First Nations appeal to Queen Elizabeth

Chiefs of Ontario ask the Crown to uphold centuries-old treaties.

Your Majesty;

First Nations in Canada are under siege as a result of the draconian legislative and policy measures of the federal government under Prime Minister Stephen Harper. Chief Theresa Spence (of the embattled Attawapiskat First Nation in Treaty 9 territory) is currently engaged in a life-or-death hunger strike in Ottawa to protest the outrageous actions of the federal government. At this unprecedented moment of national peril, your direct intervention is urgently required.

You remain the Monarch of Canada, in accordance with article 17 of the Canadian Constitution Act, 1867. Royal intervention is amply justified by the special historical relationship between First Nations in Canada and the Crown, and by the depravity of the actions of the current federal government, as outlined below.

The special relationship between First Nations and the Crown was codified at the earliest possible juncture by the Royal Proclamation of October 7, 1763, issued by King George III. The Royal Proclamation has been compared to a Magna Carta between First Nations in Canada and the Crown.

Among other things, the Royal Proclamation recognizes the independent sovereignty of First Nations as “Nations,” with whom the Monarch is “connected” and who live under the “protection” of the Monarch. The Royal Proclamation declares and guarantees that First Nations “should not be molested or disturbed in the Possession” of their traditional Territories and Hunting Grounds.

The profound and lasting nature of the bond between First Nations and the Crown cannot be overstated. The continuing enforceability of the Royal Proclamation of 1763 is explicitly recognized by article 25 of the Canadian Constitution Act, 1982.

The Royal Proclamation established the framework for the Treaty making process between First Nations in Canada and the Crown. The resulting Treaties are international in nature and are based on the recognition of independent First Nation sovereignty. The sharing of land and resources pursuant to the Treaties permitted the gradual development of the Canadian provinces and federal government.

The Treaties are a condition precedent for the very existence of Canada. Yet, it is these sacred Treaties that the current federal government in Canada is defiling and dishonouring through a series of unilateral and egregious measures.

The special bond between First Nations and the Crown was not disturbed, except in detail, by Canadian Confederation, the basic terms of which are outlined in the Constitution Act, 1867. This is illustrated by the terms of the Rupert’s Land and North-Western Territory Order of 1870, issued under the authority of Queen Victoria.

In the context of transferring the territory of the Hudson’s Bay Company, the Royal Order of 1870 guarantees that First Nation land and resource issues shall be negotiated by the Canadian government “in communication with the Imperial Government.” Direct involvement of the Crown in land and other significant First Nation matters is a continuing obligation to this day. The Royal Proclamation of 1870 is listed as a constitutional document in a Schedule to the Canadian Constitution Act, 1982.

Canada purported to “patriate” its Constitution from Great Britain in 1982. The exercise was dubious given the unresolved opposition of the province of Quebec, a key partner in the Confederation exercise of 1867. Nevertheless, the new constitutional arrangement was sanctioned by legislation of the Parliament of the United Kingdom, and your Royal Seal: Canada Act, 1982 (UK).

The reliance on British legislation and the continuing status of your Royal Highness as the Monarch of Canada only served to confirm the continuing bond between First Nations and the Crown. As noted above, the royal bond was confirmed in particular by the references in the Canadian Constitution Act, 1982 to the Royal Proclamation of 1763 and the Rupert’s Land Order of 1870.

Before the Canada Act, 1982 was passed by the Parliament of the United Kingdom, the English Court of Appeal had occasion to consider some aspects of the Canadian “patriation” project in relation to First Nations: The Queen v. The Secretary of State for Foreign and Commonwealth Affairs et al (1982). In the end, the Court chose not interfere with the jurisdiction of Parliament and the exercise your Royal Prerogative. However, the eminent Master of the Rolls, the late Lord Denning, declared that the Court of Appeal judgment should help First Nations “withstand any onslaught” from the government of Canada.

Lord Denning went on to find that the rights and freedoms of First Nations have been guaranteed by the Crown, in respect of the United Kingdom and Canada. The great jurist concluded with the admonition that “[n]o Parliament should do anything to lessen the worth of these guarantees,” “[t]hey should be honoured by the Crown … ‘so long as the sun rises and the river flows’,” and “[t]hat promise must never be broken.”

The ringing words of Lord Denning make it clear beyond doubt that any transfer of authority or delegation from the United Kingdom to Canada that might have occurred in 1982 was not unconditional in relation to First Nation rights. There was no blank cheque. The bond between the Crown and First Nations going back to the Royal Proclamation of 1763 was maintained.  First Nations confirmed their right not to be “molested or disturbed” in their traditional territories. First Nations continued to enjoy your “Protection” in the event of any “onslaught” by the federal government.

I regret to advise that that day of onslaught and reckoning is upon us. The Canadian federal government of Prime Minister Stephen Harper is assaulting First Nations across the board, and has been doing so for some time now.

Lord Denning’s understanding of the special position of First Nations and the nexus with the Canadian Constitution was broadly confirmed by the Supreme Court of Canada in 1998 in its decision on the possibility of Quebec seccession: Reference re Succession of Quebec, [1998] 2 SCR 217.

The Supreme Court identified certain principles that inform and sustain the constitutional text — fundamental organizing principles and norms that underpin the Constitution. In this context of underlying principles, the Supreme Court referred to the explicit protection of Aboriginal, Treaty, and other First Nation rights in articles 25 and 35 of the Constitution Act, 1982. The “promise” of article 35 recognized the ancient occupation of the land by First Nations and the “special commitments made to them by successive governments.”

In parallel with the judgment of Lord Denning in 1982, the Supreme Court of Canada found that the protection of First Nation rights is an essential underlying value of the Canadian constitutional structure. Contrary to what Prime Minister Harper apparently believes, Canada does not have the unbridled authority to trample First Nation rights and negate the special connection with the Crown.

Articles 25 and 35 of the Canadian Constitution Act, 1982 refer in very general terms to First Nation rights, including those “rights and freedoms that have been recognized by the Royal Proclamation of October 7, 1763.” In the rush to “patriate” the Constitution over the objections of Quebec, these First Nation rights were left undefined. Four First Ministers Conferences between 1983 and 1987 were held to elaborate on the general First Nation guarantees.

A Constitutional Accord on Aboriginal Rights in 1983 referenced a long list of topics to be negotiated, including Treaties, land claims, self-determination, and education rights. This hopeful list was gradually discarded by the federal government and the provinces in favour of a restricted discussion of the right of self-government. At the final Conference in 1987, the Canadian governments made it clear they were not prepared to agree to anything substantial on First Nation self-government.

With great deceit, the governments turned around and, a short time later, agreed to the Meech Lake Accord, focused on Quebec issues, and in complete defiance of First Nation rights and concerns. A later attempt to partially define First Nation rights, notably the inherent right of self-government, failed with the Charlottetown Accord of 1990. Throughout the post-1982 constitutional process, the federal government took the self-serving position that it could not protect traditional lands and resources in the face of provincial jurisdiction, regardless of the terms of Treaties.

The failure of the First Ministers Conference process after 1982 is now being exploited in the most nefarious and vindictive way by the federal government under Prime Minister Stephen Harper. The position of the current federal government is that the undefined rights contained in articles 25 and 35 of the Canadian Constitution Act, 1982 are practically meaningless.

The federal government has become bolder and bolder in its onslaught against First Nations. The federal government does not recognize any of the constraints and limitations outlined by Lord Denning in 1982 and by the Supreme Court of Canada in the Quebec Seccession Reference in 1998. The federal government is acting with impunity and does not recognize any constraint based on the special relationship between First Nations and the Crown.

The federal government is acting in equal and unremitting defiance of its international law obligations to First Nations. Some of these obligations and norms have been codified in the United Nations Declaration on the Rights of Indigenous Peoples (2007), which applies to Canada.

Article 32 of the Declaration provides that First Nations have the right to determine priorities and strategies for their land and resources. Article 37 obliges successor states like Canada to “honour and respect … treaties, agreements and other constructive arrangements” with First Nations. Article 19 requires the Free, Prior, and Informed Consent (FPIC) of First Nations before the adoption of state measures that might affect First Nation rights and interests.

The Consent requirement in the international Declaration is parallel to the constitutional fiduciary obligation of Canada to consult and accommodate First Nations before adopting any problematic measures. This obligation has been confirmed on many occasions by the Supreme Court of Canada, based in part on article 35 of the Canadian Constitution Act, 1982.

The relationship between First Nations and Canada has been difficult since the passage of the Canada Act by the United Kingdom Parliament and your Royal Assent in 1982. However, there was a sea change for the worse with the election of the federal government of Prime Minister Stephen Harper. At first, the actions of the federal government were reluctantly restrained, when it was in a minority position in Parliament. However, all restraints were removed when the government of Prime Minister Harper obtained a parliamentary majority in the general elections of 2011.

The onslaught foreseen by Lord Denning in 1982 is under way. In open breach of the Royal Proclamation of 1763, the Nations and Tribes of Canada are being molested and disturbed by the federal government. The ongoing assault on First Nations is qualitatively different from anything that has happened since 1982.

At the end of 2011, the remote James Bay community of Attawapiskat was in a state of crisis, caused by systemic federal under-funding over the years, particularly in relation to housing stock. The community experiences Third World conditions in the midst of one of the most prosperous countries in the world. To add salt to the wound, Attawapiskat lives in the shadow of a billion dollar diamond mine.

The plight of the community became an international sensation, drawing attention to many other First Nations in similar circumstances. The federal government reacted by attacking the government of Chief Theresa Spence and replacing it with a federal overseer, akin to the “Indian Agents” of earlier days. This attack was later condemned by the Federal Court of Canada as completely unreasonable.

Partly as a result of the Attawapiskat crisis in 2011, the federal government agreed to a Crown-First Nation Gathering in January 2012. Your representative in Canada, His Excellency the Governor General, was in attendance, but did not take an active part in the discussions.

This Gathering was a fiasco, resulting in nothing but empty words and promises. The federal government has failed to live up to the Honour of the Crown, by imposing prejudicial measures on First Nations, without any reasonable attempt to consult and accommodate, let alone seek consent.

The federal government continues to limit and cut core funding for key First Nation programs, such as child protection, health, and education. The government recently announced massive funding cuts to practically all First Nation organizations across Canada, in a blatant attempt to stifle opposition and dissent.

After the 2012 budget, an implementation Omnibus Bill was pushed through Parliament, including many provisions harmful to First Nations, notably wholesale changes to federal environmental assessment process. A second massive budget Omnibus Bill 45 was recently passed by Parliament, including unilateral and harmful changes to the Indian Act and the Canadian Environmental Protection Act. First Nation input was brushed aside with utter disdain and disrespect.

There are many other federal measures under way that directly threaten First Nations, including: (1) Bill C-27 – First Nation Financial Transparency Act; (2) Bill C- 428 – Indian Act Amendment and Replacement Act; (3) Bill S-2 – Family Homes on Reserve and Matrimonial Interests or Rights Act; (4) Bill S-6 – First Nations Elections Act; (5) Bill S-8 – Safe Drinking Water for First Nations Act; (6) Bill S-207 – An Act to Amend the Interpretation Act [Non-Derogation of Aboriginal and Treaty Rights]; and, (7) Bill S-212 – First Nations Self Government Recognition.

The federal government is also planning massive unilateral changes to First Nation education by 2014, even though the existing education system is an international disgrace. While some of the legislative titles sound benign, they are anything but. In all cases, the federal government has refused to live up to its constitutional duty to consult and accommodate. These are only examples of the pattern of assault on First Nation rights and interests.

First Nations have reached a tipping point. In retrospect, the second budget omnibus measure, Bill 45, may have finally pushed people and communities over the edge. A grass roots opposition movement (“Idle No More”) is sweeping First Nation country, based in part on social media. Significant national protests are planned for December 21. Whether all of this leads to a First Nation Spring similar to recent Arab Spring uprisings remains to be seen.

There is every justification for such a transformative movement in Canada.

The grass roots movement is now symbolized by the hunger strike of courageous Chief Theresa Spence from the Attawapiskat First Nation, in Ontario. The hunger strike is now in its second week and the Chief has vowed to fight to the death, unless her modest demands are met. A tragic end would have untold consequences for Canada.

Chief Spence has requested an immediate meeting with Prime Minister Harper and Governor General Johnston, your direct representative in Canada. This minimal show of respect would then form the basis for a wider national dialogue between First Nations and the Crown on Treaty implementation and other First Nation priorities.

So far, the Prime Minister has refused to meet the Chief, even though the site of the hunger strike is only minutes away from the Prime Minister’s official residence, as well as Parliament. I regret to inform you that your Governor General has refused to even address the Chief’s meeting request.

As outlined in this letter, the connection is still strong between First Nations in Canada and the Crown in right of Great Britain. The chain of respect, sovereignty, and protection goes back to the Royal Proclamation of 1763, runs through all the Treaties, and was confirmed by the passage of the Canada Act 1982 by the Parliament of the United Kingdom. At this time of national crisis precipitated by the federal government of Prime Minister Stephen Harper, the profound connection with the British Crown is seen by many First Nations as an ultimate line of defence.

In conclusion, this is to respectfully request that your Majesty directly intervene in the ongoing crisis in Canada in order to protect First Nations against the onslaught of the federal government. Intervention can begin with a formal Expression of Concern on your part directed to the federal government. At the same time, it would be most helpful if Governor General Johnston was instructed to support and facilitate the process of dialogue requested by Chief Theresa Spence. In the meantime, all federal actions and proposals offensive to First Nations should be suspended indefinitely.

If these preliminary steps, including a royal Expression of Concern, are not sufficient to quell the crisis, I hereby respectfully suggest that you should consider visiting Canada and using your good offices to ensure that your government in Canada lives up to the spirit and intent of the Royal Proclamation of 1763. It is, at once, ironic and profoundly sad that, in a few days, that 2013 will mark the 250th anniversary of the great Proclamation issued by your predecessor, King George.

All of which is respectfully submitted to your Royal Highness. I look forward to your reply.

Sincerely,
Chiefs Of Ontario
Stan Beardy,
Regional Chief.
c.c. Chief Theresa Spence, Attawapiskat First Nation
First Nations in Canada
Shawn A-in-Chut Atleo, Assembly of First Nations, National Chief
Assembly of First Naitons, Executive Committee
Stephen Harper, Prime Minister of Canada
His Excellency and the Right Honourable David Johnston
Members of Parliament

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