Nations In Waiting - 1 Parentheses (), brackets [], and ellipses (...) appear as in the original. "The Existing Right to Indian Self Government" appears in the original as a sidebar; here it is posted at the end of the main article. This document was too long for our server to post in its entirety, so we have split it into sections.
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A crusading lawyer asserts that native sovereignty was granted in 1763 and has been blocked by the legal system ever since.

- by Philip Raphals

originally printed in "Canadian Forum", May 1991, pp. 10-13

Bruce Clark is a man who inspires strong feelings. "A megalomaniac, always stirring up trouble," said Neil Sterritt, former director of First Nations government for the Assembly of First Nations (AFN). "Our main man," says Terri John, spokesperson for the Lil'wat People's Movement of Mount Currie, B.C. "We'd been looking for someone like him for years."

Clark is a lawyer who has specialized in aboriginal rights for the better part of two decades. His most recent book, Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada, published last year by McGill-Queen's University Press, was described in the Queen's Law Journal by Noel Lyon, a law professor at Queen's University as "[perhaps] the most important single piece of writing on the subject of Aboriginal rights in Canada" since the Supreme Court's decision in the Calder case in 1973. In it, Clark argues that in the Royal Proclamation of 1763, the British Crown recognized the right to self-government for Indians on unceded lands, and that this right still exists, having been entrenched in the 1982 Constitution (see sidebar).

Clark is on a one-man crusade to get these arguments before the Supreme Court of Canada. If he succeeds, and if the Court finds in his favour, the consequences will be enormous. In essence, it would mean that there are three distinct civil jurisdictions in Canada: federal, provincial and native. On those lands which were never ceded by treaty, or where treaties can be shown to be invalid or fraudulent, the basic civil jurisdiction would be native, not federal or provincial. Native peoples would no longer have to beg for crumbs of self-government in education, health care or justice. Rather, they would enjoy a full and inherent right to manage their own affairs. The precise boundaries between the jurisdictions, of course, would still remain to be determined.

Such a decision would also have a tremendous effect on the federal land claims process, so often denounced by native groups. Fundamental to this process is the extinguishing of aboriginal rights and their replacement with certain limited self-government rights under provincial jurisdiction. Since the federal government has a fiduciary duty towards Native peoples, Clark argues, it is clearly illegitimate for it to be urging them to give up their aboriginal rights while at the same time concealing from them the true breadth of those rights. For the same reason, such a decision would also call into question the validity of existing treaties like the James Bay and Northern Quebec Agreement, in which at least some aboriginal rights have been extinguished. Since the Cree and Inuit were not aware of their existing constitutional right to self-government, Clark argues, they can hardly be held to have freely given them up.


Of course, Clark is not alone in believing that the Royal Proclamation provides a legal basis for native claims to self-government, but he does carry the argument further and deeper than just about anyone else. And his own deep idealism combined with a profound belief in the integrity of the Canadian justice system and the rule of law have led Clark to stark legal strategies that send shudders through the legal community, drawing the ire of judges and lawyers on both sides of the issue.

Clark believes that only if the courts are forced to address his arguments will they have to acknowledge the binding protection of native jurisdiction conferred by the Royal Proclamation and indirectly confirmed by all successive constitutional law. Give them any opportunity to avoid ruling on those fundamental issues, Clark believes, and they will jump at the chance. Thus, he reasons, it is imperative not to emphasize any alternative arguments. In practice, that means refusing to engage in traditional legal tactics such as attacking the legalities of searches, arrests and confessions.

For many in the field, this goes deeply against the grain. There are those who believe that in refusing to argue technicalities that might get charges against his clients dropped, Clark is sacrificing their interests for his own. But that's not what his clients think. "We don't want a lawyer to help us beat the charges," says Terri John. "We want someone to defend our sovereignty in the courts."

Clark is fiercely loyal to his clients, but not particularly congenial towards those who he feels are obstructing his path. His confrontational attitude has cost him many a potential ally, both in the legal world and among the native leaders who one might at first expect to be his natural constituency.

Clark's involvement in native sovereignty law began with the Temagami Indians of Bear Island, whom he represented from 1972 to 1985. It was he who prepared and argued the famous Bear Island case, due shortly to come before the Supreme Court of Canada. But his close relationship with Chief Gary Potts ended badly and, much to his chagrin, Clark has not been involved in the appeal process at all. (He has been widely criticized for errors in preparing the case - accusations he vigorously denies.)

The bad blood between Clark and Potts goes beyond legal theory to personality, ego...and money. Clark filed suit against the Temagami last year for $19 million, and he has been viciously attacked for taking his former clients to court. But Clark explains that in addition to arguing the Bear Island case, he paid for it - at first with the income from his law practice, and later, when he liquidated his law practice, sold his home, and moved to the reserve, with the proceeds of those sales. This money, he says, has never been repaid. Citing the suit, Potts refuses to discuss the matter at all.

As a sign of good faith, in 1980 Clark gave the Temagami a signed waiver permanently giving up "any legal rights in the white legal system to compensation for my professional services, past, present, and future". Nevertheless, in 1984, the Teme-Augama (Temagami) Executive Council gave Clark a promissory note, signed by Chief Potts, for $7 million. Clark explains that the only reason he filed suit is because that note would have become invalid under the statute of limitations. Whenever he has written to Potts seeking discussion about compensation, he says, they fax him back his 1980 waiver.

Clark doesn't dispute the validity of that waiver, but he points out that it also stipulated that the decision of the Teme-Augama Anishnabi would be final and binding "under Indian law and custom". He argues that no traditional court ever heard his claim, and that he has been treated unjustly, whether under Indian or Canadian law. He says that he would be happy to settle, but that since Potts refused to discuss the matter, he had no choice but to sue.

Of course, this suit has made Clark an easy target for those who wish to paint him as an opportunist. But it just doesn't wash. Bruce Clark has given up a comfortable life and a promising law practice to spend his life on the verge of bankruptcy fighting for Indian sovereign rights. he still considers himself bound by an oath he took with Gary Potts almost 20 years ago to devote his life to the fight for Indian sovereignty. Bruce Clark may well be accused of arrogance or excessive idealism, but an opportunist he is not.

Clark has fought hard to have a voice in the Bear Island appeal, and not just for personal reasons. He is convinced that his sovereignty arguments would actually win the case, thereby providing an unshakeable grounding for the development of true native self-government in Canada. In a last-ditch attempt to "snatch victory from the jaws of defeat", Clark sent out a letter last year to bands across Canada, asking that they enter the Bear Island case as intervenors to allow him to make his "existing jurisdiction" arguments before the Supreme Court. To date, however, there has been no response and time is running out.

Meanwhile, Clark is offering his service to the people he considers his true allies: the militant traditionalists who consider their historic rights worth dying for. He has consulted several times with the leaders of the Kanesatake Mohawk rebellion, many of whom share Clark's concern that sovereignty issues are not being raised in the courtroom. But his insistence that the jurisdiction defence can only work if no alternative defence is made has prevented many potential clients from taking the leap.

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