by Kwitsel Tatel and Anthony Hall
Israeli abuses of the human rights of Palestinian people find a reflection in the historical and contemporary treatment of Indigenous peoples in North America. This observation helps support the argument that there is much more going on than immediately meets the eye in the trial of Kwitsel Tatel.
The Criminalization of Indigenous Peoples in North America, Israel/Palestine and Throughout the Colonized World
The criminalization in Canada of a single Aboriginal mother, Kwitsel Tatel, for trying to feed her children is one small saga in the ongoing holocaust of the Americas that began in 1492 and continues to this day. The case of Kwitsel Tatel began with a dispute over the contemporary place of Aboriginal fisheries in the Fraser Valley of British Columbia. BC is the westernmost of Canada’s ten provinces.
Whether the resource in question is fish from the Fraser River, trees from Amazonia, hydroelectricity from Quebec, oil from Uzbekistan, or blood diamonds and blood coltan from the eastern Congo, the same patterns of appropriation are replicated again and again. On one frontier after the next of imperial, national and corporate expansion, Indigenous peoples have been demonized, dehumanized, criminalized, and attacked with the intent of seizing ownership and control of their Aboriginal lands, waters, and persons. In the Africa, the Middle East, Indochina, Australasia, and throughout the Americas, imperial powers and their successor states have developed all sorts of legal tricks to give a patina of legitimacy to the theft of natural resources from First Nations citizens whose human rights are regularly attacked to fuel the corporate violence of coercive appropriation.
The ongoing repressions of Indigenous peoples throughout the Americas tend not to be as starkly and insistently highlighted as the assaults on the human rights of Aboriginal Palestinians. The violent disentitlement, dispossession, and collective criminalization of indigenous Palestinians flow from the militarized expansion of the Israeli settler state. There is much that is similar in the fate heaped on the Indigenous peoples of North America over several centuries and on the Aboriginal inhabitants of occupied Israel over recent decades.
Those of us in the so-called West who rightfully condemn the violent repressions of the Israeli state need constantly to remind ourselves that the injustices directed at the Palestinians reenact older injustices interwoven into the living national fabrics of countries like the United States, Canada, New Zealand, and Australia. Where the South African government sought before the 1990s to replicate the constitutional mold of the so-called “White Dominions,” under President Nelson Mandela this pivotal polity eschewed apartheid whose legacy and substance remains a factor in the organization of the political economies of Canada, Israel, Australia, the United States. Like the conquering founders of Protestant Ulster in northern Ireland, all these polities derived expansionary zeal from the religious mythology of the Judeo-Christian civilizing mission.
In much the same way that Canadian, Australian and New Zealand prisons are disproportionately crowded with Native people even to this day, the dark dungeons of Israel continue to be stuffed to the brim with thousands of Palestinian prisoners. Many individuals in these criminalized groups are guilty of nothing more than being born into nationalities whose continuing Aboriginal rights to the soil and waters of their ancestors call into question the legitimacy of the societies built by settler regimes with the genocidal intent.
As cultural and genetic offspring of imperial Europe, many of these receiving stations for immigrants were bolstered with the integration into their national myths of Old Testament premonitions promising a New Jerusalem, a City on the Hill to be built to replace the old world civilizations of Indigenous peoples.
As epitomized by the preoccupations of New England’s Puritan founders, the new settlers were often animated by biblical passages supporting their claims to be Israelites embarked in taking possession of an expanding land promised to them by God. They thought of themselves as God’s Chosen People with a manifest destiny to spread the seeds of their Protestant civilization even as they subjugated, extinguished and pushed aside those they viewed as inferior beings not destined to enter Heaven or to invest posterity with their presence, influence, and heritages. Indeed, on July 4, 1776, the founders of the United States announced in the American Declaration of Independence the collective criminalization of their Aboriginal neighbours as “merciless Indian savages.” The Aboriginal lands of these targeted peoples formed the enticement for, and medium of, transcontinental expansion.
Kwitsel Tatel and the Existing Aboriginal and Treaty Rights of the Aboriginal Peoples of Canada
Kwitsel Tatel is a name bestowed by a wise mentor in the Halq’emeylem language. It signifies a mother grizzly bear. Kwitsel Tatel’s Christian name is Patricia Elaine Kelly. A single mother of an eighteen-year old son and a seventeen-year old daughter, Kwitsel Tatel was born in December of 1963 on the banks of the Fraser River in a family fishing camp maintained by her mother, Rene Pennier.
Until Kwitsel Tatel was twelve this fishing camp in the Chilliwack area lay at the heart of her political economy and that of her ten bothers and sisters. They are the survivors of the sixteen children born to her mother and father, Patrick Walter Kelly, who died of severe alcoholism when Kwitsel Tatel was six years old. In 1976 when she was thirteen-years old Kwitsel Tatel’s mother died, leaving the young fisher and her siblings as orphans.
The knowledge and practice of Aboriginal fishing runs primarily through Kwitsel Tatel’s maternal heritage. Her grandmother, Margaret Leon, was convicted and jailed in Burnaby’s Oakalla Prison for the supposed crimes of Aboriginal dancing and singing which were outlawed by the Canadian Parliament from the late 1800s until 1951. As a girl Margaret had witnessed at the Hudson’s Bay Company post in Langley BC a ritual Roman Catholic burning of sacred masks. This anti-traditionalist ceremony was meant to remove cultural obstacles to the Christian dominance sought. This act of cultural extinguishment was part of a dark genocidal heritage in the Americas that began with the burning by Spanish priests of many sacred texts recording Aztec, Mayan and Inca heritages. The federally-funded Indian residential schools would continue this genocidal heritages including through concerted efforts to silence Aboriginal languages.
Christian missionaries had lobbied the Canadian Parliament to outlaw the West Coast potlatch and prairie sundancing because these Aboriginal spiritual traditions supported the legal functioning of sovereign Aboriginal societies. As long as potlatching and sundancing continued to thrive, strong Aboriginal nations on the resource frontiers of western North America remained more or less impervious to mass conversion to the religions and political economies of the newcomers.
Like many Coast Salish people, of which her Sto:lo nationality forms but one part, Kwitsel Tatel has a Chinese ancestor, the father of her maternal grandmother Margaret Leon. The Chinese settlers in British Columbia tended to gravitate towards Indians because both groups were segregated in enclaves of exclusion outside the framework of Canadian citizenship. Registered Indians throughout Canada were not able to vote in Canadian, provincial and municipal elections until the 1960s.
As wards of the federal government– as “non-persons” from the perspective of Canadian law– registered Indians could not enter into binding contracts, hold political office outside their Indian reserves, or take those that had exploited and dispossessed them to court in civil litigation. Alternatively the mining, railway, and logging companies in the forefront of stealing lands and resources from Indigenous peoples were extended the status of legal “persons” by the same authorities that had defined the Indigenous peoples as “non-persons.”
As wards of the Canadian government Kwitsel Tatel and her younger orphaned siblings were ushered in and out of a federally-sponsored religious residential school, part of a network of similar institutions whose stated purpose was to wean Aboriginal youths from the Aboriginal heritages, traditions, and languages of their ancestors. Quite clearly the operations of these schools for de-Indianization, some of which persevered into the 1970s and 1980s, met the criteria of the UN Genocide Convention sanctioned by Canada from its inception in 1948. In its brief description of what constitutes genocide, section 2(e) of the Convention refers to “Forcibly transferring children of the group to another group.”
Both the governments of Canada and Australia have officially apologized to Aboriginal peoples for the crimes often imposed on Aboriginal youths in pursuit of the states’ assimilationist objectives. Too often Australia’s and Canada’s “stolen generations” were made victims of predators’ violence in institutions that some have characterized as havens of pedophilia. As a survivor of a federally-funded religious residential school, Kwitsel Tatel was not exempt from the abuses inflicted on her. The abuses of the religious residential schools for Native people were inter-generationally compounded in the succession from grandparents, to parents, to Kwitsel Tatel’s generation.
The case of Kwitsel Tatel began in 2004 when she was charged with the illegal possession of fish contrary to provisions in Canada’s Fisheries Act. Stage one of her trial proceeded until 2008 when Kwitsel Tatel was found guilty by Mr. Justice Thomas Crabtree. In 2010 Judge Crabtree became Chief Judge of the Provincial Court of British Columbia. Then the trial entered a new phase during which time Judge Crabtree determined that Kwitsel Tatel would not receive resources to level the playing field in the constitutional phase of the trial. This constitutional phase was to have begun on July 25 of 2012.
Clad in a ceremonial paddler’s dress, Kwitsel Tatel drummed and sang her evidence into the Chilliwack Court House. For this she was stopped on the stairs and assaulted by several large armed sheriffs. After punching her son Kwiis Hamilton and after smashing apart the box of evidence I sought to deliver to Judge Crabtree’s court room, the sheriffs charged Kwitsel Tatel. They jailed her and her son and pressed yet further scurrilous charges against her for what could best be described as resisting assault.
On July 26 stage two of Kwitsel Tatel’s eight-years-and-counting trial began with her request to the court that I be recognized as an expert witness with specialized academic knowledge of section 35 of the Constitution Act, 1982. The letter below dated August 3 is Kwitsel Tatel’s response to what we experienced in her effort to introduce and document the argument with my assistance that her criminalization runs contrary the requirements of Canada’s supreme law, but specifically section 35. Its reads as follows:
Canada’s Constitution Act, 1982
35. (1) The existing Aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “Aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
The Constitution Act 1982 describes itself as well as prior constitution acts as follows:
52. The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
On its way to becoming law, the text of the Constitution Act 1982 had to pass through the Westminster Parliament in Great Britain as the Canada Act. On its way through the British Parliament the Aboriginal provisions of the Canada Act attracted considerable negative commentary. For instance a Conservative MP by the name of Sir Bernard Braine commented,
What are these existing rights? Do they merely amount to the right of these people to continue living in their existing rate of deprivation? Is the right of native peoples to suffer continuing erosion of their land, their land titles and their treaty rights under the Acts of the Canadian Parliament?…. Is it the right of Indian peoples to continue to live with existing discriminations against native education, languages, cultures and customs? Is the right to continue with an existing unemployment rate of 68 per cent? Is their right to continue with their existing life expectancy which is 20 years lower than the average Canadian? Is it their right to continue to suffer the existing suicide rate, which is the most cruel measure of any community’s despair, which is out of all proportion to the national average?
Will section 35 become an international beacon of reconciliation in a world where the legacy of colonialism blights many sites of turmoil, including the dispute between Arab Palestinians and Jewish settlers in Israel largely migrated from Europe and North America? Or is section 35 simply to be window dressing to cover over the continuation by revised means of one of the most sorry sagas of resource theft and genocide in the entire history of colonialism since 1492. As Labour MP Bruce George exclaimed in the Westminster debate on the Canada Act,
The trouble with academics and politicians is that they tend to confine their conception and analyses of human rights to Argentinians, South Africans, Poles and Russians. We tend to forget people on whom has been perpetrated one of the greatest international crimes of modern history—the destruction of ways of life of indigenous populations, not just in the Americas but in Australia, Africa and China.
In early November of 1981 the constitutional deal making that took place in Ottawa reached a crescendo. Nine of Canada’s ten provincial premiers requested the removal of the positive affirmation of Aboriginal and treaty rights from the text of Canada’s new supreme law. The tenth premier, Quebec’s Rene Levesque, was not invited to join in the negotiations, a fateful decision that continues to define key aspects of Canada’s political and legal culture. The federal government of Prime Minister Pierre Elliot Trudeau initially went along with this disgraceful provincialist assault in the human rights of Aboriginal peoples. Only a massive groundswell of public revulsion at such a sorry display of hostile intent on the part of Canada’s highest law makers led to the reinsertion of the controversial words, now with the word “existing” placed before the term, “Aboriginal and treaty rights.
Between 1983 and 1987 four first minsters conferences took place in Ottawa with the intent of giving further definition to the concept of existing Aboriginal and treaty rights. These conference applied a new amending formula fixing all the authority to change Canada’s constitution in the federal and provincial governments and no voting authority whatsoever to the Aboriginal delegates sitting at the high table of Canadian federalism. “Now that is a biased jury if ever I came across one,” exclaimed George Bruce when referring to this inequity.
In commenting on the hostility of provincial governments in Canada to the constitutional recognition of Aboriginal and treaty rights, Sir Bernard Braine explained,
It is evident that the provinces which have major control over the resources in Canada’s federal constitution were not prepared to concede that any Aboriginal and treaty rights to land should be entrenched. The truth was that the treaty and Aboriginal rights which had been solemnly conferred on the native peoples of Canada by the Crown and which are part of the Constitution of Canada had been overlaid in the past by the Federal Parliament for the benefit of the provinces. The provinces were determined to ensure that a continuation of this process of erosion of native rights would not, if they could help it, be stopped dead in its tracks by constitutional entrenchment…. Aboriginal and treaty rights became a token in the course of the negotiations.
Some of the British parliamentarians engaged in debate on the Canada Act predicted “considerable problems” for Canada in “the bar of world opinion” for its tawdry treatment of Indigenous peoples. MP Bruce George predicted that “Indians in Canada will take their case not only to the domestic public but to an international public.” (Citation from the British parliamentary debates are taken from Hall’s article, “What Are We? Chopped Liver? Aboriginal Affairs in the Constitutional Politics of Canada in the 1980s,” in Michael D. Behiels, ed. The Meech Lake Primer: Conflicting Views of the 1987 Constitutional Accord (Ottawa: University of Ottawa Press, 1989) pp. 427-433
Aboriginal Rights and the Legacy of Colonialism
When the first ministers of Canada failed to muster sufficient political will to amend in a substantial way the Canadian constitution to give greater definition to Aboriginal and treaty rights, this responsibility fell to the Canadian judiciary. The trial of Kwitsel Tatel provides one venue for the process of asking the necessary constitutional questions. This process, however, can only if Judge Thomas Crabtree and the Crown prosecutor in the case, Mr. Finn Jensen QC, allow this self-defending Aboriginal fisher a fair chance to develop and document her constitutional analysis. The letter below speaks to the substance of this analysis and the necessary procedures to bring it forward.
The historical context of Kwitsel Tatel’s trial is further complicated by the fact that most of British Columbia has never been the subject of Crown-Aboriginal treaties negotiated according to the terms of the Royal Proclamation of 1763. These treaty negotiations are only now taking place in procedures that deny the necessary international aspect of the transactions.
The constitutional provisions of the Royal Proclamation are only now being applied in British Columbia. As I see it this Royal Proclamation was at the basis of one of the major grievances leading to the secessionist movement in British North America resulting in the founding of the United States. Unfortunately in the USA the imperatives of conquest have often prevailed over the rule of law in the growth of the most militarized polity the world has ever seen. Will British Columbians follow the lead of the Anglo-American secessionists if they are required by the Crown of Canada to make some genuine accommodations with the actual implementation of Aboriginal and treaty rights? Will Canadian agree to apportion a fair share of the resource wealth of Canada to the original peoples?
Of course in many parts of the world the distinction between Indigenous peoples and the descendants of immigrants is not as obvious as it is in British Columbia. The Israeli state, for instance, is founded with the view that Jews are the true Indigenous peoples in a land given by God to his chosen people. This view of history, however, fails to deal with the reality that most indigenous Palestinians have more ancestral roots in the region’s Hebrew antecedents than do most Jewish immigrants from Europe and North America. Defining the rights and titles of whole populations in terms of religious stories that often combine some truths with some fanciful myths is always a dodgy business wherever it occurs.
Like Israel, Sierra Leone and Liberia provide important examples of societies that have gone through difficult straits when new settlers see themselves as returning Indigenous peoples with prior rights that trump those of the true Aboriginal populations. Both African nationalities were created as polities for former African slaves.
The United States has an especially long way to go in coming to terms with its initial identity as a white settler state founded in opposition to British imperial efforts to prohibit vigilantism against Native peoples and to regulate the western expansion of Euro-American settlements into Indian Country. The support of Christian Zionists in the United States for Israeli expansionism has deep theological roots that go back to Puritan culture of New England.
Is there any connection between Prime Minister Stephen Harper’s unstinting backing for the Israeli state’s many assaults on the human rights of Palestinian people and the federal Crown’s anti-Aboriginal positions as consistently put forward by federal agents in court? Will the trial of Kwitsel Tatel provide the needed breakthrough in bringing section 35 forward as a positive factor in the development of a more equitable and fair genre of nation building? Will, for instance, the outcome of the trial strengthen or weaken the position of Indigenous peoples when it comes to their shared opposition to allowing Endbridge’s Northern Gateway pipeline to cut through their unceded, unsold and unconquered Aboriginal lands and waters? Will Canada continue to court international infamy because of its failure to move beyond its ongoing assaults on the human rights of Indigenous peoples within its own borders?
Letter From Kwitsel Tatel to Judge Thomas Crabtree
3 August, 2012
His Honour Thomas Crabtree,
Chief Justice of the Provincial Court of British Columbia,
Suite 602, 700 West Georgia Street,
Dear Judge Crabtree;
I am increasingly distraught as I consider what I perceive to be a breakdown of due process in your handling of the commencement of the second stage of my trial. In this second stage I seek to draw out the appropriate constitutional questions from the systematic infringements of my section 35 rights through the combined actions of the federal Ministry of Fisheries, the federal Ministry of Justice, the RCMP, the now the BC Attorney General’s Office through the actions of some sheriffs in the Chilliwack Court House.
From my perspective the events of July 25 and 26 at the Chilliwack Court House constitute clear evidence that I am not receiving a fair trial. The tests and procedures being applied to my proposed expert witness, Professor Anthony J. Hall, seem very unlike the procedures applied to the other expert witnesses who were afforded recognition to speak in stage one of this trial. Does this discrimination, like the treatment afforded to me, my son, and those who came to observe the course of my case on July 25, embody some sort of effort to prevent a proper exploration of the constitutional dimensions of the criminalizing process advanced through the combined efforts of officials representing the Crowns of both BC and Canada? As you know, I contend that this criminalizing process constitutes in its totality an infringement not only on my section 35 rights but, by extension, on the Aboriginal and treaty rights of all the Aboriginal peoples in Canada.
At the forefront of my troubled memories of my most recent round of experiences in the violent atmosphere of the Chilliwack Court House are the concluding hours of the proceedings of July 26. The subject at hand was the qualifying process of my proposed expert witness, Professor Anthony J. Hall. After you took over from me without explanation the questioning of the witness, Professor Hall was ushered off the stand following the Crown prosecutor’s cross-examination of him.
With Professor Hall off the stand you and Mr. Jensen entered into an extremely significant closed dialogue as if the matters the two of you were discussing in your own esoteric language were of no consequence for me. You excluded me from the dialogue. Neither you nor the federal Crown’s prosecutor attempted to clarify for me in layman’s terms the subject matter of your closed conversation and its implications for the entire course of this second stage of the trial. In this second stage I intend to demonstrate that Crown officials have not adhered to section 35 of the Constitution Act, 1982 in the process of criminalizing me for what you refer to as the illegal possession of fish. Without you making any effort to bring me up to speed on the contents of your very consequential dialogue with Mr. Jensen, the two of you raised subjects, issues, terms, usages, and precedents that were new and unfamiliar to me.
Thinking back to those moments when Mr. Jensen succeeded with your consent and complicity in railroading the process, I kept hearing being repeated the terms “necessity,” “relevance,” and something called the Mohan case. I object to the way you and Mr. Jensen failed to explain to me the connection between these terms and how they applied to the qualification process of Prof. Hall. By denying me a proper explanation of where the two of you chose to go, I was denied the opportunity to explain how Prof. Hall’s testimony would meet the tests of necessity and relevance that I now, in retrospect, understand emerge from the Mohan case.
I allege, Chief Judge Crabtree, that you and Mr. Jensen exploited my traumatized condition to cut me off from having a fair chance to develop my own approach to bringing out how I see the connection between your court’s criminalization of me and the pattern of systemic infringement of existing Aboriginal and treaty rights as recognized and affirmed in section 35. I believe that it was inappropriate for you to have ushered Prof. Hall from the witness stand as a prelude to your closed dialogue with the Queen’s federal lawyer on the question of the necessity and relevance of his proposed testimony.
Certainly if you had explained to me what the Mohan case was about while Prof. Hall was still on the stand, I could have crafted questions to Prof. Hall that would have helped me to develop the case that his testimony would meet the tests of relevance and necessity brought forward by Mr. Jensen in his closing arguments. Why did Mr. Jensen not lead with these arguments? Why was the Mohan test introduced only after Prof. Hall was ushered off the stand? Why did Mr. Jensen not begin his arguments with the Mohan case and at least bring copies of it with him to share with us? Is this failure of disclosure? Why did not the Mohan case come up in your qualification of the Crown’s many expert witnesses deployed in the process of criminalizing me as if section 35 did not exist? Can we revisit the testimony of the Crown’s expert witnesses through the same lens of qualification applied to Prof. Hall?
Why is your response to my request that Prof. Hall be recognized as an expert witness on the constitutional phase of this trial so dissimilar to the way you responded to similar requests from the Queen’s federal lawyer or from me during stage one of this trial? Aren’t we changing the rules of this trial in mid-course in a way intended to disadvantage my side of the case even further when it comes to demonstrating the systematic failure of the Crown officials to adhere to the legal requirements of section 35 in their concerted zeal to criminalize me.
In retrospect I have become suspicious that you and Mr. Jensen have joined forces in developing a strategy to silence and exclude my primary witness from further participation in this second stage of the trial. As I see it Prof. Hall is much more expert than you or Mr. Jensen on section 35 matters as they pertain to history. Certainly his testimony promises to be necessary to help you understand the history of the issues at play in the trial of Kwitsel Tatel. Certainly Prof. Hall’s testimony would be relevant to the circumstances of the criminal justice system’s systemic infringement of my Aboriginal rights, my human rights in this David-and-Goliath scenario that I believe is so unfair that it cannot withstand outside scrutiny.
Violations of Due Process?
In the days following July 26 I have used the Internet to try to understand the substance of the exchange between you and Mr. Jensen as he seemingly instructed Your Honour on what his employer, the Justice Department of Canada, expects of you in your ruling on my application that Dr. Hall be recognized as an expert witness on the section 35 aspects of my case. As Prof. Hall is prepared to testify, there is a long history in Canada and especially in British Columbia of the criminal justice system being subverted with the goal of precluding a real legal reckoning with key aspects of the Aboriginal title and Aboriginal jurisdiction components of the rights referred to in section 35. The background of this process of criminalizing those that bring forward the most pointed critiques of the oldest and most pervasive genre of human rights abuses in the Americas is very clear in the treatment of, for instance, Louis Riel, Big Bear, Jules Sioui, Andy Paull, Robert Satiacum, Jack Cram, William Jones Ignace, Leonard Peltier, and Bruce Clark. In retrospect it is very clear to me that this same pattern of subversion and evasion was on clear display in my treatment in the Chilliwack Court House on July 25 and 26.
Was the fact that my son and I faced violent reprisals from officers of the Crown on July 25 unconnected to the fact I was entering the Chilliwack Court House about to substantiate my view that the governments of Canada and British Columbia have been acting illegally in failing to recognize and affirm the existence of Aboriginal and treaty rights? Am I supposed not to be rendered suspicious by the fact that that those same Crown officers that assaulted my son and I chose also to vandalize Prof. Hall’s blue plastic box of evidence as it was being carried into the court house? Eventually Prof. Hall picked up the smashed box of evidence from the RCMP who neglected to document the chain of custody leading to his retrieval of it at a site several blocks distant from the Chilliwack Court House? On whose authority was Prof. Hall’s box of evidence moved from the custody of the sheriffs at the Chilliwack Court House to the custody of the RCMP? Why was not Prof. Hall provided with any documentation in the transfer of custody of potential evidence in my case? Who removed evidence from the vandalized blue plastic box during the period it was in the custody of the Chilliwack sheriffs and then the Chilliwack RCMP?
When Prof. Hall was delivered the smashed, vandalized box of evidence by Constable W. Sundstrom at the RCMP offices in Chilliwack its contents were in disarray and incomplete? How would you respond, Judge Crabtree, if your papers had been treated this same way when you entered court? Would it affect your capacity to carry out your responsibilities to administer the law professionally? Would you not wonder if there might be some connection between the vandalization of your written documents and the subject matter covered in these documents?
Am I not to be made suspicious about why it was that I was presented to your court in handcuffs and leg shackles on July 25? Am I not to wonder if some forces are at work in the chain of events leading to this opening display of my criminalized person when, after eight years of going along with stage one of the juridical process, my turn had finally come to take the initiative in introducing my section 35 arguments in this case? Your Honour, I am not the first one to be processed by BC’s notorious criminal justice system in this way. I am not the first one to have been made to appear before the courts in foot shackles and handcuffs when attempting to introduce the constitutional case that our Aboriginal title in much of the lands and waters of British Columbia is unceded, unsold and unconquered. I am not the first one to face violence from agents of the Crown in stepping forward to advance the constitutional interpretation that British Columbia developed outside the rule of law in the Dominion of Canada, a polity whose constitutional origins in the British Empire began to coalesce with the advent of King George’s articulation of the Royal Proclamation of 1763. I am not the first one to face Crown assertions that the constitutional history of BC and Canada is “irrelevant” to litigious processes such as the one that has criminalized me before the section 35 aspects of this case have been formally considered. This sequence of criminalization first, consideration of the constitutional law second, I see as a travesty. Is it really fair that I had to be branded first in your court as criminal before I was allowed to introduce the constitutional aspects of my defense? This approach is very convenient for those provincially and federally sanctioned resource-extraction industries that derive wealth from our unceded, unsold, and unconquered lands. The bias of this unconscionable approach has everything to do with the propensity of the governments of Canada and BC to favour the rule of political expedience over the rule of law; to treat as criminals the victims of theft and to put those enjoying the benefits of that theft above the law.
Am I supposed to suspend any suspicion that this display of my brutalized and yet-again criminalized person in your court on July 25 was not in some way connected to the arguments I was about to introduce on the existence of Aboriginal and treaty rights. My argument is that these rights and titles are systematically being denied and negated rather than recognized and affirmed in the Chilliwack Court House or in dozens of others Canadian court houses much like it? As it now stands these edifices of injustice could rightfully be described as virtual factories for the systemic criminalization of Aboriginal peoples. Am I to suspend my suspicion that a corporate and government fatwa has been directed through the police against those seeking to bring out the international aspects of the Aboriginal title issue in British Columbia?
Am I supposed to ignore what happened to lawyer and Doctor Bruce Clark when he was taken into custody and sent by a BC judge for a mental exam for attempting to bring forward allegations that the BC courts are guilty of violating the principles of third-party adjudication, the Royal Proclamation of 1763, and the Genocide Convention of 1948 in their treatment of issues pertaining to Aboriginal title and Aboriginal jurisdiction? Judge Crabtree, you are Chief Justice of the Provincial Court of British Columbia. Do you carry any responsibility to look into what happened on July 25 with the effect of disorienting and traumatizing me so seriously on July 26 that I failed to demand a proper explanation from you as the Queen of BC’s judge and from the Queen of Canada’s prosecutor about what was happening when the words necessity, relevance and the Mohan case were injected improperly into the proceedings?
Were you purposely conspiring with Mr. Jensen with the shared objective of sidelining an expert witness who has devoted many decades of research, scholarship and prolific publication to putting himself in a unique position to help illuminate for the court the necessary background and context of my section 35 arguments? To deny the court the assistance of Prof. Hall as I attempt to develop my constitutional arguments, Your Honour, would rightfully be perceived internationally as a mark that the BC criminal justice system favours the rule of political expediency over the rule of law. Such a denial would break new ground of unfairness in an unfair and inequitable trial that in my view has illustrated at every stage the failure of Crown officials in Canada, but especially the federal government’s prosecutor, to rise to the level of the positive affirmations in section 35 of the Constitution Act, 1982.
This provision, section 35, would have been removed altogether from Canada’s supreme law had not Prof. Hall and Thomas Berger among others argued to dissuade Crown officials from violating their fiduciary obligations to Aboriginal peoples in a country where Indians were classed as disenfranchised wards of the federal government until the 1960s, well into my own lifetime. Has the treatment of Indians as non-persons, as sub-humans, ever really ended? If even the Queen of Canada’s own lawyers in the so-called Ministry of Justice fail to recognize and affirm the existence of Aboriginal and treaty rights in litigious venues like the one in which I am currently trapped, why should regular Canadian citizens respect the requirements of section 35? Are there any legal consequences for those who violate section 35? The answer is resounding NO as far as I can see.
Is there not a huge bias in the way the criminal law is administered in a country so prone to treat as criminals and outlaws those Indigenous peoples whose Aboriginal lands and waters form the resource base of Canada? Is it not common practice in many colonized societies for Indigenous peoples to be criminalized when they attempt to stand up to those oppressing them and dispossessing them? Have Crown officials ever criminalized those who steal our resources and deny our standing as peoples in international law, seemingly with impunity? How can Canada intervene internationally as a champion and defender of human rights in light of the kind of abuses that have put me in my current impoverished criminalized position that has stripped away many life chances for my two children? How many other Aboriginal children have been made to suffer similar deprivations from the infringements of a criminal justice system whose reign of arbitrary violence and disruption of our societies seems completely unrestrained by the promises formalized in Indian treaties east of the Rockies and in section 35?
Why should Canadians respect the law when they see such stunning examples of government officials charged to uphold the law denying and negating this responsibility by conducting themselves as if section 35 of the Constitution Act, 1982 does not exist? Have you already closed your mind, Your Honour, to the possibility that the most serious criminality going on in the Chilliwack Court House is that of Crown officials who have criminalized me contrary to key provisions in Canada’s Constitution Act, 1982 and in the Royal Proclamation of 1763. There is much more to the background and history of these issues, Your Honour, than the Fisheries Act and the Vander Peet ruling. Please, Your Honour, allow me with the help of an esteemed and accomplished expert in section 35 to introduce historical background, depth and context so I can assist you in transcending the fish-bowl-like approach that has been made to prevail in the Chilliwack Court House far too long.
We must look beyond the anti-section-35 biases of the long-serving federal Crown prosecutor and his employers. The narrowness and shallowness of this prosecutor’s unbecoming custodianship of the Crown’s honour I believe is especially apparent in my case, one of many that demonstrates the broad extent of the unaccountability police powers wielded by this federal official in and around the Fraser River fisheries.
Given that you had some idea of what my brutalized family member and I were going through on July 26, why did you rush through such a significant part of the qualifying process as if it was an exclusive and esoteric matter involving only you and Her Majesty’s federal lawyer? Why was I denied notice and clear explanation of the Crown’s main argument to you on the qualifying process?
Drum as Weapon? Mohan Case as Weapon?
As far as I know Mr. Jensen did not give notice of the importance he planned to put on the Mohan case, a 1994 decision disqualifying expert witness testimony brought forward by the defense in the prosecution of Chikmaglur Mohan. Nor was I given an explanation of the contents of the Mohan case, let alone how it might be applied to my ongoing criminalization at the hands of a federal prosecutor and federal police in the BC provincial courts. Moreover, I was given no explanation of how the Crown understood the relationship of the Mohan case to this stage of the trial, where I intend with the help of Prof. Hall to explain to the court the relationship of section 35 of the Constitution Act 1982 to the proceedings against me.
Surely the court would be well served by qualifying a witness already recognized by the Superior Court of Ontario as possessing expert knowledge in the history and politics of constitutional relations between Aboriginal peoples and the Crown in Canada and beyond. As I intend to show, some reference to the history of section 35 and its antecedents will be crucial to the development of my arguments leading to the posing of appropriate constitutional questions as I intend to do.
With all these considerations in mind, therefore, I propose that you not write your ruling on the future role of Prof. Hall in my trial until we have had the opportunity to hash out in open court the applicability of the Mohan case to Prof. Hall’s testimony. As I see it, this discussion may have to extend to consideration of the testimony of other expert witnesses that have already been qualified without your having to address in a written ruling their qualifications. Why the double standard? Was the Mohan case inapplicable to those testimonies? If so what are the arguments to support this contention? Why was the Mohan case brought so late into the proceedings of July 26 only after Prof. Hall was removed by you from the witness stand without any explanation to me of what was intended for the next stage of the trial?
Why was the Mohan case lobbed so malevolently into the proceedings during the closing moments of the July 26 proceedings like a covert weapon aimed at crippling my ability to develop the section 35 aspects of my case? Why did the Crown not give proper notice and why did both you and Mr. Jensen fail to give me a proper explanation of what was going on as a self-representing defendant who only hours previously had been physically assaulted, jailed, and twice fingered both anally and vaginally by officers of the Chilliwack criminal justice system. Why must I be subjected to acts that would clearly be treated as criminal offences against my person in other contexts?
Given the traumatization to which me, my son, my expert witness, and my supporters were subjected to on July 25, wouldn’t it have been appropriate on your part to show at least the same degree of attentiveness as in earlier stages of the trial? Why did you not share with me explanations of the procedures and substance of the Crown’s case against both me and the existing Aboriginal and treaty rights of all the Aboriginal peoples of Canada?
Why did you change your demeanour and conduct so significantly at such a crucial stage of the proceedings? What pressures and expectations were you subject to in a setting where you are among colleagues and I am not, in a setting where there is no credible case to be made that I have access to resources comparable to those seeking to criminalize my exercise of the existing Aboriginal and treaty rights of my peoples as recognized and affirmed in section 35 of the Canadian Act, 1982? Why is it that the historical record of my case is being shaped in the publication of transcripts in a fashion that affords me no role whatsoever in deciding what gets transcribed and what does not?
What is to be said of an eight-year process that does not include the apportionment of resources for the production of a full transcript so that I can bring others such as Prof. Hall into this matter with a proper historical record of what has transpired to date? Is there an anti-history, anti-intellectual bias in your court as reflected in the lack of resources to produce a full written historical record of this trial? Is this failure of due process part of an attempt to cover up the dark workings in the abuse of Crown authority to deny and negate the existence of our Aboriginal title? Is this same anti-history bias also reflected by the position of the Queen’s federal prosecutor who could seriously argue without comment from you that knowledge of the history of constitutional relations between the Crown and Aboriginal peoples is irrelevant and unnecessary to the proper arbitration of the section 35 aspects of this case?
Why did you choose the late afternoon of July 26 to seemingly take sides with Mr. Jensen who seemed intent on either excluding Prof. Hall from future proceedings or so tightly circumscribing his future evidence that I will be constrained from properly developing my section 35 arguments? These arguments will include constitutional questions that I shall contend properly arise from many years of my experiencing the criminalizing tactics to which my people have been subjected since Judge Mathew Begbie ordered the hanging of so many BC Indians in establishing the basis of the court you now lead.
Frankly, Your Honour, I have not seen in your court a high level of knowledge on the history not only of Sto:lo people but also on the dealings of Canada and British Columbia with the constitutional, imperial, international, and colonial heritage of Crown-Aboriginal relations in British Columbia. Given the importance of precedent and context in arbitrating legal matters, especially where criminal law procedures overlap with positive affirmations of human rights as is clearly the situation in my case, I think there is every reason to see the testimony that Prof. Hall can bring forward as both necessary and relevant.
Mr. Jensen may not view such testimony as “necessary” to the cultivation of the understanding you need to decide on the relevant facts of this case and then arbitrate them. The forces seeking to criminalize me through the denial and negation of my Aboriginal rights obviously want a very narrow circumscription of the relevant facts. But that type of tight circumscribing of what happens in your court will not serve the cause of justice or reconciliation. There is a significant imperative of necessity in giving a wide birth for an exploration of the relevant facts in this matter. Alternatively there would be much to lose if you were to choose to constrain the discussion of the constitutional dimensions of my case, one that unfortunately for me captures the essence of so many contemporary tensions in the ongoing history of Crown-Aboriginal relations.
My arguments for the relevance of Prof Hall’s testimony— arguments that I was unable develop fully due to the breakdown of due process on July 25 and 26— is derived from the necessity I see in demonstrating the connections between the criminalization of so many of our people and the failure especially of agents of the federal Department of Justice to protect our section 35 rights as well as our very persons. This failure of protection is evidenced in the high levels of uninvestigated or improperly investigated predators’ violence to which we have been notoriously and disproportionately subjected, especially in British Columbia. This failure of protection falls disproportionately on Aboriginal women whose inequity of treatment has now become a human rights issue at the United Nations.
My son and I experienced this failure of protection for our human rights and physical persons on July 25 when I attempted to drum in our evidence to the Chilliwack Court House. This failure of protection for our persons and for our section 35 rights is definitely a factor in the epidemics of self-abuse (including suicide), domestic violence, homelessness, addictions and such to which we have disproportionately fallen prey. For those suffering this fate and for those Canadians of conscience who abhor this blight on our national character, the level of necessity is high to draw the appropriate linkages between socio-economic breakdown and the Crown’s failure to live up to the promises of section 35, especially as they apply to the most disempowered, disentitled, impoverished, and marginalized branches of the Aboriginal peoples of Canada.
I am requesting therefore that we reconvene on August 29 or some other date to pick up the unfinished business where we left off when the Queen’s federal prosecutor exited the process by lobbing in the Mohan tests in a procedurally-flawed and inappropriate fashion. I contend this breakdown of due process extends to your own deviation from the attentiveness to my situation you have shown at earlier stages of this eight-year-and-counting trial.
In reflecting in retrospect on your apparent character change I recall your stating that you would read your ruling from another location through a video conference connection with the Chilliwack Court House. If I had not been traumatized on July 26th I would most certainly have questioned your statement of intention to conduct my trial through a virtual presence rather than a physical presence. Are you setting a precedent here that could be extended to me if I opted, say, not to attend the Chilliwack proceedings; to be present only digitally rather than physically?
Frankly this idea of yours raises questions in my mind about whether or not you are seeking to avoid the community’s growing attentiveness to my case. This growing level of interest was on clear display on the morning of July 26 in front of the Chilliwack Court House where a surprisingly large assembly of people gathered to protest the sheriffs’ violent response to my decision to drum our evidence into the proceedings on July 25. I think it was telling how few of those who assembled in front of the Chilliwack Court House were willing to go into the building that seems for many Sto:lo to have become a symbol of oppression through overzealous criminalization of our people; through the high propensity of officialdom to manifest contempt for our symbols, cultural identities, and basic human rights. How should me, my son, my supporters and those who took part in the demonstration of the morning of July 26 perceive your plan to distance yourself from the scene of what I and others view as systemic and institutionalized Crown crimes against Aboriginal peoples.
Does the Canadian Crown’s Prosecutor in This Case Really Speak for Her Majesty?
To conclude this intervention I want to ask that the federal Ministry of Justice’s Crown prosecutor, Mr. Finn Jensen Q.C., be removed from all future proceedings in this case because he is in a clear conflict of interest. I intend to develop the argument in stage two of this trial that agents of the federal government, but especially the Crown prosecutors employed by the Canadian Department of Justice, have consistently violated their fiduciary and section 35 obligations to recognize and affirm the existence of Aboriginal and treaty rights. As I have already submitted to the court in Prof. Hall’s essay on the criminalization of Kwitsel Tatel, the case of USA versus Washington state (1974) demonstrates what a proper procedure consistent with the rule of law in Canada might look like.
There is something fundamentally and structurally wrong with the process in Canada that puts such heavy emphasis on criminalizing processes even as they touch concurrently on arbitration of the scope and content of section 35 rights. Isn’t there some contradiction between the federal Crown’s heavy resort to the criminal courts in dealing with that part of Canada’s supreme law that recognizes and affirms the existence of our Aboriginal and treaty rights?
Who in the federal prosecutor’s office, the RCMP, the federal Fisheries Department or the BC Attorney-General’s Office has been attentive to the existence of my section 35 rights in the process of criminalizing me in ways that include the imposition of an enormous burden of unfairness on my children? What are the consequences for my children, but especially my son, Kwiis Hamilton, now that he has been assaulted in the Chilliwack Court House and now that he has been left in the lurch when on July 26, after having been released without charge from the courthouse jail.
What are the reasons that Constable W. Sundstrom, the RCMP officer in charge of investigating my alleged crime on July 25, failed to accept as authentic my son’s account to him of the assault against him in the Chilliwack Court House? Why are no charges being pressed on the sheriff that punched him in the jaw without provocation as seen by many witnesses in the Chilliwack Court House? Will Kwiis Hamilton now be targeted as I have been targeted by the notorious criminal justice system of British Columbia? Need we turn to the United Nations for help? What kind of education, if any, has been extended on cultural diversity and on section 35 rights to the Chilliwack Court House sheriffs, some of whom are not much older than my son.
What was it about this education or the orders the young sheriffs received that made them feel so entitled to defile my sacred drum, to rip apart my ceremonial paddle dress, pile on top of me, punch my son, stomp on a box of important evidence in this case, all on the upper stair well of your hall of injustice, and then deny their own culpability in enwrapping me in yet another layer of criminality? Why not be honest and just have the Chilliwack sheriffs deliver me to your court next time in stripped prison wear with handcuffs and a ball-in-chain? Please be aware that nine days after the assault on me I am still covered in blemishes and bruising from the roughing up I received trying to get into your court as scheduled with a well-prepared case to demonstrate systemic infringements of section 35’s supposed protections. According to officialdom so far all the blame is mine and the sheriffs face no penalties at all in your halls of arbitrary violence, lack of accountability, conflict of interest, and injustice.
What are the implications if Mr. Jensen has indeed been advising the Queen inappropriately in her prosecutions of Aboriginal fishers in the provincial courts of BC? What if it can be demonstrated that Mr. Jensen has failed for an entire generation, but especially since the coming into force of the Constitution Act 1982, to give sound and accurate legal directives to Her Majesty especially on Aboriginal fishing matters in the Fraser Valley area? What is Mr. Jensen’s conception of the implications of section 35 for his line of work, for the fisheries of BC, and for the way the political economy of Canada and BC should or should not be legally regulated? What enforcement responsibilities fall on him and the police forces he directs when it comes to section 35? What is the conception of section 35, including matters of Aboriginal title and jurisdiction, that prevails in the Canadian Ministry of Justice? Is it legal for the Canadian Ministry of Justice to fight us so consistently in court? Is it in the national interest? If so, how?
Why is it that all the onus seems to be on me to answer all the Crown’s many questions in seeking my criminalization whereas I run into a wall of hostility and disbelief when I want to ask valid constitutional questions about Crown obligations, including in this court case and other court cases like it, to respect and enforce section 35? What defense can be offered to my allegation that Mr. Jensen has over the course of the quarter century I have known of him and his work consistently denied and negated rather than recognized and affirmed the existence of Aboriginal and treaty rights as referred to in section 35 of the Constitution Act 1982?
Mr. Jensen is far from alone among federal and provincial prosecutors in, I would allege, failing to take section 35 into account in his criminal prosecutions. Nevertheless it is Mr. Jensen who has been the federal Crown’s main point person in the process of criminalizing me over the course of this extended trial. Mr. Jensen’s role as the primary driver in the process of criminalizing me makes it inappropriate for him to continue to represent the federal Crown now that we are grappling with the question of whether section 35 has been adhered to by Crown officials or not in proceedings that started with the Crown’s apprehension of my fish on July 14, 2004? These same fish, or the two-thirds of them that remained the next day, were sold by the Crown to Seven Seas Corporation. Does this tight sequence of events not suggest that Mr. Jensen and the criminal justice system he represents has treated me as essentially guilty until proven innocent from the conception of the federal Crown’s prosecution? Does not my being forced into a BC provincial court to face the federal government’s criminal proceedings against me not turn appropriate procedures on their head with the effect of prejudicing my defense of section 35 rights which we are only now being addressed after I have already been branded a criminal in the litigious venue over which you preside?
Not only has Mr. Jensen been the main point person in the Queen of Canada’s criminalization of me since July of 2004. For decades Mr. Jensen has been a main point person in concerted campaigns of Crown crackdowns on the rights of many Sto:lo fishers. These crackdowns and the juridical proceedings that have followed appear to many of us to embody systemic abuses of authority whose effect is to deny and negate the existence of section 35 as well as to strip legitimacy from ongoing Crown-Aboriginal treaty talks.
Rather than dealing with Aboriginal fishing rights and the need for conservation in the context of overlapping jurisdictions, including Aboriginal jurisdiction in unceded natural resources, the courts have been made to intervene in ways that predetermine the outcome of treaty negotiations. Judge Crabtree, will you be preempting the role of treaty negotiators in deciding my guilt or innocence in this matter? From whence did you derive your jurisdiction in our unceded territories and waters to decide my fate and the fate of my people in this way? Where is there Aboriginal consent for this process as required in key provisions of the Royal Proclamation of 1763? I for one have not yet been asked to give my consent.
Why is there so much responsibility placed on my shoulders to defend our section 35 rights against the hostile weight of so many branches of the Canadian and BC governments? Are these branches of government exempt from the legal requirement to adhere to section 35? Why is it deemed to be in the national interest of Canada for Crown officials to repeatedly fight us in virtually every instance where Aboriginal individuals and entities attempt to assert our collective Aboriginal and treaty rights on the ground, in the water, and in court? Why are we made to be so isolated in our attempts to get the Canadian government to respect Canadian law?
Where is the protection of the benevolent Crown referred to in many treaty negotiations east of the Rockies and in the era when the imperial government sought our alliances in the fur trade and in the defense of Canada from the Indian-fighting armies of the United States? Why is it that I see Crown symbols on all the officers who attack me on the river, at my home, and now in the stair well of the Chilliwack Court House? Has the Queen now become yet one more predator in our systemic defilement and disentitlement? Or is the Queen’s good name and reputation being plunged into infamy by those who claim to be acting on her behalf but are not? Is the prestigious imagery of the Crown being exploited and abused in ways that dishonor Her Majesty and violate the actual constitution of Canada? I am asking, Your Honour, that you make your court a safe place to pursue these kinds of questions. I am asking that you do what is necessary to make the Chilliwack Court House a safe place for my people so that we can go into such fundamental constitutional questions without fear of being insulted, humiliated, demeaned, and beat up by vigilantes in uniforms who seem to make up the rules as they go.
In the Chilliwack region Mr. Jensen is so deeply associated with these alleged Crown violations of Aboriginal rights that he is not the appropriate person to argue on behalf of the Canadian Crown whether those same interventions, including in my case, were legal or not. As was suggested by his last-minute submissions on July 26 Mr. Jensen will be inclined to defend his own personal role in the history of Crown-Aboriginal conflict in the Fraser River fishery. This kind of personal stake in the outcome of the constitutional phase of my trial makes his efforts to sideline and silence my expert witness suspect. Mr. Jensen is indeed in a conflict of interest.
In my view Mr. Jensen should not be placed in the position where it might be perceived that he is defending his own personal record in the history of Crown-Sto:lo conflicts on the Fraser River and in the courts when it comes to arguing the section 35 implications of my case. Some other federal prosecutor who does not have such a pronounced personal stake in our section 35 proceedings should be made to replace Mr. Jensen. The honour of the Crown requires it. As was harshly demonstrated on July 25 and 26, we need to make some major changes for the public good and my own safety in the way we proceed from stage one to stage two of this trial.
As I have indicated repeatedly since the beginning of this trial, I don’t believe the BC provincial courts are the appropriate juridical jurisdiction for deliberating these matters that include important federal and international dimensions. Accordingly I propose that you move this matter along with your recommendations on the unanswered constitutional questions that arise from the substance of this case. I propose you do your part in moving this matter to a venue more appropriate than a BC provincial court for arbitrating questions concerning federal jurisdiction in Indians and fish as well as the section 35 rights of all the Aboriginal peoples of Canada. As Prof. Hall indicated to you on the stand on July 26, if the provincial governments had had their way in November of 1981, section 35 would not now be existent in the Constitution Act 1982.
In the historic negotiations in November of 1981 of Canada’s first ministers on patriating Canada’s constitution, the provincial governments demonstrated their antagonism to our Aboriginal and treaty rights. Not only were these rights perceived by Canada’s premiers as representing a significant challenge to the monopoly interests that provincial governments claim in natural resources as well as licensing their corporate exploitation. Because of section 91(24) of the Constitution Act 1867, the provision that indicates that “Indians and lands reserved for the Indians” lie within the jurisdiction sphere of the Dominion of Canada’s parliament, these Aboriginal and treaty rights have also perceived as a potential federal wedge in expanding the Canadian Dominion’s powers.
This telling historical episode in Canadian federalism in November of 1981 helps explain why it is that the Aboriginal peoples of Canada have looked to the imperial government and then the national government for some protection from colonial and then provincial infringements. What happened to our history of alliance with the British imperial Crown and the Crown of Canada? Why are you, Judge Crabtree, presiding over the determination of my guilt or innocent in the Aboriginal fisheries of the Fraser River? How did the province that empowers you get authority over me, over my people, over our fisheries, and over all our unceded natural resources? What private deals have been cut without Aboriginal consent to put you in the position in which you now find yourself?
We never gave our consent to the transfer of the fiduciary responsibility to safeguard our rights and titles from the imperial government to the Canadian government. Similarly we never gave our consent to further download this responsibility to the provincial governments whose history of denial and negation of our Aboriginal and treaty rights is undeniable, but most especially in BC.
In conclusion, there should be some outside investigation of the violence and vandalization of evidence that took place in the Chilliwack Court House on July 25. This investigation should not be police investigating police. We have seen enough of that in the efforts in the many scandals currently engulfing the RCMP of BC. Instead of police investigating police we need some genuine third-party arbitration of what took place in the Chilliwack Court House especially on July 25.
Generally speaking all our Aboriginal and treaty rights cases take place without the benefit of genuine third-party adjudication. Most of the judges we face in BC are holders of some form of title to ownership of one or more pieces of BC land. Moreover all the judges we face are paid from government revenues that depend one way or another on what many of us see as the ongoing theft of our resources from our unceded Aboriginal lands and waters. This relationship of BC judges to a system of law that continues to dispossess us without our consent, contrary to the constitutional principles articulated in the Royal Proclamation of 1763, has yet to be addressed in a system that is currently governed more by political expediency rather than the rule of law.
If genuine third-party adjudication was ever to take place it would have to include the international involvement of judges not biased by the source of their pay cheques and by their ownership of property in the contested lands and waters of BC. Obviously their possession of these title deeds to BC properties makes BC judges prone to defend a system of land tenure that developed during an era when the colonial and provincial governments of British Columbia opposed all pressures to recognize Aboriginal title and negotiate Crown-Aboriginal treaties similar to those negotiated east of the Rockies or in the Crown colony of New Zealand.
Significantly Prof. Hall gave expert testimony in the one case where BC title issues were subjected to genuine third-party adjudication in a federal court at Portland Oregon. In her ruling in 2000 on the case of USA versus Pitawanakwat, Judge Janice Stewart found evidence of political interference in BC’s criminal justice system. This politicization of BC’s criminal justice system by police, Crown prosecutors and their media mouthpieces was referred to by Prof. Hall in your court and in the evidence he brought forward to Judge Stewart.
Is this finding of the US court in the Pitawanakwat case to be dismissed as irrelevant and unnecessary to the good function of the criminal justice system in BC, including in the unfolding of my case? Would not the dismissal of such evidence as irrelevant and unnecessary be a very political act on your part? As I see this legacy of politicization identified by Prof. Hall and Judge Stewart continues. I see a very political agenda in the effort by the Queen’s federal prosecutor to treat the evidence I have asked Prof. Hall to bring forward as either irrelevant or as unnecessary to your determinations in my case.
I look forward to your responses to these interventions that in my view are calculated to advance the quest for justice of fair-minded Canadians seeking reconciliation through adherence to the rule of law in a society increasingly unhinged from the best of both our shared and distinct legal traditions.
Kwitsel Tatel/Patricia Elaine Kelly
Defender of Fish, Defender of Section 35 Rights, and Defender of the Rule of Law in Canada