The first principle of the rule of law in a constitutional democracy is constitutional supremacy: when in conflict with federal or provincial legislation constitutional legislation, it is paramount and the other legislation is void.
Most determinatively section 109 of the Constitution Act, 1867, enacts that provincial Crown land remains subject to the Indian interest in such land as remains unceded by the Indians to the Crown, by nation-to-nation treaty.
The Royal Proclamation of 1763 is constitutional legislation. It enacts that the Indian Nations live under our “Protection” and may not be “molested or disturbed” in the possession of any land whatsoever that has not been ceded by them to their trustee—now the federal government.
Crown Patents of unceded land made upon any “Pretence” expressly are forbidden.
This paramountcy of the Indians’ unceded interest over provincial land statutes is confirmed by the two leading aboriginal rights law precedents: St. Catherines Milling and Lumber Company Ltd. v. The Queen in 1888 in the Judicial Committee of the Privy Council; and secondly, AG Ontario v. AG Canada: In re Indian Claims in 1897 also in the Judicial Committee.
At the time the Judicial Committee was the highest court of appeal in the British Empire, over and above the Supreme Court of Canada.
The problem is that the Canadian courts arbitrarily reject every case which is based upon the paramountcy of the proclamation’s constitutional force over…