High court puts Native rights in doubt

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Native observers are saying the Supreme Court of Canada's ruling in the Mitchell case is a sign Canada has no intention of honoring its Section 35 recognition of Aboriginal rights.

Grand Chief Mike Mitchell of Akwesasne (a First Nation community that straddles the U.S./Canada border near Cornwall, Ont.) had won victories in both the Federal Court of Canada and the Federal Court of Appeals before being forced into the Supreme Court of Canada when the federal government appealed. Mitchell claimed he had the right to cross the border without paying Customs duties because the border was imposed on his people in 1783 without their consent. He argued that Section 35 of Canada's Constitution, which recognizes and affirms existing Aboriginal rights, protected the long-standing right of his people to travel within their traditional territory.

Chief Justice Beverly McLachlin, writing the unanimous decision for the court, ruled Mitchell had not demonstrated an Aboriginal right was there to assert. She criticized the lower court rulings in Mitchell's favor, saying, "While appellate courts grant considerable deference to findings of fact made by trial judges, the finding of a cross-border trading right in this case represents, in view of the paucity of the evidence, a 'clear and palpable error.'"

The court stated decisively it has no use whatsoever for Indigenous claims of sovereignty.

"Under English colonial law, the pre-existing laws and interests of Aboriginal societies were absorbed into the common law as rights upon the Crown's assertion of sovereignty unless these rights were surrendered, extinguished or inconsistent with Crown sovereignty," the chief justice wrote. "The enactment of s. 35(1) of the Constitution Act, 1982 accorded constitutional status to existing Aboriginal and treaty rights, including the Aboriginal rights recognized at common law. However, the government retained the jurisdiction to limit Aboriginal rights for justifiable reasons in the pursuit of substantial and compelling public objectives identity."

Mitchell is now expected to pay the Department of National Revenue's outstanding $361.64 bill for unpaid duty, taxes and penalties. The federal government paid his legal bills for this appeal because the government wanted to take the case forward to its final conclusion so it could be clear what the law was.

But Mitchell lost much more than $361.64. His reliance on the spirit of the government's words about respect for the First Nations' inherent right of self government caused him to expose his peoples' rights to the authority of a Canadian court, said Mohawk academic Taiaiake Alfred.

Dr. Alfred, director of the University of Victoria's Indigenous governance program, is from Kahnawake, about an hour's drive east of Akwesasne. He sees the court decision as the end of one road and the beginning of another for Native people in Canada.

"I don't know how anyone, at this point on, who still believes Aboriginal rights are a good thing. Who can put faith in Aboriginal rights after Mitchell?" he asked. "From Van der Peet (a previous Supreme Court decision) on , people were reading it in optimistic terms and saying, in spite of what it says about infringement, we've still got this. No! It's been closing. Look at it from Mitchell now backwards and look what it tells you. It tells you the Canadian government can gut Section 35 (1) and can override any presumed right that we may have on the basis of its determination of what the economic and political interest of Canada is. She's come clearly out and said that. Now, once people digest this, I don't know how anyone could still want to operate within Canadian law. It's time to completely disregard Canadian law as having any hope or any promise for the protection of our rights as peoples."

Alfred said Native people have played the game by Canada's rules and the Mitchell decision and the (Atlantic fishing rights) Marshall II decision should be enough to convince nyone that politics has infiltrated the highest court when it comes to disputes involving First Nations and Canadian authorities.

"It was taking a chance and being as accommodating as we can be and still getting completely shut down and completely denied. The implication of that is that the relationship between Natives and the state in Canada is going to be exclusively within the realm of politics and economics. And anybody who puts any further stake in Aboriginal rights is deluded or an assimilator himself. We're not the ones who have brought the situation to this point. We have played by the rules. Mike Mitchell has taken a lot of flack and is taking a lot of flack right now in our communities for putting our rights in jeopardy," he said. "He looks bad. If he'd won people would have said something different, but the fact is you have a person who was committed to the belief, number 1, that he was right, and number 2, that Canada was capable of recognizing historical fact and justice. But justice gets put aside in the interests of power."

The decision underlines that band councils can't represent Indigenous nations effectively, Alfred said.

"Within the context of Canadian law, he brought it forward as the chief of a band council. That doesn't impact on, nor does it affect at all, our position on our rights as a nation," he said.

Alfred believes the court decision, reached after considering arguments by federal lawyers, makes claims by Indian Affairs Minister Robert Nault that the government respects First Nations inherent right to self government ring hollow.

"It says that the Liberals are correct, right? In terms of their understanding of their legal ground. They say that our authority is only administrative. They say our authority is derived from whatever legislation the government passes. According to their Supreme Court surprise, surprise-they're right," he said.

Justice Ian Binnie wrote a section of the decision that Alfred finds even more troubling. Altough the main decision was authored by the chief justice and dealt only with issues the court was asked to address, Binnie felt the need to go beyond that.

McLachlin noted Crown lawyers had argued that "sovereign incompatibility"-the concept that only Canada can hold ultimate sovereignty over lands included in Canada, including the traditional lands of Indigenous peoples-was a compelling reason why the court should not recognize Mitchell's right to cross the border without paying duty. Since she had concluded that Mitchell hadn't proved that right existed, she felt no need to deal with sovereign incompatibility.

Justice Binnie felt the need to deal directly with the sovereignty issue.

"Counsel for [Mitchell] does not challenge the reality of Canadian sovereignty, but he seeks for the Mohawk people of the Iroquois Confederacy the maximum degree of legal autonomy to which he believes they are entitled because of their long history at Akwesasne and elsewhere in eastern North America," he wrote. And added something Alfred and others see as a chilling warning about future cases. "This asserted autonomy, to be sure, does not presently flow from the ancient Iroquois legal order that is said to have created it, but from the Constitution Act, 1982. Section 35(1), adopted by the elected representatives of Canadians, recognizes and affirms existing Aboriginal and treaty rights. If [Mitchell's] claimed Aboriginal right is to prevail, it does so not because of its own inherent strength, but because the Constitution Act, 1982 brings about that result."

Alfred sees that as an outright rejection of the concept of the inherent right to self government.

"Inherent right is just double-speak," he said. "Co-opting terminology. It's almost stupid to say it's a conspiracy . . . of course it is. The Supreme Court, the Cabinet, the federal departments, as if they don't collaborate and talk about coordinating their approach to these problems. Our people have become so deluded by colonalism. It's stupid now to talk about Aboriginal rights. Let's talk about organizing. What about confrontation of all of these ideas. Look at what's happening all over the Americas. Native people are standing up and challenging. It's the same thing in these other countries. Do we think we're special?"

Assembly of First Nations Grand Chief Matthew Coon Come also had harsh words for the ruling.

"The Supreme Court has issued a very harsh ruling, one that is grounded in colonial thinking," he said. "It seems that the court is willing to overrule or erase over 2,000 years of Indigenous Iroquois Confederacy constitutional history, culture and trading practices on the basis of a few hundred years of recent political events."

He argued that Canada is ignoring the real history of its interaction with Indigenous peoples.

"It is supremely ironic that the Mohawk Nation, which fought successfully in 1812 to repel the American invasion of British North America-thus securing Canada's independence to this day-should now have the national status under which it fought against the American invaders so harshly denied," Coon Come said.

Coon Come echoed a conclusion already reached by many who watch the evolution of Native law in Canada -the court has turned conservative and even anti-Indian.

"The Supreme Court seems to be moving in a further direction, recalling its judgment in Marshall II, of narrowing the trade and commercial rights of Indigenous peoples in Canada. Our socio-economic conditions are terrible; as observed by the Royal Commission, First Nations Peoples have been economically marginalized and locked out. This Supreme Court ruling perpetuates this disturbing trend."