Feb 18/97: Submission to Select Standing Committee


[S.I.S.I.S. note: the Select Standing Committee on Aboriginal Affairs is taking public submissions as part of the B.C. Treaty Commission process.]

February 18, 1997

John Shafer: My name is John Shafer. Since 1991 I've been with an advocacy group called Concerned Citizens for Aboriginal Rights, based here in Victoria. However, there's been some slight changes, and I'll be speaking on my own behalf today.

I'd like to talk about the arrest of Dr. Bruce Clark, because I think it is exactly on point with the purview of this committee: it concerns jurisdiction. I've been following the Gustafsen Lake trial and what happened before the Gustafsen Lake trial. I have some very deep concerns about that.

Chair: Just before you get wound up on it, I draw your attention to our terms of reference, which are the issues arising out of the Nisga'a agreement and the treaty process in British Columbia. I don't propose to get into a trial that's before the courts.

J. Shafer: Yeah, right; all right. Let's start with the treaty process, then, shall we? I'm disappointed to see that Mr. Plant isn't here. I was hoping that Mr. Plant might be able to shed some light on the treaty process.

I notice that you attempt to decouple the various judicial apparatuses from the treaty process. In fact, you and I both know they're very, very much connected. I'm sure that members of this committee know the relationship between court cases such as Delgamuukw and the treaty process. Certainly Mr. Plant knows about the relationship between Delgamuukw and the treaty process, and more specifically, the relationship between a law firm like Russell and DuMoulin and the treaty process.

Chair: Mr. Shafer, I hesitate to interrupt you. Mr. Plant's not here to defend himself or to reply.

J. Shafer: I haven't made an attack upon Mr. Plant.

Chair: Well, you're starting on Mr. Plant. Can you address what we want to hear? We want to hear about the treaty process. You were starting on the treaty process. Tell us about the treaty process.

J. Shafer: The treaty process is based on a demonstrably fraudulent and genocidal assumption that the government, of which you are members, has jurisdiction in advance of a treaty process. Now, I know you've heard that many, many times from other people.

Chair: We haven't, actually.

J. Shafer: I have read some of the deliberations, so I know that when you went to places like the Okanagan you heard that. You will hear that from indigenous people over and over again, as I have.

I am coming back to the arrest of Dr. Clark, because I think it makes a mockery of this treaty process. The smearing of a gentleman of that calibre by the media, the bench and bar of this province is outrageous. Dr. Clark is a renowned authority on the law respecting indigenous people -- and that is the reason for this political persecution of him. His book Native Liberty, Crown Sovereignty was reviewed in the Queen's Law Journal as "the most important single piece of writing on the subject of aboriginal rights in Canada," by Professor Noel Lyon. That was in 1990.

Mr. Justice F. L. Gratton of the Ontario court, May 8, 1985, said:

"I have had the opportunity of observing Mr. Clark, his demeanor as well as his competence. More particularly as counsel for the Bear Island group of Ojibway Indians, he appeared before me on a number of occasions. At all times I found him to be courteous, well prepared and able in the presentation of his arguments. These qualities were equally noticed by other members of the judiciary with whom we occasionally discuss the merits and demerits of various counsel. What I found particularly striking was the way in-depth research into all relevant aspects of a given case. Mr. Clark also possessed the ability to present lucidly and logically the various points advanced."
Mr. J. T. S. McCabe, QC, senior counsel, Ministry of the Attorney General of Ontario, said:
"I have known Bruce Clark of the Ontario Bar in a professional capacity for more than ten years. During that period we have acted as opposing counsel in a vigorously contested dispute arising from the assertion of aboriginal rights by his clients against my principal, the Crown in right of Ontario. Mr. Clark was at all times a very formidable adversary. I have come to have great respect and admiration for him. He demonstrated a remarkable dedication to the cause of his clients and a determination to advance it to the very best of his ability.

I am in a position to attest to the sheer magnitude of the work involved in the preparation of his clients' case and to the self-denial that effort must have entailed and the strength of character from which it must have derived. Moreover, his work was always characterized by intelligence, imagination and resourcefulness. In the particular field of aboriginal rights I would be very surprised if anyone practicing law or teaching in a faculty of law in Ontario can match the knowledge of the history and law that Bruce Clark has attained and exhibited over the past decade. I am entirely certain that he will serve any employer with loyalty, dedication and distinction."

Well, it's interesting that we're talking about treaty-making, because one of those cases, of course, involved treaty-making; that is the Temagami case. Yes, Russell and DuMoulin was also involved in that case through its eastern partnership. I would suggest to you that the connections between those national and international law partnerships are very relevant. I would suggest to you that a court case in which the majority of the counsel representing the governments are partners and associates of the chief justice is very significant.

What I'm saying is that I believe that this treaty process is a fixed game. I believe it is corporate-driven. I believe that the chairman of the B.C. Treaty Commission, Alec Robertson, his background from Davis, and Co., his chairmanship, his directorships of Daishowa are very significant. I have to say again that I think this is a fixed game and a standard colonial process designed to terminate and extinguish existing aboriginal rights. Clearly it's finished. Clearly it's coming apart. That's obvious to any of us who are watching this process. Clearly events like Gustafsen Lake will continue to happen as long as these governments, of which you are part, do not come clean on these issues. I would remind you that at Gustafsen Lake it was not all First Nations people there. And that's going to continue too, because you cannot continue to steal and defraud the people of this province from what is just and what is right.

I'm not finished yet, but I'm going to take a couple of moments. Some of the violations that occurred at Gustafsen Lake....How was the army involved?

Chair: Excuse me. You've got to tell us about the treaty process. It has got to relate to our terms of reference.

J. Shafer: All right. Tell me: if you do not have title to this land, if you do not have jurisdiction over this land, if you do not have treaties with this land, how the hell can you purport to send in the RCMP and attempt to murder 18 men, women and elders on their own unceded Shuswap territory? That's one question I have for you people.

I want to know how it is that we can have an Attorney General who is simultaneously Human Rights minister. This effectively means that while there was massive attention on this issue from outside this province, effectively the human rights apparatus did not function in this province, despite the documented human rights abuses that occurred up there -- and they were legion.

I'm going to find a little letter from the ex-U.S. Attorney General Ramsey Clark, because I think it's very relevant. This is what happens when a settler state attempts to bypass the rule of law. This is a letter that the ex-U.S. Attorney General Ramsey Clark wrote and c.c.'d to the Hon. Allan McEachern, the Hon. Ujjal Dosanjh and the Law Society of British Columbia. It's dated September 26, 1995. I won't read the whole thing.

"You have created the appearance of an outrageous abuse of judicial power to deprive persons accused of crime of their counsel and to deliberately humiliate that counsel and his clients. Your own words express both animus and your imperious abuse of judicial power. You have made yourself a personal protagonist. Have you no sense of judicial ethics, or common decency? You give the appearance of an arrogant and hateful tyrant determined to humiliate Indians and destroy the professional and personal reputation and the livelihood of their lawyer."
To recap, what is going on in this province is absolutely illegal, in my opinion. Furthermore, I believe that many of you are also aware that what is going on here is absolutely illegal. I would draw your attention to the "Draft Declaration on the Rights of Indigenous Peoples", and I would ask you to measure the so-called progress of this province against what is happening on the international scene. You will find that you are very, very far behind.

The B.C. treaty process is a cash cow for the legal establishment of this province. We know the kind of money that is being made by counsel involved in this. That has always been the game in B.C. right from when Mr. Plant's firm, Russell and DuMoulin, was prosecuting potlatchers for the Department of Indian Affairs. It hasn't stopped since Begbie and his crooked land deals and his hanging of Chilcotin chiefs. It has not stopped. It's going on today with the arrest of Clark, and the fact that that wonderful old man [Wolverine] cannot get bail. It's going on in these conflicts between the law firms in this province -- Ladner Downs, Russell and DuMoulin. You know how that system works.

I'm just putting on record that some of us are starting to find out, too, and we're not going to go along with these shows -- all right? You had better come clean; you had better start talking turkey with some of the people you're speaking to. What's happening is that people are just going to leave this process, because they see that there is no due process here. It doesn't exist. It doesn't exist in the courts. It doesn't exist in the government. It doesn't exist. So we're going to have to come up with other alternatives -- all right?

Chair: Okay. Thank you very much. Any questions? Thank you, Mr. Shafer.

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