This year, there are many celebrations for Canada’s 150th birthday. What we are really commemorating is the British North America Act 1867 (BNA Act 1867) which established our country’s Constitution. The BNA Act 1867 has since been renamed the Constitution Act 1982 after the repatriation of our Constitution from Great Britain.
Ministers’ Working Group
One aspect of Canada’s 150th birthday is that, this year, the federal government has undertaken a review of laws and policies related to indigenous peoples. A Ministers’ Working Group “will examine relevant federal laws, policies, and operational practices to help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights”. There are constitutional rights established in our constitutional documents which the Minister’s Working Group might want to have a good look at, which I will highlight later in this article as it pertains to the land question in regards to Canada’s indigenous peoples.
It brings me great pride that I was born in the year of Canada’s centennial birthday in New Westminster B.C. where I have written this article. Fifty years later, I have made my birthplace my home and practice law in Greater Vancouver. I have ancestral roots that extend to the Ktunaxa territory in southeast B.C. I am a member of the Ktunaxa First Nation, but going beyond that, my ancestral roots can be traced to Scotland, Ireland, England, Germany, Switzerland, and France. My seventh-generation great-grandfather, Mr. Francois Morigeau, immigrated from around Montreal to the Columbia Valley decades before Canada’s confederation in 1867.
My French ancestry can be traced to 1666 in New France, now Quebec, where the Morigeau’s originated from. I have an ancestor who was a member of the Carignan Salières Regiment and he married one of France’s “King’s daughters”, les Filles du Roi. My ancestors, the Morigeaus, stem from Jean Pierre Forgues and Marie Robineau who married 349 years ago at New France in Notre-Dame de Québec Basilica-Cathedral, Quebec City, Quebec Canada, the first parish church in North America.
I had the honour and the privilege to attend the Canadian Constitutional Affairs Conference 2008 which was held in a typical icy cold, January winter in Quebec City at the Plains of Abraham. During that event, an exquisite dinner was held in an ancient church in Old Quebec City. How wonderful it was to be there where the history in 2008 was 400 years old. And for me to be in a place where I have a bloodline connecting me directly to that location was an amazing experience.
As a second-year law student, and member of an indigenous nation, I spoke about the United Nation Declaration on the Rights of Indigenous Peoples, free, prior and informed consent, the need for senate reform so as to include Indigenous peoples as a third order of government, and appointing an Indigenous person to the bench of the Supreme Court of Canada. It was at a social get-together afterwards that I was introduced to political scientist Tom Flanagan and you could feel the tension in the room at that moment. It was obvious that neither of us saw eye-to-eye based on our political aspirations and beliefs, but nevertheless, to look Mr. Flanagan directly in the eye and to shake his hand at that conference is a memory that I will always have.
Royal Charters are established when a monarch grants rights or powers to a person or persons and it is issued as letters patent. Royal Proclamations are similar to Royal Charters. The National Archives of the United Kingdom defines Royal Charters and Letters Patent as “grants which were issued under the Great Seal” that “cover a huge diversity of subjects, including grants of official positions, lands, commissions, privileges and pardons”.
Our constitutional history stretches back in time with language that goes back centuries. There are certain words and phrases that we have come to accept as part of the fabric of who we are as Canadians, some of their origins are explored here. Take for example, the word “charter”. In Canada’s constitutional history, we often think of the more recent, 1982 Canadian Charter of Rights and Freedoms. We all have come to know its meaning but perhaps, fail to recognize what a charter is and where it comes from. I will explain how royal instruments such as a charter or a proclamation are venerated to the highest accord and treated as if it were sacrosanct.
Black’s Law Dictionary describes a charter as “an instrument that establishes a body politic or other organization, or that grants rights, liberties, or powers to its citizens or members”. There are municipal charters which specify organizational structure and create a corporation and body politic. In general, to “charter” as a verb means to establish or grant by charter.
Charters have been granted to organizations that have been involved with Canada’s historical roots, which helped form our Constitution, two examples are, the Free Masons and the Hudson’s Bay Company.
Stone Mason’s Charter
In examining the origins of freemasonry, there are written legends that go back over a thousand years to our motherland Great Britain and Scotland, where a Charter had been supposedly granted by the first King of England and one of the greatest Anglo-Saxon kings, King Athelstan.
King Athelstan supposedly granted a Royal Charter through his brother, Edwin. By Royal Charter, stone masons were granted the right to meet and ask for better wages and conditions. which created an elite member group within the trade. Hundreds of years later this became a cause for concern which resulted in the outlawing of Mason’s gatherings due to the complaints of the general labourer who were paid less. It was because the Mason’s had a Royal Charter that they were allowed to continue to operate and to hold their meetings.
The Hudson Bay Charter
When the vast riches of continental America became common knowledge, the Kingdom of Great Britain, along with other countries, set out to colonize the lands. In 1670 the Hudson Bay Company was established under a Royal Charter and issued under Letters Patent.
The Charter of 1670, granted by the King of England, Charles the Second recognized in its preamble that a certain named group of individuals led by the King’s cousin, Prince Rupert, desired to undertake an expedition to the Hudson’s Bay to discover a new passage to the South Sea (the Northwest Passage) and to trade in furs, minerals and other commodities. The King of England further encouraged the company of explorers by providing a monopoly over trade and commerce. The Charter established both a corporate body and a political one as well. The newly minted company was both a colony and a company, with territorial rights to resources including rent, to hold public assembly and civil or criminal court in accordance with English law, to hold office, impeachment, the dispensation of land, good governance, elections, law making jurisdiction, imposition of punishment, while at all times, saving the faith, allegiance and sovereign dominion to the British Crown. The Company also had exclusive rights to trade and traffic in respect of adjacent lands and Native persons.
It is remarkable in examining the Hudson’s Bay Charter how many words, phrases and concepts it contains that are similar to the BNA Act 1867. For instance, “trade and commerce” is used in the Constitution where its regulation is the exclusive domain of the federal government. Then there is the administration of justice, an exclusive domain of the provincial governments, which somewhat mirrors the Hudson’s Bay Company Charter. There are even notwithstanding clauses in both the Charter and the Constitution although their clause meanings may differ somewhat.
Royal Proclamation of 1763
King George III was only 25 years old when he issued the Royal Proclamation of 1763; however, it was issued as Letters Patent under the Great Seal of Great Britain and with the advice of the Privy Council. The Proclamation recognized Great Britain as the mother country of the British colonies in the Americas. It provided for the colonies to have Royal Protection for the enjoyment of the benefit of the laws of the realm of England, to erect and constitute courts of judicature, public justice for all causes criminal and civil according to law and equity and as may be agreeable to the Laws of England with liberty for persons in all civil cases to appeal under usual limitations and restrictions to the Privy Council. The Proclamation not only recognized Indian title in lands, but created a statutory Indian reserve for all unceded land to the Indians. It named certain colonies but also applied to the Hudson’s Bay Company where Warrants of Survey or Patents for any lands whatever could not be issued where the Indians have not ceded or sold their lands to the Kingdom of Great Britain. The Proclamation explicitly mentioned that the lands not within the limits of the Hudson’s Bay Company westward to the Sea were excluded from being taken up, without special leave and licence for that purpose first obtained from the Kingdom of Great Britain. The Indians were given the right to dispose of their lands but only to the Kingdom of Great Britain (now the federal government), where there has been a public meeting or assembly of the said Indians for that purpose. Furthermore, trade with the Indians would continue on the basis that a trade licence was first obtained from the respective colony. One of the final clauses mentioned the Management and Direction of Indian Affairs within the territories, which in today’s terminology, is now known as Indigenous and Northern Affairs Canada (INAC). The BNA Act 1876 provides the exclusive jurisdiction of Indians and Lands Reserved for the Indians as federal.
Moreover, the Royal Proclamation of 1763 uses some of the same words as in the Hudson’s Bay Charter, for example, “make, constitute, and ordain laws, statutes and ordinances”. One of the important and overlooked aspects of the Proclamation is the appeal mechanism to the Privy Council. In Canada’s early history, appeals could be made to the Privy Council in England. However, the Charter of Rights and Freedoms 1982, section 25, recognizes that there are statutory rights and that the Charter of Rights and Freedoms doesn’t abrogate or derogate from such rights. S. 25 (a) states that, “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 any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763”. Also, s. 26 of the Charter says, “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”. Evidently, our Constitution extends beyond the words of the BNA Act of 1867.
S.91(24) of the BNA ACT: Indians and Lands Reserved for the Indians
In 1887, the Supreme Court of Canada in the St. Catharines Milling and Lumber Co. v. R. case recognized that the BNA Act 1867 reference of Lands Reserved for the Indians as including unceded lands as per the Royal Proclamation of 1763 follows:
… all such lands, until the cession thereof should be made by the Indians to the crown, constituted what were known as and designated “Indian Reserves,” “Lands reserved for the Indians,” or “Indian lands.” It is the lands not ceded to or purchased by the crown which are spoken of in the proclamation of 1763 as the lands reserved to the Indians for their hunting ground—and the unceded lands have ever since been known by the designation “Lands reserved for the Indians” or “Indian Reserves.”
In 1888, the Judicial Committee of the Privy Council in St. Catherine’s Milling and Lumber Company upheld the decision of the Supreme Court of Canada and determined that all unceded lands are reserved to the Indians and therefore, fall under s.91(24) of the British North America Act, federal jurisdiction, as Indian Reserves. Moreover, they also stated that the provinces can enjoy the resources of the land when “Indian Title” is ceded (i.e. treaty) as follows:
The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.
The Unwritten Constitution
There is even an unwritten constitution that forms part of the fabric of our nation. When I was in law school, I recall learning about the unwritten constitution from the internationally renowned indigenous law Professor John Borrows. Borrows wrote about the political survival of indigenous legal traditions including self-government as follows:
Indigenous legal traditions continued to exist in Canada unless … they were incompatible with the Crown’s assertion of sovereignty, … they were surrendered voluntarily via the treaty process, or … the government extinguished them.” Barring one of these exceptions, the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continue as part of the law of Canada today. If reconciliation is the lens through which the courts interpret the parties’ relationships, there are sound arguments that Aboriginal governance is compatible with the Crown’s assertion of sovereignty, that it was not surrendered by treaties, and that it was not extinguished by clear and plain government legislation (Borrows).
Moreover, the unwritten constitution was discussed by the Supreme Court of Canada back in the 1980s after the repatriation of the Constitution.
In 1998 the Supreme Court of Canada in Re: Reference to the Succession of Quebec, mentioned that there are underlying principles that, “are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood” (SCC 1998).
The Land Question
While there are Supreme Court of Canada decisions that allow for the infringement of Aboriginal title and rights, as legislative objectives, for example, “the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title”, they are nevertheless, in his own words, only an “opinion” of Chief Justice Lamer, who then went on to say that it “is ultimately a question of fact that will have to be examined on a case-by-case basis” (Williams).
The Supreme Court of Canada Act, is federal legislation that provides “exclusive ultimate appellate civil and criminal jurisdiction within and for Canada, and the judgment of the Court is, in all cases, final and conclusive”. In light of the 150th anniversary of the British North America Act 1867 and the federal review of laws and policies to ensure constitutional obligations towards indigenous peoples are being met, the Minister’s Working Group ought to take a very close look at what rights exist under the Royal Proclamation of 1763, including the ability for aggrieved persons or groups to appeal to the Judicial Committee of the Privy Council in London, England as the highest court of appeal or court of last resort. Canadians have the 1982 Royal Charter which backs up the Royal Proclamation of 1763.
Just as the Free Masons were able to uphold their rights to assemble because they had a Royal Charter issued by a king despite laws to the contrary, so too, should the Indigenous people of Canada that have land grievances over unceded lands, treaty obligations, etc., be able to uphold their rights to appeal to the Privy Council for final and binding determination. After all, the honour of the Crown is at stake and we as Canadians virtue equality both before and under the law. If one group can rely on a Royal Charter or Letters Patent to stand on their rights, so too should another group as the Royal Proclamation of 1763 is akin to a Royal Charter and likewise to the Hudson Bay Charter, The Royal Proclamation was also issued under Letters Patent.
 John Borrows, Indigenous Legal Traditions in Canada, Washington University Journal of Law & Policy, Volume 19 Access to Justice: The Social Responsibility of Lawyers | Contemporary and Comparative Perspectives on the Rights of Indigenous Peoples, January 2005.