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)
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S.I.S.I.S. Settlers In Support of Indigenous Sovereignty
P.O. Box 8673, Victoria, "B.C." "Canada" V8X 3S2
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