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1870 Land Order 'still binding': Hobbema bands sue Canadian government

Author

Rocky Woodward

Volume

5

Issue

2

Year

1987

Page 1

Hobbema's four Indian bands are suing the government of Canada for a declaration that commitments made by the government of Canada in the "Rupert's Land and Northwestern Territory Order" of 1870, are still binding today.

The four Bands filed a statement of claim in the Federal Court, Trial Division in Edmonton, March 18.

At a press conference in Edmonton, chiefs from three of the bands and Theresa Bull, representing the Louis Bull Band stated they would like to see the federal government "live up to the 117 year old Rupert's Land Order."

Speaking on behalf of the four bands of Hobbema, Chief Melvin Potts of the Montana Nation said "together the Montana, Samson, Ermineskin and Louis Bull Nations will argue that since the 1870 order, the federal government has not made adequate provision in two specific ways-that it has not protected the rights of Indian tribes as self-determining political entities and that it has not provided to them the means for self-sufficiency."

The action, filed in court by Vancouver lawyer Thomas Berger, is based on the Rupert's Land Order. The order was drafted when Rupert's land was acquired by Canada from Great Britain.

The following resolution was passed by the Canadian parliament on May 28, 1869, "that upon the transference of the territories in question to the Canadian Government it will be the duty of the government to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer."

On June 23, 1870, the Rupert's Land Order was approved by Queen Victoria, admitting Rupert's Land of Canada as of July 15, 1870, be subject to these terms and conditions.

The four Bands of Hobbema will argue that the duty of the government of Canada under the 1870 order goes to two points.

The rights of the Indian tribes as self-governing political entities (their "interests") and the providing of the means for self-sufficiency (their "well-being").

"First of all, it is important to re-establish this as part of the Canadian Constitution-the promises made when Rupert's Land was acquired by Canada from Great Britain-the promise to respect the interests of the tribes of the prairies and protect their rights to self-sufficiency," commented Burger.

If the four Bands are successful, it would mean other Indian tribes of Rupert's land could benefit, especially if they win their argument that the federal government has failed to live up to the requirements of international law, specifically the United Nations International Covenant on Civil and Political Rights 1966, which was ratified by Canada in 1976.

The object of the suit, which will be left for the courts to decide, will be to have the courts declare that arising out of the transfer of Rupert's Land to Canada in 1870, the Government of Canada has a constitutional obligation "to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer."

If the suit is successful, it would elevate the long forgotten undertaking by the Government of Canada to the status of a constitutional obligation.

The four Bands will argue that this constitutional obligation applies to all the Indian bands or tribes of Rupert's Land. All will be entitled, if the four Bands are successful, to claim the benefit.

Asked if the four Bands were filing the suit now because of the First Ministers' Conference, which will deal with self-government and land rights for Native people, Burger replied that since he has returned to law practice after a short leave, that a series of meetings began over a year ago.

"Indeed we completed our preparations just last week after a year of work. That's why it happened this week."

Chief Potts, when asked if the claim involves land in and around Edmonton, would not elaborate, instead, said that government has never allowed them "our own self-determination."

"Who really owned the land first? Yet we were shot in the back and pt onto little reserves as you call them. We have six homes on one quarter of prime farm land and yet land claims have been stalled for year," Potts answered.

"We are not asking for the moon but what is rightfully ours," he added.

Potts says that they have lost so much land in the past that they are at the point of "where else to turn to, except the courts." He added that land they are talking about depends on each individual Band.

Berger commented that the case is an important one and that the courts will decide if it is soundly based.

According to Burger, the case will probably take at least "five years to run its course."

"That's just how our system works, but if the courts decide in our favour, then many Indian tribes will be able to turn to the federal government and negotiate for land," Burger stated, adding that they will probably proceed to trial in 1988 or 1989.

Burger says that the $1.4 million land claim between the Manitoba Metis and the federal government and the four Bands lawsuit is distinctly different.

"The Metis are relying on the Manitoba Act, which Canada made to the Metis. The four Bands are relying on the Rupert's Order-the promise to Indian people. The Manitoba Act and the Rupert's Land Order are both distinct."

The four Bands of Hobbema have a population of approximately 7,000 people on and off the reserve.