On Friday, March 14th, Native rights lawyer Dr. Bruce Clark continued his testimony at the Ts'peten trial in Surrey, BC, Canada. Clark reiterated his belief in the rule of law. "The fact that the rule of law has not functioned for them [his clients] to date does not evidence a defect in the rule of law but in its administrators." That being the case, "the first remedy is self-help:" self-defence, defence of family, and in this case, defence against genocide.
Dr. Clark noted that there are two standard responses to Indian resistance: (1) massacres, and (2) anti-native propaganda to prejudice the public. He testified that his traditionalist clients had instructed him to take their jurisdictional arguments to courts to apprise those courts of the law and its breach. "Without third party adjudication, the rule of law is a hoax," said Clark.
He then continued to relate the appalling and extensive corruption rampant in the BC courts on the indigenous rights issue. Mr Justice Lambert of the BC Court of Appeal baldly stated that there was no chance of BC judges ruling favourably on the native sovereignty argument, regardless of what the law says. The obvious conclusion is that "the rule of law is not capable of functioning in the BC Court of Appeal, in the aboriginal context."
Clark noted that the rule of men, political expediency and "legal realism" have replaced the rule of law. The jury heard that when jurisdiction is challenged in law, all proceedings should end until the jurisdictional challenge is resolved. Purely the opposite has occurred.
Judges are evading the law so thoroughly that in one case, BC Court Justice Walker went so far as to strike Clark's jurisdictional- constitutional arguments from the record, and ordered Clark removed from his courtroom. Walker also sought to impose a gag order on the jurisdictional argument thereafter. Judge Walker's contempt charges were dropped when Clark sought to press counter charges of fraud, treason, and complicity in genocide.
Walker handed the "hot potato" to Judge Keith Libby who misperceived that the recognition of the law would "give truth to anarchy in this country." Libby claimed, "The law is more an instrument of fairness than justice." Recognition of indigenous sovereignty would "create a class of people not bound by law," argued Libby. Clark noted that Libby, as a BC judge, ironically belonged to just such a class himself.
Libby felt that a judicial decision on that question would not change the world in any case. Clark argued that it would send a fundamental message to society. Judge Keith Libby concluded by responding, "I'm not going to make a decision that is essentially going to end my career, such as it is, the moment I put my signature to it." Unfortunately, stated Clark, such is the grim state of the law that Libby was the only Judge to engage the issue to the extent he did, and compared to other judges in BC, Libby was "refreshing."
Dr. Clark continued his testimony by addressing the existing natural, constitutional, and international law regarding aboriginal rights of possession and jurisdiction. Unless they are subject to a treaty, Indigenous lands remain unpurchased and Indigenous nationals not subject to or within Canadian jurisdiction. Although the law is simple and straightforward, the judges evade it. "It is so profound and obvious a mistake that it is impossible that it is made honestly."
Clark related 50 excerpts from BC Court transcripts evidencing judicial evasion of existing law prohibiting their usurpation of indigenous jurisdiction beyond the treaty frontier. The evasion is so consistent that the law has yet to be addressed. The reason is that the Crown "has no vestige of a credible case," said Dr. Clark. His challenge is to its illegal jurisdictional reach beyond the treaty frontier. "What the Judges pretend is that because the Crown has 'sovereignty', the Provincial and federal governments can do whatever they want." They are, rather, compelled to respect and implement their own Constitutional law.
"For 130 years [in BC] the genocide of native peoples has been caused by judges," said Clark. This was accomplished by usurpation and by legitimation of genocide and colonialism. "An assumption cannot be a precedent," he cautioned. Each prejudicial case thus far has been based upon assumptions, with no legal basis in historical reality. The "legal realist" rule of men has trashed the rule of law. "There is not a chance, not a vestige of hope, of justice being served in BC courts for aboriginal peoples."
Clark testified that genocide is similar worldwide. In Canada, industries and bureaucracies have been created. These consist of judiciaries, lawyers, land claims researchers and negotiators. Their work consists of and is dependent upon genocide. There have always been excuses and rationales for slavery, for the genocide of Jews, Gypsies, and Indians, with "racial and cultural terms of `us and them' and with the theft of land and resources."
Clark described the landmark Delgamuukw (Gitskan Wetsuwe'ten) land claims case as "the cunning and vicious cross upon which BC intends to crucify Native Sovereignty." The BC Attorney General's arguments in the Supreme Court of Canada, namely that Delgamuukw did not address the jurisdictional law, were 180 degrees at odds with the position argued opposite Clark in the BC Courts, thus landing natives back at the provincial level. BC has attempted to trap the natives' legal challenges at the provincial level, while the Supreme Court of Canada dismissed the 11 other applications for appeal based on the jurisdiction argument, as if "not of public importance to Canada". Clark noted that the lead lawyer for BC in the landmark Delgamuukw case, Michael Goldie, was elevated to the bench of the BC Court of Appeal, along with Chief Justice McEachern.
The rule of law must be put back on track, said Clark. He urged the judges to desist from their conspiracy to illegally extinguish natives and their rights, "before Canada's reputation as a nation founded upon respect for the rule of law is irretrievably compromised."
Clark, counsel of choice for most of the defendants in this trial, is currently serving three months in prison on trumped up charges of contempt of court. The attempt to bar Clark from the Ts'peten courtroom has failed, since Shuswap elder Wolverine has called his lawyer as an "expert witness" instead.
Clark's exposition of the law respecting Aboriginal Rights to the six men, six women jury continues as the defence presents its "color of right" arguments in the Gustafsen Lake trial. With a prosecution that lasted more than eight months, this the longest criminal trial in Canadian history. 14 Natives and 4 non-Natives are charged with mischief, firearms offences, and attempted murder, stemming from a month long siege in 1995 by RCMP and Canadian Armed Forces of sacred, unceded Sundance and burial grounds near 100 Mile House, British Columbia.