January 16, 2013. Chilliwack British Columbia. The Canadian Government Is Put on Trial for Violating Section 35. Idle No More Makes a Breakthrough in Court. Finn Jensen, a Queen’s Counsel and Federal Crown prosecutor, takes the stand to try to defend himself from allegations that he and his colleagues regularly break Canadian law when they deny and negate, rather recognize and affirm, the existence Aboriginal and treaty rights in Canada.
The Idle No More movement took a decisive step on January 14, applying some of its key contentions in a juridical venue. Because Idle No More is focusing particular attention on the illegalities of Omnibus Bill C-45, and especially on the Harper government’s efforts to to change Canada’s constitution through dubious legislative measures calculated to remove all federal obstacles to the quick construction of pipelines across Canada’s myriad configurations of inland waters, the Aboriginal fishing trial of Kwitsel Tatel has taken on added significance. Kwitsel Tatel’s most fundamental contention is that Canada’s Ministry of Justice is systematically violating the the supreme law of Canada by refusing to adhere to the provisions in Canada’s constitution that pertain to the Aboriginal peoples of Canada.
This larger contention was personalized in Kwitsel Tatel’s application that the federal Crown prosecutor in her case should be removed as she attempted to lead the evidence in the constitutional phase of her eight-years-and-running trial. The judge agreed to hear Kwitsel Tatel’s request. This sequence of events opened the way for Mr. Finn Jensen, a federal Crown prosecutor and Queen’s Counsel, to make history in a small court room in British Columbia’s Fraser Valley. There he was compelled by Judge Thomas Crabtree to answer the charge that both he and the federal Ministry of Justice are in a conflict of interest when it comes to their treatment of Kwitsel Tatel. The trial arises from the Crown’s seizure and immediate sale of this Aboriginal fisher’s salmon in July of 2004.
In Canada all federal prosecutions emanate from the federal Ministry of Justice. Its Minister since 2007 is the Hon. Mr. Rob Nicholson, the Attorney General of Canada. The Minister and Ministry of Justice are in a systemic conflict of interest when it comes to prosecutions of those Aboriginal peoples who engage in activities that might be exercises of existing Aboriginal and treaty rights. According to section 35 of Canada’s Constitution Act, 1982, “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”
As Kwitsel Tatel and many others in the Idle No More movement have emphasized, the Ministry of Justice has never gone into court with the intention of recognizing and affirming the existence of Aboriginal and treaty rights as the US government once did in the early 1970s in an Aboriginal fishing case entitled USA versus the state of Washington. Instead, the Canadian Ministry of Justice has consistently set itself up as the adversary to any and all assertions of Aboriginal rights and titles. Moreover the Ministry of Justice has never tried to come to terms with the responsibilities that fall on this strategic Crown agency as a result of the existence of some 90 or so Crown-Aboriginal treaties in Canada. Thus the Ministry of Justice has consistently denied and negated rather than recognized and affirmed existing Aboriginal and treaty rights as Canada’s highest law requires it to do. Moreover the Ministry of Justice has consistently refused to live up to its specific fiduciary responsibilities to Aboriginal peoples which arise from the period when the registered Indians were treated as wards federal authority.
By his actions and decisions in this case and in his unrelenting zeal to criminalize over decades hundreds of other indigenous Sto:lo people in British Columbia’s Fraser Valley, Finn Jensen has made himself an obvious example of the Ministry of Justice’s systemic refusal to respect section 35 of Canada’s Constitution Act, 1982. Mr. Jensen has made himself notorious among many Sto:lo people for his personal animus aimed especially at those Aboriginal fishers who have attempted to maintain their traditional harvesting of salmon, often in the face of violent repressions by heavily-armed Crown officials. In the process Mr. Jensen, who is a private contractor, has reaped millions in federal patronage dollars for his get-tough-on-Indians campaign. This campaign tends to play very well politically in the Fraser Valley area. The Fraser Valley is hot real estate market, a zone of many right-wing churches, and a bastion of electoral support for the Harper Conservatives.
In his effort to defend his own personal record from the allegations pointed his way by Kwitsel Tatel, Finn Jensen demonstrated very well why he is indeed in a conflict of interest. The fact that Mr. Jensen has such a strong personal stake in defending his personal reputation in this eight-year and running matter bathed all his comments in an aura of self-referencing self-justification. It was impossible to know when Mr. Jensen was genuinely representing the government of Canada and when he was speaking to defend himself as the primary protagonist in his well-funded efforts to criminalize Kwitsel Tatel for possessing fish.
Mr. Jensen’s half-hour presentation embodied a classic display of the Ministry of Justice’s pathological unwillingness to uphold Canadian law by recognizing and affirming Aboriginal and treaty rights. Strangely the Crown’s prosecutor insisted Kwitsel Tatel has not been criminalized but only subjected to a process arising from the charge that she violated “a regulation.” Mr. Jensen’s claim drew an astonished response from Kwitsel Tatel, who has been repeatedly jailed, subjected to cavity searches, and had her picture published in the RCMP’s Crime Stoppers for selling, purchasing and possessing fish.
Repeatedly throughout the proceedings Kwitsel Tatel referred to Mr. Jensen as the Queen’s failed fiduciary who never addressed, let alone resolved, the conflict of interest implicit in his dual roles as the supposed protector and the adversary of the Aboriginal fisher’s Aboriginal and treaty rights. Kwitsel Tatel accused the Queen’s Counsel of consistently dishonouring the Crown and all the promises given Aboriginal peoples that that the imperial sovereign would protect the First Nations from settler incursions. She made repeated references to the principles of Idle No More, including to the insistence of the hunger striking chief, Theresa Spence, that the time has come to make a reckoning with the role of the Crown and the Crown’s promises in bringing the Canadian government’s relationship with Aboriginal peoples into the twenty-first century.
Mr. Jensen denied that he had any role in having the picture of Kwitsel Tatel, whose Christian name is Patricia Kelly, published in the RCMP’s Crime Stoppers publications. Mr. Jensen refused to deal with the inconsistency between his claim that Kwitsel Tatel was never been charged with selling and purchasing fish and the details of the alleged crime as published by the Chilliwack RCMP’s Crime Stoppers. As Kwitsel Tatel pointed out, the RCMP’s disinformation has been replicated again and again as recently as October of 2012 in a slanderous smear piece by Greg Renouf. Apparently Mr. Jensen made no effort to pick up the phone to ask who it is among his tight circle of friends and colleagues in the law enforcement establishment of the Fraser Valley that opted to publish the disinformation again and again and again.
Mr. Jensen seemed especially uncomfortable in addressing Kwitsel Tatel’s charge that the Crown prosecutor had purposely manipulated the charge to protect non-Aboriginal owners of fish packing operations in the Vancouver area that regularly purchase salmon from Aboriginal fishers. Kwitsel Tatel’s fish were seized from her at the Sundance Sea Food Company of Mr. Mike Denike. The issue of the Ministry of Justice’s special protections for some, and zealous criminalization for others, came up after Kwitsel Tatel explained in court her unease with a question put to her years ago by her son, Kwiis Hamilton, now aged 19. Kwiis had asked his mom why the force of the criminal justice system in Canada had so aggressively intervened in the life of his family, limiting the life chances of him and his sister, whereas Mr. Denike had apparently been exempted altogether from any legal consequences for his role as a major beneficiary of the Aboriginal fisheries of the Fraser Valley.
On July 25 Mr. Hamilton was punched in the jaw by a BC sheriff after he verbally protested the assault on his mother by a many BC sheriffs when the second and constitutional phase of the trial of Kwitsel Tatel was supposed to have started. He was then briefly incarcerated in the Chilliwack Court House. I personally witnessed when the badly bruised Kwiis Hamilton was turned down by the RCMP in his effort later on July 25 to enlist the support of the Mounties in having the Crown press charges against that provincial Crown official that assaulted him in the stairwell of the Chilliwack Law Courts..
There was much discussion on January 14 about the alleged constitutional violations entailed in putting all these questions before a BC judge. The key questions Judge Crabtree must address pertain to the federal government’s jurisdictional responsibilities for fish, inland waters, Indians, lands reserved for the Indians, and the federal Crown’s fiduciary obligations to the Aboriginal peoples of Canada. Given this configuration of jurisdictional issues, surely the trial should have started in a federal court. Ultimately these matters will all have to be dealt with in international courts given the systemic conflicts of interest that prevent the domestic judiciary from providing true third-party adjudications whenever Aboriginal peoples contend that their rights to land, resources, and sovereign self-determination have been illegally appropriated. When lawyer Bruce Clark raised this contention formally in a Canadian court he was notoriously sent away for a mental examination and later disbarred.
Judge Crabtree said he would publish on or about March 15 a written ruling on Kwitsel Tatel’s allegations that Mr. Finn Jensen, QC, and the federal Ministry of Justice, are in a conflict of interest in her case and in many others like it in Canada. Like the United States, Australia, and Israel, Canada has yet to follow the lead of South Africa in coming to grips with its true identity as a settler state built on the dispossession and systematic violations of the fundamental human rights of Indigenous peoples.