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A bit of legal advice [editorial]

Author

Windspeaker Staff

Volume

23

Issue

6

Year

2005

Page 5 Windspeaker Editorial

Chief John Martin of the Gesgapegiag First Nation, chair of the Mi'gmawei Mawiomi political alliance of Mi'kmaq communities in the Gaspe region of Quebec, was moved to write a letter to the editor of Windspeaker this month that was unfortunately a little too long to print in its entirety.

We say "unfortunately" because Chief Martin's essay was quite informative and, in light of the Supreme Court of Canada ruling in the Bernard and Marshall cases, very timely and important. He respectfully approaches the justices of the Supreme Court of Canada with a number of firm, but gentle reminders. He first gives the high court credit for its "leadership role in seeking justice for Aboriginal peoples in Canada" over the past 30 years.

"In many of its decisions it has proven to be far more informed and far more courageous than many of Canada's political leaders," he writes. We believe he is correct. But, as Chief Martin also points out, there are two different worldviews at play here.

We believe-as does the chief-that the Supreme Court has an obligation to fairly, impartially and dispassionately take both of those perspectives into account if true justice is to be attained. We grant that this is a hugely difficult task for anyone; the job of stripping away the thick and murky veneer of ignorance, racism, self-serving lies and emotionally clouded self-deception that builds up over the decades and centuries and infects the history of a nation is monstrously difficult. Especially in what is all too frequently an "us versus them" environment where the descendants of the colonizers bring unconscious assumptions and biases to the table when they read (or write) the history of the interaction between their ancestors and the Indigenous peoples encountered back in the less enlightened times of the 18th century. But who else can be trusted with this important task if not the people who have risen to the top of the legal system and have been appointed as justices on the highest court in the land.

It is not the role of the Supreme Court of Canada-the most learned, respected and accomplished jurists of their time-to perpetuate the mistakes of history. As a Sagamaw (Mi'kmaq chief) Martin says he "amujpa gelusai" (has an obligation to speak, in the Mi'kmaq language). What he has to say is simple, elegant and obvious to any Indigenous person living in the supposedly post-colonial world. The mainstream, Euro-centric view of history is severely tilted in favor of the relative newcomers to North America. It is not subjective, nor it is gospel. It was written by fallible men and women.

No reasonable person would dispute that.

There are no Indigenous people on the Supreme Court of Canada and (though the National Post may prefer it that way) that means that the non-Indigenous jurists should bend over backwards to ensure that the Indigenous worldview gets proper consideration. If they don't, that's tyranny. Unfortunately, we don't see the court doing that in the recent Maritime region logging decisions handed down in August.

We see a court buying into the stereotypical images of naked, disorganized, nomadic savages, stereotypes that the bought-and-paid-for government expert witnesses sought to plant in their learned minds for political reasons. As Martin points out so very gently and respectfully in his essay, the treaties reached between the British newcomers and the ancient, well-established and well-organized Mi'kmag societies in the early 1700s were peace and friendship treaties, not surrender treaties. They were agreements between sovereign nations. The British needed peace with the Mi'kmaq while they concentrated on their battles with the French. The fact that an unjust and oppressive couple of centuries of colonialism has all but erased the memory of that fact is no reason for the court to not seek the truth.

That's the Mi'kmaq point of view.

It was presented to the court and it was discoued, if not ignored. If the Mi'kmaq were simply granted the consideration that their worldview is every bit as legitimate as that of the colonizers, we think the decision would have been different. And we, along with Chief John Martin, respectfully urge the court to give it another try. Why not a Bernard and Marshall Two? It's happened before.