With a unanimous decision on February 9 2024, the Supreme Court of Canada gave the green light to a federal law allowing 634 indigenous bands scattered across Canada to have total control over child welfare services.No mention is made in the relevant legislation — Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families — of the fact that most of the bands are totally dependent on taxpayer funding for their very survival.Nor is there any reference to the altogether too many bands unable to cope with rampant drug and alcohol abuse, arson, teen suicides, gangs, unemployment, dilapidated overcrowded houses and pregnant 13-year-olds.What about the hundreds of bands at remote fly-in reserves with no social infrastructure?And, of course, there is the standard clause requiring the federal and provincial governments to enter into “fiscal arrangements” to pay the full cost of it all.Giving the scattered bands — a significant number of which are totally dysfunctional — the right to run their own child welfare services represents a perpetuation of the apartheid-like reserve system that does not work, never has worked and never will work.It is also a gross disservice to the altogether too many indigenous children in desperate need of care.None of that will deter Prime Minister Justin Trudeau from his quixotic quest to establish a “nation-to-nation” relationship with indigenous bands.The preamble to the bill — which was appealed to the Supreme Court by the Province of Quebec on the grounds that certain aspects were unconstitutional — states that the government is committed to: “achieving reconciliation with First Nations, the Inuit and the Métis through renewed nation-to-nation (emphasis added) government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership.”The act says: “The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 (emphasis added) includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.”There isn’t a single word in Section 35 about self-government or indigenous sovereignty.Setting aside the difficult question of what is, and/or what is not, in the best interest of indigenous children in need of care and who should pay for it, let’s take a look at PM Trudeau’s ongoing pursuit of a “renewed” nation-to-nation relationship with the indigenous peoples.You can’t “renew” a relationship that has never existed. Neither the French nor the British entered into “nation-to-nation” treaties with the first peoples of this land. The new Dominion of Canada didn’t either.Not once, during negotiations for the seven treaties Canada entered into between 1871 and 1877 with the scattered Ojibway, Cree, Blackfoot and other bands living on the former Hudson’s Bay Company lands lying between Thunder Bay and the eastern slopes of the Rocky Mountains, was there any acknowledgement of, or claim to, indigenous sovereignty.When each chief attached his mark to a treaty, he was given a silver medal, a blue uniform and a Union Jack to fly over his lodge to show that he was now “an officer of the Queen." No chief could sign on behalf of another band. No chief could sign on behalf of all bands.They were bands, not nations.In its 1887 decision on St. Catharines Lumber and Milling Co. v. R. which was upheld on appeal to the Judicial Committee of the Privy Council — the ultimate legal authority for the British Empire — the Supreme Court of Canada ruled that:1.) The bands had “no government and no organization and cannot be regarded as a nation capable of holding lands.”2.) The Crown never considered the indigenous people to hold title to the lands they occupied.3.) Entering into treaties with the indigenous bands “was done as a matter of good will and not legal necessity.”To have found otherwise, the 1887 decision said, would be to deduce “that all progress of civilization and development in this country is and always has been at the mercy of the Indian race. Some of the writers cited by the appellants, influenced by sentimental and philanthropic considerations, do not hesitate to go as far. But legal and constitutional principles (emphasis added) are in direct antagonism with their theories.”The decision also said: “There is no instance on record where the courts have recognized the Indian title or gone behind a grant from the crown to inquire whether or not an Indian title was well founded….“It is a rule of the common law that property is the creature of the law and only continues to exist while the law that creates and regulates it subsists. The Indians had no rules or regulations which could be considered laws ….“No title beyond that of occupancy was ever recognized by the crown as being in the Indians and this recognition was based upon public policy and not upon any legal right in the aboriginal inhabitants.”When the Supreme Court’s ruling on the St. Catharines Milling and Lumber Co. case was upheld by the Privy Council in Britain, Lord Watson said that the rights the indigenous people acquired under the Royal Proclamation of 1763 were not proprietary or property rights at all but rather “a personal and usufructuary right (to use someone else’s property), dependent on the goodwill of the sovereign.” Lord Watson went on to say: “the Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden.”In other words, the lands abutting the 13 British colonies that had long been recognized in international law as belonging to France now belonged to Britain.What part of that legal reality does Justin Trudeau not understand?It’s well past time for him to set aside his futile dream of “nation-to-nation” relationships and accept the reality that the bands are not “nations.”Never have been. Never will be.The absolute sovereignty of the Crown over Canada and all of its inhabitants was and remains — despite Trudeau’s persistent efforts to diminish it — beyond dispute.Toronto author Robert MacBain has been following the Indigenous file for more than 60 years, as a newspaper reporter, consultant to the Department of Indian Affairs and the author of three books with Indigenous themes.
With a unanimous decision on February 9 2024, the Supreme Court of Canada gave the green light to a federal law allowing 634 indigenous bands scattered across Canada to have total control over child welfare services.No mention is made in the relevant legislation — Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families — of the fact that most of the bands are totally dependent on taxpayer funding for their very survival.Nor is there any reference to the altogether too many bands unable to cope with rampant drug and alcohol abuse, arson, teen suicides, gangs, unemployment, dilapidated overcrowded houses and pregnant 13-year-olds.What about the hundreds of bands at remote fly-in reserves with no social infrastructure?And, of course, there is the standard clause requiring the federal and provincial governments to enter into “fiscal arrangements” to pay the full cost of it all.Giving the scattered bands — a significant number of which are totally dysfunctional — the right to run their own child welfare services represents a perpetuation of the apartheid-like reserve system that does not work, never has worked and never will work.It is also a gross disservice to the altogether too many indigenous children in desperate need of care.None of that will deter Prime Minister Justin Trudeau from his quixotic quest to establish a “nation-to-nation” relationship with indigenous bands.The preamble to the bill — which was appealed to the Supreme Court by the Province of Quebec on the grounds that certain aspects were unconstitutional — states that the government is committed to: “achieving reconciliation with First Nations, the Inuit and the Métis through renewed nation-to-nation (emphasis added) government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership.”The act says: “The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 (emphasis added) includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.”There isn’t a single word in Section 35 about self-government or indigenous sovereignty.Setting aside the difficult question of what is, and/or what is not, in the best interest of indigenous children in need of care and who should pay for it, let’s take a look at PM Trudeau’s ongoing pursuit of a “renewed” nation-to-nation relationship with the indigenous peoples.You can’t “renew” a relationship that has never existed. Neither the French nor the British entered into “nation-to-nation” treaties with the first peoples of this land. The new Dominion of Canada didn’t either.Not once, during negotiations for the seven treaties Canada entered into between 1871 and 1877 with the scattered Ojibway, Cree, Blackfoot and other bands living on the former Hudson’s Bay Company lands lying between Thunder Bay and the eastern slopes of the Rocky Mountains, was there any acknowledgement of, or claim to, indigenous sovereignty.When each chief attached his mark to a treaty, he was given a silver medal, a blue uniform and a Union Jack to fly over his lodge to show that he was now “an officer of the Queen." No chief could sign on behalf of another band. No chief could sign on behalf of all bands.They were bands, not nations.In its 1887 decision on St. Catharines Lumber and Milling Co. v. R. which was upheld on appeal to the Judicial Committee of the Privy Council — the ultimate legal authority for the British Empire — the Supreme Court of Canada ruled that:1.) The bands had “no government and no organization and cannot be regarded as a nation capable of holding lands.”2.) The Crown never considered the indigenous people to hold title to the lands they occupied.3.) Entering into treaties with the indigenous bands “was done as a matter of good will and not legal necessity.”To have found otherwise, the 1887 decision said, would be to deduce “that all progress of civilization and development in this country is and always has been at the mercy of the Indian race. Some of the writers cited by the appellants, influenced by sentimental and philanthropic considerations, do not hesitate to go as far. But legal and constitutional principles (emphasis added) are in direct antagonism with their theories.”The decision also said: “There is no instance on record where the courts have recognized the Indian title or gone behind a grant from the crown to inquire whether or not an Indian title was well founded….“It is a rule of the common law that property is the creature of the law and only continues to exist while the law that creates and regulates it subsists. The Indians had no rules or regulations which could be considered laws ….“No title beyond that of occupancy was ever recognized by the crown as being in the Indians and this recognition was based upon public policy and not upon any legal right in the aboriginal inhabitants.”When the Supreme Court’s ruling on the St. Catharines Milling and Lumber Co. case was upheld by the Privy Council in Britain, Lord Watson said that the rights the indigenous people acquired under the Royal Proclamation of 1763 were not proprietary or property rights at all but rather “a personal and usufructuary right (to use someone else’s property), dependent on the goodwill of the sovereign.” Lord Watson went on to say: “the Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden.”In other words, the lands abutting the 13 British colonies that had long been recognized in international law as belonging to France now belonged to Britain.What part of that legal reality does Justin Trudeau not understand?It’s well past time for him to set aside his futile dream of “nation-to-nation” relationships and accept the reality that the bands are not “nations.”Never have been. Never will be.The absolute sovereignty of the Crown over Canada and all of its inhabitants was and remains — despite Trudeau’s persistent efforts to diminish it — beyond dispute.Toronto author Robert MacBain has been following the Indigenous file for more than 60 years, as a newspaper reporter, consultant to the Department of Indian Affairs and the author of three books with Indigenous themes.
