And now:Ish <[EMAIL PROTECTED]> writes:
Now the many generations of delay between 1763 and 1999 might cause the
curious to wonder how it is that it took so long for the laws of Canada
to be enforced in British Columbia, if that is what the Nisga�a Treaty
indeed does. The curious might ask if the decision of the government of
BC to negotiate questions of land title with First Nations does not, in
itself, represent a tacit acknowledgment that Canada��s westernmost
province has for all of its history in Confederation existed outside
Canada��s rule of law.
In order to understand the importance of Aboriginal treaty rights it
needs to be remembered that for all of its history leading up to the
building of the Canadian Pacific Railway, Canada was territory that, in
the language of the Royal Proclamation, was ��reserved to the Indians as
their hunting grounds��-- reserved where they would not be ��molested or
disturbed�� until such time as they decided of their own free will to
enter into a treaty with the imperial sovereign. This reservation of
lands, if the words of the Royal Proclamation mean what they say,
indicate that most of BC like much of Quebec, the Maritimes as well as
some of Ontario north of Lake Superior, remains an unceded Indian
Country until this day.
Moreover, the First Nations in Canada are not a conquered people as, for
instance, is the case with the French Canadians who were abandoned by
the government of France after the British army defeated the French army
on the plains of Abraham. Indeed, First Nations fought as allies of the
British army in the War of 1812 to defend Canada from being annexed by
the rabid republican Indian fighters that are celebrated as heroes by
our neighbors to the south.
After studying for many years what he calls the imperial law of Canada
arising from this history, Bruce Clark gradually developed very grave
concerns that the rule of law was consistently being violated by ill
educated judges who responded to assertions of Indian title, not by
dealing with the imperial statutes, but rather by doing what seemed to
them reasonable under the circumstances. These judges could base their
findings on various lines of precedents that cycled and recycled the
most noxious racial theories. A huge legal fiasco, for instance, has
developed from the infamous St. Catherine��s Milling case, a legal
dispute between Canada and Ontario in the late 1880s over the meaning of
the constitutional phrase, ��land reserved for the Indians.��
A whole pattern of jurisprudence has arisen, for instance, from a lower
court judge��s ruling on the case, where he deemed that ��Now it is
evident from the history of [the reserves] that the Indians there are no
longer as in a wild and primitive state, but as in a condition of
transition from barbarism to civilization. The object of the system is
to segregate the red from the white population, in order that the former
may be trained up to a level with the later.
This type of reasoning tended to prevail in the ruling on the Temagami
case, the land dispute that dominated Bruce Clark��s career for a
decade. During many of these years, Bruce Clark and his young family
lived on the Bear Island reserve, where he and Chief Gary Potts put
together one of the most comprehensive collections in that part of the
world of the imperial record of the colonization of Indians in Ontario.
As Paul McKay says of these years, Clark gave up his ��lucrative law
practice, huge home [in Haileybury Ontario] and private airplane.�� He
lived ��in the very log cabin the Indian imposter Grey Owl used as part
of his own mythology.��
In the latter part of those years I was starting my own career as a
Native Studies professor at Laurentian University in nearby Sudbury
Ontario. From this vantage point my colleagues and I studied the
Temagami case closely. I can truly say that on reading the lower
court��s ruling by Mr. Justice Donald Steele, a law school friend of my
father as a matter of fact, I was truly shocked that such abhorrent words
of blatant racism could be spoken from the bench as legal dictate of
this country. I wrote an article on the ruling that was published in
1990 in a book called, Temagami: A Debate on Wilderness. So the reader
is thus armed to check for yourself to see if I can back up my assertion
at length and with rigor in a suitable scholarly fashion.
Let me quote but one passage of Judge Steele��s decision to give an idea
of its flavor. He ruled that the expert witnesses for the Temagami
First Nations ��were typical of persons who have worked among Indians for
so many years that they have lost their objectivity when giving opinion
evidence.�� So there it is. That comment, made in 1984, signals the
beginnings of the growing sense in some circles, especially in the
higher echelons of the legal establishment, that Bruce Clark does not
play by the rules and is too close to Indian country to be afforded
professional respect. What is to be made of the idea that non-Indians
who live and work among Indians cannot be seen as objective? Doesn�t
this beg the question of how Indians themselves could ever be taken
seriously by an interpreter of the law like Mr. Justice Donald Steele.
To now read all these years later Mr. McKay��s dismissive comments about
Bruce Clark as the infamous loser in Temagami and countless and other
cases, raises the question of strange argumentative concoctions you��d
need to win before a judge with the deep prejudices and sparse
historical knowledge of a Mr. Justice Steele. While I thought he was
the last word in judicial ethnocentrism, Mr. Justice Allan McEachern
managed to outdo his Ontario counterpart in the ruling of the lower
court on the Delgamuukw case. Mr. McEachern, who doubles as chair of
the judge��s own self regulating body, pronounced that Indians have
almost nothing of worth to retain for either themselves or the world
from their Indigenous cultures. To make this point, the BC jurist
actually quoted Thomas Hobbes, who used imaginary North American Indians
in 1651 to argue that life without a dictatorial ruler is ��nasty,
brutish and short.��
To properly understand the genesis of Dr. Clark��s legal interpretation,
you need to know something of the radical nature of his formative
experiences with the so-called legal establishment. What emerged for him
was a dawning recognition that the stakes of the contentions over
Aboriginal and treaty rights are so big, and the legacy of legal
impropriety so old and so well protected by layer upon layer of dubious
and overtly racist legal precedent, that it is almost unimaginable that
any judge would take the responsibility of overturning this status
quo�of overturning this institutionalized complicity in genocide that
is so deeply ingrained in the framework of North American experience
that it is made to seem normal and natural and simply a fact of life. No
judge could realistically be expected to expose what the now disbarred
lawyer regularly characterizes in the language of the old imperial
statutes as treason and fraud and sometimes chicanery as well.
A major point to consider in evaluating this startling and inescapably
troubling proposition is to question who has ever been charged or
criminalized for the offence of violating an ��existing Aboriginal and
treaty right?�� In 1982 this phrase became part of the supreme
constitutional law of Canada. And yet what evidence can be shown that
any corporation, any individual or any government has ever faced
criminal proceedings for infringing on whatever constitutes an
Aboriginal and treaty right?
Clark�s basic proposition, therefore, is that the legal
establishment, from top to bottom, is so deeply guilty of systematic
violations of this certain variety of constitutional law�of this
law put in place at the very beginning of British imperial Canada, that
there is a huge pressure on every player in the system not to allow any
case to proceed forward that might give an opening to the argument that
ethnic cleansing in North America carries consequences that could go as
far as criminal charges against the perpetrators.
On face of it, this allegation my initially seem preposterous to the
point of absurdity, a position well reflected in Mr. McKay��s Southam
attack piece. But think about it further and it becomes equally as
absurd to imagine that a land theft of the scope which has clearly taken
place in North America, could possibly have happened without some
criminal transgressions even of the newcomers�� own legal codes.
Moreover, the group with the most to lose if these arguments were to be
truly pressed, as Dr. Clark has attempted in many ways against great
resistance from above, are judges, judges-in-training (i.e. Lawyers)
and the faceless defenders of the legal establishment in unaccountable
and self-regulating agencies like the Law Society of Upper Canada and
the Canadian Judicial Council.
This analysis forms the basis of what Dr. Clark refers to as third-party
adjudication. There is no mystery here. Third party adjudication is
the basis of every decent legal system. We cannot expect Serbian
judges, for instance, to be objective and impartial in deciding the
identity and the extent of the crimes of Serbian war criminals.
Canada��s own Louise Arbor is busy in Europe setting herself up as a
something between a judge and a prosecutor with the aim of bringing the
war criminals of the Balkans to justice. You can be very sure that if
any such proceedings do take place, the NATO countries�� own legacy of
genocide and ethnic cleansing will be very interesting to the accused
persons and their lawyers. And I can almost guarantee you that the
background of the Law Society��s disbarring of Dr. Clark will come up, as
well as the role of a corporation like the Southam chain as a key part
of the alleged professional hit squad and of the alleged psychological
warfare.
So the heart and soul of the Clark thesis, is that judges in Canada are
in no position to deal objectively with deciding among themselves if
some or all of them are themselves guilty of treason or fraud or
complicity in genocide. Moreover, the circumstances of their own home
life, presumably as land owners with title that could be affected by the
competing assertions of Indigenous peoples, add to the built-in conflict
of interest when they are asked to decide a matters pertaining to
existing Aboriginal and treaty rights. So what is needed to properly
adjudicate land disputes between Indian and newcomer contestants, is a
court composed of jurists without a vested interest in either camp---
third-party adjudication.
Enter the matter of the Mohegans versus Connecticut. I have seen a
number of literary references to the Mohegan case long before Bruce
Clark grasped on its significance as a legal grounds for assertion that
the remedy for true third-party adjudication entered the mainstream of
constitutional law in English North America in 1704. For instance in
1985, five years before Clark��s revised Ph.D. thesis was published as a
book by McGill-Queen��s Press, my own department here in Lethbridge
published a book entitled Quest for Justice. In it is included an
article by James Youngblood Henderson entitled, ��The Doctrine of
Aboriginal Rights in Western Legal Tradition.�� It makes extensive
comment on the broad constitutional significance of the Mohegan case, a
legal proceeding that essentially marked a recognition by the English
sovereign that the Aboriginal and treaty rights of Connecticut��s Mohegan
neighbors could not properly be adjudicated in a normal colonial
court. So the imperial government went to great lengths to create a
Royal Commission on Aboriginal land rights, although local land
speculators kept trying to buy off and co-opt the judges chosen by the
Privy Council of the Mother Country.
Obviously it strikes Mr. McKay as totally ridiculous that what happened
in Connecticut in 1704 could somehow have any bearing on what��s
happening in now in British Columbia, or, with Bruce Clark��s important
legal advice at Long Lake reserve 58 in northern Ontario. He quotes at
length various �respected� and �Aboriginal� sources to prove his case
that all sensible experts in Canada agree that Queen Anne��s Mohegan
precedent should be left alone and that all systems are go and A-OK in
Canada for a happy outcome within the existing institutions.
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Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
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