Natives Not Bound by Laws of Canada, Lawyer Argues

Jake Rupert, Ottawa Citizen, April 25, 2004

An Ottawa lawyer is challenging the authority of Canadian governments to
apply laws to native people. It's an issue that has been debated for years in native and legal
academic circles but hasn't been answered by Canadian courts, say
aboriginal law experts.But it looks like the question will have to be answered soon, after
lawyer Michael Swinwood, on behalf of two natives in North Bay charged
with fraud, filed a constitutional challenge to the Crown's right to
apply the Criminal Code, or any other law, to aboriginal people, and a
judge agreed to hear it.

Mr. Swinwood says aboriginal people never ceded sovereignty to British
or Canadian governments in accordance with recognized international
standards such as conquest or purchase.

To have jurisdiction over people who occupied land first, according to
law, sovereignty must be properly handed over, Mr. Swinwood says in
documents filed in court. It wasn't, so Canadian governments have no
right to enforce their laws on natives, the documents say.

"The federal government lacks proper legislative authority in the
territory it is alleged these illegal acts took place," Mr. Swinwood
argues. "No treaty has been entered into ... therefore the federal
government has no jurisdiction in the territory where these acts are
alleged."

Mr. Swinwood will ask a judge to "nullify the application" of Canadian
laws against natives because, he says, according to the current state of
the law, Canada's laws have "no force or effect as against these Indian
persons or any other Indian person."

Earlier this year in North Bay, Mr. Swinwood convinced Ontario Superior
Court Justice J.S. O'Neill, himself an expert in native law, to hear the
challenge and order the government to pay for it.

Judge O'Neill found Mr. Swinwood raised "important" legal questions that
need answering and ordered the provincial government to give Mr.
Swinwood $35,000 in order to argue the case properly.

[...]

If Mr. Swinwood's first argument fails, he has another, darker
allegation that he says strips the Crown of its ability to apply its
laws to natives.

According to his application documents: "The legislature of Canada and
Her majesty the Queen deprive themselves of legislative authority by
being complicit in the crime of genocide against the Indian Nation ...
and have acted and continue to act contrary to their international
obligations codified in the convention for the prevention and punishment
of the crime of genocide."

At the very least, he's asking the judge to find that a 1704 royal
proclamation stating that any disputes between natives and government
officials should be adjudicated by an agreed upon third party is still
in effect.

Mr. Swinwood says after exhaustive research and consultation, he has
come to the conclusion that Canada simply has no jurisdiction over
natives in this country. There's no legislation saying so. There's no
case law saying so. In fact, the law says the opposite, Mr. Swinwood
says.

"It's an interesting and important question that has not been answered
by Canadian courts," said Kent McNeil, a law professor at Osgoode Hall
in Toronto who specializes in aboriginal rights.

He said there have been some cases in Canadian law, dating back as far
as the 1800s, that touched on the issue, but that Mr. Swinwood is the
first to take direct aim at the fundamental jurisdiction argument in
court.

Brad Morse, a University of Ottawa aboriginal law professor concurs.

"This really will be the first time that these issues are looked at in
court, and I think it will be interesting to see what happens," Mr.
Morse said.

At the heart of Mr. Swinwood's argument is the issue of sovereignty.
Under international law, sovereignty is generally gained under three
conditions. A government can assume jurisdiction over unoccupied land
simply by populating it. Sovereignty also can be formally handed from
one government to another after a conquest. Or a government can gain the
right to enforce its rules when occupiers of land sign a purchase
agreement or treaty relinquishing jurisdiction to the newcomers.

Mr. Morse said Mr. Swinwood's challenge is legitimate because the first
two conditions don't apply in Canada, and in the annals of history there
is very little evidence of Indians surrendering sovereignty to Great
Britain. Where there is evidence of jurisdictional surrender, there is
much debate over whether native leaders understood what they were doing
when they "signed" treaties and purchase agreements.

Although this is the first time Canadian courts will be asked to deal
with this issue, courts in other countries already have.

In a landmark case, Australia's highest court found the Crown there has
sovereignty over aboriginal people and land despite not having any of
the three accepted conditions for jurisdictional transfer. The court
found that over time control of the land and people simply eroded away
from the country's first people into the hands of the newcomers and
should remain there for the betterment of all.

Many years ago, the U.S. Supreme Court found differently. Judges there
decided that the U.S. government didn't have sovereignty over natives or
native land. However, it ruled that basic human law as defined by U.S.
statue applied to all people regardless of their heritage....

Full story is here.