And now:[EMAIL PROTECTED] (S.I.S.I.S.) writes: INTERVIEW WITH DR. BRUCE CLARK ON THE EVE OF HIS DEPARTURE FROM CANADA TO SEEK ASYLUM AND SANCTUARY ABROAD - June 19, 1999 SISIS: I am speaking today with Dr. Bruce Clark, author of "Indian Title in Canada," "Native Liberty, Crown Sovereignty," and the coming "Justice in Paradise," which is due for a fall release from McGill-Queen's University Press. Dr Clark was recently disbarred as "ungovernable" by the Law Society of Upper Canada in a continuing campaign of persecution by the Canadian settler state. Dr. Clark, the first thing I want to know is how you defined your own law career. I know that in media reports and legal circles, you were always referred to as a "native rights lawyer," but how did you see yourself? Bruce Clark: I saw myself as a proponent of a specific definition of justice. Ralph Waldo Emerson said that truth is the summit of being, and justice is its application to affairs. In my sort of rambling about the field of philosophy, I personally haven't come across a better definition of justice than that. And for the purpose of my particular life I define my aspirations or ambitions in advancing the interests of justice as the application of truth to affairs. Specifically, what emerged as a result of my experience was that I also came across a philosophical opinion by David Hume who identified third party adjudication as the cornerstone of the rule of law. So, for me, if the objective is that justice is the application of truth to affairs, then the means to that objective is third party adjudication. Parties A & B have a dispute, they can either duke it out or they give it to an independent and impartial third party to adjudicate, and that's the mechanism of the rule of law. That's been my goal in life. It happened that the testing ground that was thrust upon me was the native rights issue. It could have been any other issue, it just so happens that it was the native rights issue. SISIS: In the past you have deflected attention from your role in the various struggles of Indian people. Do you see yourself as part of their struggle, the struggle they are engaged in against the Canadian settler state that illegally applies its jurisdiction to unceded Indian territory? BC: No, I am not directly a part of their struggle. I am a tool for them in their struggle. But their struggle is not my struggle. SISIS: So you are basically a messenger. BC: I'm a messenger for them, but I'm a messenger for myself of a different message. My own personal message is that justice is the application of truth to affairs. From my perspective humankind needs this urgently in the sense that we are without question in the time of a new world order, and as we speak, the institutions of this order are groping about and trying to form themselves. And it seems to me the next century or so is either going to witness an imperial tyranny of a very dark and sinister sort or it's going to get the point that the order in the global village is premised upon justice as the application of truth to affairs. To me that concept precludes phenomena such as imperial countries like Canada and the United States applying and policing abroad human rights standards they themselves don't respect at home. For example the standards of precluding genocide. To illustrate, we have Canada and the United States and several other European countries presuming to override the concept of national sovereignty to enforce human rights standards in Yugoslavia. Now that's perhaps a very laudable principle that there are fundamental human rights that supercede the concept of national sovereignty. But if the rule of law is to function, its cornerstone is equal application of law. That is, no person or state is above the law. So if those human rights are to be applied in Yugoslavia, and if we are also to have a rule of law, then those same standards must also be applied domestically within North America. The alternative is another form of imperial tyranny. So, to me, the whole native rights issue in Canada, and the United States, tests in microcosm some larger principles. SISIS: The 1995 Gustafsen Lake incident would be a perfect example of that. BC: Well, it is because Gustafsen Lake illustrates what happens to a group of people, such as those who were in the Gustafsen Lake encampment, who run out of remedies under the rule of law or who live within a society that thwarts the rule of law, leaving no other remedy than self-help in the physical sense. So in that sense it illustrates the process. SISIS: Internationally we are not that far into alleged organized international law. The United Nations (and its conventions) are not that old. But it seems to me that the criminals, or those who can be accused of atrocities and criminal actions, control much of the process. What do we do to overcome this? BC: The answer to that question is precisely what is going on in the world right now. Humanity is kind of groping toward answers to it. By the way, I should preface this by saying that although the institutions such as the United Nations are new, the concept of international law isn't. And the concept of standards inherent in the human condition also isn't new. We had the whole set of religious standards that prefaced the European invasion of North America. Those religious or natural law standards found expression for international law purposes; for example, in the Papal Bull Sublimus Deus of 1537, which essentially said the same thing that the genocide convention reiterated in 1948 in this century. And that is that it is a fundamental human right not to be made a victim of genocide by other humans. Now, given the constancy of that standard, what we are really groping for are the institutions, the mechanisms for enforcing that standard, and that is very much in a state of a flux. Particularly because until very recently the concept of national sovereignty has precluded the universal application of this human rights standard. What we are seeing in the Balkans right now is the former concept of national sovereignty completely superceded by this concept that foreign nations can apply human rights standards regardless of the concept of national sovereignty. That is a very, very significant development in human affairs. It raises the question "will we have a genuine rule of law," that is, will those same standards apply equally to the United States and Canada, for example. Now, we know that the United States' response to Madame Justice Louise Arbour's statement that so far as she was concerned, if she found that NATO countries committed genocide in Yugoslavia, that theoretically, they too were subject to the same sanctions. The United States reacted by saying that: "she's fallen out of our tree," essentially, she must be crazy, nobody is going to apply these standards against the United States. SISIS: She did, however, dismiss Yugoslavia's allegations of genocide against NATO as nothing more than "pure political polemic." BC: Well she may have, but the principle she raised, in theory, was that those standards could arguably be applied against the United States and Canada. Now, she may have gone on from that to say that in fact, those countries, so far as she was concerned, didn't breach those standards, but that's a different question. That's a different question from whether the standards, in principle, can be applied. And by the way, I hold no particular brief for Louise Arbour in these circumstances. The tribunal which she was heading up is the utter antithesis of the rule of law in the sense that it denies the concept of equal application. Its jurisdiction to police genocide is restricted to the country of Yugoslavia, which essentially means that the country from which she hails, Canada, is exempt from the process. That in principle thwarts the rule of law. That isn't my point. My point there is that if we are going to have institutions that genuinely enforce the rule of law, and by means of it achieve justice as the application of truth to affairs, there will have to be equality of application. That is, Canada and the United States will have to be subject to the same standards. That is why the native rights issue is such a strong testing ground for that: because genocide simply is a fact on this continent. Historically, that isn't a difficult proposition to establish. In the modern context, the last few chapters are being written. Indians are being victimized by genocide. Some of them, I think, are my clients. The point is that the process which was begun in the 19th century is still being carried on today. So, in principle, the issue is that Canada and the United States are participating in forms of genocide. Essentially this is what I tried to raise in the courts, and when I did that, I ran into a profound conflict between justice as the application of truth to affairs and what one might call the semiotic field of what's acceptable in terms of the language one can use on this continent. Basically, one cannot tell the whole truth yet about genocide in North America because words like genocide and complicity in genocide just aren't part of the lexicon and morphology that is acceptable. The body politic as an organism simply rejects that whole invasion of its linguistic field. And the form that rejection takes, for example in my case, is the trivialization and demonization of the messenger. Nobody here looks at what I say, really, I don't think. Nobody ... with notable exceptions such as yourself and a few perhaps equally quixotic people who are concerned about the truth regardless of political correctness. But aside from that, for the most part, the rejection is absolutely total. And that's what I have experienced in this society. SISIS: So who or what body of law, Dr Clark, is supposed to hold countries like Canada and the United States accountable for their genocidal policies against Indian peoples? BC: Well, there isn't any. But this is what is taking shape on the world stage right now. We have now human rights standards which, with the events in the Balkans, are moving into a position of paramountcy so far as the text of the law is concerned. That raises the question that you just identified: what institutions are going to enforce these standards? And since the standards are emerging, not too far behind, the institutions will have to fall into place. So that's what is happening right now. The institutions, we do not yet have them, but they are in the process of being formulated. Right now the great police man on the world stage is NATO. NATO is very unsatisfactory. In terms of the rule of law right now it is simply being enforced by the powerful: the United States and Canada, and the powerful European countries. It is a classic situation of might is right in the sense that those countries themselves are above the same law which they are enforcing. SISIS: But who will create appropriate institutions? BC: Well, humankind. They will simply have to emerge as humankind goes along. Either we are going to enter a period of a very sinister tyranny, which, I think, given the technological means of destruction that humankind now has, this tyranny unlike the other ones could result in some cataclysmic destruction of humankind and the earth. You know, we've always had empires, we've always had the principle of might is right, but empires come and go; the difference with the imperial situation in the world right now is the technological power the empire has. It's capable of destroying itself. Well, it's also possible that humanity, with these huge brains that it has, may evolve to a higher level and simply see that isn't satisfactory. It may identify its short-term interest with money and power and comfort. But if we are going to have long-term survival, then we will have to create institutions that can carry on. I am hoping that one of those institutions that conceivably might emerge is justice as the application of truth to affairs under the rule of law, epitomized by third party adjudication. SISIS: Not to be pessimistic, but wouldn't it be in the interest of the imperial powers to prevent such institutions from developing? BC: Well, if all they want to do is remain imperial powers; that is to say, perpetuate the traditional imperialist approach, which is "might is right," then yes, it is against their interest. On the other hand, we may advance - sort of by a bootstrap operation - to a higher plain of existence. You know, the native prophecies sort of stop at this point, and to me, they say essentially that we, as in humankind, are coming to a crossroads. We are either going to enter some kind of enlightened form of existence or things are going to become very, very dark indeed. And so far as I know, the native prophecies don't really take it beyond that, beyond the point of the crossroads. SISIS: Coming back to Gustafsen Lake, in the past you have called it an ugly chapter in Canadian history. Do you think, judging by the recent developments, including your disbarment, and the pressure to silence Wolverine and others from speaking about Gustafsen Lake, do you think this chapter is finished yet? BC: Well, yes, the chapter is finished, and having been written, it exists in a permanent sense. The question that remains is whether at future remove, the chapter will be reread and lessons taken from it. SISIS: This is a letter that B.C. premier Glen Clark wrote to union organizations and others who wrote to him asking for a public inquiry into the Gustafsen Lake standoff. It reads: "Thank you for your letter of August 26, 1998, requesting a public inquiry into the events at Gustafsen Lake. I apologize for the delay in my response. As you know, the police are responsible for keeping the peace in British Columbia and for ensuring the public's safety. When incidents at protest sites involve violence, serious threats of violence or property damage, police act to investigate Criminal Code of Canada violations. The Criminal Code applies to everyone in British Columbia. "Those charged with Criminal Code violations as a result of incidents at Gustafsen Lake have been before the Courts. As Premier, I cannot interfere in any particular judicial decision. In Canada, the judiciary function is a separate body and Court rulings are not subject to review by any level of Government. The events at Gustafsen Lake have been dealt with appropriately by our criminal justice system. The Province has no intention of reviewing this matter further through a public inquiry. I appreciate your taking the time to express your views. Sincerely, Glen Clark, Premier." Dr. Clark, do you see anything wrong in this letter? BC: Yes, there is a willful blindness to one half of the law, and a knowing, criminally knowing willful blindness. The issue that was introduced by Gustafsen Lake was the conflict of law issue between constitutional law respecting native rights on the one hand and on the other hand the application of the criminal law. That was the legal issue. In this letter what the premier is doing is the same thing the police and all the courts have done. They are restricting their focus to the federal law dimension, that is, to the criminal law aspect. They are ignoring the conflict of law issue. They are ignoring the legislation and the precedents that define the substance of the international and constitutional law, and if they would read those, what they would find (and I say that a little bit tongue in cheek, because they know that the law says this; and it is in this sense that their pretense that the issue is restricted to the application of the criminal law itself is criminally fraudulent) what the international and constitutional law precedents and legislation say is that until there is a treaty there is no jurisdiction on the part of newcomer society, no legislative and court jurisdiction relative to the territory in question. SISIS: So the Criminal Code of Canada does not apply to non-treaty areas. BC: That's right. When I say that the legislation and the precedents of international and constitutional law say this, they say it overwhelmingly. This isn't sort of an abstract, technical little ivory-tower point. This is very simple, clear and plain; both issue and resolution of the issue. The European occupation of North America, very simply, was premised upon newcomer jurisdiction, being derivative - that is that since the Indians were first and were regarded for legal purposes as human beings, it was understood that the Indians have territorial jurisdiction, and the newcomers do not, until such time as a treaty is made, whereby the newcomer society acquires territorial jurisdiction from the former society: from the native society. And there's been no repeal. That's what I did my doctorate on. There's been no repeal of that previously established international and constitutional law. What there has been instead is a jurisdictional invasion of the Indian territory, such as in British Columbia, and the premature, that is legally premature application of federal and provincial law, including the Criminal Code. That's the issue. And again, what premier Clark is doing in this letter is simply criminally evading the issue. SISIS: So how much of what we know as Canada has been legally acquired through treaty or cession? BC: Well, ostensibly, most of the country from the Ontario-Quebec border up to the Rocky Mountains has been acquired by treaties. With the James Bay Treaty in 1975 much of northern Quebec was covered. So, essentially, that leaves, uncovered by treaties, Canada west of the Rockies and Canada east of Montreal: east of the St. Lawrence; far Atlantic and far western Canada obviously are not covered by treaties of the kind I am describing. Now, as to the vast part of central Canada, there remains a question whether the treaties, some or all of them, are valid. That is, if some of those treaties were guns-to-the-head treaties, arguably, they are simply not valid documents, because treaties are a contract and the essence of a contract is consent. And if the consent is forced, then there is no consent. So, from that perspective, arguably, 85 or 90 per cent of Canada may still, jurisdictionally, be Indian country, to which the Criminal Code does not apply. Now that legal situation may be, and obviously is, completely unsatisfactory. The fact that the law says the white people shouldn't be there, doesn't alter the fact that they are there. Well, the answer to that is to look at the law, in my terms, the answer at least - since the standard is justice as the application of truth to affairs - is to have the truth come out. The answer is not, in my view at least, that which the present courts and government of Canada have adopted, which is willfully to blind side the international and constitutional law on the pretense it simply doesn't exist. (continued) :-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-: S.I.S.I.S. Settlers In Support of Indigenous Sovereignty P.O. Box 8673, Victoria, "B.C." 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