Native rights lawyer Dr. Bruce Clark resumed testimony at the Ts'peten (Gustafsen Lake) trial today, and discussed the processes and conditions under which Positive Law(s) [Legislative] can be changed:
(1) Repeal: only by legislation of equal or greater force or effect than the law to be repealed. That is, a Provincial Court cannot repeal constitutional law, but an Imperial court could. The only competant repealing authority in Constitutional law is Parliament. This has not been done. Though judicial decisions can create law if it is an original address of a point of law, a judicial decision cannot change or repeal existing law, and it is a legal impossibility for a judge to change Constitutional law.In the context of existing aboriginal rights and existing constitutional law, Dr. Clark evidenced transcripts of court appearances from 1990-1995, in which the judges in every instance did one of two things:(2) Obsolescence: old and irrelevant laws may cease to have effect. However obsolescence is not relevant to constitutional law, which is by definition constitutive, alive and relevant. This was reaffirmed in the Constitution Act of 1982.
(1) refused outright to address the law respecting aboriginal rights and jurisdiction.The dominant assumption was that Delgamuukw had repealed previously established constitutional law, something which a provincial court doesn't have the jurisdiction to do.(2) declared, usually in concert with the crown, that the issues of sovereignty and jurisdiction were addressed in Delgamuukw, the infamous Gitksan Wet'suwet'en land claims case.
The other flawed assumption was that Delgamuukw had addressed and and resolved the issue of jurisdiction. However, for a provincial court to rule on the question of its own "jurisdiction" is a profound structural conflict of interest.
On September 12, 1995, the Supreme Court of Canada decided that Delgamuukw was irrelevant to the jurisdiction question, saying that the issue had not been raised or addressed in the courts below. While this SCC decision overruled the provincial judiciary's position that Delgamuukw had dispensed with the jurisdictional question, the Supreme Court of Canada used this argument as an excuse not to itself address the law. It maintained that the question of law had allegedly not climbed the appellant ladder from provincial to federal court.
This legal chicanery attempts to force those asserting aboriginal rights to "chase their tails," in a vain attempt to find a domestic remedy. Clark characterized the Crown's bald contradiction by saying "even Crown attorneys can't suck and blow at the same time." Delgamuukw "cannot even pretend" to have the effect Crown claimed.
Clark said the message is clear: if you attempt to exercise your aboriginal rights, "we will use the criminal law system as a criminal weapon." This was definitely the case at Mt. Currie, Lil'Wat territory, in 1990. Unarmed Lil'Wat protesters discovered a heavily armed, covert ERT probe in the vicinity of their peaceful blockade. An RCMP officer perjured himself in court, initially denying that ERT members were carrying AR-15 assault rifles, then admitting to it the next day. Inspector Kembal, who gave shoot to kill orders at Gustafsen Lake, was Emergency Response Team (ERT) commander at Mt. Currie. Superintendant Len Olfert, RCMP site commander at Gustafsen, was commanding officer at Mt. Currie. There, RCMP smeared Clark's co-counsel Lynn Crompton as "mindless, irresponsible, off the wall."
Also, as in Gustafsen Lake, the Department of Indian Affairs Band Council muscled their way into the court process to undermine the traditional sovereigntists and sabotage the jurisdictional challenge. On November 30, 1990, Justice McDonald reneged on a commitment made to address the jurisdiction question. Despite these endemic abuses of process by the corporate-judicial complex of BC, Clark still maintains that the best hopes lie with truth and the rule of law.
Dr. Clark testified today that he advised his clients "that they were legally entitled to do what they did at Gustafsen Lake...to defend against the genocide taking place under the auspices of federal and provincial law - the Indian Act and Criminal Code.
He addressed the role of the jury, in Common Law 'the people'. "You are the ultimate safety net", he said, and offered that this jury has the power to recommend Third Party Adjudication, not just declare a verdict of guilty or not guilty.
Clark then spoke about the profound differences between Western Euro-American philosophy -- Christ, Socrates, Heidegger, Sartre, Wittgenstein, Chomsky -- and indigenous cultural systems. He contrasted the life-through-death language of the philosophers to the chanting of a Sundance. Clark noted this goes beyond language to the resonance of the universe, beyond the words "spirit" and "matter" to ultimate reality and light.
Dr. Clark recounted the history of the "Chilcotin massacre" at Butte Inlet near the Neimiah valley. Surveyors trespassing into unceded territory raped and murdered a Chilcotin national. They were confronted, conflict ensued, and the surveyors were killed. Then Judge Matthew Begbie hung a delegation of Chilcotin Chiefs ostensibly invited by Begbie to make treaty at Williams Lake. In effect a group of travelling peace emissaries were the victims of judicial murder in 1864.
Clark evidenced how cunning judges were at evading the rule of law, refusing to address legal questions, basing decisions upon the pleasure of the particular judge, regardless of existing legislative and natural law. They act like absolute monarchs, while committing the crimes of fraud constitutional treason, and arguably genocide. Since at least the Magna Carta, judges are not above the law.
Dr. Clark recalled Judge McDonald's statement that the sooner Indian Sovereignty was addressed the better, then the denial of leave to appeal, reneging on McDonald's own commitment. He argued on the basis of historical practice, as if there were no question of law, and was echoed by Judge McFarlane's 'decision' regarding Indian Sovereignty that "I need not answer that question". Judge Wetmore followed suit in the case regarding the Ure Creek Lil'Wat blockade, ordering Clark not to mention the words "constitution" nor "sovereignty," then granting an injunction to remove the blockade.
Clark then recounted the case of John Shafer, arrested for breaking an injunction forbidding interference with Fletcher Challenge logging operations in the Carmanah-Walbran valley. Shafer, "very much an ally" and "mutual friend" of Dr. Clark and Jones Ignace, came before the same Judge Josephson who is now presiding over the Ts'peten trial.
Justice Josephson refused to accept the submissions of the defence on the grounds that although the criminal trial was proceeding in Victoria, the documents should have been stamped in the Vancouver Registry, where the civil proceedings began. Josephson appeared to take pleasure at Clark's frustration with his procedural chicanery. (See transcripts at http://kafka.uvic.ca/~vipirg/SISIS/court/judge.html)
Clark noted that there is a repetitive return to the same old song of 1864 and BC's first Chief Justice "hanging judge Begbie." From BC to Alberta, to Ontario, Quebec, Nevada, Central and South America, "that's how the west was won."
Recently Ontario Judge Bolen, formerly a North Bay lawyer who works adjacent to a land claim area, disqualified himself from sitting a case involving aboriginal rights on the grounds that he found himself in an obvious conflict of interest. Clark felt the decision is appropriate and asked, "So why are we here?," referring to Josephson's conflict and demonstrated bias to the jurisdictional question in the Shafer case.
"Perhaps the genocide is beginning to come to an end," Clark suggested hopefully. "It may be that this jury's decision can set us firmly in that direction."
FREE WOLVERINE! FREE THE TS'PETEN DEFENDERS! FREE DR.BRUCE CLARK!
---------DEMAND A PUBLIC INQUIRY INTO THE GUSTAFSEN LAKE AFFAIR---------
=====AND THE NDP GOVERNMENT'S ROLE IN IT: SILENCE IS COMPLICITY=======
Sample letters and links to politicians' email are on the Settlers In Support of Indigenous Sovereignty (S.I.S.I.S.) site, at:
http://kafka.uvic.ca/~vipirg/SISIS/gustlake/letter.html
Please send a copy of your letter to S.I.S.I.S.
Splitting the Sky - Phone/Fax: (604) 543-9661Ts'peten Legal Defence Team:
Bill Lightbown - Phone: (604) 251-4949
Manuel Azevedo, phone: (604) 687-0231, fax: (604) 687-0241Settlers In Support of Indigenous Sovereignty
Margaret Clark, c/o phone: (604) 687-0231, fax: (604) 687-0241