Commentary on Canadian Justice

Lubicon Lake Indian Nation
Little Buffalo Lake, AB
FAX: 403-629-3939

Mailing address:
3536 - 106 Street
Edmonton, AB T6J 1A4
FAX: 403-437-0719

April 4, 1991

Enclosed for your information is a copy of a commentary on the plight of aboriginal people in Canada.

Re-printed without permission from The Globe and Mail, Tuesday, March 26, 1991


by Tony Hall

Lethbridge, Alta.

Milton Born With A Tooth was sentenced in a Lethbridge court yesterday by Judge L.D. MacLean to 18 months imprisonment for an armed confrontation with police on his reserve last fall. Leader of the Peigan Lonefighters Society, Mr. Born With A Tooth stands prominently among the growing number of native people who have decided that assertive tactics are needed to defend the diminishing base of Indian lands and resources.

While public attention was fixed on the crisis at Oka and Kanewake during the extraordinary Indian summer of 1990, a confrontation of comparable drama took place here in Southern Alberta.

Members of several clans of Peigan people resuscitated an ancient medicine society known as the Lonefighters. Their objective was to stop the building of the Oldman dam, which would flood many of their sacred places and disrupt the delicate ecology of the river valley.

They marked their protest by digging a ditch around an irrigation weir on their reserve. This forceful assertion of Peigan jurisdiction was met with a major show of police opposition in early September. Armed, camouflage-clad tactical squads moved onto the reserve and Mr. Born With A Tooth fired two warning shots. He was convicted on seven counts.

It is an understatement to say that the full, coercive weight of the law was lowered onto the Lonefighter leader. Before the trial, Mr. Born With A Tooth was held in jail for four months without bail. His request was denied to move the trial to Calgary. He wanted to escape the worst of the demonology that has been created around the Lonefighters in a part of Alberta sometimes noted for its racist propensities.

The trial took place at Fort Macleod, a police town that was actually founded by the Mounties, and Mr. Born With A Tooth faced an all-white jury.

He came before a judge, L.D. MacLean, who is the target of allegations from a number of observers at the trial of being openly contemptuous of the accused and of natives in general. In court he referred to Peigan perceptions of the land as "fantasy" and drew a comparison between Peigan culture and satanism.

The Lonefighters' defence of the Oldman River comes at a time when aboriginal people face a narrowing range of options in their struggle to survive as distinct societies. Since the constitutional negotiations on aboriginal matters were shut down without resolution in 1987, the country has lacked credible political forums to hear and address aboriginal grievances.

The setbacks on the political front were partially offset, however, by advances in the courts. Then came B.C. Judge Allan McEachern's blunt denial of the assertions of the Gitskan and Wet'suwet'en people, who claim aboriginal title over a 57,000-square-kilometre section of the interior of British Columbia.

A positive judicial finding on the Gitskan case would have helped nudge the federal and provincial governments toward creating lasting cures for long-festering land disputes, especially in those parts of Canada still uncovered by the treaty-making process as first formulated in the Royal Proclamation of 1763. Treaties have never been negotiated with most of the indigenous groups in British Columbia.

Rather than create openings for the forward movement of a flow of ideas and action in our constitutional heritage that acknowledges the basic human rights of aboriginal people, Judge McEachern placed new obstacles in the way.

His finding elaborates a doctrine of extinguishment. According to this view of history, aboriginal links to their ancestral lands were so tenuous that the British Crown obliterated aboriginal rights by the mere act of declaring sovereignty over Indian territory.

What effect does the extinguishment of a people's rights have on their capacity to sustain a distinct identity? What effect will this judgment have on the aboriginal struggle to bequeath a sufficient base of land, resources and indigenous institutions for the survival of aboriginal cultures amid a growing sea of acquisitive newcomers? It is sad that questions like these need to be asked in Canada at the end of a century that has been no stranger to genocide.

Judge McEachern concluded his finding by instructing native people to look to politicians rather than courts for the resolution of their grievances. This advice seems particularly provocative in the light of the harsh responses of the federal government and virtually all provincial governments except Ontario's to the forceful assertion of aboriginal and treaty rights.

Rather than address in good faith the profound jurisdictional uncertainties that lay at the basis of the action taken by the Lonefighters and many other aboriginal groups, the preferred strategy is to treat their protests as the acts of criminals.

Unfortunately, it is becoming increasingly clear that many Crown officials both in the police and courts have allowed themselves to become complicit in this dangerous plan to criminalize the political assertions of more strident aboriginal activists. Or in any case, there has not been a willingness to look at the charges against the native veterans of the summer of 1990 in the context of the land rights they believed they were defending.

This development is occurring just as the criminal justice system finds itself in increasing disarray over the disproportionate numbers of charges, convictions and incarcerations experienced by so many native people in Canada. All the inquiries and commissions have not been able to stop the flow of scandals.

Here in Alberta, for instance, officials are scurrying for cover from the fallout of new revelations suggesting that Wilson Nepoose, a Hobbema Cree, was wrongfully convicted of murder four years ago. Mr. Nepoose's name may well become part of a list whose mere mention conjures up grotesque images of the litany of injustices plaguing too many Native people in Canada. The names include Donald Marshall Jr., Helene Betty Osborne, Minnie Southerland, Chester Heavy Runner, Bernard Tallman and J.J. Harper.

Revelations about abuses against native people in the criminal justice system should have removed any doubt that there are profound inequities in the way law is enforced in Canada.

Canadians are also coming to understand how native people have been excluded from the exercise of power in the way the laws are made. The Gitskan judgment now casts a dark shadow over the one area that did seem to offer a ray of hope, that is, the judicial interpretation of the laws.

Penetrating questions need to be asked about the politics of judicial appointment that places white men in a position to pass such sweeping judgments about the very legitimacy of aboriginal culture and belief.

The rhetoric of law and order has become a significant part of the post-Oka discourse. In her presentation before the parliamentary committee studying the Oka crisis, for instance, Justice Minister Kim Campbell justified the government's actions during the summer of 1990 by citing the importance of enforcing laws uniformly. But such appeals to law and order are double-edged.

Aboriginal and treaty rights are recognized in Canada's Constitution. But who has ever gone to jail for violating an aboriginal or treaty right? And yet the jails in Canada are full of native people.

Why is the law enforced so selectively? Why do law-enforcement officials do so little to protect the land rights of aboriginal people? Where is there any true respect for the principles of law and order when such blatant bias becomes evident?

Is Milton Born With A Tooth a political prisoner? How prepared are Canadians to see the police, courts and jails used as a substitute for broad and comprehensive negotiations about the place of aboriginal societies in modern-day Canada? At what point do the persistent violations of the human rights of aboriginal people become so severe that our institutions for making, interpreting and enforcing the laws become devoid of real legitimacy?

Tony Hall teaches aboriginal affairs at the University of Lethbridge.