Thanks for that review fmotlgroupie.
Well, Paul & Shaunda, since you’re watching, perhaps its time for a heart-to-heart. It looks like you’re coming to a culmination point with your lawyers. Perhaps a little explanation will assist.
First, the principle of
stare decisis. That’s a short form for “
stare decisis et non quieta movere”: "to stand by decisions and not disturb the undisturbed." In a court context that means that once a decision is made it cannot be changed, except by going to a higher court than the one that made the decision. It’s a kind of pecking order.
It also means that when a higher ranked court makes a rule then the lower courts much follow that rule, no matter what a judge may think. In your case you are appearing at the Provincial Court of Alberta. That means that no matter what the judge who hears your matter thinks, that judge must follow the rules set by courts further up the chain. For you, that means the Alberta Court of Queen’s Bench, the Alberta Court of Appeal, and the Supreme Court of Canada.
This also affects what your lawyers can or cannot do. A lawyer injures you when the lawyer argues an issue or takes a position that is inconsistent with instructions of a higher court. The lawyer knows that argument is futile. It would be a breach of the lawyer’s duties
to you to argue a point that is legally wrong. The same duty applies to the court, but it’s also exists for you.
My suggestion is you at a minimum read the following judgments. They are binding on the judge who will hear your trial. Again – the judge
must follow these judgments.
For Paul, it seems you want to argue that you say that you are sovereign, and that provides you with some special status. It doesn’t. As far as the courts are concerned that label is irrelevant.
Glenn Winningham Fearn said he was sovereign. If you read the
Fearn v. Canada Customs judgment you will see the court concluded that was meaningless. Fearn was later tried in Provincial Court, as you will be. Here’s what the trial judge (
R. v. Fearn, 2014 ABPC 56:
http://canlii.ca/t/g68zl) then said at para. 11:
The applications were dismissed for the following reasons:
… Mr. Fearn’s applications were the same or substantially similar as those argued before Mr. Justice Tilleman and were carefully analyzed by Justice Tilleman and rejected.
This is nothing new. Calling yourself a sovereign man or sovereign citizen is considered irrelevant by the courts. This is summarized in
Meads v. Meads at para. 319. Your trial judge must follow that rule. He or she has no choice.
None.
So what do you do about that. Well, it doesn’t stop you from arguing you are somehow sovereign and that is some sense significant. I think it’s pretty predictable that you will fail, but you
can make that argument.
Your lawyer can’t. If you lawyer argued you were sovereign and immune you could sue your lawyer for malpractice. You could complain to the Law Society of Alberta that you had been injured by your lawyer – and that complaint would be valid.
Normally when a lawyer is told to do something illegal – like argue a futile argument – the lawyer must quit representing the client. That is why your lawyers are responding in the way you report. They would like to help you, but there are places they cannot go.
There is, however, an alternative.
You can point out to your lawyers this British Columbia decision:
R. v. Seagull, 2013 BCSC 1811:
http://canlii.ca/t/g0s21. Seagull is not a very pleasant person, and he claimed he was immune to government law. I think he was a One People’s Public Trust follower – but that’s not relevant to this discussion. When Seagull told his lawyer to argue Seagull was immune from court authority then the lawyer had to quit. Ultimately, however, the court allowed Seagull’s new lawyer to make arguments the lawyer could make without injuring Seagull, then Seagull made his own parallel (and incorrect) arguments.
Note that Seagull injured himself with those arguments. His refusal to acknowledge state and court authority meant he could not receive a condition (house arrest) sentence: para. 50.
Maybe your lawyers will agree to do that. Maybe not. It doesn’t hurt to ask. Then you can make your own arguments, and the lawyer can cover their end. At least then you will have the benefit of defence counsel.
Ok, next to your land claim. As fmotlgroupie mentioned you think the recent Supreme Court of Canada decision of
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (
http://canlii.ca/t/g7mt9) is relevant. It is, but not in the way you think. The Supreme Court is explicit - Crown title trumps aboriginal title:
[69] … At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival. … The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.
[70] The content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it ... As we have seen, Delgamuukw establishes that Aboriginal title gives “the right to exclusive use and occupation of the land . . . for a variety of purposes”, not confined to traditional or “distinctive” uses … In other words, Aboriginal title is a beneficial interest in the land …In simple terms, the title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land.
This is what the highest court in Canada says is the relationship between Crown land and Aboriginal land. The Crown owns all land. Aboriginal land is still Crown land, but it’s Crown land where an aboriginal population has the right to get the benefit or and use that land.
Crown land interests are superior to the Aboriginal interest.
As fmotlgroupie pointed out, all the First Nations in Alberta entered into treaties with Canada. Aboriginal title remains until it is extinguished by treaty: para. 10. British Columbia is different – many of the local populations there did not enter into treaty and so their Aboriginal title persists until now. That’s what
Tsilhqot’in Nation v. British Columbia is about.
The land you claim to own appears to be in the Treaty 8 area (
http://www.aadnc-aandc.gc.ca/DAM/DAM-IN ... 95_eng.gif). If so, and an aboriginal leader said he or she gave you title to Crown land? They can’t:
- 1. Aboriginal title outside the reserve is extinguished.
2. The Crown title trumps Aboriginal title.
If you admit the land you occupied was Crown land then you
cannot be successful – unless you can prove the Crown transferred the land to whomever supposedly gave you title.
You posted an image of what I suspect is the ‘land title’ document you received (
https://scontent-a-sea.xx.fbcdn.net/hph ... 1441_n.png). It’s titled “Allodial Land Patent”. Unfortunately the scan is a little small so it’s hard to make out most of the text. However, that’s not necessary. The title alone means your have been scammed.
Allodial title in Canada means Crown title. You are not the Crown. The Crown can give you a slice of its ownership of land, that’s usually in a form called “fee simple”, but the Crown remains the ultimate owner of land.
The Supreme Court of Canada in
A.G. for Alberta v. Huggard Assets Ltd., [1951] SCR 427 (
http://canlii.ca/t/22wpl) makes it absolutely plain who has allodial title for the land that was formerly the North West Territories:
The Crown in right of the Dominion was the allodial owner of all the land in the Territories and by the law of England as it existed on July 15, 1870 …
That includes Alberta.
How does Allodial title interact with Aboriginal title? Read this, from
Delgamuukw v. British Columbia, 1993 CanLII 4516 (B.C.C.A.):
[792] “Fee simple" is a description of an estate. It means that the land is held, unconditionally and without restraint on alienation, either directly or indirectly from the holder of the radical, allodial or root title. The concept that the Crown in right of British Columbia could hold an estate in fee simple from the Crown Imperial is both incorrect constitutionally and incorrect in terms of estates in land. The Crown's title is paramount and not held of any superior lord who could impose restraints on it. The title remains an allodial title and its nature was not changed by the imposition of a statutory scheme, though for the purposes of administration of the statutory scheme the Crown may be said to hold land in fee simple. The concept in English common law that Sovereignty may carry with it the root title may not have been well understood, and the concept of fee simple title may have been much better understood in British Columbia at the relevant times. …
[944] ... Both Amodu Tijani and Roberts confirm that the aboriginal title of the Indian peoples is a burden on the allodial or root title of the Crown. If that is so, then the aboriginal title would not be repudiated by the vesting of a subordinate title to the root title, namely a fee simple title, in the Crown.
[945] …The aboriginal title is a burden on the fee simple title just as it is a burden on the allodial title. …
This is a British Columbia Court of Appeal decision that was appealed to the Supreme Court of Canada in a very famous decision on Aboriginal rights:
Delgamuukw v. British Columbia, [1997] 3 SCR 1010 (
http://canlii.ca/t/1fqz8). At para. 145 the Court confirmed the reasoning from the British Columbia Court of Appeal:
… Aboriginal title is a burden on the Crown’s underlying title. …
The Crown always retains the underlying allodial title to land. Always. That is what the high courts have said, and it’s what the trial judge must follow. The judge has no choice but to say you were illegal squatters, unless you can find cases that say the opposite.
I am not aware of anything like that.
I hope you will read these judgments. I hope you will talk to your lawyers about these judgments and what they mean.
I believe, as someone who reads judgments, that you were scammed. It’s plain to see from the title of the ‘land patent’.
The people who said they gave you allodial title could not do so. You can't give what you don't own. They never had that property. That belonged to someone else. They lied to you. You are victims of fraud.
And I’m genuinely sorry about that – it shouldn’t happen to anyone.
SMS Möwe
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