nations, denial i s l e g a l i n i n t e r n a t i o n a l law. This reasoning was employed to j u s t i f y the f o r c e f u l a c q u i s i t i o n of, and sovereignty over, new lands for the purpose of settlement and increasing the power and wealth of European nations. 3 4 In t h i s way the legitimacy of u n i l a t e r a l extinguishment i s i n d i r e c t l y t i e d to 310 the broader question of the legitimacy of early colonization practices, the common good of colonizing nations and the s t a b i l i t y of i n t e r n a t i o n a l r e l a t i o n s which assumed the legitimate authority of c o l o n i z i n g nations. I t i s d i f f i c u l t , i f not impossible to i d e n t i f y benefits received by the Metis people a r i s i n g from the u n i l a t e r a l abrogation of t h e i r r i g h t s . Although the Metis were free to share i n the benefits of c i t i z e n s h i p with immigrant s e t t l e r s , entitlement was dependant on t h e i r successful adaptation to a foreign culture and economic system. Canadian expansion meant the destruction of Metis communities, t r a d i t i o n a l l i f e s t y l e s and the fur trade economy. Canada's i n i t i a l r e f u s a l to obtain the consent of the Metis resulted i n violence harmful to both p a r t i e s . Although the negotiation of the Manitoba Act contributed to the attainment of peace, the subsequent d i s t r i b u t i o n of Metis lands under the Act was more b e n e f i c i a l to the Canadian government i n achieving i t s objectives to s e t t l e the North West, speculators and immigrant s e t t l e r s than the Metis, the majority of whom l o s t t h e i r lands and l i v e d i n poverty. Of those few Metis who located land, many l a t e r l o s t t h e i r land f o r taxes, sold t h e i r land or moved away. The majority can be said to have received no permanent b e n e f i t s . 3 5 Regardless of i n d i v i d u a l benefits that may have been received, the Metis Nation was cri p p l e d . The common good and s u r v i v a l of the Metis as a people was s a c r i f i c e d to further Canadian p o l i c y i n the North West. One might argue that the losses suffered by the Metis were not the necessary outcome of the government's action. I f the Metis kept the lands they were e n t i t l e d to under the Act and stayed i n 311 Manitoba t h e i r communities might have flourished and they may have had the control of the l o c a l l e g i s l a t u r e through exercise of the majority vote. At the very l e a s t , they would have had t i t l e to land to pass down from one generation to the next, the s o c i a l benefits derived from belonging to an integrated community and a s i g n i f i c a n t voice i n the l o c a l government. 3 6 Given the i n e v i t a b i l i t y of European expansion i n the North West and the greater power of European nations v i s a v i s indigenous nations, the method of government and land holding imposed was a b e n e f i c i a l compromise for both nations. Although d e t a i l s of the method of d i s t r i b u t i o n were l e f t to the government's d i s c r e t i o n , the government discussed the terms of the Act with the Metis to ensure i t s successful implementation. When the government exercised i t s d i s c r e t i o n , i t placed control over future s e c u r i t y and long term benefits i n the hands of the Metis people by allowing them to deal with t h e i r entitlements as they pleased. This decision accords with the p r i n c i p l e s of non-interference and self-determination of peoples. The government and i t s plan can not be characterized as contrary to the good of the Metis because many Metis made bad choices. With the exception of some Metis who were victims of fraudulent practices, many Metis sold t h e i r entitlements and moved further West to resume t h e i r t r a d i t i o n a l l i f e s t y l e s . I t was t h e i r choice to surrender the long term se c u r i t y of land entitlement f o r the short term gain envisioned with the receipt of cash. 3 7 There are several d i f f i c u l t i e s with t h i s argument including the assumption that the Metis understood the long term benefits to be gained from private land holdings and the i n e v i t a b i l i t y of the 312 e x t i n c t i o n of the f r o n t i e r economy. Most s i g n i f i c a n t l y , i t assumes that the Metis were i n a p o s i t i o n to exercise freedom of choice i n the retention of t h e i r land entitlements. Several points can be ra i s e d to support many were not including: 1. At the time the Act was passed a m i l i t a r y force was on i t s way to the Red River area to ensure i t s implementation. The a r r i v a l of Woolsey*s forces i n the area resulted i n a \"reign of t e r r o r \" which contributed to many Metis abandoning t h e i r lands and moving further west. 3 8 2. Rapid settlement i n Rupert\u00E2\u0080\u00A2s Land p r i o r to the d i s t r i b u t i o n of Metis lands resulted i n competition with immigrants for choice land, disagreements with s e t t l e r s and the Metis becoming a minority on t h e i r own land. Changes i n the nature of the community and the economy brought about by settlement and the movement of buffalo herds resulted i n large migrations out of Rupert's Land before a land grant system was put i n place. 3 9 Despite the protest of those who stayed, white s e t t l e r s took possession of Metis lands and were supported i n t h e i r a c t i v i t i e s by the Canadian government. Lands which had been i d e n t i f i e d as p o t e n t i a l s t i e s for Metis townships were l o s t to white s e t t l e r s through Canada's homestead p o l i c y before a system to d i s t r i b u t e the Metis land grant was i n place. 4 0 3. Circumstances were such that i s was d i f f i c u l t or impossible f o r Metis to locate land assigned to 313 them. Land had t o be l o c a t e d i n person and i f s c r i p was i s s u e d , the r e c i p i e n t had t o appear a t t h e l a n d o f f i c e i n person. T h i s o f t e n i n v o l v e d t r a v e l l i n g hundreds o f m i l e s through t r a c k l e s s w i l d e r n e s s . Once the l o c a t i o n o f the l a n d was i d e n t i f i e d , more t r a v e l l i n g was necessary and s u r v e y o r ' s p o s t s had t o be i d e n t i f i e d i n or d e r t o l o c a t e exact acreages o f l a n d . Once l o c a t e d , l a n d might not be s u i t a b l e f o r f a r m i n g . 4 1 4. Many M e t i s had p r e v i o u s l y been f o r c e d t o abandon u n p r o d u c t i v e farms and the is s u a n c e o f p a t e n t o r s c r i p d i d not a s s i s t them w i t h the r e s u l t i n g p o v e r t y . Only those who were c o m p a r a t i v e l y w e l l o f f c o u l d take advantage o f new o p p o r t u n i t i e s t o farm. Many s o l d t h e i r r i g h t s t o pay debts o r a v o i d s t a r v a t i o n . They needed immediate cash t o s u r v i v e . Some purchased a g r i c u l t u r a l s u p p l i e s and were a b l e t o e s t a b l i s h themselves as farmers. 5. L o c a t i n g l a n d o f t e n meant moving t o an i s o l a t e d homestead away from t h e i r p r e v i o u s l y e s t a b l i s h e d communities. 4 3 Another s i g n i f i c a n t weakness i n the argument t h a t the M e t i s are r e s p o n s i b l e f o r t h e i r own m i s f o r t u n e i s the assumption t h a t Canada r e c o g n i z e d i t s o b l i g a t i o n t o e x e r c i s e power j u s t l y by t a k i n g i n t o c o n s i d e r a t i o n the common good of communities a f f e c t e d by i t s d e c i s i o n s . In f a c t , s t r o n g arguments can be made t h a t the Canadian government i n t e n t i o n a l l y implemented a system t h a t would f u r t h e r i t s own economic g o a l s and promote the predominance of European 314 s o c i a l i n s t i t u t i o n s i n the west without gi v i n g equal consideration to the long term benefit or harm to i t s new Metis c i t i z e n s . A substantial amount of research has been conducted by academics and Metis p o l i t i c a l organizations on the government's r o l e i n the destruction of Metis communities and loss of Metis lands. Points raised i n support of allegations of bad f a i t h , or at lea s t negligence i n the administration of Metis claims include: 1. Similar s c r i p and i n d i v i d u a l land allotment systems implemented i n the United States p r i o r to, and concurrent with, the d i s t r i b u t i o n of s. 31 land grants suggest the misfortunes of the Metis community were a foreseeable outcome at the time the method of d i s t r i b u t i o n was chosen. Of p a r t i c u l a r i n t e r e s t i s the issue of s c r i p i n 1842 to f a c i l i t a t e the removal of the Choctaw Nation from t h e i r t r i b a l lands which was subsequently held to be inadequate compensation; 4 4 the issuance of s c r i p between 1858 and 1901 to Sioux and Ojibwa half-breeds, many of whom f a i l e d to locate t h e i r lands or l o s t t h e i r entitlements to others through the use of agents and powers of attorney; 4 5 and the i n d i v i d u a l allotment p o l i c y formalized under the General Allotment Act of 1887 which gave the President power to make reservation Indians land owners i n severalty, allowed confiscation i n the event of f a i l u r e to develop located lands and provided for the sale of surplus lands to white s e t t l e r s with t r i b a l consent. 4 6 The Act has subsequently been 315 characterized as one of the most comprehensive programs to destroy \" t r i b a l consciousness and to replace i t with a consciousness of the importance of p rivate property and national a s p i r a t i o n s . 1 , 4 7 There was substantial delay i n implementing grants under s. 31 even a f t e r confusion a r i s i n g from i t s i n t e r p r e t a t i o n had been cleared away. During t h i s time many Metis l e f t Manitoba and immigrant s e t t l e r s located lands. The use of s c r i p f o r some of the grants avoided i n t e r f e r i n g with s e t t l e r ' s choices reducing the choice of land a v a i l a b l e to the Metis. 4 8 The use of s c r i p f o r Metis Heads of Families and Supplemental s. 31 claims was for the stated purpose of preventing the obstruction of settlement and d i s s a t i s f a c t i o n to be caused by reserving large areas f o r the Metis rather than b e n e f i t i n g the Metis r e c i p i e n t s . 4 9 Manitoba Metis were i n i t i a l l y only offered grants of r e a l property but eventually land s c r i p which was e a s i l y transferable was also provided. Departmental rules dealing with assignments could be e a s i l y circumvented and the uses of s c r i p approved by the government encouraged circumvention by speculators. The government recognized powers of attorney and allowed s c r i p to be used to acquire homestead and pre-emption r i g h t s and payment for pasture, coal and timber leases. 5 0 316 The government a c t i v e l y f a c i l i t a t e d speculation i n Metis lands by sharing information with speculators such as census l i s t s and advance notice of s c r i p issues; allowing speculators to accompany s c r i p commissions; advertising names, a v a i l a b i l i t y and p r i c e s f o r s c r i p i n Dominion Lands o f f i c e s ; s e t t i n g up banking services for s c r i p speculators and refusing to take l e g a l action against speculators who v i o l a t e d the law. 5 1 The government refused to investigate complaints of fraudulent actions including a l l e g a t i o n s against highly placed c i v i l servants. Although the government was aware of fraudulent a c t i v i t y , i t l e f t the i n i t i a t i o n of actions to i n d i v i d u a l complainants who were often too poor to engage a lawyer or s u f f i c i e n t l y knowledgeable i n l e g a l proceedings. The criminal code was amended to place time l i m i t s on the prosecution of these claims and i n one case was applied r e t r o a c t i v e l y to protect a prominent white s e t t l e r who had numerous charges against him. C o n f l i c t i n g claims l e g i s l a t i o n enacted i n 1885 prevented c e r t a i n categories of claims from being brought against the Crown.52 Those Metis who were e n t i t l e to land grants could get land grants immediately or, i f minors, upon reaching the age of eighteen. Many of those e n t i t l e d to receive land immediately sold t h e i r r i g h t s because of the reasons outlined at page 317 supra. The entitlements of half-breed c h i l d r e n were not protected i n law as were the land r i g h t s of other minor children. They could be assigned by t h e i r guardians and located p r i o r to reaching the age of majority r e s u l t i n g i n very few half-breed childre n having lands to locate upon reaching t h e i r majority. 5 3 8. Non-land r i g h t s provision promoted the Government's desire f o r control i n the North West and assi m i l a t i o n of the Metis people. Although c e r t a i n c u l t u r a l r i g h t s such as language, r e l i g i o n and education were protected, without control over immigration and commercial development these r i g h t s eroded by the early 1900s. Debates i n the House of Commons suggest that government delegates foresaw t h i s outcome of events. 5 4 Regardless of the extent to which the Metis and the Canadian government contributed to the sufferings of the Metis people, the his t o r y of the Metis subsequent to the implementation of the Manitoba Act makes i t impossible to argue that the e f f e c t of the Act was to promote the common good of the Metis as a people. Although a few Metis benefited from the land grant provisions, approximately 85% are alleged to have l o s t or never received t h e i r entitlements. 5 5 Arguments raised to support the proposition that the provisions of the Act could have been b e n e f i c i a l to the Metis weaken i f one considers the issues of choice and the government's consideration of the common good of pre-existing Metis communities. Consequently, the l e g a l i t y of abrogating the natural r i g h t s of the 318 Metis through a u n i l a t e r a l Act of parliament rests on the p r i o r i t y given to the common good of other communities affected by the Act. I t i s d i f f i c u l t to j u s t i f y a preference to the common good of Canada and colonizing nations without adopting positions contrary to contemporary natural opinion. F i r s t , the ob l i g a t i o n to respect natural r i g h t s of o r i g i n a l occupants, or peoples whose r i g h t s are derived from natural occupants, introduces s t a b i l i t y into human a f f a i r s by avoiding quarrels between communities and by allowing communities to focus t h e i r energy on fostering the common good of t h e i r members rather than securing t h e i r sovereign and t e r r i t o r i a l r i g h t s v i s a v i s other communities. 5 6 The decision of Canada not to respect these r i g h t s and disturb the peace through f o r c e f u l a c q u i s i t i o n of r i g h t s and imposition of Parliaments's w i l l cannot be j u s t i f i e d without resorting to p a t e r n a l i s t i c theories of development, c i v i l i z a t i o n and salvation no longer acceptable i n natural opinion or p o s i t i v e international law. 5 7 At the very l e a s t , one must adopt a bias i n favour of the more powerful nation or a view that European culture i s \"superior\" because any benefits that might have accrued to the Metis were dependant on as s i m i l a t i o n of Metis i n d i v i d u a l s into the European Community and change i n Metis s o c i a l , economic, c u l t u r a l and p o l i t i c a l l i f e . Given the above, natural law would hold that the u n i l a t e r a l abrogation of Metis r i g h t s i n 1870 can not be le g i t i m i z e d i n terms of the common good and was therefore i l l e g a l . Assuming the argument fo r extinguishment i s based on Parliament's express intent to extinguish, the r e s u l t of finding the Act i l l e g a l i s Metis r i g h t s continue to e x i s t . However, the scope of these r i g h t s , t h e i r e n f o r c e a b i l i t y and the determination of equitable 319 compensation may be affected by the contributions of the Metis and Canadian government to the losses of the Metis people and present day conditions. For example, the present government of Manitoba and the land holdings of her c i t i z e n s assume the v a l i d i t y of the Manitoba Act. Chaos would r e s u l t i n Manitoba i f suddenly a l l Acts passed by the Manitoba government were declared i l l e g a l and a l l t i t l e s to land were no longer v a l i d i n law. The c a l c u l a t i o n of contemporary factors into a modern d e f i n i t i o n of the common good prevents turning back the clock and restoring r i g h t s as they existed i n 1870. The issue then becomes one of equitable compensation taking into consideration both compensation for the loss of land r i g h t s , which may involve assessing benefits received by i n d i v i d u a l Metis, as well as the a f f e c t of government action on the s u r v i v a l of the Metis as a people. 2. Defenses to Consensual Extinguishment A L i s t of Rights entrusted with the delegates of the Provisional Government outlined the conditions under which the Metis (represented by Father Ritchot), the non-Canadian white s e t t l e r s (represented by Judge Black) and the English half-breeds (represented by A l f r e d Scott) of Rupert's Land o r i g i n a l l y consented to enter Confederation. Although there i s some uncertainty regarding the f i n a l format of the L i s t taken to Ottawa, i t i s c l e a r that recognition and extinguishment of Metis aboriginal r i g h t s was not s p e c i f i e d i n the L i s t . 5 8 The absence of a reference to a b o r i g i n a l r i g h t s i s one of several factors c i t e d by Thomas Flanagan to support an argument that recognition of aboriginal r i g h t s was not an objective of the Metis people, but was i n i t i a t e d 320 by Father Ritchot who was acting beyond the scope of h i s authority. The idea was h a s t i l y accepted by Parliament i n order to c l e a r the way f o r expansion i n the West. 5 9 A s i m i l a r argument might be made to challenge the p o s i t i o n that the Metis consented to land grant provisions i n the Manitoba Act. 6 0 However, the weakness of a challenge based on the scope of Ritchot's authority becomes apparent i f one considers the following f a c t s : 1. A r t i c l e 5 of the L i s t of Rights spoke to property r i g h t s of the inhabitants by requesting recognition of previous customs and observations and placing r e s p o n s i b i l i t y f or the protection of property r i g h t s , other than the ri g h t s of Indian peoples, i n an elected p r o v i n c i a l l e g i s l a t u r e . 6 1 2. The importance of the protection of property r i g h t s i s evidenced i n l e t t e r s of i n s t r u c t i o n which l e f t no room fo r d i s c r e t i o n on the in c l u s i o n of a r t i c l e 5 i n any agreement reached between the two nations. Although the delegates may have i n i t i a l l y exceeded t h e i r authority by agreeing to sections 31 and 32, these provisions were subsequently approved by the Provisional Government.62 3. R a t i f i c a t i o n of the Act by the Provisional Government was followed by a l e t t e r of confirmation to the Secretary of State, Joseph Howe, i n d i c a t i n g the Provisional Government's acceptance of the agreement concluded i n Ottawa by the delegates. 6 3 321 Given the importance of self-determination of common good by communities, s o c i a l s t a b i l i t y and the promotion of peaceful r e l a t i o n s h i p s i n formulating p r i n c i p l e s of natural law; i t i s l o g i c a l that natural opinion supports the maintenance of agreements between nations unless good reason can be shown why the enforcement of an agreement would be \"immoral\" or \"unjust.\" 6 4 For example, an agreement f o r the a c q u i s i t i o n of ri g h t s might be considered immoral i f consent was given i n fear or ignorance. 6 5 Consequently, the fact that formal approval of an agreement has been given does not mean i t i s a v a l i d agreement i n natural law, but a presumption i n favour of honouring the agreement may have been created. This reasoning applied to the events leading to the implementation of the Manitoba Act suggests that the formal approval of the Provisional Government does not bar a challenge to the l e g a l i t y of the agreement and that challenges to the agreement must go beyond the issue of formality i n order to succeed. Viewed i n t h i s l i g h t there are three major defenses to the argument of consensual a c q u i s i t i o n and extinguishment. These are: 1. The agreement was imposed on the Provisional Government which was not i n a p o s i t i o n to exercise freedom of choice. 2. The subsequent implementation of the land grant provisions was contrary to the agreement reached and without the consent of the Provisional Government. 3. The method of implementation was agreed to be at the absolute d i s c r e t i o n of the Canadian government but i n exercising that d i s c r e t i o n the Canadian government was i n breach of i t s moral o b l i g a t i o n as the more powerful of the two nations to exercise i t s power j u s t l y by taking into consideration the common good of the Metis Community. The purpose of the following sections 322 i s to provide an outline of these arguments. However, i t i s recognized that d e f i n i t i v e conclusions can not be reached i n absence of examination of primary h i s t o r i c a l sources. (a) Freedom of Choice I t might be argued that h i s t o r i c a l circumstances prevented the Provisional Government from exercising true freedom of choice i n i t s acceptance of the terms of entry into Confederation. Borrowing from Stanley's theory that the d i s i n t e g r a t i o n of the Metis community was already underway once the \"geographical walls which i s o l a t e d the North West were breached\" and influences of the outside world began to a f f e c t p o l i t i c a l and economic structures i n Rupert's Land; one might argue the Provisional Government accepted the i n e v i t a b i l i t y of expansion i n the North West and was concerned to protect the r i g h t s of the inhabitants of Rupert's Land i n face of the unavoidable spread of European influences i n the North West. The true wish was to maintain the status quo, but the foreseeable i m p o s s i b i l i t y of t h i s task forced them to compromise. 66 The compromise was a r t i c u l a t e d i n the demands fo r entry into confederation presented by i t s delegates to the Canadian government. Although the Provisional Government maintained an e f f e c t i v e r u l e i n Rupert's Land during the negotiation process, the parties to the process d i d not possess equality of bargaining power. Conditions i n the settlement area would have prevented the continuance of the protection of Metis r i g h t s through the use of force. Drought, grasshopper plagues and famine threatened t h e i r s u r v i v a l . 6 7 The migration of buffalo herds and the reduction of the 323 f r o n t i e r t h r o u g h i n c r e a s e d a g r i c u l t u r a l s e t t l e m e n t was f o r c i n g many M e t i s d e p e n d e n t o n t h e f u r t r a d e t o l e a v e t h e R e d R i v e r a r e a . C h a n g e s t a k i n g p l a c e i n modes o f t r a n s p o r t a t i o n w e r e e r o d i n g t h e t t \u00C2\u00AB 69 e c o n o m i c p o s i t i o n o f M e t i s who e a r n e d t h e i r l i v i n g a s f r e i g h t e r s . P o v e r t y w o u l d f o r c e t h e M e t i s t o s u r r e n d e r o r move i n f a c e o f f o r c e d s e t t l e m e n t . T h i s p o s i t i o n c o n t r a s t e d w i t h t h e w e a l t h , p o p u l a t i o n , a n d o r g a n i z e d m i l i t a r y f o r c e s o f C a n a d a c o u p l e d w i t h i t s u n r e l e n t i n g d e s i r e t o a n n e x t h e N o r t h West a n d t h e s u p p o r t o f t h e B r i t i s h g o v e r n m e n t e m p h a s i z e s t h e l o n g t e r m w e a k n e s s o f t h e M e t i s p o s i t i o n . T h e i r b a r g a i n i n g p o w e r r e s t e d o n C a n a d a ' s d e s i r e t o a v o i d v i o l e n c e a n d t h e e x p e n s e o f w a r . T h e i r a c c e p t a n c e o f t h e f i n a l t e r m s w h i c h p l a c e d e c o n o m i c a n d p o l i t i c a l c o n t r o l i n t h e h a n d s o f C a n a d a t h r o u g h c o n t r o l o f l a n d t i t l e , r e s o u r c e d e v e l o p m e n t , a n d s e t t l e m e n t d i d n o t a c c o r d w i t h t h e i r i n i t i a l i n t e n t f o r t h e c u r r a n t i n h a b i t a n t s o f R u p e r t ' s L a n d t o b e p r o t e c t e d i n t h e i r p r o p e r t y r i g h t s a n d c o n t r o l d e c i s i o n s a f f e c t i n g t h e i r r i g h t s t h r o u g h a l e g i s l a t u r e e l e c t e d b y a p r e d o m i n a n t l y M e t i s c o m m u n i t y . W h e t h e r t h e M e t i s u n d e r s t o o d t h e s i g n i f i c a n c e o f t h e c o n c e s s i o n s t h e y made on t h e i r o r i g i n a l demands i s a q u e s t i o n o f d e b a t e . H o w e v e r , t h e i m m e d i a t e d i s p a t c h o f t r o o p s o f 1200 men, r o u g h l y e q u a l l i n g t h e t o t a l number o f a d u l t m a l e M e t i s i n R u p e r t ' s L a n d , 7 0 u p o n t h e c o n c l u s i o n o f n e g o t i a t i o n s i n O t t a w a s u g g e s t s t h e c o n c e s s i o n s may v e r y w e l l h a v e b e e n f o r c e d i f t h e P r o v i s i o n a l G o v e r n m e n t w i t h h e l d i t s a p p r o v a l . The i n h e r e n t w e a k n e s s o f t h i s a r g u m e n t i s i t i s s p e c u l a t i v e o f w h a t \" m i g h t h a v e b e e n . \" A l t h o u g h h i s t o r i c a l e v i d e n c e c a n b e a c c u m u l a t e d t o s u p p o r t t h e a r g u m e n t , a s h i f t i n e m p h a s i s c a n g i v e 324 r i s e to evidence supporting the opposite conclusion that the Provisional Government forced Canada to negotiate terms of entry. In f a c t , the l a t t e r conclusion i s often argued by advocates of Metis r i g h t s i n support of the existence and recognition of the Metis Nation. 7 1 The dependence of both conclusions on evidence drawn from r e s u l t oriented thinking suggests that a defence based on freedom of choice, or the fa c t consent was not \"voluntary\" i n a true sense of the term, would be extremely d i f f i c u l t to maintain i n absence of primary h i s t o r i c a l sources. Even then, the question may be reduced to one of in t e r p r e t a t i o n rather than f a c t . Given the absence of doubt on the r a t i f i c a t i o n of the Act by the Provisional Government and natural bias i n favour of upholding agreements, a defence based on in t e r p r e t a t i o n would be d i f f i c u l t to maintain i n the natural law t r a d i t i o n . (b) V i o l a t i o n of the Agreement Reached Assuming the Provisional Government consented f r e e l y to the terms of surrender agreed upon by i t s delegates i n Ottawa, extinguishment may not have been le g i t i m a t e l y effected i f the land grant provisions i n the Act do not represent the agreement reached or, through subsequent implementation, Canada u n i l a t e r a l l y changed the terms of the agreement. These arguments a r i s e from the absence of a formal agreement was signed by negotiators f o r Canada and the Provisional Government and allegations that land r i g h t s promised i n ss. 31 and 32 where d i s t r i b u t e d through supplementary l e g i s l a t i o n which d i d not conform with the provisions of the Act. 7 2 Both arguments involve questions of statutory i n t e r p r e t a t i o n and 325 a f f e c t the assessment of whether the Metis consented to extinguishment of the natural t i t l e to t h e i r land. The predominance of p o l i t i c a l and academic opinion supports the conclusion that s. 31 was intended by the Canadian government to s a t i s f y aboriginal t i t l e claims of the Metis people and s. 32 was intended to protect i n d i v i d u a l property r i g h t s of a l l inhabitants, regardless of ancestry, from the i n f l u x of new s e t t l e r s . However, section 31 has been attacked as not representing the o r i g i n a l terms agreed to by the Metis. In a paper prepared by an unnamed author for the Association of Metis and Non-Status Indians of Saskatchewan, i t i s alleged that s. 31 was intended to compensate the Metis f o r surrendering t h e i r nationhood claim to control of land and resources i n Rupert's Land. 7 3 Ritchot viewed these claims as d i s t i n c t from Metis claims to aboriginal t i t l e . The i n c l u s i o n of the reference to aboriginal t i t l e claims did not a r i s e from negotiations, but was included as a matter of expediency by the Canadian government. The Metis d i d not agree to surrender claims a r i s i n g by v i r t u e of t h e i r Indian ancestry, but nationhood claims a r i s i n g from t h e i r r i g h t s as o r i g i n a l s e t t l e r s . This explains the governments subsequent decision to t r e a t other white s e t t l e r s equally through the issuance of s c r i p . Presumably claims to i n d i v i d u a l l o t s would be dealt with under section 32 and the c o l l e c t i v e claims of the o r i g i n a l s e t t l e r s to the land and resources of Rupert's Land under s. 31, i n the case of the Metis, and under s p e c i a l c o l l a t e r a l l e g i s l a t i o n , i n the case of the white s e t t l e r . Natural opinion would r e j e c t t h i s argument because i t makes a r t i f i c i a l d i s t i n c t i o n s between aboriginal claims, nationhood claims and c o l l e c t i v e possessory claims of a \"people.\" Further, i t f a i l s to d i s t i n g u i s h between a nation's claim to sovereignty over and t i t l e to i t s lands. I f s. 31 was intended to compensate surrender of control, or t e r r i t o r i a l sovereignty only, white s e t t l e r s would not be e n t i t l e d to receive benefits of that compensation unless they are proven to be members of the affected nation. However, any property r i g h t s they may have legi t i m a t e l y acquired against lands within the control of the nation would be recognized, i n natural law and thus there would be an o b l i g a t i o n on Canada to respect those r i g h t s . Arguably, the protection of i n d i v i d u a l claims to s p e c i f i c l o t s i n s. 32 meets that o b l i g a t i o n i f s. 31 was intended to compensate nationhood claims to t i t l e and sovereignty, i t would have the same e f f e c t i n natural law as compensating aboriginal claims to t i t l e and sovereignty because the basis of Metis claims to t i t l e and sovereignty as a nation and aboriginal people i s the same. Both are derived from the natural r i g h t s of the o r i g i n a l occupants of Rupert's Land. Consequently i f the nationhood claim i s extinguished by consent, the aboriginal claim i s also extinguished. I t may be argued that the Metis d i d not agree to the method of compensation s p e c i f i e d i n s. 31. The Metis expected to get a per capita allotment of land from designated townships reserved for Metis communities i n addition to benefits they might receive as i n d i v i d u a l land holders under s. 32. The introduction of an i n d i v i d u a l allotment scheme, to be administered under the absolute d i s c r e t i o n of the Canadian government and the l i m i t a t i o n of entitlement to c h i l d r e n of half-breed heads of families was not agreed to by Ritchot. Rather, i t was h i s understanding that the 327 Province, a s s i s t e d by a committee of Metis would be responsible for choosing and d i v i d i n g a reservation of land among Metis f a m i l i e s . 7 4 Leaving control over the choice of land i n the hands of the Metis Province would have allowed f o r the creation of Metis townships and the continuance of Metis communities. 7 5 I t was Ritchot's understanding of the agreement that was presented to and approved by the Provisional Government. There i s no evidence that the Provisional Government a c t u a l l y had a copy of the Act before them when i t was approved. 7 6 A s l i g h t v a r i a t i o n of t h i s argument i s advanced by the Metis Association of Alberta. Regardless of Ritchot's understanding, they argue that the form of compensation was decided without consultation or approval of the Metis. Evidence that the Metis did not understand section 31 to t r e a t Metis i n d i v i d u a l l y , rather than c o l l e c t i v e l y , i s drawn from R i e l ' s views on aboriginal t i t l e and h i s perception of the Metis as a c o l l e c t i v e e n t i t y e x i s t i n g over time. R i e l accepted the concept of extinguishment but f e l t compensation should be awarded c o l l e c t i v e l y , based on the value of the land, and not i n d i v i d u a l l y , based on the number of Metis i n the t e r r i t o r y . His concern was to provide for future generations. 7 7 The weakness i n t h i s reasoning i s i t f a i l s to account f o r Ritchot's presentation of s. 31 to the Provisional Government and t h e i r r a t i f i c a t i o n of the Manitoba Act. Support f o r the argument that the Act was supposed to r e f l e c t the intent to set aside townships or blocks of land to s a t i s f y the c o l l e c t i v e r i g h t s of the Metis can be drawn from proposals made by A.G. Archibald, f i r s t Governor of Manitoba, regarding the d i s t r i b u t i o n of Metis lands; early Orders-in-Council authorizing 328 the s e t t i n g aside of townships for the benefit of the Metis; and debates i n the House of Commons concerning the reservation of 1,400,000 acres for the half-breeds. P r i o r to the passing of the Manitoba B i l l , concern had been roused regarding the large reservation of land for half-breeds. I n i t i a l l y MacDonald proposed that 1,200,000 acres be \"appropriated as a reservation for the purpose of half-breeds and t h e i r c h i l d r e n of whatever o r i g i n . \" 7 8 The amount was increased to 1,400,000 acres and was opposed by Li b e r a l benchers who took exception to a large reserve of land for the half-breeds which would hinder settlement by white s e t t l e r s . Arguments arose from the present wording of s. 31 which, despite the opposition, was given Royal Assent on May 12, 1870.79 On August 2, 1870 Archibald was instructed to recommend a se l e c t i o n of lands and method of d i s t r i b u t i o n under s. 31. In a l e t t e r to Howe dated December 27, 1870 Archibald was instructed to recommend that land grants be made within a single block of land or within two blocks, one for the English and one for the French thus keeping those of one \"Race, Religion and Language i n a community by themselves.\" 8 1 In his opinion, t h i s arrangement would accord with the exercise of choice by the Metis. In separate correspondence of that same date he interpreted s. 31 as granting r i g h t s to any person of mixed blood, no matter how derived, i f resident i n the Province at the time of t r a n s f e r . 8 2 Arguably, Archibald would have known i f h i s proposals v i o l a t e d the intended meaning of the section as he was present i n the House of Commons when i t was the subject of debate. 8 3 Nevertheless, Howe rejected Archibald's proposals saying the government could not condone appropriation of large t r a c t s of lands by half-breeds. Despite Howe's r e f u s a l , on A p r i l 25, 1871 an Order-in-Council was passed incorporating Archibald's recommendation to include every half-breed resident i n the grant but the reservation of townships or parts of townships i n which allotments were to be made was l e f t to the decision of the Lieutenant Governor. 8 5 The intent to concentrate half-breed allotments within designated townships i s evidenced i n the Governor General's Report dated A p r i l 15, 1872. However, i t i s recommended that any white s e t t l e r s who s e t t l e d i n designated Half-Breed townships be confirmed i n t h e i r respective \u00E2\u0080\u00A2 86 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 holdings. D i s t r i b u t i o n of the land began i n March of 1873 but heads of fam i l i e s were subsequently excluded from the d i s t r i b u t i o n l a t e r to have t h e i r claims s a t i s f i e d by the issuance of s c r i p . As a r e s u l t of several delays, actual d i s t r i b u t i o n of the s. 31 grants did not occur u n t i l October of 1876 and was l a r g e l y completed by 1880. There was no l o c a l control of d i s t r i b u t i o n and land grants were scattered or i n many cases, concentrated i n areas away from Metis communities and areas unsuitable for farming. 8 7 Although the reservation of designated townships and entitlement of a l l Metis to p a r t i c i p a t e i n the land grant system i s hard to derive from a p l a i n reading of s. 31, the above arguments suggest that section 31 may not accurately r e f l e c t the actual intent of the pa r t i e s . This would not be a surp r i s i n g conclusion given the haste i n which the provision was drafted. The importance placed on consensual arrangements f o r the surrender of natural r i g h t s suggests that extinguishment should be dependant on the intent of s. 31, rather than i t s p l a i n meaning. I f i t i s proven that the \"intent\" was to s a t i s f y c o l l e c t i v e r i g h t s through the reservation of townships selected and d i s t r i b u t e d i n accordance 3 3 0 w i t h t h e d e s i r e s o f t h e M e t i s , n a t u r a l l a w w o u l d r e q u i r e t h a t t h i s i n t e n t b e c a r r i e d o u t b e f o r e M e t i s c l a i m s c a n b e c o n s i d e r e d e x t i n g u i s h e d ( u n l e s s b o t h p a r t i e s a g r e e d t o a l t e r t h e o r i g i n a l i n t e n t ) . C o n s e q u e n t l y , e v e n i f i t c o u l d b e e s t a b l i s h e d t h a t t h e m e t h o d o f d i s t r i b u t i o n w a s i n c o n f o r m i t y w i t h a p l a i n r e a d i n g o f s . 3 1 , t h e m e t h o d w o u l d b e i l l e g a l a n d i n e f f e c t i v e i n t h e e y e s o f n a t u r a l l a w . A s s u m i n g i t i s p r o v e n t h a t s . 3 1 d o e s r e f l e c t t h e o r i g i n a l i n t e n t i o n o f b o t h p a r t i e s t h a t M e t i s r i g h t s w o u l d b e c o m p e n s a t e d o n a n i n d i v i d u a l b a s i s a n d t h a t t h e m e t h o d o f d i s t r i b u t i o n w o u l d b e a t t h e a b s o l u t e d i s c r e t i o n o f t h e C a n a d i a n g o v e r n m e n t , a r g u m e n t s c a n b e m a d e t h a t i s s u b s e q u e n t i m p l e m e n t a t i o n w a s s t i l l c o n t r a r y t o s . 3 1 . S u b s t a n t i a l w o r k h a s b e e n d o n e b y M e t i s o r g a n i z a t i o n s a n d s e v e r a l a c a d e m i c s t o s u p p o r t t h i s a l l e g a t i o n . E v i d e n c e g a t h e r e d f o r m s a s i g n i f i c a n t p a r t o f t h e M a n i t o b a M e t i s F e d e r a t i o n ' s c h a l l e n g e t o t h e c o n s t i t u t i o n a l v a l i d i t y o f S t a t u e s go a n d O r d e r s - i n - C o u n c i l a u t h o r i z i n g t h e d i s t r i b u t i o n u n d e r s . 3 1 . I t i s b e y o n d t h e s c o p e o f t h i s t h e s i s t o e x a m i n e t h e c r e d i b i l i t y o f t h e e v i d e n c e a n d a r g u m e n t s a d v a n c e d . H o w e v e r , s o m e o f t h e p o i n t s r a i s e d b y t h e M a n i t o b a M e t i s F e d e r a t i o n a n d o t h e r s t o s u p p o r t t h e a l l e g a t i o n t h a t t h e g o v e r n m e n t e x e r c i s e d i t s d i s c r e t i o n 89 c o n t r a r y t o t h e A c t a r e l i s t e d b e l o w : 1 . L e g i s l a t i o n w a s p a s s e d r e s t r i c t i n g t h e c a t e g o r y o f p e r s o n s w h o c o u l d c l a i m u n d e r s . 3 1 , a l t e r i n g t h e m e t h o d o f d i s t r i b u t i o n a n d p e r m i t t i n g o c c u p a t i o n b y w h i t e s e t t l e r s b e f o r e s e t t l i n g e n t i t l e m e n t s t o h a y a n d c o m m o n a r e a s u n d e r s . 3 2 . ( 5 ) . 2. L e g i s l a t i o n was passed authorizing the s u b s t i t u t i o n of money s c r i p (personal property) f o r land grants (real property). 3. L e g i s l a t i o n was passed imposing a l i m i t a t i o n period on the advancement of claims under sections 31 and 32. 4. L e g i s l a t i o n l e g a l i z e d the sale of land by person under the age of majority, r e t r o a c t i v e l y l e g a l i z e d i r r e g u l a r and otherwise i l l e g a l transactions, and eliminated any recourse to the courts f o r Metis people who had l o s t t h e i r lands pursuant to ret r o a c t i v e l e g a l i z a t i o n . 5. Despite the intention of s. 32 to protect possessory claims, the Act was amended to dissolve the d i s t i n c t i o n between \"peaceable possession\" and occupancy inherent i n ss. 32(3) and (4) r e s u l t i n g i n the necessity of improvements and the non-recognition of p r i o r customs regarding i d e n t i f i c a t i o n of possession such as staked claims. I f the a l t e r a t i o n of sections 31 and 32 through subsequent u n i l a t e r a l government action i s established, natural opinion would conclude that Metis r i g h t s continue to e x i s t unless they were subsequently extinguished by consent. Again, t h i s conclusion r e l i e s on the f i r s t p r i n c i p l e of consensual a c q u i s i t i o n and the need to e s t a b l i s h that u n i l a t e r a l a l t e r a t i o n can be j u s t i f i e d i n terms of the common good or subsequent agreement. Previous arguments i l l u s t r a t e the d i f f i c u l t y of j u s t i f y i n g the land d i s t r i b u t i o n system i n terms of the common good or implied consent. 332 The l a t t e r assumes the a b i l i t y to exercise choice which, i f one considers the h i s t o r i c a l circumstances of the Metis, might amount to no choice. Given t h i s , natural law would conclude that l e g i s l a t i o n purporting to a l t e r or elaborate the terms agreed to i n sections 31 and 32 was i n v a l i d , Metis r i g h t s continue to e x i s t and Canada has a moral ob l i g a t i o n to recognize Metis r i g h t s . The scope of Metis r i g h t s , extent of recognition, and form of compensation would be assessed i n a contemporary context and i n accordance with a modern d e f i n i t i o n of the common good. Before leaving t h i s area some attention must be paid to subsequent attempts by the federal and p r o v i n c i a l governments to s a t i s f y Metis r i g h t s . In Alberta, settlements have been established for the benefit of the Metis and a land agreement was concluded with the Metis people i n Grand Cache. In Saskatchewan, t i t l e to the Metis farm colony lands i n Lebret has been transferred to a Metis owned corporation. Previous to both of these arrangements, the reserve of St. Paul de Metis was established for the benefit of the Metis by the federal government. I f each or any of these actions i s determined to amount to consensual compensation for Metis r i g h t s , s p e c i f i c Metis communities might be excluded from a claim to compensation based on natural r i g h t s . Further, one would have to question the e f f e c t of these concessions by fragmented groups on the Nationhood claim i f members of these groups constitute a s i g n i f i c a n t portion of the descendants of the Manitoba Metis. 9 0 These contemporary developments do not have the e f f e c t of l e g a l i z i n g previous i l l e g a l a c t i v i t y with respect to the whole community but would have to be considered i n the determination of equitable compensation. 333 (c) Immoral Exercise of Discretion A p l a i n reading of s. 31 suggests that the Governor General i n Council has the d i s c r e t i o n to determine the s e l e c t i o n and method of d i s t r i b u t i o n of Metis lands and the conditions to be placed on entitlement. Assuming t h i s i n t e r p r e t a t i o n of the Act i s correct and the Metis consented to absolute d i s c r e t i o n , Natural opinion may s t i l l f i n d the d i s t r i b u t i o n scheme i l l e g a l . Although n a t u r a l i s t s recognize the importance of upholding agreements i n the maintenance of peaceful i n t e r s o c i e t a l r e l a t i o n s , contemporary t h e o r i s t s have also asserted the existence of a moral o b l i g a t i o n on powerful communities to take into consideration the common good of t h e i r members and l e s s powerful nations when making decisions that a f f e c t others. According to Gormley, t h i s requirement i s a l o g i c a l extension of the maxim that j u s t i c e requires persons who make decisions which a f f e c t the good of others to respect the r i g h t s of others. J u s t i c e within a community allows the achievement of i n d i v i d u a l good to the extent i t does not r e s t r i c t the good of others. These same p r i n c i p l e s can be applied between communities r e s u l t i n g i n an o b l i g a t i o n on more powerful communities to assess the impact of t h e i r decisions on other communities i n terms of the common good. 9 1 Arguments upholding Canada as the more powerful of the two nations have been given and w i l l not be repeated. As the more powerful nation i t had an o b l i g a t i o n to take into consideration the a f f e c t s i t s decisions would have on the Metis as a nation and as i n d i v i d u a l c i t i z e n s of Canada when exercising i t s d i s c r e t i o n under s. 31. Although i t might be successfully contended that the 334 d i s t r i b u t i o n system under s. 31 could have benefited i n d i v i d u a l Metis but f o r t h e i r own mishandling of t h e i r entitlements, i t i s more d i f f i c u l t to contend that the d i s t r i b u t i o n scheme considered the benefits to the Metis as a nation. Within t h i s framework one has to consider the e f f e c t of the Act on the s u r v i v a l of the Metis as a community and a d i s t i n c t aboriginal culture. Again, arguments o u t l i n i n g the e f f e c t and intent of government action have been given and w i l l not be repeated. The point i s the same arguments can be raised to support the p o s i t i o n that the government's d i s c r e t i o n was subject the l i m i t a t i o n that i s be exercised taking into consideration the good of the Metis people and that the government exceeded i t s l e g a l authority by acting i n a manner i n d i f f e r e n t to Metis r i g h t s . The r e s u l t i s Metis r i g h t s continue to e x i s t regardless of the agreement reached. Again, contemporary factors must be worked into a decision regarding the enforcement or compensation of these r i g h t s . I l l Translation into Domestic Positive Law The strength of natural law defenses does not l i e e n t i r e l y i n the movement i n aboriginal t i t l e cases to accept p r i n c i p l e s o r i g i n a t i n g i n natural law. These defenses are mirrored to a c e r t a i n extent i n recognized defenses i n the p o s i t i v i s t t r a d i t i o n . The worth of the natural law analysis i n t h i s context i s i t provides an underlying theory that helps resolve ambiguities and overcome p o t e n t i a l stumbling blocks when p o s i t i v i s t defenses are applied to Metis issues. This point i s i l l u s t r a t e d i n a discussion of p a r a l l e l defenses. Some of the more obvious p a r a l l e l s are i l l u s t r a t e d i n t h i s section. 335 1. Breach of Fiduciary Obligation In R. v. Guerin the Supreme Court of Canada held that the government of Canada was l i a b l e for breach of f i d u c i a r y duties owed to the Musqueam band. 9 2 The o r i g i n of the duty was found i n aboriginal t i t l e coupled with a scheme under the Indian Act which governs the surrender of reserve lands to the Crown. Of p a r t i c u l a r importance i n the reasons of Mr. J u s t i c e Dickson i s the f a c t that Indian lands are inalienable to persons other than the Crown. The fa c t that Indian bands have a c e r t a i n i n t e r e s t i n land i s not enough. 9 3 On the question of a statutory o b l i g a t i o n he states: [W]here by statute, agreement, or perhaps by u n i l a t e r a l undertaking, one party has an o b l i g a t i o n to act f o r the benefit of another, and that o b l i g a t i o n c a r r i e s with i t a discretionary power, the party thus empowered becomes a f i d u c i a r y . Equity with then supervise the r e l a t i o n s h i p by holding him to the f i d u c i a r y ' s s t r i c t standard of conduct. 9 4 Arguments derived from Guerin can be used to support the conclusion that the Crown has a s i m i l a r f i d u c i a r y o b l i g a t i o n toward the Metis. The statutory source of the o b l i g a t i o n i s arguably s. 31 of the Manitoba Act which s t i p u l a t e s the land grant therein i s for the \"benefit of the families of the half-breed residents.\" This i s coupled with a discretionary power i n the Governor General i n Council regarding the method of d i s t r i b u t i o n and terms of entitlement. Thus, both elements necessary to empower the Crown as a f i d u c i a r y are met. The stumbling block to fending an o b l i g a t i o n l i e s i n the second r e q u i s i t e of aboriginal t i t l e . Natural theories on the foundation of aboriginal t i t l e help overcome t h i s problem by l e g i t i m i z i n g the categorization of Metis claims as aboriginal claims. Further, they help c l a r i f y that the o b l i g a t i o n does not a r i s e from \" i n a l i e n a b i l i t y and the obligations 336 of the powerful towards the weak. Therefore, the f a c t Metis lands could be alienated to persons other than the Crown does not r e l i e v e the Crown of i t s obliga t i o n . The issue i s one of actual v u l n e r a b i l i t y and power involved i n t r u s t r e l a t i o n s h i p and not the method through which the dependency i s created. 9 5 Breach of the obliga t i o n i s a question of f a c t which w i l l vary according to a p a r t i c u l a r s i t u a t i o n . Both the l e g i s l a t i o n and conduct at the time of surrender w i l l set the standards to judge 96 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 subsequent conduct. In Guerin. \"equitable fraud\" was found to amount to breach. Although i t i s not defined, i t seems to amount to the Crown l i v i n g up to i t s promises. 9 7 As a concept i n equity i t i s more than breach of promise. I t amounts to abuse of power that offends \"basic j u s t i c e or good conscience\" that may or may not \u00E2\u0080\u00A2 # 98 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 be i n t e n t i o n a l . Again concepts of natural law help define unjust acts through the assessment of common good. The u t i l i z a t i o n of natural law precepts should not be rejected as equitable remedies trace t h e i r o r i g i n s to natural theories of law. Consequently moral arguments based on the e f f e c t of method of implementation on the common good of the Metis as a people and the ob l i g a t i o n of Canada to consider the common good of the Metis i n exercising i t s d i s c r e t i o n take on l e g a l importance i n the context of f i d u c i a r y claims. 2. Breach of Agreement A natural law analysis helps provide t h e o r e t i c a l foundations f o r the conclusion that the Manitoba Act i s supposed to be a l e g i s l a t i v e enactment of an agreement reached between the Metis and Canadian government. The a b i l i t y to categorize Metis claims 337 as aboriginal claims raises a presumption against the Crown's inten t i o n to extinguish r i g h t s u n i l a t e r a l l y given the o b l i g a t i o n to respect r i g h t s of previous occupants, the h i s t o r i c p r a c t i c e of consensual a c q u i s i t i o n of Indian r i g h t s throughout the p r a i r i e provinces and the h i s t o r i c evidence regarding negotiations preceding the enactment of the Manitoba Act. Without these foundations, i t i s d i f f i c u l t f o r the court to characterize the Act as a t r e a t y between two nations. The categorization of the Manitoba Act as a t r e a t y gives r i s e to contractual defenses to the e f f e c t of the Act on Metis r i g h t s . Arguments derived i n natural law focusing on lack of choice and the f a i l u r e of the agreement to set out the o r i g i n a l intention of the p a r t i e s t r a n s l a t e into contractual defenses of unconscionability, mistake, unjust enrichment and non-est factum to name a few. Allegations that subsequent implementation v i o l a t e d the agreement reached translates into the p o s i t i v i s t argument that the Crown f a i l e d to l i v e up to i t s obligations under the contract. The movement i n p o s i t i v e law to f i n d a party l i a b l e i n negligence fo r duties a r i s i n g i n contract could also give r i s e to an argument that the Crown could be l i a b l e i n both contract and t o r t for i n t e n t i o n a l or unintentional breach. As i n a natural law analysis, the r e s o l u t i o n of these claims depends on i n t e r p r e t a t i o n . Those claims based i n equity envision the court looking beyond the four corners of the contract to ascertain the intent and obligations of the p a r t i e s . In the case of t r e a t i e s , t h i s i n v e s t i g a t i o n has been extended to o r a l promises intended to form part of the agreement.\" On t h i s analysis, arguments based on Ritchot's understanding are properly considered 338 to determine what the Metis expected from the agreement. Further, the courts have recognized the imbalance of bargaining power between Canada and aboriginal nations through the p r i n c i p l e that ambiguities are to be resolved i n favour of the Indians. 1 0 0 Both of these concessions i n favour of aboriginal peoples accord with natural philosophies regarding the moral v a l i d i t y of agreements between nations discussed previously i n t h i s chapter. Not only do natural theories support the characterization of the Act as a treaty, but they may also be the proper source of rules to be applied i n determining whether the treaty has been honoured. In R. v. Simon, t r e a t i e s were categorized as \" s u i generis.\" 1 0 1 Both p r i n c i p l e s of contract law and p r i n c i p l e s of int e r n a t i o n a l law were held not to be determinative. The source of determinative rules was not named. Given the l i n k between aboriginal r i g h t s and natural r i g h t s , arguments can be made that the most appropriate source of rules i s natural law. 3. Constitutional Competence Arguments have been made that the method of implementation of ss. 31 and 32 i s unconstitutional. Pursuant to s. 6 of the B r i t i s h North America Act of 1871, Parliament could not a l t e r terms of the \u00E2\u0080\u00A2 102 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 Manitoba Act. This gives r i s e to the argument that subsequent l e g i s l a t i o n which a l t e r s the Act i s u l t r a v i r e s and of no force and e f f e c t . As the l e g i s l a t i o n authorizing land d i s t r i b u t i o n under ss. 31 and 32 had the e f f e c t of a l t e r i n g the Act, i t i s un c o n s t i t u t i o n a l . 1 0 3 The argument i s founded s o l i d l y i n p o s i t i v e concepts of Parliamentary sovereignty and c o n s t i t u t i o n a l l i m i t s on the sovereign's w i l l and has l i t t l e r e l a t i o n to a natural law 339 analysis except to the extent i t focuses on intent. I t i s i n t h i s context natural theory i s useful as i t takes the inte r p r e t e r of s. 31 beyond a p l a i n reading of the l e g i s l a t i o n . Beyond t h i s , the only l i n k to natural theory i s placing l i m i t a t i o n s on the sovereign's w i l l . However, i n natural law these l i m i t a t i o n s need not be self-imposed. Constitutional arguments may also focus on the method of extinguishment. The v a l i d i t y of u n i l a t e r a l extinguishment through an act of Parliament p r i o r to 1931 might be challenged on the basis that the Royal Proclamation has the force of an IMperial Statute. P r i o r to the enactment of the Statute of Westminster i n 1931 the Canadian Parliament d i d not have the competence to a l t e r an imperial s t a t u t e . 1 0 4 The Royal Proclamation prescribes purchase as the method to acquire Indian t i t l e therefore acts of u n i l a t e r a l extinguishment p r i o r to 1931 are of no force and e f f e c t . 1 0 5 The a p p l i c a t i o n of t h i s argument to the Manitoba Act does not make sense unless the Metis can be brought within the d e f i n i t i o n of Indians i n the Proclamation. Natural law helps r a t i o n a l i z e t h i s i n c l u s i o n by i l l u s t r a t i n g the common or i g i n s of Metis and Indian claims and r u l i n g against an a r b i t r a r y preference i n the treatment of weaker communities by powerful nations. Theory w i l l be of p a r t i c u l a r importance i f h i s t o r i c a l investigations into the d e f i n i t i o n of the word Indian i n the 1760s can not produce d e f i n i t i v e answers. I V The Hard Case R.M. Dworkin defines a \"hard case\" as a case which can not be resolved by the st r a i g h t a p p l i c a tion of p o s i t i v i s t r u l e s . In h i s 340 view these cases are decided by reference to non-rule c r i t e r i a of which the p o s i t i v i s t model takes no account. 1 0 6 An example of a hard case i s the decision of Donoqhue v. Stevenson. 1 0 7 Some p o s i t i v i s t s w i l l argue that the court's f i n d i n g of manufacturer's negligence amounts to j u d i c i a l l e g i s l a t i o n based on some non-legal norm or value. Dworkin argues that t h i s i s not a necessary conclusion i f one r e a l i z e s that law i s more than a set of rules. Rather, \"law involves the application of rules i n a p o l i t i c a l and moral framework, the desiderata of which must be included i n any 108 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 complete account of the operation of law.\" Dworkin's analysis of the law suggests any theory of law which f a i l s to account f o r non-rule factors, including moral factors, i s incomplete. He divides these factors into two categories - p o l i c i e s which r e f l e c t economic, s o c i a l or p o l i t i c a l goals and p r i n c i p l e s which involve \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 \u00E2\u0080\u00A2 109 j u s t i c e , fairness, morality and recognition of community r i g h t s . Aboriginal t i t l e cases are not easy cases that can be resolved by the simple a p p l i c a t i o n of l e g i s l a t e d or common law rules. Rather, they f a l l within Dworkin's concept of the \"hard case\" and are decided p r i m a r i l y on the basis of p o l i c y and p r i n c i p l e . In the past, p o l i c y or p o l i t i c a l considerations have outweighed the impact of moral c r i t e r i a r e s u l t i n g i n decisions that benefit the federal and p r o v i n c i a l governments. However, decisions such as Calder. Guerin and Simon suggest contemporary courts are placing greater emphasis on moral issues. This movement i l l u s t r a t e s that i n the area of t i t l e cases, there i s room fo r p r a c t i c a l a p p l i c a t i o n of moral evaluations of p o s i t i v e law. The concept of the \"hard case\" helps to conceptualize the procedure through which the courts can decide i n favour of the persistence of Metis aboriginal r i g h t s without being charged with j u d i c i a l c r e a t i v i t y or l e g i s l a t i n g . Dworkin's theory of law as evidenced i n aboriginal t i t l e cases i l l u s t r a t e s that d e f i n i t e l i n e s can not be drawn between p o s i t i v e and natural law. The resolution of Metis claims can not be resolved by a simple a p p l i c a t i o n of common law rules on t i t l e without considering questions of p o l i c y and p r i n c i p l e . The increased importance of natural theories i n aboriginal t i t l e cases provides the basis upon which Metis claims can be linked to aboriginal t i t l e claims and which doctrines of extinguishment can be reexamined. 342 ENDNOTES 1. Manitoba Act. S.C. 1870, c. 3, s.31. 2. Anonymous, Indian Claims Commission i n Canada: Ottawa, Research Resource Centre, Indian Claims Commission, 1975 quoted i n Metis Association of Alberta, J . Sawchuk, 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 243. 3. Of p a r t i c u l a r i n t e r e s t are a r t i c l e s 1 (self-determination of peoples) and 27 (rights of minorities to enjoy t h e i r culture i n community with the other members of t h e i r group) i n the International Covenant on C i v i l and P o l i t i c a l Rights. 1966 i n UNIFO e d i t o r i a l s t a f f , International 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). For a natural law analysis of aboriginal human ri g h t s arguments see D. Gormley, \"Aboriginal Rights as Natural Rights,\" (1984) IV(1) The Canadian Journal of Native Studies 29. 4. This argument, p r i o r to R. v. Guerin [1984] 2 S.C.R. 335, was framed as a breach of t r u s t argument. See, f o r example, Metis Assoc. of Alberta, supra f note 1 at 245-247; Assoc. of Metis and Non-Status Indians of Sask. (AMNIS), \"The Question of Half-Breed Scrip As An Extinguishment of Aboriginal T i t l e , \" (Saskatchewan: 24 Dec. 1979) 22, photocopied. 5. See f o r example, Dumont et a l v. A.G. of Canada (17 June 1988) Winnipeg 152/87 (C.A.); C. Chartier, \"Half-Breed Land and Money Scrip: Was This a C o n s t i t u t i o n a l l y V a l i d Method of Extinguishing The Claim to Indian T i t l e \" (Saskatoon: Univ e r s i t y of Saskatchewan, Faculty of Law, 1978) 42, Photocopied; D. Sprague, \"Government Lawlessness i n the Administration of Manitoba Land Claims, 1870-1887\" (1980) 10 Manitoba Law Journal No. 4, 416. 6. See, f o r example, Metis Assoc. of Alberta, supra. note 1 at 244-245. 7. See, f o r example, Louis R i e l ' s Case (1874) P.A.C., R.G. 7, G. 18 reprinted i n A Statement of Claim Based on Aboriginal T i t l e of the Metis and Non-Status Indians (Ottawa: Native Council of Canada, 1980); chapter four of t h i s t h e s i s at page 258. 343 8. See, f o r example, W. Moss and S. de Grosbois \"The A l i e n a t i o n of Metis Lands Through Federal P o l i c y and Speculation\" (Ottawa: Native Council of Canada, 26 Sept. 1979) 50. Photocopied; A.M.N.I.S. \"Speculation i n Half-Breed Land and Scr i p \" (Saskatchewan: 28 Dec. 1979) 24; and Metis Assoc. of Alberta, supra f note 1 at 96-112, 118-158 and 245-247. 9. Supra. note 5; See also the discussion i n Chapter 4, Sections I, 1 and 3. 10. St. Catherine's M i l l i n g and Lumber Co. v. R.. (1889) 14 A.C. 46. 11. Reprinted i n R.S.C. 1970, Appendices, at 127-129. 12. For a more det a i l e d discussion see a discussion of the \"American Doctrine\" i n Chapter 3 of t h i s t h e s i s . 13. Calder v. A.G. of B.C. [1973] R.C.S. 313. 14. Id. at 344 per Judson, J . and 404 per H a l l , J . 15. See, f o r example, the discussion of the Marshall t r i l o g y at pages to i n chapter three of t h i s t h e s i s ; P. Cumming and N. Mickenberg, eds., Native Rights i n Canada. 2d ed. (Toronto: Indian Eskimo Assoc. of Canada and General Publishing Co. Ltd. 1972) at 42-47; and B. Morse, Aboriginal Rights and the Law: Indian. Inuit and Metis Rights i n Canada. Ottawa: Carleton University Press, 1985. 16. H. McCoubrey, The Development of N a t u r a l i s t Legal Theory (New York: Croom Helm, 1987) at 84-98. 17. Supra. note 4 at 494-495 per Dickson J . and 517 per Wilson, J . 18. U n i l a t e r a l extinguishment i s i n issue i n the Gitskan Wet'suwet'en case (Delgumuukw v. A.G. of B.C. and A.G. Can. Action No. 0843) currently before the Supreme Court of B r i t i s h Columbia. 19. Supra. note 16 at 32. 344 20. Id. at 51. 21. Supra, note 16 at 29. 22. Id. at 32-33. 23. Id. at 48. 24. Id. For a more de t a i l e d discussion of these theories see \"Introduction to the Natural Law T r a d i t i o n \" i n chapter three of t h i s t h e s i s . 25. See \"Natural Law and the Orig i n of Aboriginal T i t l e \" i n chapter three of t h i s t h e s i s . See also Gormley, supra. note 3. 26. Id. 27. See, f o r example, Johnson v. M'Intosh 5L. ed. 541, 560-561 (1823).See, for example, Johnson v. M'Intosh 5L. ed. 541, 560-561 (1823). 28. See, for example, St. Catherine's M i l l i n g and Lumber Co. v. R. . supra. note 10 and Calder v. A.G. of B.C.. supra. note 13. For a general discussion see discussion at the end of Chapter 3, Section I I I , 1. 29. Calder v. A.G. B.C.. i d . 30. Despite the recognition of aboriginal r i g h t s by the United States Supreme Court i n Worcester v. Georgia 8 L. ed. 483 (1932) President Jackson f o r c i b l y removed the Cherokee from t h e i r lands. See discussion at the end of Chapter 3, Section I I I , 1. 31. Gormley, supra. note 3 at 41. 32. W. Moss and S. de Grosbois, supra. note 8 at 1. 33. A.M.N.I.S., supra, note 4 at 11. 345 34. See, for example, the discussion i n \"Natural Law and Theories of A c q u i s i t i o n \" i n chapter three of t h i s t h e s i s . 35. A substantial amount of research has been conducted to i d e n t i f y the b e n e f i c i a r i e s under s. 31. See, for example, E. P e l l e t i e r , E x p l o i t a t i o n of Metis Lands (Winnipeg: Manitoba Metis Federation Press, 1975); Sprague, supra. note 5; and supra r note 4 and 8; and i n f r a . . note 40. 36. A s i m i l a r argument i s made by the Manitoba Metis Federation i n the Dumont decision, supra f note 5. The d i s t i n c t i o n blamed for the loss of lands i s placed on the method of d i s t r i b u t i o n implemented by the Canadian government. 37. Thomas Flanagan develops the theory that the Metis were the makers of t h e i r own misfortune i n R i e l and the Rebellion: 1885 Reconsidered (Saskatoon: Western Producer P r a i r i e Books, 1983) chapters two, three and four. 38. See, f o r example, D.B. Sealey and A. Lussier, The Metis: Canada's Forgotten People (Winnipeg: Manitoba Metis Federation Press, 1975) at 91-93; G. Stanley, The B i r t h of Western Canada: A History of the R i e l Rebellions (Great B r i t a i n : Longman's, Green and Co. Ltd., 1936; re p r i n t , Toronto: Univ e r s i t y of Toronto Press, 1960) chapter v i i ; and A.H. Tremaudan, Hold Your Heads High: A History of the Metis i n Western Canada. trans. E. Maguet (Winnipeg: Pemmican Publications, 1982) at 103-106. 39. Sealey and Lussier, i d . chapter 7 and G. Ens, \"Dispossession or Adaptation? Migration and Persistence of the Red River Metis 1835-1890,\" Paper presented at the \"C.H.A. Annual Meeting\" (Ontario: University of Windsor, 9-11 June 1988) 33, photocopied. 40. D. Sealey, \"Statutory Land Rights of the Manitoba Metis: i n The Other Natives: The Metis. Vol. 2., eds. A. Lussier and B. Sealey (Winnipeg: Manitoba Metis Federation Press and Editions Bois Brules, 1978) at 8 See also Sprague, supra. note 5 at 424-427; J . Taylor \"Half-Breed Grants i n Manitoba\" a report to the Native Council of Canada, Vol I, (Ottawa: Native Council of Canada, 15 June 1979) 31, photocopied at 7-9 and D. Sealey, Statutory Land Rights of the Manitoba Metis (Winnipeg: Manitoba Metis Federation Press, 1975) chapter I I I . 41. Metis Assoc. of Alberta, supra. note 2 at 112-113 and Sealey ( a r t i c l e ) i d . at 21-22. 346 42. Sawchuk, i d . and supra. note 33 at 18. Regarding the economic conditions see Ens, supra. note 39; Sealey and Lussier, supra. note 38 at 76. 43. Metis Assoc. of Alberta, supra. note 3 at 114. 44. Choctaw Nation v. United States 30 L. ed. 306 (1886). 45. M. F l a d e l l , \"Survey of Land Grant Schemes i n the U.S.\" i n \"A Submission to the Native Council of Canada\" (Ottawa: Native Council of Canada, 15 August 1979) 62, photocopied, at 30. 46. Dawes Severalty Act. 24 Stat. 388 (1887). 47. M. Chamberlain, The Harrowing of Eden: White Attitudes Towards North American Natives (Don M i l l s : Fitzhenry and Whiteside Limited, 1975) at 38. For a general discussion on the land grant system i n the United States see F l a d e l l , supra. note 45. 48. Supra f note 40. 49. Metis Assoc. of Alberta, supra. note 2 at 110-111; Sprague, supra, note 5 at 426 and Moss, supra. note 8 at 29. 50. Moss, i d . at 5. 51. There has been a substantial amount of research i n t h i s area. See, f o r example, Metis Assoc. of Alberta, supra. note 2 chapter 4; A.M.N.I.S. supra. note 4 at 16-18; Native People and the Constitution of Canada, by H. Daniels, Chairman (Ottawa: Native Council of Canada, 1981) at 61-63. 52. An Act Relating to the T i t l e s to Half-Breed Lands (1885) S.M., c. 30. For a general discussion see Metis Assoc. Alberta, i d . at 109-110 and 146-151; Sprague, supra. note 5 at 426-428; Moss, supra note 8 at 27-50. 53. See, f o r example, Metis Assoc. of Alberta, i d , at 107; Sprague, supra. note 5 at 421; H. Daniels, supra. note 51 at 62-63. 347 54. A.M.N.I.S. \"The Nationhood Claim of the Metis - The H i s t o r i c a l and Empirical Basis of the Claim i n 1870\" (Saskatchewan: 15 Jul y 1979) at 32-33. 55. A.M.N.I.S., supra. note 4 at 16-18; Sprague, supra. note 5 at 421, Daniels, supra f note 51 at 60. 56. Gormley, supra. note 3 at 37. 57. Supra. note 25. 58. Metis Assoc. of Alberta, supra. note 3 at 71; Sealey and Lussier, supra. note 38 at 83-84 and A.M.N.I.S., supra. note 54 at 21-22. 59. Supra. note 37 at 59. 60. See, fo r example, Metis Assoc. of Alberta, i d . at 71-72. 61. The L i s t i s reprinted i n Metis Assoc. of Alberta, i d . appendix 2. 62. See, fo r example, Stanley, supra. note 38 at 115 and 123-124; Tremaudan, supra. note 38 at 92-93. 63. Stanley, i d . at 124. 64. For a defence of t h i s proposition see Gormley, supra. note 3 at 35-36. 65. This p o s i t i o n was advanced by Fransisco de V i t o r i a i n De Indis et De Jure B e l l i (Washington: Carnegie I n s t i t u t e , 1917) at 148. 66. G. Stanley, \"Confederation 1870\" i n The Other Natives: the Metis, Vol. 1, supra. note 40 at 77-78. 67. Sealey and Lussier, supra. note 42. 68. Supra. note 39. 348 69. Sealey and Lussier, supra. note 38 at 91. 70. Daniels, supra. note 51 at 57. 71. See, f o r example, Sealey and Lussier, supra. note 38 at 87; Metis Assoc. of Alberta, supra, note 2 at 244-245; A.S. Morton, \"The New Nation: i n The Other Natives: The Metis. Vol. 2, note 40 at 27-37. 72. A useful summary of the relevant l e g i s l a t i o n i s found i n Sealey ( a r t i c l e ) , supra. note 40 and 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 The Forgotten People: Metis and Non- Status Indian Land Claims. H. Daniels ed. (Ottawa: Native Council of Canada, 1979) at 10-13. 73. Supra. note 54 at 28-31. 74. Daniels, supra. note 51 at 57; Father Ritchot's Diary (1870), trans. B e r l i t z Translation Service, Public Archives of Canada, 14, photocopied at 8. 75. Supra. note 36. 76. Supra. note 54 at 31. 77. Metis Assoc. of Alberta, supra. note 2 at 72-73. 78. MacDonald, House of Commons Debates, May 2 1870 at 1292-1293; but see May 4, 1870 at 1395; Stanley, supra. note 38 at 120. 79. Stanley, i d . 80. P.C. No. 43, 2 August 1870; See also, Sealey ( a r t i c l e ) , supra. note 40; Sprague, supra. note 5 at 417-418. 81. Adams G. Archibald to Joseph Howe, Secretary of State, 27 December 1870, photocopied; Sprague, i d . 82. Id. 349 83. Daniels, supra. note 51 at 58. 84. Sprague, supra. note 5 at 418. 85. Reprinted i n Sealey ( a r t i c l e ) , supra. note 40 at 7. 86. Id. at 9-10. 87. Sealey, supra. note 40 at 21-22. 88. Statement of Claim submitted i n action No. 1010/81 i n the Court of Queen's Bench of Manitoba, 15 A p r i l 1981. 89. See, generally clauses 9 and 10 i n the Statement of Claim submitted on behalf of the Manitoba Metis Federation, i d . ; Sprague, supra. note 5; C. Chartier, \"Half-Breed Land and Money Scrip: Was This A C o n s t i t u t i o n a l l y V a l i d Method of Extinguishing the Claim to Indian T i t l e ? \" (Saskatoon: College of Law, 1978) 42, photocopied. 90. Research conducted on the Metis Settlements and Grand Cache Metis suggest the membership does not trace i t s o r i g i n s to the Manitoba Metis. See, for example, D. Sanders\" A Legal Analysis of the Ewing Commission and the Metis Colony System i n Alberta\" (4 A p r i l 1978) 36, photocopied at 19; Metis Assoc. of Alberta, supra, note 2 at 216. 91. Gormley, supra. note 3 at 33 and 35. 92. Supra. note 4. 93. Id. at 376. For a general discussion see W. McMurtry and A. Pratt, \"Indians and the Fiduciary Concept, S e l f Government and the Constitution: Guerin i n Perspective\" [1986] 3 C.N.L.R. 19. 94. Guerin. supra. note 4 at 384. 95. This reasoning accords with the concept of f i d u c i a r y found i n equity. See J.R. Maurice Gautreau, \"Demystifying the Fiduciary Mystique: (1989) 68 Canadian Bar Review 1. 350 96. P. Lancaster, \"The Present System,\" Paper presented at the F i r s t Nations 1 Land Ownership Conference (Vancouver: Native Law Program, Faculty of Law, 29 and 30 September 1988) 15, photocopied at 3. 97. Id. 98. Gautreau, supra. note 95 at 2. 99. Nowegiiick v. R. [1983] 144 D.L.R. 3d 194 (S.C.C). 100. R. v. White and Bob (1965) 50 D.L.R. (2d) 613, a f f ' d . (1966) 52 D.L.R. (2d) 481 (S.C.C). 101. R. V. Simon (1985) 24 D.L.R. 390 at 404. 102. 34 and 35 V i c t . , c. 28. 103. Supra, note 89. 104. Paulette et a l v. the Registrar of T i t l e s (#2) (1973) 42 D.L.R. (3d) 8 (N.W.T.S.C). 105. L. 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"@en . "Thesis/Dissertation"@en . "10.14288/1.0077709"@en . "eng"@en . "Law"@en . "Vancouver : University of British Columbia Library"@en . "University of British Columbia"@en . "For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use."@en . "Graduate"@en . "Metis aboriginal title"@en . "Text"@en . "http://hdl.handle.net/2429/27349"@en .