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May 7, 2013

Harper's Canada: Aboriginal rights mean nothing

The Canadian Charger

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As Kwitsel Tatel's case for illegal possession of fish, contrary to provisions in Canada's Fisheries Act is now in its ninth year, the Aboriginal women from the Fraser Valley in British Columbia said the people of Canada should see how the government of Canada is operating systematically to see that Aboriginal people are overrepresented in Canada's penal system.

Ms. Tatel's trial began in 2004 with a charge of possessing and selling salmon contrary to the terms of Canada’s Fisheries Act. Subsequently, the selling charge was dropped by Finn Lensen , QC, the federal crown prosecutor handling the case.

Stage one of her trial proceeded until 2008 when Ms. Tatel was found guilty of possessing salmon, by Mr. Justice Thomas Crabtree. After Justice Crabtree became Chief Judge of the Provincial Court of British Columbia in 2010, Ms. Tatel's trial entered the constitutional phase in 2012, with the honourable judge determining that Ms. Tatel would not receive resources to level the playing field.

Meanwhile, federal Crown prosecutor Finn Jensen ordered Ms. Tatel's picture to be published in Crime Stoppers.

On July 25, 2012, Ms. Tatel was charged with assaulting seven peace officers, after a scuffle ensued as a result of her attempt to bring a traditional drum into a Chilliwack court. She was taken to the Chilliwack RCMP detachment where she said she endured body cavity searches, which she said were humiliating and unnecessary.

On September 25, 2012, the court granted Professor Anthony Hall expert witness status at the trial.

In an interview with the Canadian Charger, Prof. Hall said section 35 of the Constitution Act of 1982 which states:  “the existing Aboriginal and treaty rights of Aboriginal peoples of Canada are hereby recognized and affirmed,” is the principle of law which should determine the outcome of this case.

However, he added that the government of  Canada couldn't decide who should recognize and affirm these Aboriginal and treaty rights – in no small part because 9 of the 10 Canadian provincial premiers demanded in 1981, that section 35 of the Canadian Constitution be taken out.

Between 1983 and 1987 there were four constitutional conferences with the premiers and the federal government, but they couldn't decide on a definition for the phrase in section 35. As a result, the federal government has decided to leave it up to the courts to decide this issue.

Prof. Hall said the government of Canada has gone on a case by case basis in determining these issues of Aboriginal and treaty rights, while at the same time employing experts such as University of Calgary Professor Tom Flanagan - Prime Minister Harper' political mentor – as an employee of the Federal Ministry of Justice, at a cost of hundreds of thousands of dollar, to go to court and testify that Aboriginal rights mean virtually nothing.

Meanwhile, Prof. Hall – although also deemed a constitutional expert – was denied funding for his research in preparation for testifying in court. Perhaps the following excerpt of a submission Prof. Hall made to the court may shed light on how the Canadian government determines who should receive funding for their expertise in Canadian courts:

“Why is it, Your Honour, that there seems to be so much interconnection in the federal government’s failure to live up to its dual responsibilities to protect fish and Indians? Why is it that you, Thomas Crabtree, the Chief Judge of the Provincial Court of British Columbia, have been put in the position of arbiter in these areas of exclusive federal jurisdiction? Why does it fall on you, Your Honour, to determine in the case of Kwitsel Tatel whether the federal government is living up to its dual and intertwined constitutional responsibilities with respect to its trusteeship obligations for the protection of fish and Indians? Who made the decisions that put us in this provincial court and what is the justification for subordinating these two very clear areas of federal jurisdiction to the arbitration of a provincially-appointed judge?”

Professor Hall also said that 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 (which section 35 of the Canadian Constitution refers to) 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.

Professor Hall said the charge Ms. Tatel is facing – the one that's been going through the courts for over eight years – is a regulatory offence of fishing without a permit,  and  criminalizing this affects all Aboriginal people of Canada.

“It denies the political context of her case. It signifies a failure of the government to protect the persons of Aboriginal people.”

He added Federal Minister of Justice Rob Nicholson having representatives such as Mr. Lensen prosecuting in provincial court is an abuse of the justice system, to deny Aboriginal rights, so the federal government can assist multinational corporations in controlling Canada's resources. Don't be surprised to see Prime Minister Harper sitting on the board of many of these same corporations after he leaves politics.

Moreover, Professor Hall said Mr. Lensen is not even a regular employee of the Ministry of Justice – he's been hired as a private contractor by the ministry to specialize in prosecuting fisheries cases.

“It's politically expedient to deny Aboriginal Rights,” Prof. Hall said, “ because of the money involved in mining, fisheries and hydroelectric projects . There are many advantages people get for infringing on Aboriginal rights; that's why this case has been in court for nine years, employing all the resources of the state so that one woman can't continue fishing.”

Ms. Tatel said that as an Indian she depends on the crown to look after her interests, but the judge is protecting the crown prosecutor and deviating away from her constitutional argument under section 35 of the Canadian constitution.

“By criminalizing me, they're making me the chief negotiator in the treaty process and without the treaty process, who is doing this recognizing and who is doing this affirming?”

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On July 7, 2024 in Toronto, Canada, Dimitri Lascaris delivered a speech on the right to resist oppression.

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