Quebec's gonna flip. But Harper doesn't like Quebec, count on it being made an example of: hey BC, you don't want to look like <I>those guys</I> do you? I bet it'll work.

And while we're amending, we might as well do something about that pesky gay marriage thing, too!

As far as I've noted so far, I can become an Ontarioer, a BCian or a Quebeciosieier. Can I become Aboriginal? If not, then "race based" is the correct phrase.

Harper's been courting Quebec since he slithered into office. Steve's buddy Jean will have words with him and this will blow away. Even Harper's stupid enough to follow this road.

You can become a member of any first nation if you are accepted into that nation just like you can become an American on that basis. The fact that the division of powers is nation to nation - as the word <i>TREATY</i> in our constitution can only mean - is no reason to diminish it as it is not a Federal to provincial or provincial to provincial relationship.

Really? So if I become a Micmac, say by openly giving a chief a big pile of cash, I can go off and fish for all the lobester and eels I want?

"You can become a member of any first nation if you are accepted into that nation just like you can become an American on that basis."

Come on, Al!

Someone should quickly disabuse you of any belief in the above noted statement.

Maybe I'll let David do it.

OK, I am not going to argue that as I am likely wrong in one way - but if the Algonquins, say, accept me as a member of their community I may not be a status indian but I am a member of a first nation. Also (and it would have been better to make and stick to the negative argument) the fact that you cannot do something under law does not make the law a bad law. You are not a Romanian or Peruvian either and those nations need not accept you either. You are not a woman and cannot give birth. I am not Catholic and cannot be Pope.

All of that, of course, is beside the point that there is a nation to nation arrangement and you cannot get your head around the fact that there are internal nations within Canada. That you cannot get your head around it does nto make it less a fact or make the word "treaty" a void.

Here is a good primer on <i>Indian Act</i> status. Note pre-1985 non-aboriginal status still exists. You know if Steve were suggesting he is elimating statutory <i>Indian Act</i> registration registrictions and handing that to first nations communties, then there would be a point to his otherwise non-sensical statement.

I have a call into my lawyer for a definitive answer.

The issue with the "treaty" vs. "racial/racist rights" has in large part been prompted out of court decisions, that seem to be making up treaty rights (i.e. "honor of the crown") that no one seems to have any previous knowledge of.

(To the broader point, I submit to Al's opinion that the PM shouldn't be using inflamitory language like this).

That was my only goal: <i>SUBMIT!!!</i><p>

Actually, the court decisions are common sense themselves - define the community now in terms of what it was with sensible progress. So Cape Breton eels are in but NB trees are not. Based on the factual record. What could be better (other than it will take 60 more years to play out)?

I've read over Treaty 6 and Treaty 7 and there's no definition of what makes you native. I think at the time we just figured that our innate racism would guide us into knowing who was who. But there was no doubt in the minds of the British that they were treating with a <I>people</I> (and trying to screw them, too: there's some doubt about the translation of certain words pertaining to mineral rights and the difference between "use" and "have in perpetuity and give up all future rights to"). Anyway: fishing and foresting on reserve land for the native peoples was absolutely and completely protected by the original treaties (but use of the British was allowed too). Subsequent decisions I don't know about, but I don't see that things have changed.

Also, I quibble with the term "nation" anyway; it is misleading and historically doubtful, but the fact that the British thought they were <I>dealing</I> with a nation has been firmly established. Other subsequent decisions have all been based upon that understanding (just look at Delgamuuk).

What was I saying? Oh, yeah: Steve and his race-based fishery. What he's saying is that he wants to renegotiate terms of an agreement: the only way he can do that is with the consent of the people party to the agreement, people who are specifically protected by the charter. So. Good luck with that, Steve, ya bonehead.

At one point the NB census identified as "Native" one who had been born in-province.

The following messages are posted by David but actually come from my brother Robert. I haven't had a chance to digest them yet due to workload but there's lots here to look at.

If you read the Nisga'a agreement certain rights (eg hunting and voting)
are execisable by "citizens" who could be defined to include non-ethnic
Nisga'a. I think the same might be true fo some of the big northern
treaties.

Before 1985 a non-Indian woman who married-in became Indian. The same
did not apply to non-Indian men (whose wives lost status).

There is also a distinction drawn between "members of a band" and
"status Indians" under the act which might make it possible to join up
in certain circumstances (but the tax exemption depends upon being an
Indian regardless of whether you are a band member or not).

However in general the "historic" treaties (that is anything 1922 or
before) generally promise the rights to the persons signing and "their
descendents" so it is a bit like an old form of land holding called "fee
tail" ... That is it lasts as long as you have descendants and the
descendants hold the land.

- Robert

Oh yes, there might be arguments around aboriginal adoption as well ...

Those might work more easily for Trinty-anne (i.e. David Janes' daughter) though since aboriginal
adoptions of children are recognized under some of the Province's laws
(Ontario being one I think).

The answer to the race based argument is this:

Group X has a right that arises out of the fact that they are in a place
first.

The right is only available to descendents of Group X.

Unless Group X can be defined as a "race" then there is no logical
connection to an argument that the rights are "race based".

In the case of treaty rights, the argument is dead easy since treaties
were signed with specific groups in specific places that are rarely
co-incident with even ethnic group. Eg. Treaty 3 was signed by the
"Saulteaux Ojibway" when the logical ethnic group is the much much
larger Anishnabe (who extended down to the niagara penisula). The
logical racial group would probably be the extremely larger Haudensenau
(sp) Confederacy.

The "race based" argument in that context would be analogous to this
argument:

Only Bronfman's enjoy rights under the Brofman Family Trust.
All Bronfman's are jews.
Only jews can enjoy rights under the BFT.
Therefore the rights under the BFT are "race based".

Obvious nonsense.

A similar anlaysis can be made in respect of aboriginal rights but takes
a bit more background explaining.

R.

Incidently, the "honour of the Crown" is not a right. It is an
interpretative principle that dates back to the 1400's. At law there
was a presumption that the Crown did not intend to act dishonourably and
therefore in matters related to the exercise of the Crown prerogative
(originally, for example, the grant of private land rights)it is
presumed that the honour of the Crown is at stake and that the matter
should be dealt with accordingly. This in the context of treaties:

If the Crown wrote the document and it is ambiguous it is read in favour
of the aboriginal people (but only if ambiguous)

If the Crown promised something orally (and it can be proven) but did
not write it down, then the Courts will give effect to the promise any
way (this was actually the first time the honour of the Crown was used
in the context of treaties -- in a 1964 case called Taylor and
Williams).

If the Crown said, surrender your reserve and we will lease it to the
golf club for $1,000,000 per year, the Crown will talk to the Indians
before leasing it for $500,000 per year.

If the constitution says "Aboriginal and treaty rights are hereby
recognized and affirmed" it is presumed that there are some aboriginal
rights.

It is not rocket science.

R.

Actually I was wrong -- 1895 is first connection made between honour of the Crown and treaties. Here is the summary of the history from Marshall #1. I add an interesting piece of trivia afterwards which only makes sense if you read this carefully:

<blockquoe>
50 This principle that the Crown’s honour is at stake when the Crown enters into treaties with first nations dates back at least to this Court’s decision in 1895, Province of Ontario v. Dominion of Canada and Province of Quebec; In re Indian Claims (1895), 25 S.C.R. 434. In that decision, Gwynne J. (dissenting) stated, at pp. 511‑12:

. . . what is contended for and must not be lost sight of, is that the British sovereigns, ever since the acquisition of Canada, have been pleased to adopt the rule or practice of entering into agreements with the Indian nations or tribes in their province of Canada, for the cession or surrender by them of what such sovereigns have been pleased to designate the Indian title, by instruments similar to these now under consideration to which they have been pleased to give the designation of “treaties” with the Indians in possession of and claiming title to the lands expressed to be surrendered by the instruments, and further that the terms and conditions expressed in those instruments as to be performed by or on behalf of the Crown, have always been regarded as involving a trust graciously assumed by the Crown to the fulfilment of which with the Indians the faith and honour of the Crown is pledged, and which trust has always been most faithfully fulfilled as a treaty obligation of the Crown. [Emphasis added.]

See also Ontario Mining Co. v. Seybold (1901), 32 S.C.R. 1, at p. 2.

51 In more recent times, as mentioned, the principle that the honour of the Crown is always at stake was asserted by the Ontario Court of Appeal in Taylor and Williams, supra. In that case, as here, the issue was to determine the actual terms of a treaty, whose terms were partly oral and partly written. MacKinnon A.C.J.O. said for the court, at pp. 235-36:

The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted, the honour of the Crown is always involved and no appearance of “sharp dealing” should be sanctioned. Mr. Justice Cartwright emphasized this in his dissenting reasons in R. v. George, . . . [1966] S.C.R. 267 at p. 279, where he said:

We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such a manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty.

Further, if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible: R. v. White and Bob (1964), 50 D.L.R. (2d) 613 at p. 652 . . . (B.C.C.A.); affirmed . . . [1965] S.C.R. vi. . . .

This statement by MacKinnon A.C.J.O. (who had acted as counsel for the native person convicted of hunting offences in George, supra) has been adopted subsequently in numerous cases, including decisions of this Court in Badger, supra, para. 41, and Sparrow, supra, at pp. 1107-8.
</blockquote>

Trivia Note #1: Binnie (who is the author of the quoted passage) was MacKinnon's articling student on the George case, which goes to show patience is a virtue.

Trivia Note #2 I do a lot of work for the nephew of the "Bob" in White and Bob.

R.

Incidently, the BCCA recently dealt with the "race based" fishery
argument which Harper is actually dealing with -- which actually is not
an aboriginal rights fishery -- in a recent decision.

What is interesting about it is that the Court held that:

(1) There was no fishery -- all there was was an opening.

(2) It was not race based -- it was tied to particular arrangements for
particular bands.

(3) It did not even differentiate in any practical way between
aboriginal and non-aboriginal fleets: aboriginal fleet = 20% of fleet.
Aboriginal catch == 20% of catch.
Non-aboriginal fleet = 80% of fleet/Non-aboriginal fleet = 80% of catch.

The practical reality is that these arrangements have allowed DFO to
avoid some unwinnable aboriginal rights cases by devising unpopular but
practical working arrangements.

The only people who will benefit from a judicial inquiry will be the
hardliners on both sides (who will get a forum and likely one side or
the other will get their way) and me and my brothers and sisters in the
legal profession (who will be retained for the hearings and then for the
decade of litigation that follows -- yee hah). All in all the most apt
comment is that this strikes me as a potentially massive waste of
taxpayers' money.

What I expect is really going on is that the politicos (John Cummins
come on down) have boxed themselves in. They have promised the
hardliners in the non-aboriginal fishery that the "race based" fisheries
would be ended. In fact they are likely being told by DFO and DOJ that
this will result in a war on the water that will turn into a messy war
in the courts that may well make things worse. I suspect that they also
know there will be one end of leaks after another if they just "do it"
as the bureaucracy wages war on them. On the other hand if they don't
do it they get warfare on the right from John Cummins, Phil Eidsvik et
al. Whichever way the judge jumps they then follow and say, "well
Fraser River Salmon Judicial Inquiry said this was the way to go" --
political cover all around.

R.

Here is the link.

Note that they sat five judges rather than the usual three. This is
done in cases where they want the court to be free to overturn earlier
court of appeal decisions or the case is viewed as being particularly
important.

All of the Judges on the panel would be viewed as heavy hitters out here
with Low and Mackenzie JJ.A. being viewed as judicially conservative,
Finch CJBC and Levine J.A. being viewed as middle to conservative and
Kirkpatrick J.A. being viewed as being middle left.

The scorecard for the judges would be that all judges decided that there
was no breach of s. 15 of the Charter at all (that is no
discrimination). They all agreed with each other as to why but gave
alternate reasons that they prefered to decide on. All jusges alos
agreed that none fo the common law or statutory rules about the right of
the public to fish had been offended (that is, there was no "fishery"
created at all). One judge (Kirkpatrick) said that additionally the
Charter shold not be applied at all because these were "other rights"
under s. 25 of the Charter (which says the Charter does not apply to
aboriginal/treaty rights). On judge, (MacKenzie) said that s. 25 did
not apply because these types of rights are not the kind covered by s.
25. The other three judges essentially dodged the question of s. 25
saying that since there was no breach of the Charter it did not matter
whether or not s. 25 applied or not and that would have to be decided in
the future.

Note that none of the judges felt it was necessary to go to. S.1 (that
is none felt that there had been discrimination but that it might be
justifiable -- they just said no discrimination).

http://www.courts.gov.bc.ca/jdb-txt/ca/06/02/2006bcca0277.htm

Me again. The verbosity of Robert's replies may be mean I'm getting billed for this ;-)

I love Robert already. I love having a lawyer who can look stuff up for me when he should be working on the Jenkins file.

[Robert's senior partner: <i>Robert!!!</i> Where the hell are you on the Jenkins file???]

Somebody pour that man a drink

Fortunately I don't sleep and I don't have senior partners. Forgive the typos ... I should have been sleeping.

Can someone please point out in which treaty Aboriginal commercial fishing rights are protected?

I'm aware of the "for personal use" part, it's the commercial part I'm having a challenge with.

Just askin'

I am most familiar with the east coast treaties which protected trade specifically. They were from the 1720s to 1760s when the Mi'kmaq were quite capable of defending themselves economically in the same way that the British would - sinking ships. So the nation to nation deal was struck. So the question becomes, generally speaking - did you trade in that good in the mid-1700s.