N.W.T. vice chief wants chief justice removed

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Dene Nation chief Bill Erasmus has called for the removal of the chief justice of the Supreme Court of Canada.

He filed a formal complaint with the Canadian Judicial Council on Feb. 18, 10 days after Chief Justice Beverley McLachlin used the term "conquered people" during a speech to the Order of Canada luncheon at the Canadian Club of Vancouver.

The remarks also prompted an expression of concern on Feb. 8 from the National Chief Matthew Coon Come.

"The chief justice is wrong when she states that Aboriginal peoples are conquered peoples. In her address today to the Canadian Club of Vancouver, she said "the British policy was to leave the law of conquered peoples in place, with the exception of 'matters involving the relationship between the conquered people and the new British sovereign'," I respectfully remind the chief justice that First Nations peoples in Canada were never conquered. We entered into treaties with the Crown, treaties of peace and friendship. These were not treaties of surrender. The treaties were negotiated as a way to peacefully co-exist with the newcomers in this land and, if anything, prevent future conflict. We still define our relationship with the Crown through the spirit and intent of these treaties. The government's own Royal Commission on Aboriginal Peoples rejected the notion of 'conquest' and pointed to treaty implementation and treaty making as a way to begin the process of mutual recognition, mutual respect and nation re-building," the chief said.

Coon Come agreed with some parts of the speech, saying he agreed with the chief justice's remarks that there are two major challenges facing Canada today in the area of Aboriginal rights - completing treaty negotiating and finding ways to resolve disputes about the meaning of treaties.

"However, I can't help but feel very uneasy with her assertion that we are conquered peoples. Her misunderstanding of the history of First Nations and Canada may negatively impact her perceptions and ultimately her rulings," he added.

No formal response had been received from the judicial council as of Feb. 27 regarding the complaint filed by Erasmus, but a Dene Nation staff member said a four-month wait is normal in this process.

Assembly of First Nations communications director Jean Larose said the national chief has not altered his position, and is not calling for the judge's removal.

"We've heard about the vice chief's comments. As far as we're concerned he was speaking in his capacity as the chief of the Dene Nation. No one else in the executive has raised that. As far as the national chief is concerned there is no change in our position," he said.

The chief justice clarified her remarks in an interview with Canadian Press, saying she was not talking about Aboriginal peoples in Canada when she used the "conquered people" expression.

But Chief Erasmus said his people can't afford to ignore the matter.

"National Chief Coon Come made some comments on Feb. 8 concerning the chief justice's comments concerning Aboriginal people, that they are conquered people. He was quite concerned that she's inaccurate and her interpretation is not as it should be. I'm also supporting the national chief's comments but I'm also going a step further," he said. "I believe that as a Supreme Court judge she has to be accurate in history and in law and she has to be objective when making rulings. Therefore, because she doesn't interpret the law accurately, we're asking that she be removed from office because she can no longer be objective when dealing with treaty or Aboriginal rights cases."

When we understood that Canada believed that in fact we gave those lands away we took the country to court, and in 1973. Judge Morrow ruled in our favor [Paulette v the Crown] in that we still have a legal interest in the land. That was part of the reason why there's such a thing called land claims," Erasmus said. "Our decision, along with the Calder case in British Columbia, hose two decisions forced Canada to admit there is such a thing as treaty and Aboriginal rights, because prior to that, prime minister Trudeau was making the comment we no longer had those rights. We may have had them at one time but the treaties extinguished them or they were legislated away.

"We proved 30 years ago that our lands were never taken away from us or given to someone. Our Elders have always said we don't have a mandate to do that. Our whole existence is to perpetuate our own laws and our own rights and to put them into practice, to implement out treaty rights. This is why the comments of the chief justice are so devastating and can't be accepted by First Nations people in the country."

Asked why he felt he must go further than the national chief, Erasmus said his people expect him to take the strongest position possible when it comes to their relationship with the Crown.

"It's my duty as a leader to speak out on behalf of our people. Half or three-quarters of our people are illiterate or semi-literate. They don't have the ability to read or write English as I do. They put me here in a position of trust and they trust my judgement and so I feel I'm compelled to speak out. Clearly the judge has not done her homework. If she believes that our peoples were conquered and we surrendered our lands then we're in trouble. Canada's stability, economically and politically, is going to be in jeopardy for a long, long time," he said. "I want to ensure that our peoples have a stable environment to live in. We have never ceded our lands. We have never ceded our interests.

"Our people tell us we are to co-exist, to work in conjunction with Canada, and we're trying to do that. Most of our people in the North here are at negotiating tables. If Canada' view is that we've already surrendered our lands then there's no reason to be at the table. We're not very much different from the French or what they call ethnic people in Canada. It means that we're domesticated peples that are under the rule and thumb of Canadian law and that's not the case at all."

The Dene chief disagreed with several parts of the chief justice's speech.

"She says, for example that our relationship with the courts is identical to that of the United States. That, again, is inaccurate. The Canadian history is much different than the United States. In the United States, they went out to kill the Indians. The Indians were in their way. They tried to wipe out the Apache, the Navahos, the whole trail of tears. There's a whole particular history where they tried to wipe the Indian out. It's different in Canada," he said.

Erasmus insisted he expects the judicial council to take his complaint seriously.

He also said some recent court decision may already reflect a less-than-perfect understanding of the Crown/Aboriginal relationship by the highest court in the land.

"The Marshall case for example. Never in history since Confederation has the Supreme Court gone back and made a ruling on an earlier ruling. Marshall Two waters down the initial decision," he said. "We now have to question some of those court decisions and I wouldn't be surprised if people came forward and said, 'Now we know why we're not winning cases. It's because the court believes that we don't have the rights that exist.' If the court doesn't believe that we are free people, that we are self-determining and that we are not under Canadian rule of law per se, then we have a big problem."