On Thursday May 15, 1998 the Supreme Court of Canada denied an application for leave to appeal by indigenous traditionalists including the Ts'peten (Gustafsen Lake) Defenders. S.I.S.I.S. interviewed Native rights lawyer Dr. Bruce Clark, counsel for all of the applicants, shortly after the decision was announced.
S.I.S.I.S.: Dr. Clark, there's been a development in the Gustafsen Lake matter, specifically a leave to appeal application in the Supreme Court of Canada. Can you tell us about that?
Bruce Clark: Yes. The Supreme Court of Canada denied leave to appeal and the decision was announced this morning.
S.I.S.I.S.: Were there any reasons given?
BC: No, but there never are. There's only one test under the statute - the statute being the Supreme Court Act, Section 40, subsection 1 says "The court shall grant leave if the issue is of importance." So it really isn't necessary for the Court to give reasons. Its refusal to grant leave is automatically a finding that the issue is not of importance.
S.I.S.I.S.: For those who are not aware just what the issue is, can you summarize that for us?
BC: Yes. The issue that we sought to put before the court by way of a Constitutional Question was whether the non-native courts in Canada have jurisdiction relative to disputes between natives and newcomers over territory which allegedly has never been purchased by the Crown. [The application for Leave to Appeal can be viewed at: http://kafka.uvic.ca/~vipirg/SISIS/court/feb6app.html]
S.I.S.I.S.: This action, a composite of several cases involving that same legal issue, included that of William Jones Ignace, OJ Pitawanakwat and Shelagh Franklin, defendants in the Gustafsen trial, correct? [Also included were appeals brought by Harold Pascal, Lil'Wat nation, and Verna Friday of Bear Island.]
S.I.S.I.S.: Can you take us back to the summer of 1995, when you were last in the Supreme Court of Canada on this issue?
BC: Yes. We attempted in the summer of 1995, in a series of 11 cases from various parts of Canada - BC, Ontario and Alberta - to state the same issue. The Court refused to consider the issue at that time. Following that, I was approached by one of the Houses in the Delgamuukw case, that is, one of the hereditary chiefs, one of several plaintiffs in the case, to state the same issue. So again, I prepared another application, this time in the Delgamuukw case, seeking to have the issue raised there. In the Delgamuukw case, the court stated it would not address the issue because it had not been raised previously in the Delgamuukw case itself. The Court said that this was obviously a constitutional issue, but that nevertheless it was not appropriate to address it in the context of the Delgamuukw case. It would have to wait for some other case.
S.I.S.I.S.: On the grounds that this particular [jurisdictional] issue had not been raised in the courts below in the Delgamuukw case.
BC: That's right. Now when Chief Justice Antonio Lamer made that comment during the Delgamuukw hearing in the Supreme Court of Canada, I reminded him that the position he was occupying was patent chicanery because the Court, just a month before, had refused leave on the same issue in 11 cases. The grounds of refusal was that the issue was NOT of importance. Here we come a month later in the Delgamuukw case and the Court said the issue is obviously of importance, is a constitutional issue, but won't be addressed in the Delgamuukw case. It will be addressed in some other case, for which purpose the Chief Justice essentially told me to go back to BC and raise the issue again.
S.I.S.I.S.: Which you did?
BC: Which I did eventually in the context of the Gustafsen Lake trial. Now in the summer of 1995 this chicanery on the part of the Supreme Court of Canada and other courts in BC and the rest of Canada contributed to the Gustafsen Lake event.
S.I.S.I.S.: So there was a complete refusal to address the issue?
BC: Yes, to address the issue, but when applying to ask the Court to address the issue, I put before the Court the law which resolves the issue. What the law that resolves the issue says is that the [non-native] courts don't have jurisdiction. That's perfectly clear and plain. It's also perfectly clear and plain that the courts' assumption that they do have jurisdiction arguably constitutes complicity in genocide, contrary to the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. So the Court is obviously interested in a personal sense. It is at least arguably engaged in continuing a historical pattern of genocide against the native peoples.
S.I.S.I.S.: So the highest court in the land has once again refused to hear the issue, after having previously stated that it was an issue that needed to be heard?
BC: That is what the Court said after refusing to hear it in the context of the Delgamuukw case. The court acknowledged that it was a constitutional issue but it just wasn't one that was going to be addressed in that particular case. They sent me back to British Columbia to raise the issue again, which was done in the context of the Gustafsen Lake trial.
S.I.S.I.S.: And also before Judge Friesen.
BC: Yes, and of course my own trial for contempt of court for allegedly offending the Court by insisting on raising it [jurisdiction], for which I spent 3 months in jail. But again, in the context of that case and the appeal, the issue still was not addressed and neither was the law that resolves the issue addressed.
BC: So essentially it's very simple, the issue is quite straight forward: do the courts have jurisdiction? The law is quite straightforward. Since 1774 the unrepealed constitutional law that resolves the issue says: no they don't have jurisdiction. The third point is its arguable that the courts' assumption of jurisdiction, since the 18th century, has been the modus operandi of genocide in what is now called Canada.
BC: In the summer of 1995 the highest court acknowledges that the issue is of constitutional importance. Now, this morning, we find the issue is NOT of importance: "leave to appeal denied." So essentially, the issue is not going to be addressed in Canada. The law is not going to be addressed. The statement with which the Constitution Act 1982 commences, that "Canada is a nation founded upon respect for the rule of law," is obviously a hoax.
S.I.S.I.S.: This is now the exhaustion of domestic legal remedies. Would that be a fair statement?
S.I.S.I.S.: As for international remedies, you have already canvassed a number of those as well. One was an attempt to have the Imperial Crown convene a constitutionally mandated 3rd party tribunal. This was also refused. Correct?
BC: Their refusal was premised upon instructions from Canada. The Queen refused to act without a request from the Governor-General. The Governor-General wouldn't act without a request from the canadian cabinet. Since the canadian cabinet is up to its elbows in the blood of innocents, it wasn't inclined to giving its consent for a third party adjudicator to address the law.
S.I.S.I.S.: You have also been to the International Court of Justice. They refused to hear the issue on the grounds that one of the parties represented by you on behalf of the Lil'Wat Nation was not a "state". Correct?
BC: That's right. They said Lil'Wat was not a "state" for purposes of the statute creating the ICJ.
S.I.S.I.S.: Despite the fact that for the purposes of the ICJ, juridical purposes, you could show that Lil'Wat met the ICJ criteria.
BC: Well, it was at least arguable, in the sense that the 1704 case that resolves the issue [Mohegans v. Connecticut] constitutionally, at the same time resolved the international law issue. That international law issue being whether native nations are juristically sovereign or sovereign for the purposes of being able to insist upon independent and impartial third party adjudication in the international arena. That case has been buried since that time. The proposition that I attempted to put before the International Court of Justice was that it might arguably be sufficient to satisfy the test for ICJ jurisdiction. The ICJ never did address the issue. The bureaucracy of the Court essentially stonewalled it and refused to put the issue before the Court.
S.I.S.I.S.: So this is a watershed then. You have exhausted the domestic system of legal remedies. You have been to courts below and now the highest court in the land now says the issue is not of public importance and won't address it. Correct?
BC: Well, we've exhausted the domestic legal system certainly, but over the past five years or so we've also exhausted the international system such as it is too.
S.I.S.I.S.: So this is an important juncture then. Would you agree?
BC: Yes. Any pretence that the rule of law is other than a hoax is demonstrably a pretence.
S.I.S.I.S.: Meanwhile the case that does seem to be on everyone's lips here is the Supreme Court of Canada's recent Delgamuukw decision. You've had a chance to read the judgment. What is the significance of this case to you?
BC: The Supreme Court of Canada makes clear that the Delgamuukw case meant absolutely nothing. It was sent back to trial. The slate is completely wiped clean. Aside from that the SCC made some obiter dicta - some by-the-by comments - which are of no significance for precedent purposes. So the Delgamuukw case, at this stage, is of no significance whatsoever.
S.I.S.I.S.: It doesn't define what aboriginal rights are?
BC: Of course not. The only ones that would possibly pretend that Delgamuukw was relevant to the issue are the lawyers who argued it and want to puff themselves up and try to pretend they contributed something to legal history to justify their incomes or the Indian Industry. In BC and elsewhere the Native rights/Human rights industry is in the habit of chasing its tail and going around in circles. Anyway, Delgamuukw is nothing.
S.I.S.I.S.: And yet there are lots of negotiations and statements being made supposedly on the basis of that case.
BC: Yes, well BC is a theatre of the absurd operating totally outside of the rule of law.
S.I.S.I.S.: I think I would have to agree with that. I suspect this is now a kind of legal juncture for you personally?
BC: Yes. For 25 years I have been attempting to persuade native peoples that the rule of law was not a hoax. One can't really say or decide that judges are without integrity or corrupt until one has done everything possible to equip those judges with the facts and law which will permit them to do the right thing. We have now done that. In my view there is no doubt whatsoever that the bench and bar in Canada and British Columbia are totally without integrity.The rule of law doesn't begin to function. I suppose, to some extent, I owe those native clients for whom I've been acting an apology for having suggesting that otherwise might be the case.
S.I.S.I.S.: Thank you for this.
BC: Thank you also.
"Kill this Clark and smear the prick and everyone with him."
-- Dennis Ryan, RCMP negotiator, RCMP training tapes, introduced as evidence in the Gustafsen Lake trial. Cited in The Province, Tuesday, February 4, 1997
"The genocide of which Clark speaks is real...we are sympathetic moreover, to his assertion the courts are unwilling to hear his arguments."
-- from the decision of the Upper Canada Law Society overturning BC's attempts to have Clark disbarred, June 1996