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A judge has agreed to hear a claim that sovereignty over Canadian lands was never fairly transferred in any of the ways recognized by international law. Jake Rupert reports on Michael Swinwood's effort to change Canadian history.

It's an issue that has been debated for years in native and legal academic circles but hasn't been answered by Canadian courts, say aboriginal law experts.

But it looks like the question will have to be answered soon, after lawyer Michael Swinwood, on behalf of two natives in North Bay charged with fraud, filed a constitutional challenge to the Crown's right to apply the Criminal Code, or any other law, to aboriginal people, and a judge agreed to hear it.

Mr. Swinwood says aboriginal people never ceded sovereignty to British or Canadian governments in accordance with recognized international standards such as conquest or purchase.

To have jurisdiction over people who occupied land first, according to law, sovereignty must be properly handed over, Mr. Swinwood says in documents filed in court. It wasn't, so Canadian governments have no right to enforce their laws on natives, the documents say.

"The federal government lacks proper legislative authority in the territory it is alleged these illegal acts took place," Mr. Swinwood argues. "No treaty has been entered into ... therefore the federal government has no jurisdiction in the territory where these acts are alleged."

Mr. Swinwood will ask a judge to "nullify the application" of Canadian laws against natives because, he says, according to the current state of the law, Canada's laws have "no force or effect as against these Indian persons or any other Indian person."

Earlier this year in North Bay, Mr. Swinwood convinced Ontario Superior Court Justice J.S. O'Neill, himself an expert in native law, to hear the challenge and order the government to pay for it.

Judge O'Neill found Mr. Swinwood raised "important" legal questions that need answering and ordered the provincial government to give Mr. Swinwood $35,000 in order to argue the case properly.

"The issues raised ... are of sufficient merit that it would be contrary to the interests of justice for the opportunity to pursue these questions and these issues ... to be forfeited if legal funding is not provided," the judge wrote in his reasons for granting Mr. Swinwood the money.

"It is to be remembered that the legal community in Canada is only beginning to come to grips with issues involving aboriginal title and rights," Judge O'Neill said.

After getting the funding order in March, Mr. Swinwood hoped to make his case this spring in front of Judge O'Neill, but the Crown appealed the judge's ruling on the funding application, arguing that the judge should not have granted the money because there is no merit to Mr. Swinwood's assertions.

No date has been set for the appeal, but Mr. Swinwood has decided to press ahead with the constitutional challenge, which he'll pay for out of his own pocket and with money collected from native organizations.

In other cases involving native clients charged with crimes, Mr. Swinwood tried and failed to have judges agree to hear the constitutional challenge.

Now that a judge has agreed to hear it, the matter is just too important to walk away from over money, Mr. Swinwood said.

"Like Justice O'Neill said, it's been a long time coming, so it feels good that we're finally getting to table some of our issues," he said.

"The Indians got messed over here in this part of the world pretty badly, and it's time some one should speak for them. On this issue, it just happens to be me.

"Those who say that Canadian laws are applicable against Indians in this country don't know their history. We're just pointing this out."

If Mr. Swinwood's first argument fails, he has another, darker allegation that he says strips the Crown of its ability to apply its laws to natives.

According to his application documents: "The legislature of Canada and Her majesty the Queen deprive themselves of legislative authority by being complicit in the crime of genocide against the Indian Nation ... and have acted and continue to act contrary to their international obligations codified in the convention for the prevention and punishment of the crime of genocide."

At the very least, he's asking the judge to find that a 1704 royal proclamation stating that any disputes between natives and government officials should be adjudicated by an agreed upon third party is still in effect.

Mr. Swinwood says after exhaustive research and consultation, he has come to the conclusion that Canada simply has no jurisdiction over natives in this country. There's no legislation saying so. There's no case law saying so. In fact, the law says the opposite, Mr. Swinwood says.

"It's an interesting and important question that has not been answered by Canadian courts," said Kent McNeil, a law professor at Osgoode Hall in Toronto who specializes in aboriginal rights.

He said there have been some cases in Canadian law, dating back as far as the 1800s, that touched on the issue, but that Mr. Swinwood is the first to take direct aim at the fundamental jurisdiction argument in court.

Brad Morse, a University of Ottawa aboriginal law professor concurs.

"This really will be the first time that these issues are looked at in court, and I think it will be interesting to see what happens," Mr. Morse said.

At the heart of Mr. Swinwood's argument is the issue of sovereignty. Under international law, sovereignty is generally gained under three conditions. A government can assume jurisdiction over unoccupied land simply by populating it. Sovereignty also can be formally handed from one government to another after a conquest. Or a government can gain the right to enforce its rules when occupiers of land sign a purchase agreement or treaty relinquishing jurisdiction to the newcomers.

Mr. Morse said Mr. Swinwood's challenge is legitimate because the first two conditions don't apply in Canada, and in the annals of history there is very little evidence of Indians surrendering sovereignty to Great Britain. Where there is evidence of jurisdictional surrender, there is much debate over whether native leaders understood what they were doing when they "signed" treaties and purchase agreements.

Although this is the first time Canadian courts will be asked to deal with this issue, courts in other countries already have.

In a landmark case, Australia's highest court found the Crown there has sovereignty over aboriginal people and land despite not having any of the three accepted conditions for jurisdictional transfer. The court found that over time control of the land and people simply eroded away from the country's first people into the hands of the newcomers and should remain there for the betterment of all.

Many years ago, the U.S. Supreme Court found differently. Judges there decided that the U.S. government didn't have sovereignty over natives or native land. However, it ruled that basic human law as defined by U.S. statue applied to all people regardless of their heritage.

Some may look at Mr. Swinwood's position as preposterous, but he says without proper government mechanisms in place to address the gross injustices committed upon natives in Canada, he is simply doing the next best thing.

He said in a prefect world, government officials would come to the conclusion that they've failed the natives of Canada, and that Canadian laws aren't helping the situation. They would say they're sorry for messing things up as badly as they have, cede sovereignty over vast tracts of Crown land, and let natives live in accordance with traditional spiritual, moral, and legal codes that were working just fine before the white man arrived.

"We have the law on our side," he said. "We have history on our side. We have morality on our side. What's happened hasn't worked. It's time to try something else."

"The time has come," he said. "The government has had a lot of time to do this themselves, and they haven't, so we're going to try to force them to by using the courts. I see no reason why we should fail in this.

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