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John A. Macdonald’s promise to natives not binding, court rule

GAP

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Once this goes to the Supreme Court it's going to upset a lot of applecarts..............

John A. Macdonald’s promise to natives not binding, court rules
Adrian Humphreys  Feb 1, 2012
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Canada’s First Nations cannot impose a modern notion of legal rights onto promises of the distant past to force land-claim settlements, a court ruled, declaring a 141-year-old government promise is not legally binding on Ottawa because it was absurd to contemplate at the time that natives could sue the government over such things.

The decision by the Yukon Supreme Court accepts Ottawa is not forced by past promises or relics of public policy to settle continuing aboriginal land claims.

“I agree with [the government of] Canada that the relevant provision in the 1870 Order cannot create an obligation to negotiate treaties and that Canada retains the discretion to decide if, when and how to negotiate, as a matter of Crown prerogative,” ruled Justice Leigh Gower.

Court cases have long been accused of dragging on but few, even in Canada, are parsing legal references from its prehistory, including the Royal Proclamation of 1763.

The backdrop to the case could hardly be bigger: the largest land purchase in Canadian history.

On July 15, 1870, more than 7.5 million square kilometres of land, a vast tract called Rupert’s Land and the North-western Territory, was ceded to the Dominion of Canada from the Hudson’s Bay Company (HBC) by the British government. Although it was largely boreal forest, tundra and prairie, today it represents almost 75% of Canada’s total land area.

Within the act by the British Parliament was an address to Queen Victoria from the new Canadian government from 1867.

In it, the government, under Sir John A. Macdonald, said: “Upon the transference of the territories in question to the Canadian government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”

That sentence was the focus of intense legal argument in an acrimonious land dispute between the Ross River Dena Council and Ottawa.

Yukon’s high court needed to rule whether the government’s promise, made in 1867 and enshrined in 1870, had “legal force and effect” by a Canadian court in 2012.

On Tuesday, Justice Gower said no.
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Edward Campbell

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We have not heard the end of this, as the article says, "Even with the decision, Justice Gower notes, his decision only marks “the first phase of the trial in this matter.” His decision is likely to be appealed."

The Supremes will have the final say in a few years.
 

brihard

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Ugh. I just felt a great disturbance in the force. This one's going to get very ugly, and inevitably is quickly going to get lumped in with the Northern Gateway dispute.
 
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