Aboriginal rights are meaningless

Page 4

Recently, on the pretext of ruling against Mike Mitchell, a Mohawk of Akwesasne, who asserted an Aboriginal right to conduct cross-border trade, the Supreme Court of Canada went much further and took the opportunity to deny the Mohawks of Akwesasne, and by extension Indigenous peoples as a whole, any rights at all outside of those accorded them by the Canadian government. In Mitchell v. MNR, the Supreme Court has explicitly denied that we have an existence that is in any way independent of Canadian law and society. That is a statement of major significance.

Many of our people were upset when the Supreme Court of Canada gave its decision on the Mitchell case. To be sure, there were upsetting and even sickening words contained in the Supreme Court's decision. It always hurts to be hit in the face with the racism that bubbles just below the surface of polite Canadian society, especially when it is laid bare in clinically precise legal language. But beyond the Supreme Court justices' shocking ignorance of fact and the plodding, sophomoric attacks on history, there is nothing much surprising in the decision. Did anyone actually think that the Supreme Court of Canada would recognize Mohawk sovereignty?

Spiteful denials of our rights by government lawyers and judges are nothing new. After a generation of jurisprudence on the question of our peoples' relation to the Canadian state, a time in which the trend and the vanishing point of our rights have been visible, we should not be surprised by what was said in Mitchell. All of the recent Supreme Court decisions on Aboriginal rights have given and taken away at the same time, yet our lawyers and our leaders have been looking at those decisions through rose coloured glasses. The problem is that we have wanted to see progress where there was none, and we have bought into the false promise of steady progress toward a just accommodation of our existence as peoples with that of the Canadian state. This decision surely puts that lie to rest.

Am I being too cynical? Read the chief justice's words yourself: She wrote that the court has "affirmed the doctrines of extinguishment, infringement and justification as the appropriate framework for resolving conflicts between Aboriginal rights and competing claims, including claims based on Crown sovereignty." She is telling us here in no uncertain terms that any conflicts between the rights we claim and the Canadian government's claimed authorities, between our law and Canadian law, will be resolved by extinguishing our rights. Case closed. Aboriginal rights and title have been rendered meaningless.

The vaunted section 35(1) of the Canadian Constitution has been exposed as an ultimately useless protection in the face of white people's material or ideological interests. The Supreme Court's decisions have been proven time and again, especially in Marshall II and now Mitchell, to be nothing more than transparent covers for government policy decisions, and obviously based on economic and political factors rather than on historical facts or sound legal reasoning (Mitchell explicitly links the interests of the Canadian state to the denial of the Aboriginal right).

So now what? The lesson is very clear: politics and economics determine everything. The lesson also points the way forward. We must reconcile ourselves to the fact that our struggle is political. It is not about law but about power. Forget about appealing to the courts; forget negotiating self-government and land claims agreements; forget about Aboriginal rights and title. All of these can only lead our people toward an imminent vanishing point on a very short horizon. The horizon of our future generations can only be extended if we commit to take direct action in defence of our lands and rights, and begin to demand respect from Canada.