One group that has taken that leap is the Lil'wat People's Movement, a militant traditional group in the mountains of British Columbia. Their struggle, similar in many ways to that of the Kanesatake Mohawks, involves a long-standing claim to sovereignty as well as a battle to protect a sacred area and burial ground from clear-cut logging.
"This was all ours until the white man came," said Qual'wa', a Lil'wat elder, as we walked in the woods of A'huh'ah, or Boulder Valley, on the shores of Lillooet Lake, 140 km northeast of Vancouver, According to the Lil'wat, Boulder Valley was the main burial area used during the smallpox epidemics in the last century which reduced their population from 80,000 to 1,500. "My ancestors are buried over there," he said. "One of our laws is to look after our ancestors, their graveyards. We protect the ones that brought us into this world. We're the ones who have to take care of this place."
Lil'wat resistance to Canadian rule is nothing new. In 1911, the chiefs of the Stl'atl'imx peoples (the Lillooet Tribes, according to Canada) which include the Lil'wat Nation (the Mount Currie Band, according to Canada), declared themselves to be the rightful owners of their traditional lands, which lie in the mountains of southern B.C., including what is now the Whistler mountain area. "They will never take this land from us," said one angry young man. "They'll have to kill us first."
Commitments were made by federal officials in the 1930s giving the Lil'wat the right to hunt freely within a 30-mile radius of the reserve, but these promises apparently were never enacted into law, and have not been honoured. Lil'wat hunters are regularly charged for hunting off the reserve, and large areas have already been clear cut by logging companies acting under provincial licenses. "The reserve feels like jail," said Qual'wa'.
The 1911 declaration has been reaffirmed several times. Indeed, though the Band Council did not support last summer's blockade, it has spoken out many times, insisting that the Lil'wat are an independent people, not governed by British Columbia, Canada, or the Indian Act. Two years ago, the Mount Currie Band Council passed a resolution tantamount to a declaration of independence. Pointing out that Canada has no treaty with the Lil'wat Nation and citing the Royal Proclamation, it rejected the application of the Indian Act to the Lil'wat people as immoral and illegal, and demanded that Canada pay reparations "resulting from unlawful expropriations of territory and resources".
On July 12 of last year, the day after the SQ assault on the Mohawk barricade at Oka, the Lil'wat People's Movement and other supporters blockaded Duffy Lake Road, which crosses the Mount Currie reserve. One hundred and sixteen days later, the RCMP moved in, arresting 62 people.
TAKING IT INTO THE COURTS
The Lil'wat have been nothing if not consistent in their stance that, since they never signed a treaty and have never been conquered, Canada's courts have no jurisdiction over them. As a result, the 62 Lil'wat arrested at Duffy Lake Road spent 24 days in jail rather than sign an agreement to appear on their own recognizance, since that would implicitly acknowledge the court's authority. In their defence, they made no attempt to deny actions of which they are accused. Rather, they insisted on challenging the province's jurisdiction over themselves and their lands.
All this took place before they knew of or had heard of Bruce Clark. In November, however, their attorney Lyn Crompton began consulting with Clark on legal strategy. Within a few weeks, Clark had moved to B.C. to represent them.
At first, Justice Bruce MacDonald of the B.C. Supreme Court would have nothing of Clark's arguments, refusing even to hear his opening argument, in which he challenged the province's jurisdiction over the Lil'wat and their lands. But in the course of the long trial, which included several days of emotionally powerful testimony in which the Lil'wat talked freely about their people and their land, Justice MacDonald's attitude seemed to change. On January 18, in a highly unusual move, he adjourned the contempt proceedings to ask the Court of Appeals to decide the jurisdictional dispute before going ahead with the trial. "The sooner the Indian sovereignty issue is decided by a court with the clear jurisdiction to do so, the better," he said.
Meanwhile, the International Forest Products Ltd. (Interfor) began to bulldoze a logging road into Boulder Valley. This was met by a new blockade, set up in late January. The blockaders vowed to defend the lands with their lives. Interfor requested an injunction against the blockade, which was granted on February 2. One week later, in a pre-dawn raid, the RCMP arrested the blockaders, several of whom were severely beaten.
In opposing the injunction, Clark had planned to argue that, under the Royal Proclamation of 1763, entrenched in the 1982 Constitution, the province had no jurisdiction over the Lil'wat or their traditional lands, and that constitutional law clearly takes precedence over the provincial legislation on which Interfor's claim relied. But those arguments were never heard. Mr. Justice Wetmore, the presiding judge of the B.C. Supreme Court, refused to hear any constitutional arguments. "He barred us from uttering the words 'Royal Proclamation', 'aboriginal rights', or even 'constitution'," said Clark in amazement. "For anyone who really believes in the rule of law, it was an extraordinary experience. It was like every nightmare the Indians ever had about our legal system."
TAKING ON THE COURT OF APPEAL
In requesting an appeal of this injunction, Clark minced no words. "[This] injunction constitutes or is tantamount to a fraud and an abuse of process, and a material step towards what may constitute the consummate crimes of criminal assault, murder and cultural genocide against internationally protected persons contrary to the law to which the Learned Chambers Judge wilfully blinded himself."
The Court of Appeal was quick to take umbrage at this language. "I consider [that they] raise a gravely serious imputation of misconduct respecting the integrity and conduct of the judge," said Justice Wallace, and asked that the B.C. Law Society consider disbarring Clark.
Clark's response was hardly apologetic. "I did not 'impute' anything," he told the Court. "I alleged and avowed forthrightly" that the judge's conduct "constituted a gross miscarriage of justice."
"I respectfully submit that it is not Mr. Justice Wallace's prerogative to compromise my clients' ability to appeal and to instruct counsel," he continued. "By seeking to silence counsel, the gross miscarriage of justice perpetrated by Justice Wetmore threatens to be compounded.... When one individual judge wilfully blinds himself to the law, he or she necessarily substitutes the rule of man for the rule of law."
Fortunately, Justice Wallace's angry rejection was not the last word from the Court of Appeal. Several weeks later, the Court granted leave to appeal Judge Wetmore's injunction, and in doing so made it clear that the questions of jurisdiction raised by Clark had to be addressed fully. "The defendants and other members of the Lil'wat people have a real question about their sovereignty - whether it exists and what it means," wrote Mr. Justice Lambert of the Court of Appeal. "They have raised that question ever since the arrival of European settlers.... They are entitled to have a determination made by the courts of British Columbia about those rights."
His decision shows a clear understanding of the Lil'wat perspective. He went on:
[T]he Indian witnesses are saying that the central characteristics of the Lil'wat Indians lie in their cultural relationships with each other and with their land. If the land is despoiled or destroyed they will feel personally and collectively violated and their culture will be critically wounded. ...[T]he Indians will not consider that the violation of their rights...is ameliorated if their caches, burial sites, pictographs and other cultural artifacts are protected and preserved, either on site or in a museum. The Lil'wat people are proud of their past and interested in their cultural artifacts. But it is not their past that the Lil'wat Indians wish to preserve, it is their future.Argument on these issues before the Court of Appeal began in early April. It's an uphill battle: most judges are now citing the recent Gitksan decision as proof that the sovereignty issue has already been decided, though technically a trial court judgement cannot be a binding precedent at the Court of Appeal level. But victory in the Court of Appeal is not essential to Clark, since he can appeal directly to the Supreme Court of Canada. In making his stand on a matter of pure law, which can be decided without witnesses or evidence, he has avoided having to go the route of a full trial, which might have taken 10 years of more, and would have cost millions of dollars to prepare.
NO TIME LEFT
Many native leaders are dubious about the idea of putting the sovereignty issue directly before the courts. "If you give them the big target, they just might shoot it down, and where does that leave you?" asked Saul Terry, president of the Union of B.C. Indian Chiefs. Terry - a Lil'wat - is one of the few regional leaders who refuses to participate in the federal land claims system because it is not based on nation-to-nation treaty negotiations with the Canadian government.
Last summer, Vice-Chief Ovide Mercredi of the AFN said he was moving away from the view that a political or treaty-making process was the best way to proceed. In last year's Sparrow and Sioui decisions, the Supreme Court took major steps towards recognizing native rights. Until then, he thought it would be a mistake to argue for inherent self-government rights before the court. "I'm no longer of that view," he said. That is not to say, however, that he sees eye-to-eye with Clark. Despite repeated attempts to contact him, Mercredi was unavailable to comment on Clark's ideas.
Clark believes in using the courts all right, but he does not share Mercredi's view of the Sparrow decision. He sees is rather as a Pyrrhic victory in that, while recognizing special rights for Indians, the Court implicitly acknowledged the Crown's ultimate jurisdiction. "Every time I say anything in court about sovereignty, the Crown lawyers and timber company lawyers get these big smiles on their faces and cite the Sparrow case," said Clark, because it implicitly denies native jurisdiction. For Clark, the Sparrow decision is proof that sovereignty arguments must be made before the courts - "a few more decisions like Sparrow," he says, "and the existing right to native jurisdiction will be lost forever."
Clark acknowledges that there is much opposition to his approach, but feels he has no choice. "There is no time left for building consensus," he says. "Time is running out. Within two or three years, the Supreme Court will rule on Indian sovereignty, in the context of one of the appeals coming before it (The Bear Island, Meares Island or Gitksan Wet'suwet'en cases). If it does so before hearing these arguments based on imperial law, it will rule - rightly, on the basis of the arguments before it - that there is no existing Indian jurisdiction protected under the Constitution. And once the Court has decided that point, it'll be impossible to get it to return to it."
Even among those who believe Clark's arguments are valid, there are still those who see his quest as quixotic. "I think he's right," said Diom Saganash, Vice-Chief of the Grand Council of the Cree of Quebec, "but there's no judge in the country who would agree to it." AFN Vice Chief Lawrence Courtoreille went even farther. "Even supposing you got a piece of paper from the Supreme Court saying you had a right to self-government, then what? Who is going to enforce it?"
Philip Raphals is a Montreal freelance writer who has written on native issues for "The Nation", the "Montreal Gazette" and Southam News.