The Hidden Constitution: Aboriginal Rights in Canada

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1984

The Hidden Constitution: Aboriginal Rights in Canada The Hidden Constitution: Aboriginal Rights in Canada

Brian Slattery

Osgoode Hall Law School of York University

, [email protected]

Source Publication: Source Publication:

American Journal of Comparative Law. Volume 32, Number 2 (1984), p. 361-391.

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Slattery, Brian. "The Hidden Constitution: Aboriginal Rights in Canada."

American Journal of Comparative

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32.2 (1984): 361-391.

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BRIAN SLATTERY

The Hidden Constitution: Aboriginal Rights In

Canada

Most countries have a national myth-an account that purports

to

relate the central events of a country's history in compressed form,

that explains how the country has come to be and what it

stands

for. National myths are useful and perhaps indispensable ways of

making the complex past relevant to the perplexing present.

They

provide the framework for much historical writing, and subtly

influence lawyers and judges on constitutional issues. All national

myths involve a certain amount of distortion. But some at least

have the virtue of broad historical accuracy, roughly depicting the

major forces at work. The myth that underlies much legal thinking

about the history of Canada lacks that redeeming feature.

It is commonly assumed that North America was juridically a

vacant land when first encountered by Europeans. Bit by bit, lands

were wrested from the wilderness and settled or exploited under

grants from a European monarch, who had obtained complete

sovereignty and title to the soil upon discovery. All land rights in

Canada, other than prescriptive rights, stem directly or indirectly

from

Crown grants. Our laws, legal institutions, and constitutional

arrangements

all

derive from Europe or were created by European

settlers. Our law-making bodies ultimately owe their authority to

the British Parliament or the British Crown. There are, in a word,

no

truly indigenous laws, rights, legislatures, or courts in Canada.

This account has marked shortcomings. North America was not,

of course, uninhabited when first explored and settled by

Europeans.

It

was the domain of a variety of independent peoples,

who

possessed their own territories, laws, and governmental

institutions.

1

These groups often had significant military capabilities,

sufficient to make them respected and feared by the settler

communities

and their parent states. Native Americans were jealous

of their independence and quick to avenge intrusions on their lands

and offenses against their persons. Unless the aboriginal peoples

could be conquered, a hazardous enterprise at best, their cooperation

and

consent were necessary for sufficient lands to be obtained for

white settlement and held in safety. But Indian nations

2

were not

viewed

simply as obstacles to European penetration. During the

seventeenth and eighteenth centuries in particular, they were valued

as

trading partners and also as military allies in struggles with rival

Christian powers.

European imperial efforts in America usually proceeded on at

least two levels simultaneously. At one level, European states

grappled among themselves for exclusive access to the advantages

offered by the New World, be these precious minerals, skins and furs,

fish, timber, or land for settlement. In the effort to improve their

position relative to one another, the colonial powers at times advanced

extraordinary claims, and sought to justify them by resort to

extraordinary principles. At various points, Papal Bulls, early

discoveries or explorations, symbolic acts, or feeble coastal

settlements

were invoked by European nations to support

pretensions to vast territories they neither occupied nor controlled.

These claims had little foundation in either fact or reason, and

usually met with the

scorn of competing European powers, even

if

the same powers on occasion indulged in similar diplomatic fantasies.

As Elizabeth I of

England tartly observed to the Spanish

Ambassador: to sail to and

fro, to build huts, to name a river or a

promontory could not confer

ownership, since prescription without

possession was of no effect.

3

All that mattered in the final analysis

was what a state could gain

and hold by force, or coerce its rivals

to recognize in a treaty

settlement.

4

At another level, European states had to deal with the various

native peoples who were the real masters of North America. France

and England might sign a treaty whereby the lands around Hudson

Bay would be left to the British Crown, but this document was of

little assistance when it came to influencing, much less controlling,

the aboriginal inhabitants.

5

The imperial powers were thus obliged

to

maintain extensive sets of diplomatic relations with native American

peoples, to enter into alliances, sign treaties, and exchange gifts.

6

Incoming Europeans often did their best to secure some authority

over the indigenous groups they dealt with. However, frequently

they were in no position to do this, and it was some time

before

the situation changed.

Interesting complications resulted from the coexistence and

interaction of these two diplomatic spheres. The tendency of

many

commentators has been to wish the complexities away by

focusing

on one sphere (usually the inter-European) to the

exclusion of the other. This blessedly uncomplicated view can no

longer be sustained. Yet

if

the historical role of native peoples is

now widely recognized, it has not yet been accommodated by the

standard

intellectual framework that influences legal thinking. What

we lack

is a proper understanding of when and how the native

peoples of

Canada were won to the allegiance of the Crown, and

what effect

this process had on their original land rights, customary

laws, and

systems of government. Did the Crown gain sovereignty

over Canada with or without the consent of the aboriginal peoples,

and on

what terms was it achieved? Did native groups come to

occupy the

same status as other Canadian subjects, or did they hold

some special relationship with the Crown? It is a remarkable fact

that coherent answers to these questions cannot be found

in

standard treatises on Canadian constitutional law and history, or

even in

more specialized works.

The Constitution Act, 1982 invites us to remedy this deficiency.

7

Sec. 35 provides:

(1)

The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and

affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes

the Indian, Inuit and Metis peoples of Canada.

This section has a curious past.

It

was not found in the original

draft of the Act, but was inserted, in a slightly different form, upon

the unanimous recommendation of the Parliamentary Special Joint

Committee on the Constitution after strong representations from

native

organizations. The government's decision to include the section was

treated by all parties as an historic occasion and given wide

publicity.

So, when the section was later dropped from the draft as

the result of

the federal-provincial agreement of November 1981,

there was a sharp

reaction among both native and non-native Canadians. Intensive

lobbying and public demonstrations led to the

section's reinstatement

with one change: the word "existing" was

added to the phrase

"aboriginal and treaty rights."

8

In announcing

the new version, the

Minister of Justice assured the House of Commons that the

amendment did not alter the substance of the

provision.

9

Sec. 35 has undergone further discussion since the enactment of

the Constitution Act, 1982. Sec. 37 of the Act required that a

constitutional conference be called within one year to deal with

matters

concerning the aboriginal peoples of Canada, including the

identification and definition of their rights, and stipulated that

representatives of aboriginal Canadians be invited to participate. In

March

1983, the First Ministers' Conference on Aboriginal

Constitutional Matters met at Ottawa, attended by the Prime Minister

of Canada,

the provincial Premiers or their delegates, territorial

representatives and representatives from four national native

organizations. The Conference agreed, in an accord dated 16 March,

to make certain changes in the existing provisions, and to meet

again within one

year.

10

Resolutions to effect the proposed changes

are now being

considered by Parliament and the provincial

legislatures, and it

seems likely the amending process

will

be

successful. So here I

will

discuss the constitutional provisions in their

amended form.

Under the

16

March agreement, two further subsections

will

be

added to sec.

35.

11

The first serves to remove doubts as to whether

the

phrase ''treaty rights" in sec.

35(1)

covers rights gained under

now-

existing and future land claims agreements, a number of which

have

recently been concluded with native peoples or are in the process of

being negotiated.

12

The second specifies that the aboriginal

and treaty

rights referred to in sec.

35(1)

are guaranteed equally to

male and

female persons, thus ensuring sexual equality in access to

these

rights.

13

The recent agreement also proposes to add a new

sec.

35.1,

requiring that any future amendments to the major constitutional

provisions regarding aboriginal peoples

will

first be discussed at a

Conference of First Ministers to which aboriginal

representatives

will

be invited.

These sections make up Part Il of the Constitution Act,

1982,

entitled "Rights of the Aboriginal Peoples of Canada." They fall

outside the Canadian Charter of Rights and Freedoms, found in Part

I

of the Act. They are supplemented by a provision located within the

Charter proper that serves to shield native rights from the possible

adverse effects of other Charter provisions. Sec.

25

states:

The guarantee in this Charter of certain rights and

freedoms shall not be construed so as to abrogate or

derogate from any aboriginal, treaty or other rights or

freedoms that

pertain to the aboriginal peoples of Canada

including

(a)

any rights or freedoms that have been recognized

by the Royal Proclamation of October 7, 1763; and

(b)

any rights or freedoms that may be acquired by the

original peoples of Canada by way of land claims

settlement.

The 16 March agreement changes the wording in para. (b) of sec. 25

so

as to indicate that both past and future land claims agreements

are

covered.14 The agreement also adds a new sec. 37.1 requiring

that two

further First Ministers' Conferences be convened before

April 1987 to

discuss aboriginal constitutional matters.

The most important of these various provisions is that found

in

sec. 35(1), which states that the existing aboriginal and treaty

rights of the aboriginal peoples of Canada are hereby recognized

and

af

firmed. I

will

focus exclusively on this provision here,

leaving aside a range of issues relating to its companion

sections.

15

It

will

be

helpful first to identify the two groups of

rights referred to, namely

"aboriginal" and "treaty" rights, before considering the precise

scope

and effect of the provision.

ABORIGINAL RIGHTS

Sec. 35(1) adopts and confirms the common law doctrine of

aboriginal rights.

16

This doctrine holds that the Crown's

acquisition of

North American territories was governed by a

principle of continuity, whereby the property rights, customary

laws, and governmental institutions of the native peoples were

presumed to survive,

so far as this result was compatible with the

Crown's ultimate title, and subject to lawful dispositions to the

contrary. Aboriginal groups presumptively assumed the status of

domestic dependent nations united by special ties to the crown as

ultimate sovereign. The U.S.

Supreme Court articulated this

doctrine in the early cases of Johnson v. M'lntosh (1823)1

7

and

Worcester v. Georgia (1832).1

8

It has

figured prominently in a

number of Canadian decisions over the

years, and was recently

reiterated by the Supreme Court of Canada in

Calder v. A.G. of British

Columbia

(1973).

19

The Quebec case of Connolly v. Woolrich (1867)

20

provides an

interesting example of the doctrine's operation. There the courts

upheld a marriage contracted under Cree customary law between a

white man and an Indian woman in the Canadian North-West, even

though the same man later married another woman in a Christian

ceremony recognized by Quebec law. In attempting to discredit the

first marriage, the second wife argued, among other things, that

English common law had been introduced into the North-West

before

the marriage took place, thus invalidating Indian custom. In

any case, she said, the marriage customs of pagan and uncivilized

nations such as the Crees could not be recognized even between the

natives themselves, much less between a Christian and a native.

These arguments did not persuade the courts. The trial judge noted

that the first English and French settlers in the North-West found

the country in the possession of numerous and powerful Indian

tribes. Even

if

the settlers brought with them the laws of their

mother countries,

yet, will it be contended that the territorial rights,

political

organization such as it was, or the laws and usages of the

Indian tribes, were abrogated-that they ceased to exist when these

two European nations began to trade with the

aboriginal occupants?

In my opinion, it is beyond controversy that they did not-that so

far from being abolished,

they were left in

full

force, and were not

even modified in

the slightest degree in regard to the civil rights of

the

natives.

21

The doctrine of aboriginal rights draws on two main sources,

namely French

22

and English

23

state practice regarding Indian

nations from early colonial times, and the Royal Proclamation of

1763.

The first subject cannot be pursued here. The second, however,

deserves more than a passing mention, because it provides essential

background for an understanding of sec. 35(1).

The Royal Proclamation of 17632

4

By 1763, Great Britain's long struggle with France for American

empire was over. At the Peace of Paris, France ceded all its remaining

territories in Canada to the British Crown, as well as its territories east

of the Mississippi River. Britain also obtained Florida from the Spanish

Crown, thus completing its claims to the eastern and

northern sectors of

America.

25

Only one area was left to another

European power, namely the lands west of the Mississippi that

France had relinquished to Spain the previous year.

26

These treaties temporarily sorted out the claims of the three

main European rivals among themselves. But the French Crown

could not give Great Britain what it did not possess itself, namely

authority over the native groups inhabiting the ceded territories.

These nations were, in many cases, trading partners of the French

and sometime military allies.

If

they were not prepared to accept

direct French authority, neither were they willing to accept that

France might deposit them in the pocket of the English King.

As the Chippewa leader, Minivavana, told an English trader:

Englishman, although you have conquered the French, you

have not yet conquered us. We are not your slaves. These

lakes, these woods and mountains, were left to u.s by our

ancestors. They are our inheritance; and we will part with

them to none.27

A similar viewpoint was expressed by certain Wabash River

Indians:

you tell us, that when you Conquered the French, they gave

you·this Country. That no difference may happen hereafter,

we tell you now the French never conquered, neither did

they purchase a foot of our Country, nor have [they a right] to

give it to you, we gave them liberty to settle for which

they

always rewarded us and treated us with great Civility.

28

Britain was well aware in 1763 of the precarious nature of its

relations with the old Indian allies of France, and the growing

dissatisfaction of its own native allies and trading partners. Since

midcentury, the British government had been increasingly occupied

with Indian affairs, and the war with France had emphasized the

importance of native friendship and support. For some time, a plan

had been afoot to assure the Indians of the Crown's good intentions

by removing a principal cause of Indian discontent-white intrusion

on Indian lands. This plan culminated in the publication of a Royal

Proclamation on 7 October 1763.

29

The interest of the document is

not purely historical, for its main terms have never been generally

repealed in Canada.

30

Although it must be read in the light of later

developments, it still forms a principal basis for aboriginal land

claims in many areas.

The Proclamation is one of those legal instruments that does

simple things in complicated ways. The central idea of its Indian

provisions is very simple: to ensure that no Indian lands in America

are taken by British subjects without native consent. This objective

is

secured by three main measures: colonial governments are

forbidden to grant any unceded Indian lands, British subjects to

settle

on them, and private individuals to purchase them, with a

system of

public purchases adopted as the official mode of

extinguishing Indian title. The British government was particularly

concerned at the

prospect of white settlement spreading

indiscriminately into the

American interior, and so the

Proclamation temporarily seals off

much of that area to settlers,

designating it an exclusive Indian ter

ritory. But the document's

main measures are not confined to the

Indian Territory; they

apply throughout British North America.

The Indian provisions of the Proclamation begin with a preamble,

where the King explains his basic aims:

And whereas it is just and reasonable, and essential to our

Interest and the Security of Our Colonies, that the several

Nations or Tribes of Indians, with whom We are connected,

and who live under Our Protection, should not be molested

or disturbed in the Possession of such Parts of Our

Dominions and Territories as, not having been ceded to,

or

purchased by Us, are reserved to them, or any of them,

as

their Hunting Grounds;

. . .

While the King asserts ultimate sovereignty over the Indians,

he also acknowledges their semi-autonomous status, describing

them as Nations or Tribes ''with whom We are connected, and

who live

under Our Protection." He recognizes that the Indians

are entitled to undisturbed possession of the lands reserved to

them, and, in an

important formula repeated later in the text,

defines these reserves as any Indian lands that have not been

ceded to or purchased by the

Crown. The King claims these lands

as part of his dominions, but at

the same time recognizes the

existence of an Indian interest requiring extinguishment by

cession or purchase. In technical terms, the

Indian interest

constitutes a legal burden on the Crown's ultimate title until

surrendered.

In 1763, most of the American territories claimed by Britain

were unceded lands held by native peoples. Under the

Proclamation, such lands were automatically deemed Indian

reserves. Their boundaries were determined negatively by past

Indian cessions and

positively by current Indian possessions.

Much of the unorganized

American interior was still, of course,

unceded. But other unceded lands lay within the undisputed

boundaries of existing colonies, including the northern colonies of

Rupert's Land, Quebec, Newfoundland, and Nova Scotia, now

forming part of Canada.

It

is sometimes argued that the Proclamation recognized

aboriginal land rights only in the exclusive Indian Territory

created in the

American hinterland.

31

On this supposition, Indian

title was not recognized in areas specifically excluded from the

Territory, such as

the coastal belt east of the Appalachian

Mountains, and the colonies

of Quebec and Rupert's Land.

32

But

the text does not support this

view. After describing the boundaries

of the tenitory, the Proclamation orders the removal of all pers9ns

who have settled either within

the tenitory "or upon any other

Lands, which, not having been ceded to, or purchased by Us, are

still reserved to the said Indians as aforesaid" (emphasis added).

This provision clearly assumes that unceded Indian lands located

outside the Indian Tenitory are

reserved for Indian use. The King

also forbids colonial Governors to

make grants of "any Lands

whatever, which, not having been ceded to, or purchased by Us as

aforesaid, are reserved to the said Indians, or any of them." The ban

applies to unceded Indian lands generally,

wherever they happen to be

located. Finally, the Proclamation provides that no private person

shall make any purchases from the Indians "of any Lands reserved to

the said Indians, within those Parts

of Our Colonies where We have

thought proper to allow Settlement," and specifies that

if

the

Indians are ever inclined to dispose of such lands, they shall be

purchased for the Crown in a public assembly. Since the provision

only applies in areas where settlement

was permitted, and the Indian

Territory was, for the time being, expressly closed to "any Purchases

or Settlements whatever," it could

only refer to unceded Indian

lands found outside the Territory, in

eastern and northern colonies

where settlement was still allowed.

In brief, the Proclamation recognized that lands possessed by

Indians throughout British territories in ·America were reserved for

their exclusive use, unless previously ceded to the Crown. Prior to a

public cession of such lands, they could not be granted away or

settled. These provisions applied not only to the Indian Territory,

but

to the

full

range of British colonies in North America, no matter

how

humble or peripheral. In this respect, Rupert's Land, Quebec,

Nova

Scotia, Newfoundland, the Thirteen Colonies, and the Floridas

were

brought under a uniform legal regime.

33

The Indian Territory

was placed in a special position. Whereas in other areas Indian

lands

might still be purchased by public authorities, in the territory

such

purchases were forbidden altogether for the time being. The

idea was to divert the flow of white settlement from the American

interior to the northern and southern colonies, which were still

relatively sparsely settled. However, the Crown envisaged that in

due

course parts of the Territory might be opened up, in which

case

the

standard regime governing purchase of Indian lands

would take effect.

There has been some controversy whether the Proclamation

applied to the far western reaches of the American continent,

notably

modern British Columbia and the Yukon Territory.

34

The

question has usually been treated as depending on how much

territory Great Britain claimed in 1763. Here, the historical

evidence indicates that

British claims extended indefinitely

westward to the Pacific Ocean

in latitudes now occupied by

Canada.

35

But a better basis exists for resolving the issue. Many of

the Proclamation's provisions are

framed in general terms,

referring broadly to "Our Dominions and Territories" and "Our

Colonies or Plantations in America." Imperial

enactments using

such terms were normally given a prospective application, so as to

apply not only to colonies and territories held when the

legislation was enacted but also to those acquired subsequently,

unless this result was clearly excluded. The purpose of the

Proclamation was to supply a uniform set of rules governing

Indian lands throughout British territories in North America.

There is o

reason to think that Indian lands located in territories

acquired after 1763 needed less protection than those acquired

earlier.

It

is natural

to infer that the Proclamation applied to both.

36

The Proclamation of 1763 has a profound significance for

modern

Canada. Under its terms, aboriginal peoples held

continuing rights to their lands except where these rights have

been extinguished by

voluntary cession. Treaties of cession have

been signed for large parts of Canada, notably in Ontario and the

Prairie Provinces. But no such treaties exist for the Atlantic

Provinces, and parts of Quebec, British Columbia, the Yukon, and

the Northwest Territories, as

well for pockets of land elsewhere.

Moreover, there is doubt whether Canadian legislatures were

competent to override the Proclamation's terms prior to 1931, when

the Statute of Westminster was

enacted.

37

So native peoples may

today hold subsisting aboriginal

rights to large tracts of Canadian

land.

The Adaptability of Aboriginal Rights

As noted earlier, the doctrine of aboriginal rights extends not

only to property rights but also to customary laws and governmental

institutions. It is important to understand that the internal

development of such rights was not arrested at the time the Crown

acquired sovereignty. Rather, these rights retained a certain amount of

inherent flexibility, allowing for adaption to new circumstances. So,

for example, the customs of a native group were not permanently

frozen at the time the Crown first asserted sovereignty, in 1670, or

1763,

or at some other date. They remained responsive to changes in

group behavior and attitudes. Likewise, the right of self-government

was not tied down to institutions and arrangements prevailing at

some distant historical period. In principle, a native group remained

free to adopt new governmental structures.

The position of aboriginal land rights is more complex. As we

have seen, the Royal Proclamation of 1763 laid down a uniform legal

regime governing native title, whereby native groups were recognized as

holding communal rights to their unceded lands, subject

only to a

restriction of alienation. The same position has been held

to obtain in

common law. At the communal level, the title was a

uniform one, not

varying in character from group to group or affected by local native

custom. It was the same for a nation of farmers as for a band of

hunters.

In

all cases, it allowed for

full

possession and use of the land.

But within a group, the extent to

which a particular sub-group, family,

or individual might take advantage of the group's collective title was

determined by rules particular to the group itself, as dictated by

customary law and group

organs of self-government.

In

a nutshell, the

rights of the group as

against the Crown and other outsiders were

governed by uniform

rules flowing from the Proclamation and the

common law, while the

rights of group members inter se were

governed by rules peculiar to

the individual group. The latter could be

altered in the same manner as other group customs, by a general

change in attitude and

practice, or deliberate amendment by competent

bodies.

Aboriginal title imported

full

rights of possession and use.

Native groups were not confined in law to any particular mode of

land

use, much less to ''traditional" uses. An Indian band that

originally

lived by hunting or fishing might turn to farming when

wild game

became depleted, or to ranching, lumbering or mining. To

hold that native peoples were permanently wedded to certain

historical practices would in some cases have been to sentence them

to slow starvation; in any case, it would have denied them the right

to adapt to

new conditions or exploit their lands more productively.

The Proclamation did not establish any boundaries between

native groups. In practice, such boundaries tended to fluctuate in

response to demographic, economic, or military pressures.

It

could

hardly be held that an Indian band that migrated in search of better

hunting conditions or security from its enemies forfeited any claim

to

aboriginal title. So, it was recognized that native peoples were

entitled to the unceded lands they actually possessed at any given

period. When the Crown wanted to negotiate the sU1Tender of

certain lands, it dealt with the people actually controlling them. There

was usually no inquiry whether the people had been there from

"time immemorial" or the date the Crown first claimed sovereignty.

Such an approach would have quickly proved unworkable. Of

course,

once native lands had been validly ceded by a group holding

title to

them, they were permanently withdrawn from the pool of

lands

available for aboriginal possession.

Indian Treaties

As we have seen, many of the native peoples inhabiting the

territories claimed by Great Britain in 1763 were in fact independent;

at

best they were allies and trading partners of the Crown, at worst

declared enemies. In areas remote from the eastern colonies, there

were numerous groups that had little

if

anything to do with the British

at all.

The Crown thus faced the task of consolidating its territorial

claims by slowly earning the allegiance of the native inhabitants.

From time to time, it also needed to obtain Indian lands for

settlement, and here the Royal Proclamation required a voluntary

public

cession. The practice of making treaties with the Indians was

well

adapted to both purposes. It was followed in many British

colonies

up to Canadian Confederation in 1867, and continued by the

Federal government for many years after that date.

38

Indeed, treaties

with

native peoples have recently been revived in the shape of land

claims agreements.

39

Indian treaties have taken many forms over the years. Some

treaties, usually concluded during the early stages of European

contact, were drafted as international pacts, whereby a European

state

negotiated on equal terms with an Indian group regarding such

mat

ters as peace, friendship, trade, and alliance.

40

Other

agreements, which became more common as European states

gained the upper hand, defined the relationship between the

Crown and what was described as a dependent, protected, or

tributary aboriginal nation, one that in some respects owed

allegiance to the Crown, but in

other respects remained

autonomous.

41

Another variety of agreement was more on the

style of a voluntary submission, in which the

members of an

Indian group acknowledged their subordination to

the Crown and

undertook to behave as good and faithful subjects,

in

return for the

Crown's protection and other advantages.

42

These types of

agreements

all

had international or broadly constitutional aspects.

Others were more mundane. The most common was a simple

cession of Indian land to the Crown in return for stated

consideration, with no attempt to define the overall position of the

Indian signatories vis-a-vis the Crown.43

Many historical agreements were a mixture of types. An

example is provided by Treaty Number Three, known as the

North-West

Angle Treaty, signed in 1873 between the Crown and

the Saulteaux

Tribe of Ojibway Indians, inhabiting an area now

straddling the border of Ontario and Manitoba.

44

The Treaty

served a number of

goals, broadly described

in

the opening

paragraphs as obtaining the

Indians' consent to the settlement of

their country, and establishing peace and goodwill between them

and the Crown. The initial clauses refer to the Indians as

subjects of the Queen. But subsequent provisions make it clear

that one function of the Treaty is in

fact to secure the Indians'

formal adherence to the Queen as sovereign. Thus, the Indians

promise to conduct themselves as good and

loyal subjects of Her

Majesty, to obey the law, to maintain peace with both whites and

Indians, to refrain from molesting the persons

or property of other

inhabitants, and to help apprehend any Indians

infringing the law or the

Treaty provisions.

These were not mere

pro forma

undertakings. The independent

attitude of the Indians is illustrated by the statement of their

spokeman,

Mawedopenais, during negotiations with Crown officials:

We think it a great thing to meet you here. What we have heard

yesterday, and as you represented yourself, you said

the Queen

sent you here, the way we understood you as a

representative

of the Queen. All this is our property where you have come.

. .

.

This is what we think, that the Great

Spirit has planted us on

this ground where we are, as you were where you came from.

We think where we are is our

property. I will tell you what he

said to us when he planted

us here; the rules that we should

follow us Indians He

has given us rules that we should follow

to govern us

rightly.

45

This statement suggests that, from the Indians' perspective, they

negotiated the Treaty as autonomous peoples, with their own

countries

and laws. The undertakings made in the Treaty to

adhere to the

Queen and her laws represent an important

voluntary alteration in their status,

if

in reality those terms were

fully explained to the Indian parties and accepted by them.

The Indians also cede to the Crown "all their rights, titles and

privileges" to a defined tract of land. In return, the Crown

undertakes to set aside certain lands as Indian reserves, to make

annual payments to the Indians, to maintain schools on the

reserves, to furnish annual supplies of ammunition and twine, and

to bestow other

specified benefits. In a clause of great practical

significance to the

Indians, the Crown also agrees that they shall

continue to have the

right to hunt and fish throughout the lands

surrendered, subject to any regulations made by the Government

of Canada, and excepting

any lands to be taken up for settlement,

mining, lumbering, or other purposes.

THE CONSTITUTIONAL GUARANTEE

We are now better equipped to interpret sec. 35(1) of the

Constitution Act, 1982. The section states that "the existing

aboriginal

and treaty rights of the aboriginal peoples of Canada are

hereby recognized and affirmed." A number of difficult questions

arise regarding the scope and effect of the provision. These

depend in part on

the meaning of the word "existing."

It

can be

argued that the word

has three distinct effects. First, it restricts

sec. 35(1) to rights in

existence when the Constitution Act, 1982

came into force, and so excludes rights arising after that date.

Second, it ensures that the

section only covers rights that already

existed under common law,

statute, or other legal instrument. Third,

it preserves the existing subordination of aboriginal and treaty rights

to statute, and prevents the Constitution Act, 1982 from entrenching

them. I will consider these arguments separately.

The Time of Recognition

Does sec.

35(1)

apply to any aboriginal or treaty rights that happen

to exist from time to time, or is it confined to those existing on the

date the Constitution Act, 1982 came into force, on what

I

shall call

the "commencement date"?

In

other words, does the section establish

''floating" categories that attach to any rights meeting the

section's

description regardless of when they arise, or does it establish "fixed"

categories covering a finite body of rights identifiable on the

commencement date? On the first view, rights under a treaty

signed

in 1990 would benefit, while on the second view they would

not.

A standard rule of statutory interpretation provides that the law

is

always speaking and applies to new facts as they arise.

46

But this

presumption can be overturned by the statute's wording, and arguably

the word "existing" has that effect here. Turning to judicial decisions,

we find that "existing" has sometimes been held to have a

prospective application, but in other cases to mean "existing at the

time of enactment," depending on the context.

47

The question comes

down to what sec.

35(1)

intends to say.

Several factors can be cited in favor of the view that the section

refers only to rights identifiable on the commencement date. There

is

a notable difference

in

phraseology between sec.

35(1)

and the

protective provision found

in

sec. 25 of the Charter.

48

The latter

re

fers to "any aboriginal, treaty or other rights or freedoms that

pertain to the aboriginal peoples of Canada," and does not use

the

qualifier "existing." The presence of that word in sec. 35(1)

arguably

intimates that a narrower range of rights is singled out

for positive

recognition, namely those identifiable on the

commencement date.

This conclusion is bolstered perhaps by the

statement that the

rights in question "are hereby recognized and

affirmed." The wording suggests a discrete act of recognition,

pinpointed in time, rather

than a continuing process of recognition.

The inference seems

stronger, however, in the English version

than in the French, where no equivalent for "hereby" appears.49

Standing alone, then, sec. 35(1) might well be interpreted as

covering only rights existing on the commencement date. However,

this

interpretation cannot easily be sustained in the light of sec. 35(3),

which states:

For greater certainty, in subsection (1) "treaty rights"

includes rights that now exist by way of land claims

agreements or may be so acquired.

This provision specifies that the word ''treaty" includes land

claims

agreements of the modern type. It also indicates that

sec..35(1) covers rights arising from agreements signed after the

commencement

date. Rights that "may be

. . .

acquired" under

land claims agreements are mentioned along with those that

"now exist" a clear

reference to rights acquired in future.

Moreover, sec. 35(3) is

presented, not as an exception to the

rule laid down in sec. 35(1),

but as a clarification of that rule,

enacted only "for greater certainty."

If

the partial definition of

''treaty rights" given in sec. 35(3)

is inserted in sec. 35(1), it

specifies in effect that the expression "existing

. . .

treaty rights"

includes "existing rights that now exist by

way of land claims

agreements or may be so acquired

."

This does

not make sense

unless the word "existing" means "existing from

time to time."

On balance, then, sec. 35(1) is best interpreted as embracing

not only aboriginal and treaty rights that existed on the

commencement

date but also those arising later. So, rights

acquired under treaties

signed after that date will be covered. A

different sort of effect may occur in the case of aboriginal rights.

The particular form that such rights assume has in principle

always been open to change under

the doctrine of aboriginal

rights. We saw, for example, that native

customary law and

governmental institutions were not petrified at

the moment the

Crown assumed sovereignty, but remained living

entities open to

development in accordance with group needs. Like

wise, while

aboriginal land title was uniform at the group level, it

flowered into

any number of distinct species within native groups, in

accordance

with customary law and rules laid down by communal

organs. Such

rules were not permanent, but could be altered from

time to time.

The enactment of sec. 35(1) did not bring to a sudden halt all

evolutionary processes in these spheres; to the contrary, it

reaffirmed the doctrine allowing for such evolution.

If

lights may be added by treaty to those already covered by

sec. 35(1), it may be inferred that lights covered there may also be

modified or extinguished by the same method, without

constitutional amendment. As we will see later, the wording of sec.

35(3)

strongly implies that aboriginal land lights may be exchanged

for

treaty lights through land claims agreements.

The general picture that emerges is this. Any aboriginal and

treaty lights that stem from acts or circumstances occuring or

existing prior to the commencement date qualify for coverage in sec.

35(1). These lights may be supplemented by means of voluntary

agreements (''treaties") signed with the Crown after that date.

Rights

flowing from such agreements will automatically be captured by sec.

35(1), without need for constitutional amendment. By the

same

token, lights covered by the section may be diminished by

agreement. The latter point will receive fuller treatment later. But for

the moment it may be adopted as a working hypothesis.

The Effect of Recognition

A:

second effect can arguably be attributed to the wording

"existing." For a light to qualify under sec. 35(1), it must not only be

an

"aboriginal" or ''treaty" light within the section's meaning, it

must

also have a sound legal basis apart from the Constitution Act,

1982

itself.

The reasoning in support of this conclusion runs as follows. The

section is confined to "existing" lights. But lights are intangibles;

their existence cannot be demonstrated in the same way as teacups

and toadstools. A light "exists" only to the extent that it can be

justified by reference to some sort of normative :framework. The

only

framework which qualifies for this role is that provided by

Canadian law. So, for a light to be an "existing light" within the

meaning of

sec. 35(1), it must already be recognized in Canadian

law, apart

from the Constitution Act, 1982.

This requirement,

if

correct, has several consequences. Sec. 35(1)

does not bolster the position of lights whose legal status is

otherwise uncertain or defective. Moreover, it cannot heal any

blemishes in the legal rights it covers; it takes them as they are,

warts and all.

In

short, the section has no remedial effect in respect

to

the status or character of the rights it addresses.

However, this interpretation is not wholly convincing.

Consider

the position of a right to an annuity held under an Indian

treaty that

was signed by the Crown under the royal prerogative but

never confirmed by Parliament. Arguably, the right is

unenforceable in Canadian law in the absence of Parliamentary

approval.

50

Assuming this

is correct, does it necessarily follow that

the right is not an "existing

treaty right" within the meaning of sec.

35(1)? It would seem more natural to read the section as referring

to rights existing under the

terms of the treaty, without reference

to the larger question of their

status in Canadian law. On this

view, one effect of the section is in

fact to remedy any

imperfections in that status.

So it can· be argued that the word "existing" does not require

that the rights recognized by sec. 35(1) already have a firm basis

in Canadian law. Rather, the phrase "existing aboriginal and

treaty

rights" can be interpreted as referring to any rights of that

description that have not previously been extinguished by acts

valid under

Canadian law. Which interpretation is right? The

issue turns less

on a bald exegesis of the word "existing" than on a

reasonable reading of the provision as a whole. We are drawn

once again to the

statement that the rights in question "are hereby

recognized and

af

firmed." These words express the section's main

purpose and effect,

and supply the key to a balanced

understanding of its terms.

The phrase "are hereby recognized" can be read in two main

ways: it can mean "are hereby acknowledged to be valid or

genuine," or simply "are hereby accorded notice or

consideration."

51

If

the second construction is correct, then the

Constitution Act, 1982

does no more than "note" the rights in

question, which raises the

question why it bothers to deal with them at all. It seems more

likely that the Act means to acknowledge officially the validity of

these

rights.

In

fact, the first meaning is the ordinary legal one. A

widely

used legal dictionary says that ''recognition" is equivalent to

''ratification" and "confirmation."

52

And a provision stating that

courts

"shall recognize and take notice of all equitable estates, titles,

and rights"

has been interpreted judicially as directing courts to give effect to

those rights.

53

A similar choice awaits us in interpreting the phrase "are

hereby

. . .

affirmed." It can mean "are hereby confirmed or

ratified," or alternatively "are hereby strongly asserted."

5

4

Again,

the

first sense is the ordinary legal one, as dictionaries testify.

55

Black's, for example, says that "affirm" means to ''ratify, make firm,

confirm,

establish, reassert," and Jowitt's notes, among other things,

that

where a party to a voidable contract waives his right to avoid it he

is

said to "affirm" the contract.

56

Given the doubts surrounding

aboriginal and treaty rights, it seems likely that the Constitution Act,

1982

uses "affirm" in its normal legal sense of "confirm" or ''ratify."

This conclusion is supported by the French version of sec.

35(1),

which has equal authority with the English. It provides that the

rights in question are "reconnus et confirmes

."

Thus, "confirmes" is

presented as the equivalent of "affirmed." The choice of words is

significant. Le Petit Robert tells us that "con.firmer", as used in the

present context, means "to render certain; to affirm

. . .

the

exist

ence of something."

57

Moreover, a standard French-English

diction

ary supplies only one English meaning for

"con.firmer,"

namely

"to confirm," and gives as an example the phrase

"con.firmer un traite

,"

that is, ''to ratify a treaty."

58

It

follows that the phrase "are hereby

. . .

affirmed" in sec.

35(1)

means "are hereby confirmed"; only then does

it have a common core of meaning with the French text.

There are numerous authorities on the juridical meaning of

"confirm." They hold in effect that to confirm something is to

complete or establish what was previously imperfect or uncertain, or

to

ratify what was done earlier without authority or insufficiently.5

9

In

particular, it seems that to confirm a document may mean to give

it

a life that it otherwise lacked, as when an invalid document is

confirmed by another document.

60

In land law, a "confirmation" is

the

conveyance of an estate or right in lands or tenements to

someone

who already has possession thereof or some estate therein,

whereby avoidable estate is made sure and unavoidable or a

particular estate is increased or enlarged.

61

These authorities suggest that sec.

35(1)

has a broad remedial

effect. It addresses itself

in

part to rights that arguably lacked legal

status, or were uncertain or defective in various respects, and

recognizes them as legal rights, and not merely moral or political

rights, or precarious rights dependent on the

will

of the Sovereign.

It follows that the word "existing" does not confine the section to

rights already recognized at law, or prevent it from remedying

defects in

those rights. There would be little point in recognizing and

affirming

rights

if

the effect were restricted in advance to rights

that needed no recognition or affirmation. Rather, the word

"existing" should be read in the second sense considered above, as

meaning "unextinguished" or "subsisting"

-thus

excluding rights

that had been terminated by lawful acts prior to the

commencement date, but not requiring that any unextinguished

rights have been fully recognized

in Canadian law before that date.

One point needs explanation. To say that certain rights are

now

confirmed as legal rights, or that defects in their legal

character are

cured does not necessarily mean that such rights

are immune to

statutory override.

It

means that they are full-

fledged legal rights,

enforceable in the courts, and secure against

possible invasion by executive act under the prerogative. Whether

the Constitution Act,

1982 also shields aboriginal and treaty rights

from statutes is a distinct question, which I shall now consider.

Entrenchment

Aboriginal and treaty rights could in principle be modified by the

acts of a competent legislature before the Constitution Act, 1982

took

effect.

62

Has this position now changed? The answer depends

in part on

sec. 52(1) of the Act. This states:

The Constitution of Canada is the supreme law of Canada, and

any law that is inconsistent with the provisions of the

Constitution is, to the extent of the inconsistency, of no force

or effect.

The term "Constitution of Canada" is defined in sec. 52(2) as

including the Constitution Act, 1982. Is a law that infringes a right

in sec. 35(1) void for inconsistency with the Constitution of

Canada? It

will

be simpler, in answering this question, to deal

first with statutes

passed after the commencement date, and then

those before that

date.

Suppose, in 1990, Parliament enacts a statute expropriating a

tract of aboriginal land covered by sec.

35(1).

The Constitution Act,

1982

directs the courts to recognize the aboriginal title

in

question,

while the statute tells them to disregard it. The courts cannot do

both.

In

the absence of any special factors justifying the

expropriation, as discussed later, the constitutional provision must

take precedence and nullify the conflicting statute.

Nevertheless, it could be argued that the word "existing"

in

sec.

35(1)

preserves aboriginal and treaty rights in the state they were in at

the commencement date, which, in principle, included a

subordination to statute.

If

a legislature was competent to curtail

aboriginal

and treaty rights before the Constitution Act,

1982

took

effect, it is

still competent to do so. But we have already seen that

the phrase

"are hereby recognized and affirmed" gives the section a

broad remedial effect, disposing of the notion that it preserves the

status

quo. Moreover, the argument confuses the section's scope

with its

legal effect. The fact that the section only covers "existing"

rights does not necessarily mean that the Act's effect on these

rights is

controlled by the law formerly in force.6

3

Another factor must be considered. Sec.

35(1)

can only be

amended in accordance with Part V of the Act. Under the ordinary

procedure, laid down in sec.

38,

an amendment requires the approval

of Parliament and of two-thirds of provincial legislatures accounting

for fifty percent of the total population of the provinces.

Yet the

argument set out above holds, in effect, that sec.

35(1)

could

be

eviscerated by an ordinary federal statute stating that ''the existing

aboriginal and treaty rights of the aboriginal peoples of Canada are

hereby extinguished." It seems very unlikely that the

amending

formula can be circumvented so easily.

This conclusion is supported by the wording of sec.

35(4).

It

provides:

Notwithstanding any other provision of this Act, the aboriginal

and treaty rights referred to in subsection (1) are guaranteed

equally to male and female persons.

The word "guaranteed" is significant, because it plainly indicates an

intent to entrench.

If

sec.

35(1)

did not guarantee aboriginal and

treaty rights at all, what would be the point of stating that it

guarantees them equally to both sexes?

I

conclude, then, that sec. 35(1) entrenches aboriginal and treaty

rights against statutory override.64 But entrenchment does not

completely preclude legal limitation of those rights.

In

determining

whether a statute infringes a sec. 35(1) right, the courts will have

to

define the proper bounds of the right, and here they will be

guided

in part by standards of reasonableness. Once, however,

those reasonable bounds have been determined it will not ordinarily

be possible for statutes to overstep them.

The question arises whether this is always true, or whether

there may not be unusual circumstances in which a protected

right,

as properly defined, may be overridden by ordinary statute.

Imagine that in wartime a particular tract of land is needed for

defense installations, and for various good reasons no other tract

will do.

It

happens the land is subject to aboriginal title. May the

federal government expropriate the land by simple statute, or

must it follow

the cumbersome procedure laid down for

constitutional amendments? It can be strongly argued that sec.

35(1) is governed by an

implicit standard of reasonableness, not

only in its definition of the

rights recognized, but also in the

protection it affords to such rights.

If

this view is correct, then the

government may probably proceed

by statute, considering the

urgency of its requirements.

The implicit standard postulated here is clearly more

demanding than that found in sec. 1of the Constitution Act, 1982,

which provides that the Charter of Rights and Freedoms

guarantees the rights set out in it "subject only to such reasonable

limits prescribed by law as can be demonstrably justified in a free

and democratic society." It seems that sec. 35 was placed outside

the Charter precisely

to put it beyond the reach of sec.

1.

Moreover,

certain aboriginal and treaty rights need special protection because

they are capable of being exhausted.

If

all aboriginal lands were

taken, aboriginal land

rights would, of course, cease to exist. By

contrast, a Charter right such as freedom of speech is capable of

infinite renewal.

These considerations suggest that sec. 35(1) erects a high

barrier against statutory interference, one that can be surmounted

only

in emergencies, for pressing public need. So aboriginal and

treaty

rights are not, in ordinary circumstances, subject to statutory

expropriation, even

if

generous monetary compensation is

provided.

What the Constitution Act, 1982 guarantees is the right itself,

not its

supposed monetary equivalent. Had the Act contemplated such a

substitution, clear language would have been used.

Prior Statutory Extinguishment

We have been considering laws passed after the commencement

date that violate a sec. 35(1) right. What about laws passed before

that date? We saw earlier that the phrase "existing aboriginal and

treaty rights" does not cover rights extinguished by legislation or

other acts before the commencement date. In principle, then, no

conflict can arise between rights "existing" on that date and acts

passed before then, because the former are defined and limited by

the latter. The real problem is determining whether an act passed

before the commencement date actually extinguished the right in

question.

Treaty rights present particular difficulties. Where, for example,

a

statute in force on the commencement date was inconsistent with a

right conferred by a treaty, and the enacting legislature was

competent to modify the treaty, did the treaty right cease to "exist"

for purposes of sec. 35(1)? Suppose a nineteenth century Indian

treaty

guarantees an unrestricted right of :fishing in a certain area,

and a

federal statute in force on the commencement date restricts

:fishing

in that area for

all

persons, including Indians. Clearly, the

Indians

do not have an unrestricted statutory right to fish. But does

their

treaty right still exist?

The answer depends on the statute's wording. We must

distinguish between a statute that nullifies a treaty right and one

that

merely fails to implement or observe it. The latter would not

relieve the Crown of its obligations under the treaty. Where the

statute's

wording does not indicate that the treaty was present to the

mind of

Parliament and consciously repudiated, the treaty promise

remains intact,

if

unfulfilled. Explicit words would seem necessary to

release

the Crown from promises made to private parties in return for

substantial benefits gained at those parties' expense. So, where a

statute in force on the commencement date is inconsistent with a

treaty

promise, but does not explicitly repudiate it, the Constitution

Act,

1982 arguably affirms the promise and renders the legislation

ineffective to that extent.

The distinction is clear in principle, but not always in practice.

Some Indian treaties expressly say that certain promises are subject to

future governmental regulation. In Treaty Number Three of 1873,

discussed earlier,

65

the Queen agrees that the Indian parties shall

have the right to continue hunting and fishing throughout the lands

surrendered in the Treaty, "subject to such regulations as may from

time to time by made by her Government of her Dominion of

Canada," and saving any tracts taken up for settlement or other

purposes. By contrast, certain earlier treaties containing similar

promises make no reference to future governmental regulation.

66

If

sec. 35(1) entrenches the actual rights guaranteed in Indian treaties,

what effect does it have on the promise made in Treaty Three?

It could be argued, on the one hand, that

the

treaty right is

explicitly characterized as subject to governmental regulation; so, the

constitutional entrenchment of the right does not remove its liability

to

legislative erosion or extinguishment. On the other hand, it could

be

said that the treaty simply makes explicit what would in any case be

understood: rights are subject to Parliamentary regulation unless

specially" entrenched. On this view, since the Constitution Act,

1982

alters the principle of Parliamentary supremacy referred to in

the

treaty, it also places the treaty right beyond legislative

interference.

The question boils down to the correct interpretation of the

treaty. What does the Crown undertake to do, on a reasonable view

of

the written text and related negotiations? In 1873, hunting and

fishing were the mainstay of many Indian groups. It seems unlikely

that the Indians would have agreed that, in return for ceding away

most of their lands, they would receive a right of hunting and fishing

characterized as liable to complete suppression. On the other hand,

the reference to governmental regulation is argt.1ably something

more than the expression of a standard constitutional rule. At least

in

the written text, it seems to qualify the scope of the Crown's

undertaking directly.

These reflections suggest a middle road between the two opposing

views. What the Crown promises is that the Indians shall have

the

right to hunt and fish, subject to future regulation as opposed to

suppression. That is, the government reserves the power to regulate

the manner in which the rights are exercised, short of substantial

interference with the right itself. Of course, as a matter of

constitutional law, the Crown in Parliament remained free to impose

whatever statutes it wished, but, as a matter of treaty, the Crown

undertook to confine its interference to mere regulation.

If

this

interpretation is correct, the Constitution Act, 1982 reaffirms the treaty

promise and nullifies any legislation that crosses the line between

regulation and suppression.

Voluntary Extinguishment

A further question now arises. Can rights governed by sec. 35(1)

be modified or extinguished by the voluntary act of the native people

concerned without a constitutional amendment? To take a

concrete

example, can aboriginal land rights be ceded to the Crown

by

agreement coupled with ordinary legislation, or must an amendment

to the Constitution Act, 1982 be secured?

Forceful arguments can be made for the validity of voluntary

surrenders, at least in the case of aboriginal land rights. The

purpose of sec. 35(1), it can be said, is to insulate the rights of

aboriginal peoples from external threat, not to protect native peoples,

as it

were, from themselves. There is no apparent reason why a total

of

seven pro"vinces should have to sanction a land claims settlement,

as

would be required under the amending formula in sec. 38.

Neither

would such a requirement better protect the interests of the

native peoples themselves. It has always been considered possible

for a

native people to cede aboriginal lands to the Crown by treaty,

and

this historical practice is·reflected in the wording of sec. 35(1),

with its reference to both aboriginal and treaty rights.

More strikingly, both sec. 25 and sec. 35(3) refer to rights

acquired under future land claims agreements.

67

These references

indicate that aboriginal land rights may be voluntarily exchanged for

treaty rights, and are not inherently inalienable. They also imply

that this exchange can take place without constitutional amendment.

Thus, sec. 35(3) provides in effect that where an aboriginal

land

claim is settled, the agreement will be automatically entrenched

in

the Constitution. But

if

rights conferred

in

return for aboriginal

lands are entrenched without constitutional amendment, it follows

that the surrender itself may take effect without such amendment.

It goes without saying that, for a surrender to be valid,

it must be fully

voluntary, and that sec. 35(1) harbors rules ensuring this.

CONCLUSION

If

we survey the results of our analysis, we are struck by the

potential of sec. 35(1) to provide solutions to a number of

longstanding problems and grievances. I have argued that the

section officially

confirms the doctrine of aboriginal rights, whereby

the original

rights of native American peoples are held to have

survived the

Crown's acquisition of sovereignty, except insofar as

these were incompatible with the Crown's ultimate title, or were

subsequently

modified by statute or other lawful acts. It also confirms

that aborig

inal rights are legal rights, maintainable at law as against

the Crown

and private parties. The section likewise recognizes

that rights conferred on native peoples in treaties signed by the

Crown are enforceable in the courts, regardless whether the

treaties were

previously confirmed by statute. But the section

does not resurrect

any aboriginal or treaty rights that had been

extinguished by lawful

acts before the Constitutional Act, 1982

came into force. Rights covered by the section are shielded

against encroachment by ordinary

statutes, except perhaps in

cases of emergency. Nevertheless, they can be supplemented or

diminished by voluntary agreement with

the native peoples

concerned, without resort to constitutional amendment.

Beyond its practical effect, sec. 35(1) has an important symbolic

significance. The Constitution now clearly acknowledges the

historical role of native peoples in the making of Canada. That this

should rank as an achievement is itself a poignant comment on the

modern

position of native peoples. It is now over two centuries

since the

Royal Proclamation of 1763 was issued. The

bicentenary of that

event passed twenty years ago without a trace

of public recognition

in Canada. The Constitution Act, 1982 is the

measure of how far we

have come in the past two decades. Canada

now seem poised to reclaim as its own the constitutional structures

that developed during almost five centuries of European relations

with native Canadian

peoples.

ANNEX 1

68

Resolution to Amend the

Constitution Act, 1982

Whereas the Constitution Act, 1982 provides that an amendment to the Con-

stitution of Canada may be made by proclamation issued by the Governor

General under the Great Seal of Canada where so authorized by resolutions

of the Senate and House of Commons and resolutions of the legislative as-

semblies as provided for in section 38 thereof;

And Whereas the Constitution of Canada, reflecting the country and

Canadian society, continues to develop and strengthen the rights and free-

doms that it guarantees;

And Whereas, after a gradual transition of Canada from colonial status

to the status of an independent and sovereign state, Canadians have, as of

April 17, 1982, full authority to amend their Constitution in Canada;

And Whereas historically and equitably it is fitting that the early exer-

cise of that full authority should relate to the rights and freedoms of the

first inhabitants of Canada, the aboriginal peoples;

Now Therefore the (Senate) (House of Commons) (Legislative Assembly)

resolves that His Excellency the Governor General be authorized to issue a

proclamation under the Great Seal of Canada amending the Constitution of

Canada as follows:

Land claims

agreements

Aboriginal

and treaty

rights are

guaranteed

equally to

both sexes

PROCLAMATION AMENDING THE

CONSTITUTION OF CANADA

1.

Paragraph 25(b) of the Constitution Act, 1982 is re-

pealed and the following substituted therefor.

"(b) any rights or freedoms that now exist by way of

land claims agreements or may be so acquired."

2.

Section 35 of the Constitution Act, 1982 is amended

by adding thereto the following subsections:

"(3) For greater certainty, in subsection (1) ''treaty

rights" includes rights that now exist by way of land

claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act,

the aboriginal and treaty rights referred to in subsection

(1) are guaranteed equally to male and female persons."

3.

The said Act is further amended by adding thereto,

immediately after section 35 thereof, the following

section:

Commitment

to

participation

in

constitutional

conference

Constitu-

tional

conferences

Participation

of aboriginal

peoples

Participation

of territories

Subsection

35(1) not

a1fected

Repeal of

Part IV.1and

this

section

"35.1 The government of Canada and the provincial

governments are committed to the principle that, before

any amendment is made to Class

24

of section 91 of the

Constitution Act, 1867, to section

25

of this Act or to this

Part,

(a) a constitutional conference that includes in its

agenda an item relating to the proposed amend-

ment, composed of the Prime Minister of Ca-

nada and the first ministers of the provinces,

will

be convened by the Prime Minister of Canada;

and

(b )

the Prime Minister of Canada

will

invite repre-

sentatives of the aboriginal peoples of Canada to

participate in the discussions on that item."

4.

The said Act is further amended by adding thereto,

immediately after section 37 thereof, the following Part:

"PART IV.l

CONSTITUTIONAL CONFERENCES

37.1 (1)

In

addition

to

the conference convened in

March 1983, at least two constitutional conferences com-

posed of the Prime Minister of Canada and the first

ministers of the provinces shall be convened by the

Prime Minister of Canada, the first within three years

after April 17, 1982 and the second within five years after

that date.

(2)

Each conference convened under subsection (1)

shall have included in its agenda constitutional matters

that directly affect the aboriginal peoples of Canada,

and the Prime Minister of Canada shall invite repre-

sentatives of those peoples to participate in the discus-

sions on those matters.

(3)

The Prime Minister of Canada shall invite

elected representatives of the governments of the

Yukon Territory and the Northwest Territories to par-

ticipate in the discussions on any item on the agenda of

a conference convened under subsection (1) that, in the

opinion of the Prime Minister, directly affects the Yukon

Territory and the Northwest Territories.

(4)

Nothing in this section shall be construed so as

to derogate from subsection 35(1)."

5. The said Act is further amended by adding thereto,

immediately after section 54 thereof, the following

section:

"54.1 Part IV.1and this section are repealed on April

18, 1987."

References

Citation

6.

The said Act is further amended by adding thereto

the following section:

11

61. A reference to the Constitution Act 1867 to 1982

shall be deemed to include a reference to the Constitu-

tion Amendment Proclamation, 1983."

7.

This Proclamation may be cited as the Constitution

Amendment Proclamation, 1983.

Notes

BRIAN SLA'ITERY is Associate Professor of Law, Osgoode Hall Law School, York University.

The author would like to express his appreciation to Messrs. Daniel Gormley

and Keith

Boswell, and Professors Louise Arbour, Paul Emond, and Peter Hogg for

their kind assistance

in

preparing this work. and to the Social Sciences and Humani-

ties Research Council of

Canada for generous financial support.

1.

For standard survey accounts, see e.g. Driver,

Indians of North America

(2nd

ed.

1969); Jenness,

The Indians of Canada

(6th ed. 1963).

3.

Following ordinary legal usage in Canada, I

will

use the term "Indian" to refer

to the

full range of native American peoples, including the Inuit or Eskimo peoples.

For legal

background, see Re Term Indians, (1939) S.C.R. 104 (S.C.C.).

4.

Reported in Zouche, Juris et ludicii Fecialis, sive, Juris inter Gentes,

Il,

80

(Holland, ed.; Brierly, trans., 1911).

5.

For the views of European doctrinal writers of the sixteenth to eighteenth

centuries on territorial claims based on discovery, symbolic acts, or token possession,

see

esp.: Victoria, De lndis et De Ivre Belli Relectiones, passim (Nys, ed., Bate, trans.,

1917);

Gentili, De lure Belli Libri Tres, II, 80-81, 89, 385 (Rolfe, trans., 1933); Grotius, The Freedom

of the Seas, passim (Scott, ed., Magoffin, trans., 1916); Grotius, De Jure

Belli ac Pacis Libri

Tres, II, 191-92, 202-03, 206-07, 550, 667 (Kelsey, trans., 1925);

Zouche, supra n. 3, II, 8,

41, 80, 110; Wolff, Jus Gentium Methodo Scientijica Per-

tractatum,

Il,

156-60 (Drake,

trans., 1934); Vattel, Le Droit des Gens,

Ill,

37-38, 84-86,

142-43 (Fenwick, trans., 1916). For

discussion of the medieval doctrinal background to

European legal attitudes regarding

Amerindians, see Muldoon, Popes, Lawyers and

Infidels: The Church and the Non-

Christian World, 1250-1550 (1979). The works of

Hanke provide an introduction to the

sixteenth century Spanish debate regarding

America; see, The Spanish Strugglefor Justice in

the Conquest of America (1949); and

Aristotle and the American Indians (1959). A valuable

collection of documents relat-

ing to the diplomatic history of America, with excellent

commentaries, is found in

Davenport, European Treaties Bearing on the History of the United States and Its De-

pendencies •

.

•

,

4 vols. (1917-37). For varying accounts of European

state

practice

regarding America, compare the following: Goebel, The Struggle for the Falkland Is-

lands

47-119 (1927); Juricek, "English Territorial Claims in North America under Eliz-

abeth and

the Early Stuarts," 7 Terrae Incognitae 7 (1975); Keller, Lissitzyn, and

Mann, Creation of

Rights of Sovereignty through Symbolic Acts, 1400-1800 (1938);

Lindley, The Acquisition

and Government of Backward Territory

in

International Law 24-44, 129-38 (1926);

McDougal, Lasswell, and Vlasic, Law and Public Order

in

Space 830-44 (1963); Savelle,

The Origins of American Diplomacy: The International

History of Angloamerica, 1492-1763

(1967); Slattery, "French Claims in North America, 1500-59," 59 Can. Hist. Rev. 139 (1978);

von der Heydte, "Discovery, Symbolic Annexa- tion and Virtual Effectiveness in

International Law," 29

Am.

J.

Int. Law

448

(1935).

The work by Keller,

et

al. must be used

with caution;

the

evidence presented is high- ly selective, and many of

the

authors'

historical interpretations are doubtful.

6.

See Art. 10 of the Treaty of Utrecht, 1713, in Parry (ed.), The Consolidated

Treaty Series, XXVII, 475 at 484 (1969- ).

7.

See references infra n. 22, 23, 24. 1, 2.

8.

The Constitution Act, 1982 is set out in English and French in Schedule B of

the

Canada Act 1982, c.11 (U.K.), which is the formal enacting vehicle. The Constitu-

tion Act,

1982 was brought into force by a Proclamation issued by Elizabeth

II,

as

Queen of

Canada, on 17 April 1982 under sec. 58 of the Act; Canada Gazette (Part I),

VoL 116, No. 17 at

2927-28.

9.

For background, see Hogg, Canada Act 1982 Annotated 1-3, 83 (1982); Sanders,

''The

Rights of the Aboriginal Peoples of Canada," 61Can. Bar. Rev. 314, 315-21 (1983).

10.

Mr. Jean Chretien, The Minister of Justice, went on to explain that the word was

added at the request of the Alberta government, which wanted to make explicit what was

already implicit in the provision. Canada, House of Commons Debates.

(Hansard),

Tuesday, 24 November 1981, VoL 124, No. 262, 1st Session, 32nd Parlia-

ment, pp. 13203-

13204.

10.

1983 Constitutional Accord on Aboriginal Rights, First Ministers' Conference on

Aboriginal Constitutional Matters; Document 800 - 17/041, revised; Ottawa, 15-16

March

1983. The accord was signed by representatives of the federal government, nine of the ten

provincial governments, the governments of the Yukon Territory and

Northwest

Territories, and the four participating native organizations, namely the As-

sembly of First

Nations, the Inuit Committee on National Issues, The Metis National Council and the

Native Council of Canada. The government of Qul!bec alone did not

sign.

11.

The

full

English text of the resolution embodying the amendments is given in

Annex I to this paper.

12.

The new subsection states: "(3) For greater certainty,

in

subsection (1)

'treaty

rights' includes rights that now exist by way of land claims agreements or may

be so

acquired."

13.

"(4) Notwithstanding any other provision of this Act, the aboriginal and treaty

rights

refeXTed to in subsection (1) are guaranteed equally to male and female persons."

14.

The new paragraph reads as follows: "(b) any rights or freedoms that now exist

by way of land claims agreements or may be so acquired."

15.

For other discussions, see: Lysyk, ''The Rights and Freedoms of the Aborigi-

nal

Peoples of Canada," in Tarnopolsky and Beaudoin (eds.), The Canadian Charter

of Rights

and Freedoms 467 (1982); Hogg, supra n. 8 at 69, 81-83, 84-85; McNeil, ''The

Constitutional

Rights of the Aboriginal Peoples of Canada," 4 S.

Ct.

L. Rev. 255 (1982);

.

Sanders, supra n. 8; Slattery, "The Constitutional Guarantee of Aboriginal and Treaty

Rights," 8 Queen's L.J. 232 (1982-83). For general background, see: Cumming and

Mickenberg (eds.), Native Rights in Canada (2nd ed. 1972); Lysyk, ''The Unique Con-

stitutional Position of the Canadian Indian," 45 Can. Bar. Rev. 513 (1967); Lysyk,

"Constitutional Developments Relating to Indians and Indian Lands: An Overview,"

in

Special Lectures of the Law Society of Upper Canada, The Constitution and the Fu-

ture of

Canada 201 (1978); Lysyk, ''The Indian Title Question in Canada: An Ap-

praisal in the

Light of Calder," 51

CfZn.

Bar Rev. 450 (1973); Bartlett, ''The Indian Act

of Canada," 27

Buffalo L. Rev. 581 (1978), reprinted by U. of Sask. Native Law Centre

(1980); Morse,

Indian Tribal Courts in the United States: A Modelfor Canada? (U. of

Sask. Native Law

Centre, 1980).

16.

For discussion, see Slattery, Ancestral Lands, Alien Laws: Judicial Perspec-

tives

on Aboriginal Title (U. of Sask. Native Law Centre, 1983).

17.

8 Wheaton 543.

18.

6 Peters 515.

19. 34 D.L.R. (3d) 145 (S.C.C.) esp. at 150.52, 156, 190.203, 208-11. See also St. Cath·

erine's Milling and Lumber Co. v. The Queen (1885), 10 O.R. 196 (Ont. Ch.); (1886), 13

O.A.R. 148 (Ont. C.A.); (1887), 13 S.C.R. 577 (S.C.C.); (1888), 14 A.C. 46 (P.C.); Hamlet

of Baker Lake v. Minister of Indian Affairs and Northern Development, [1980) 1F.C.

518

(F.C.T.D.); Lysyk, "The Indian Title Question

in

Canada," supra n. 15.

20. 11 L.C. Jur. 197 (Que. S.C.), also reported at 17 R.J.R.Q. 75. The decision was upheld

on appeal

sub nom.

Johnstone v. Connolly (1869), 17 R.J.R.Q. 266, 1R.L.O.S.

253 (Que.

Q.B.). The judgments are reproduced

in

Slattery (ed.), Canadian Native

Law Cases, I, 70-

243 (U. of Sask. Native Law Centre, 1980).

21. 11 L.C. Jur. 197 at 204-05.

22.

For French state practice, see: Slattery, The Land Rights of Indigenous Cana-

dian

Peoples, As Affected

by

the

Crown's Acquisition of Their Territories 70-94 (D.

Phil

Thesis, Faculty of Law, Oxford University, 1979

1

reprinted by the U. of Sask. Na-

tive

Law

Centre, 1979); and Slattery, "French Claims

in

North America, 1500-59", 59

Can.

Hist.

Rev.

139 (1978).

23.

For English state practice prior to the American Revolution, see: Slattery,

Land Rights, supra n. 22 at 10-44, 95-174.

24.

For detailed discussion, see Slattery, Land Rights, supra n. 22 at 165-349.

25.

Treaty of Paris, 10 February 1763; see text

in

Shortt and Doughty (eds.), supra n. 24,

I, 97.

26.

In

a secret treaty concluded at Fontainebleau, dated 3 November 1762; text in

Parry (ed.), supra n. 5, XLn, 239.

27.

Henry, Travels and Adventures

in

Canada and the Indian Territories between

the

Years 1760 and 1776 44 (1809), quoted

in

Jones, supra n. 23, at

71.

The statement was

made at the post of Michilimackinac

in

the fall of 1761, after Quebec and Mon-

treal had

been taken by English forces.

28.

Croghan, "Journals," 11 Illinois Historical Collections 47-48; quoted

in

Jones,

supra

n. 23 at 73. The year was 1765.

29.

The original text of the Proclamation, as entered on the Patent -Roll for the

regnal year 4 Geo.

III,

may be seen in the British Public Record Office: c.6S/3693

(back

of roll). The most authoritative printed version is that given

in

Brigham (ed.), British

Royal Proclamations Relating

to

America, 12 Transactions and Collections of

the American

Antiquarian Society 212 (1911), which is quoted here. This text is transcribed from the

broadside printed

in

London

in

1763 by Mark Baskett, King's

Printer.

30.

The Proclamation was open to repeal by imperial statute; but there is doubt

whether it could be repealed by a local Canadian legislature, prior at least to the Statute of

Westminster, 1931, which released Canada from the bonds of ordinary imperial

acts.

In

R. v.

Secretary of State for Foreign and Commonwealth Affairs, [1982} 2 All

E.R. 118 (C.A.), at 124, 125, Lord Denning, M.R., said that the Proclamation ''was

equivalent to an entrenched provision

in

the constitution of the colonies in North

America" and continued to be constitutionally binding on the Dominion and provin- cial

legislatures even after Confederation. See also R. v. White and Bob (1964), 50

D.L.R.(2d)613 (B.C.C.A.) per Norris J.A. at 662, cited in R. v. Isaac (1975), 13 N.S.R.

(2d )

460 at 485 (N.S.S.C. App. Div.). The question is discussed in Slattery, Land

Rights, supra

n. 22 at 315-19.

31.

For detailed treatment of this question, see Narvey, supra n. 24; Slattery,

Land

Rights, supra n. 22 at 217-27, 244-60.

32.

The Indian Territory is described as the residue of British territories in North

America after certain named areas are excluded. The excluded areas are the colonies

of

Rupert's

Land,

Quebec, East Florida, and West Florida, as well as the area east of

the

Appalachian watershed For discussion, see Slattery,

Land Rights,

supra n. 22 at

191-203,

268-82.

33.

Canadian courts are divided on this point, but the dominant judicial trend favors

the view expressed here. See, for example, the following cases regarding the

Maritime

provinces: Wannan v. Francis (1958), 20 D.L.R. (2d) 627 at 634 (N.B.S.C.,

Q.B. Div.); R.

v. Isaac (1975), 13 N.S.R. (2d) 460 at 478 (N.S.S.C., App. Div.); R. v.

Smith (1980), 13

D.L.R. (3d) 522 at 528, 548-50 (F.C.A.). See also Mitchel v. United

States, 9 Peters 711 at

748-49 (1835) (U.S.S.C.); St. Catherine's Milling and Lumber

Co. v. The Queen (1888), 14

A.C. 46 at 54 (P.C.). For different views, see Doe d. Burk

v. Cormier (1890), 30 N.B.R. 142

at 148 (N.B.S.C.); R. v. Syliboy, [1929) 1D.L.R. 307 at

310 (N.S. Co. Crt.); R. v. Jacques

(1978), 34 A.P.R. 576 at 579-80 (N.B.P.C.). The

Supreme Court of Canada stated in

Sigeareak v. The Queen, (1966} S.C.R. 645 at 649-

50 that the Proclamation did not apply

to Rupert's Land; but that statement should

probably be read as referring only to the

extent of the Indian territory, from which

Rupert's Land was clearly excluded. The

Proclamation's land purchase provisions

were not at issue.

34.

See, e.g., R. v. White and Bob, supra n. 30, Calder v. A.G. of British Columbia, supra

n. 19.

35.

See Slattery, Land Rights, supra n. 22 at 175-90.

36.

See authorites and discussion in id. at 329-49.

37.

See supra n. 30.

38.

Many of these treaties are collected

in

Indian Treaties and Surrenders, 3 vols.

(1905-

12), and Morris, The Treaties of Canada with the Indians of Manitoba and the

North-West

Territories (1880). For early treaties

in

the Maritime provinces, see Ham-

ilton and Spray

(eds.), Source Materials Relating to the New Brunswick Indian

(1976). For background to

the treaties, see, e.g., Fumoleau, As Long as This Land Shall

Last:

A History of Treaty

8

and Treaty

11, 187()..1939

(1973); Price (ed.), The

Spirit of the Alberta Indian Treaties

(1979); Getty and Lussier (eds.), As Long as the Sun Shines and Water Flows (1983).

39.

See

The James Bay and

Northern.

Quebec Agreement

(Quebec: Editeur officiel du

Quebec, 1976), implemented by S.C. 1976-77, c.32, and S.Q. 1976, c. 46.

40.

See, e.g., the Articles concluded at Fort Albany between the colony of New

York

and the Mohawk and Seneca nations on 24-25 September 1664, the first article of

which

provides that ''the Indian Princes above named and their subjects, shall have

all such

wares and commodities from the English for the future, as heretofore they

had from the

Dutch"; O'Callaghan (ed.), Documents Relative to the Colonial History

of the State of New

York, m,

67 (1856-61). The international status and capacity of

Indian peoples and others

similarly situated, are discussed in: Victoria, supra n. 4,

passim; Ayala, De Jure et

Ojficiis Bellicis et Disciplina Militari Libri III , Westlake (ed.), Il, 20 (Bate, trans., 1912):

Gentili, De Legationibus Libri Tres,

II,

90.91 (Laing trans., 1924); Gentili, supra n. 4, Il, 38-

41; Suarez, Selections.from Three Works,

II,

747-

49, 923-27 (Williams, Brown, and

Waldron, trans., 1944); Grotius, De Jure Belli, supra

n. 4,

II,

550; Grotius, Freedom of the Seas, supra n. 4 at 13; Wolff, supra n. 4,

II,

15, 33-

35,

89, 135, 156-60, 327; Vattel, supra n. 4, m,38, 84-86, 126,

131,

133, 142-43.

41.

See, e.g., the Treaty of Middle Plantation of 29 May 1677 in Grant and Munro

(eds.), Acts of the

Privy

Council of England: Colonial Series, I, 733 (1908-1912).

42.

See, e.g., the Treaty with the Indians of Nova Scotia drawn up at Boston on 15

December 1725, and later ratified at Annapolis Royal, in Indian Treaties and Surrenders,

supra n. 38, II, 198-99; discussed in Slattery, Land Rights, supra n. 22 at 139-41.

43.

Many examples can be seen in Indian Treaties and Surrenders, supra n. 38.

44.

Text in Moms, supra n. 38 at 320.

45.

Id.

at

59.

46.

See, e.g., sec. 10 of the Interpretation Act, R.S.C. 1970, c. I-23, which provides:

''The

law shall be considered as always speaking, and whenever a matter or thing is

expressed

in the present tense, it shall be applied to the circumstances as they arise,

so that effect

may be given to the enactment and every part thereof according to its

true spirit, intent

and meaning." Technically, this section does not apply to the Constitution Act, 1982,

which is a U.K. statute enacted for Canada; but it can be argued

that the section merely

expresses a common law rule of construction that would apply here.

47.

Rawls (ed.), Bouvier's Law Dictionary,

I

at 1155 (3rd. rev., 8th ed., 1914) says with

regard to "existing": ''The force of this word is not necessarily confined to the

present.

Thus a law for regulating 'all existing railroad corporations' extends to such as are

incorporated after as well as before its passage, unless exception is provided

in

their

charters

. . ."

(references omitted). Similarly, 35

Corpus Juris Secundum

224

(1960)

states: ''The word 'existing' has an ordinary meaning of the fact, or state, of

being or

living, and carries the implication of having existence now. However, the

force of this

word is not necessarily confined to the present" (footnotes omitted).

48.

Text, supra n. 14.

49.

The French text simply states that the rights in question "sont reconnus et

confirmes."

50.

Under the principle that the Crown cannot legally commit the public purse to

expenditures without the sanction of Parliament.

51.

See the definitions of ''recognize" in Fowler and Fowler (eds.),

The Concise

Oxford Dictionary of Current English

1033 (5th ed., 1964), and

The O:if:ord English

Dictionary,

vm,

253, (1933; reissued 1961).

52.

Black's Law Dictionary,

1143 (5th ed. 1979).

53.

British Pacific Trust Co. v. Baillie (1914), 7 W.W.R. 17 (B.C.S.C.) at 21.

54.

See the Concise O:r:ford Dictionary, supra n. 51at 22, and the Oxford English

Dictionary, supra n. 51, I, 157.

55.

Id.

56.

Black's Law Dictionary, supra n. 52 at 55, and Burke (ed.), Jowitt's Dictionary of

English Law,

I,

69 (2nd ed. 1977).

57.

Robert, Dictionnaire alphaMtique et analogique de la langue jrarn;aise 363

(rev. ed., 1981): "Rendre certain; affirmer • • • !'existence de (qqch)."

58.

Mansion (ed.), Harrap's Standard French and English Dictionary,

I,

181

(1961).

59.

Black's Law Dictionary, supra n. 52 at 270.

60.

James (ed.), Stroud's Judicial Dictionary of Words and Phrases,

I,

548 (4th

ed,

1971).

61.

Id. For an illuminating example, see Byers v. Wa-Wa-Ne, 169 P.121 (1917) (Oregon,

S.C.).

62.

Except, of course, when those rights were protected by constitutional provisions

binding on the legislature

in

question. For an excellent review of the constitutional terms

relating to native rights

in

Rupert's Land and the old North-Western Territory and the

boundaries of those territories, see McNeil, Native Claims in Rupert's Land and the North-

Western Territory: Canada's Constitutional Obligations (U. of Sask. Native Law Centre,

1982). McNeil, Native Rights and the Boundaries of

Rupert's Land and the North· Western

Territory (U. of Sask. Native Law Centre, 1982).

For the position of the Royal Proclamation

of 1763, see supra n. 30.

63.

This conclusion is supported by a series of cases interpreting the effect of pro-

visions in the South African and Australian constitutions that preserve the "existing"

rights

of certain public servants; see esp. Noble and Barbour v. South African

Rail-

ways and

Harbours, [1922) A.D. 527 (S.Afr. Sup. Crt., App. Div.); Le Leu v. The Commonwealth

(1921), 29 C.L.R. 305 at 314-15 (Aust. H.C.); Lucy v. The Commonwealth

(1923), 33 C.L.R.

229 at 238, 243-44, 250, 253-54 (Aust. H.C.); Pemberton v. The Commonwealth (1933), 49

C.L.R. 382 at 388-89, 391, 392, 397 (Aust. H.C.).

64.

See

R.

v. Secretary of State for Foreign and Commonwealth Affairs, supra n.

30 at

129, where Lord Denning M.R. states:

"It

seems to me that the Canada Bill itself

does all

that can be done to protect the rights and freedoms of the aboriginal peoples

of Canada.

It

entrenches them as part of the constitution, so that they cannot be diminished or

reduced except by the prescribed procedure and by the prescribed

majorities."

65.

Text, supra n.

44.

66.

See the Robinson Superior Treaty (1850) and the Robinson Huron Treaty

(1850), in Morris, supra n. 38 at 302-03, 305 06.

67.

See supra n. 12, 14.

68. See supra n. 10·11.