Sunday, August 31, 2008

British Columbia has to respect traditional Gitanyow government



Mohawk Nation News

Aug. 31, 2008. Canada is a colonial state and Canadian law is topsy turkey! The Indigenous hurricanes are coming. The Canadian levee has been breached. One of the last judgments of Madam Justice Neilson at the Supreme Court of British Columbia admits that the traditional Gitanyow government and social order has to be respected. Judge Neilson has just been promoted to the British Columbia Court of Appeal. There’s no doubt now. Her reasoning should stand unless Canada torpedoes it with another fit of the D.T.s [delirium tremens].

Why did this happen? The colonizers rely on the same earthly elements as we Onkwehonwe. The environment’s in a shambles. The air is polluted. So is most of the soil. We’re living on the last 10% of the fish in the oceans. We’re using up oil, gas and lumber like there’s no tomorrow. Everyone’s scared. Some members of colonial society are starting to wake up. If their destructive mania does not stop soon, we’re all doomed.

Let’s take a look at Judge Nielson’s reasoning in Wii’litswx v. British Columbia (Minister of Forests) [2008 BCSC 1139].(You can find the full text by Googling “Canlii”). What did she do when the B.C. Ministry of Forests gave out timber licences on Gitanyow land without Gitanyow consent?

Our nationhood has been violated by illegal timber licences ever since 1888 when Britain’s PriCouncil decided St. Catherine’s Milling and Lumber Company v. The Queen. The colonizers didn’t consult the Saulteaux before deciding that the right to timber licences on Saulteaux national territory belonged to Ontario’s provincial government, not Canada’s federal government. As if! Neither colonial government had a right!!

Britain’s Privy Council specifically said that it was not determining “the precise quality of the Indian right”. The colonizers relied on a legal delusion. They pretended that “Indians” had only a “personal and usufructuary right dependent upon the goodwill of the Crown”. What? We never heard of the Crown before contact. Our rights don’t depend on the Crown that came to town!

St. Catherine’s Milling implicitly gave Ontario permission to manage Saulteaux resources. This was illegal. There was no explanation as to how the British Crown got jurisdiction in the first place. But the colonizers went crazy and their scramble for Indigenous resources escalated.

The colonial pillage has continued for over a century. A few Canadian judges are beginning to come to their senses. They have finally recognized that we were here first. Wow!!! They finally found their glasses!!!

The Supreme Court of Canada decisions in Haida Nation v. British Columbia [2004 SCC 73 (CanLii)] and Taku River Tlingit First Nation v. British Columbia [2004 SCC 74 (CanLii)] are still trespassing wholesale, but they have finally recognized that there is a “duty to consult” us before they take our stuff. (We’ve been saying this all along).

Canada’s economy is totally dependant on stealing our assets – the resources that we hold in trust for our coming generations. That has to be the main reason why the “white” settler states have refused to sign the United Nations Declaration on the Rights of Indigenous Peoples. This ploy does not get them off the hook. They’ve signed all sorts of treaties and accords agreeing that humans are equal. They have to start doing this in practice.

Wii’litswx gets down to the nitty-gritty. It forces them to take a first step. The text on Canlii is long and tedious. “Chief Justice Lamer described the import of s.35(1)…blah, blah,blah”; “The difference between the TSA and the TFLA is…blah, blah, blah”, “Sections 16.3 and 16.4 acknowledge that…blah, blah blah”. It’s got lots of quotes about Whereas, LUP, MoF, GFA, SRMP. 45 pages of dense bureaucratese!!

You have to wonder. How did the Gitanyow manage the forest and turn it into an internationally coveted resource without using a single sheet of paper?

Judge Nielson pointed out that there was “a long and troubled history of over-logging and unfulfilled silviculture obligations on Gitanyow traditional territory”. The Crown agreed that it had “a duty to meaningfully consult with the Gitanyow in good faith and to reasonably accommodate its concerns and interests”. It ignored them. As the judge said, “Meaningful consultation and accommodation” is more than just “thorough discussion”. She found that the Ministry of Forests should have come up with a plan “endorsed by the Gitanyow”.

We can’t agree with her here. It is Gitanyow territory. It’s their right to decide whether foreign corporations can cut their trees.

Judge Neilson recognized that the Gitanyow thought that ratification by their “Heredetary Chiefs” was essential. She said the Ministry of Forests could not issue the forestry licences without their opinions. This is confusing. British Columbia can’t prove its jurisdiction. It’s Ministry of Forests doesn’t have authority to issue any licences at all.

Wii’litswx did not discuss why the government of British Columbia was giving licences to lumber companies that extract rare resources for private benefit. It disregarded the needs of the people who actually live in British Columbia. However, Judge Neilson did discuss the stumpage fees that are paid to the provincial government by the corporations for the trees cut. The evidence showed that the Gitanyow claimed 50% of these fees. The Ministry of Forests’ tried to get away with paying a few hundred thousand dollars, using their own per capita formula. Judge Neilson did not accept their idea that this was “economic accommodation”. She’s was right on here!

From a Haudenosaunee perspective, Wii’litswx has a few good points. It is also disappointing. Why should the Gitanyow have to negotiate with a bunch of in-migrating colonists for “the right to harvest wood for domestic purposes”? It is their land and their wood!!

Judge Neilson did recognize that the Gitanyow’s clan-based Wilp system and boundaries are “an integral and defining feature” of their society. She supported the Gitanyow’s right to decide for themselves how to structure their laws and institutions. This is a departure from the Supreme Court of Canada’s practice of setting out good principles at the beginning and violating them in its final decision. Like when it says ambiguities should be determined in favour of “the Indians” and then decides that these same “Indians” don’t know how to interpret their own culture.

It’s time for the colonial junkies to kick their thieving habits. “Most are so stoned they’ve hit rock bottom and don’t even know it!” [A quote from Judge Tekastiaks “She-calls-it-like-it-is”]. Judge Neilson pointed out that recognition of Indigenous economic rights would have “wide-ranging repercussions for all citizens of British Columbia”. The joint planning process required is “evolutionary and long-term”. But if they don’t respect our rights, they are going to kill themselves.

She did not quash the illegal licences. The Gitanyow had already agreed to let the licensees continue to operate. [Band council sell outs again!] Judge Neilson invited further submissions on what to do. The traditional people can file a written objection to the Court. In effect, the judge has already invited them.

Back here on Kanienkehaka territory, we are in another world with rotten and out-dated judicial reasoning. Wii’litswx relied on Mitchell v. Minister of National Revenue [2001, SCC 33 (CanLii)] for the false idea that the Canadian Constitution aims to reconcile prior Indigenous occupation with “the Crown’s assertion of sovereignty”. This can’t be reconciled. There is no proof that the Crown’s sovereignty is legitimate anywhere.

Mitchell was decided before Haida and Taku. It said nothing about how we were not consulted on the invention of Canada or the phony border that divides Akwesasne. It concludes that even though the people of Akwesasne were living on islands in the river long before the invasion by colonists, they never crossed to the north shore to trade for anything!! This is ridiculous!

The Supreme Court of Canada seems to think that if you live on the part of Akwesasne claimed by the United States and you want to give your old washing machine to your sister who lives on the side claimed by Canada, you have to pay duty to Canada. This makes no sense!

The imposed boundary that runs through the middle of Akwesasne makes normal life impossible. Canadian officials use this as an excuse for abuse. Sadistic Canadian Border Service Agency guards are constantly stopping, harassing and assaulting our people. [Judge Tekastiaks suggests, “The white people should have a “white lane” like we do except with Indian border guards”.]

The “meaningful and reasonable process of consultation” relied upon by Judge Neilson in Wii’litswx is no where to be found in Canadian relations with the Kanienkehaka. Canadians have to start being lawful people. Every square inch of Turtle Island belongs to the Onkwehonwe. Canada and the United States have to sit down and talk with us if they want to survive the greedy and destructive habits they brought here.

Ieri’wa:onni, Judge Tekastiaks and MNN Staff

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