Jun/97: Gustafsen Lake-What was real threat?


Dave Emery
June, 1997

Throughout the incidents and "negotiations" that took place at the Ts'peten Sundance grounds in 1995, and the trial, the straight forward legal questions and demand for redress that came from the Defenders have remained unanswered. The Crown has yet to produce documents evidencing a Nation to Nation treaty with the Secwepemc (Shuswap) people and purchase of their land. The reason - there are none. Canada and B.C.'s Crowns have historically refused to Treaty with the aboriginal peoples, have continuously violated Native jurisdictional rights since the inception of the colonists's courts, and have illegally invaded and colonized the Native peoples and their lands.

The one simple demand of the Ts'Peten Defenders that the matter be put to an independent third party tribunal was stonewalled by domestic officials whose interests are in conflict with those of the Native peoples. That demand still stands. The Crown cannot identify any law nor any document to refute the legal and historical truths raised by Ts'Peten Defenders. The "Gustafsen Lake" case is the 43rd time the Brutish Columbian Crown and its courts have refused to address the aboriginal and treaty rights existing in Constitutional and International law repeatedly raised by various sovereign Native peoples, and repeatedly stonewalled by Canadian judges who sit in conflict of interest.

In the aboriginal rights context, the Crown and the courts have shown nothing but contempt for the source principles of Natural law - third party adjudication, justice as applied truth, law as applied respect, and liberty as the first three principles are functioning. The "Crown" represents the legislative, the executive and the judiciary, who simply ignore the Constitutional law that is the highest law of this country, and assume jurisdiction over Native peoples and their lands, having "the force" but not the right to do so. The Province has for over a century been fraudulently transferring title to land that is still unceded Native land, and selling it to private interests or leasing it as "Crown" land, where there has been no treaty with Native peoples nor purchase of land in the first place.

Why is British Columbia and Canada so afraid of third party adjudication, the sole demand of the Ts'peten camp? Because they are wrong and they know it, and they fear the exposure on an international level, and the strong possibility that an independent tribunal would find in the Natives favour. That is why Attorney General Dosanjh stated that "there shall be no alien intervention in the affairs of the state" in B.C. (Vanc. Sun, Sept 15 1995). What Dosanjh calls "alien intervention" is the functioning of international law and the recognition of Native access to their due process rights. Dosanjh asserted that his "office will not be party to any process" and that "I don't like being on a leash." He obviously believes his role as chief law enforcement officer of B.C. gives him licence to subvert the law to the conveniences of the political interests he serves.

In the context of the trial the judge did not permit the jury to consider any of the aboriginal rights defence, the colour of right defence against mischief under which they were presented, or even self-defence against evidenced police assaults and constant provocation. The reason is that the aboriginal rights legal defence is valid. In Ipperwash, where unarmed protesters were fired upon, killing Dudley George, the Crown dropped all mischief "acting on indications of the Provincial Division judges that "this defence will succeed in all instances when it is raised" in the aboriginal rights context (The Phoenix, p. 28, Spring 1997).

The legal matters that underlie the dispute date back to "contact", when a "debate" emerged in Europe as to whether the peoples of the "Americas" were human or not. In 1493, the Papal Bull Inter Cetera decided the two-legged creatures inhabiting the "New world" were not humans but animals with no legal rights. After 45 years of "debate", that Bull was repealed by the 1537 Papal Bull Sublimus Deus which declared that the peoples of what is now called the "Americas" are indeed human, establishing the primary source of aboriginal rights law, and the aboriginal peoples RIGHT to original jurisdiction and possession of their land. The 1537 Papal Bull bound all the Christian sovereigns of Europe and their colonies to that legal realisation, constituting aboriginal rights in International law.

The demand for a third party tribunal was precedented in 1704 when Queen Anne appointed a Constitutional Court as the REMEDY to resolving a dispute between the Mohegan Indians and the state of Connecticut regarding whether a valid purchase of Mohegan land had taken place. Connecticut claimed that its courts had jurisdiction to rule on the dispute, while the Mohegans argued that there was no treaty, and that the state of Connecticut was obviously an interested party and could not stand in judgement of the Mohegans. The matter, as the Ts'Peten Defenders also demanded, would have to be put to a third party. Queen Anne decided the Mohegans were correct and put the matter to third party adjudication, creating through the Imperial law the Constitutional precedent to which the Defenders' sought access all throughout the Gustafsen siege.

The Royal Proclamation of 1763, as affirmed in the Constitution, declared that based upon no "pretense whatever" could the Native peoples be "molested or disturbed upon any Lands whatever, which, not having been ceded to or purchased by us, are reserved to them." That Proclamation enacted SANCTIONS which were supposed to protect Native peoples from "frauds and abuses", and defined as treason any acts which threaten the Native peoples legal rights as allies to, not subjects of, the Crown.

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948, to which Canada is a signatory, states in Article 1 that "The Contracting Parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." Article 2 - "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group." Article 4 - "Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."

The Constitution Act, 1982, previously the 1867 BNA Act, affirms the law shortly summarized above in Section 25 and Section 35 which contain the "existing aboriginal and treaty rights". Section 109 of the Constitution Act states that all lands possessed by the Crown before Confederation became provincial lands; however, the provincial interest is "subject to" the Indian interest, until such a time as there is a treaty and purchase. According to Dr. Clark the words "subject to" are the most important words in the aboriginal rights context in this country. British Columbia, if part of Confederation, is on the same footing as all other provinces, in that the Royal Proclamation does apply - contrary to absurd B.C. claims that they are exempt from the Royal Proclamation, essentially arguing that the Constitution doesn't apply here. These Constitutional and International laws that Native peoples repeatedly refer to have never been repealed. The law is relatively simple regarding those places where there is no treaty nor purchase - the Crown simply has no jurisdiction nor land title beyond the treaty frontier.

A person need only scratch the surface to realize the need for an independent and comprehensive public inquiry into the conduct of the provincial and federal governments, police, military, and media at the Ts'Peten seige. These parties certainly have a lot to hide. What was the real threat? The real threat was the truth - regarding aboriginal rights law, the history of colonization of the Native peoples, the theft of their jurisdiction, lands and resources, and the exposure of the crimes committed by the Crown against peoples who are supposed to be protected by the Crown's laws, but are instead assaulted and criminalized by the guardians of the rule of law whenever they assert their rights.

As we all know by now, the RCMP caught themselves on videotape talking about conducting their "smear and disinformation campaign" against the Ts'peten Defenders. If everything the camp and their legal counsel Dr. Clark was saying was as ludicrous as the police, government and corporate media were claiming, then why the need to smear people and spread disinformation? The real threat posed by the people at Ts'Peten was not a security threat, was not a threat of violence or "terrorism" or danger to the public, but was the threat of the Native peoples' historical truths being heard, of the shameful provincial legacy being exposed, and the implications of those truths being redressed. The people in the camp occupied a defensive position to precipitate a legal resolution to the injustices. The province responded by intensifying their repression.

The RCMP denied that a smear campaign took place. Operational Commander Superintendent Len Olfert stated in an RCMP press conference on August 19, 1995 that "No one can really determine what they want or just what the issues are. We kind of think they're fanatical and they're terrorist - and they seem to want to make war for some reason." Len Olfert has been conducting assault operational plans against traditional and sovereign Native peoples on their own land since at least 1991 when ERT officers armed with automatic weapons and sniper rifles were compromised at the Duffy Lake roadblock where unarmed Lil'Wat people were defending their territory and were brutally assaulted by the RCMP. The RCMP liaison officer in charge of the smear against the Lil'Wat people was the same Sgt. Peter Montague whose statement "smear campaigns are our specialty" is no joke. These men certainly know what the Indian peoples' issues are but are contracted specifically to politically repress the Native sovereigntists, and had dealt with two previous incidents in Secwepemc territory alone in 1995, at Merritt and Adam's Lake.

Regarding the smear of Ts'Peten sundancers, Olfert claimed "I didn't see it manifest in anything we did" (testimony March 6) despite the fact the RCMP admitted in a taped interview with lawyer Dr. Clark that allegations of terrorism were irresponsible and completely unsubstantiated. The RCMP never publicly retracted them however - the smear simply had the effect they intended of deceiving the people of B.C. regarding the nature of the dispute. Olfert knew that the sole demand of the Sundancers was for third party adjudication on the land and jurisdiction issues, but he bold-faced lied.

Ironically, Olfert's testimony of January 16 '97 revealed that the first RCMP meetings regarding Gustafsen Lake "went down in May sometime." He was asked, "so there was mention of Gustafsen Lake and the need for an operational plan as early as May?" Olfert answered "We are monitoring to see what is happening. I don't think we discussed it in terms of 'let's get a plan in in May.' There is too may other things that had to be done before we could proceed with a plan." The other 'things' were to lay the groundwork of the smear and disinformation campaign, and to secure serious war machinery to conduct the planned assault. "It was necessary to ensure the public perceived a continued threat from the people in the camp (Jan 6, '97 testimony) While Olfert claims not to know what the issues are, he was monitoring a Sundance in May that had yet to begin, and was making preparations for an operational plan before any threat could possibly be perceived.

What took place was a classic set-up of traditional people, bearing a striking resemblance to the assault on Oglala Sioux at Wounded Knee in 1975. As indicated by the disclosure notes of 100 Mile House Staff Sgt. Martin Sarich (June 6 '95), the RCMP intention was to "end this yearly headache once and for all" - to crush the resurgence of Indian culture and spirituality, and silence any land or jurisdiction issues that may be raised.

So what did the RCMP do? They framed up false stories about alleged shooting incidents, smeared the character of the people with fabricated reports of criminal records (at one point claiming that the camp was full of convicted murderers), and attacked the credibility of aboriginal rights law.

Sgt. Hartl - who was the legal researcher for the RCMP negotiations team - stated that "You realize what we're doing now is damage control for the future when people have to be killed." (Tape B6 of the incriminating 50 hours of RCMP "training" videotape, of which the jury was permitted to see only a few short segments). Olfert's testimony of Jan. 7 '97 revealed the fact that the RCMP had planned to remove Native constables after Aug. 18 "because we were going to crank up negotiations." The plan was in place well in advance to escalate the seige. Ironically. Olfert's testimony disclosed that Native constables were given credit for resolving the Adams Lake Blockade earlier in 1995 - obviously a peaceful resolution was never intended by the RCMP - all the material evidence in this case points to that fact.

All government and police officials stated there were "No negotiable items". What were called "negotiations" were actually part of the tactical operation put under command of ERT, to gather intelligence that would assist with their assault plans, to isolate and incite the camp members, and to frustrate native demands for legal redress. The "negotiations" consisted of the camp repeatedly stating their demand of access to their due process right to independent, third party adjudication, only to be stonewalled by cynical "RCMP on the Warpath."

RCMP constable Findley's report acknowledged that there is "a long history of native occupation" at Ts'Peten and that "Natives are buried in this area" (RCMP Continuation Report, 95-07-10), Olfert testified those were "Areas he probably shouldn't have made comments on" and the RCMP denied the report was an RCMP report at all. When another officer was videotaped stating "this is a rip-off, this is genocide" the RCMP realized that they'd better remove any doves and let the "good ol' boys" to do the work of crushing the traditional people.

Assistant Commissioner Brown's notes indicate that the RCMP felt the seige had "gone on too long and we must take it down", and "once we have received word from the Premier" that they intended to proceed. Harcourt could be heard stating that the Sundancers were "cultists" and fanatical members of some "New World Order" group, which RCMP later denied. Harcourt stated in a press conference after the shooting of Dudley George that "I think as I said that this is the way these situations end." He claimed that "there is a fundamental error that a Premier can order the RCMP to go in and behave like a - you know, an assault squad - Premiers don't do that." The evidence from A/C Brown's notes and the Ipperwash trial would suggest exactly the opposite.

The smear campaign had whipped the province into a state nearing a race war. Mainstream media played an integral role. Their attitudes are reflected by the comments of BCTV reporter Clem Chappell on Sept7,95 "People are starting to talk about more developments happening. I'm not sure what those are but uh we believe that now the egg has been cracked here [after the murder of Dudley George], maybe a lot more can happen. Some people are talking about once it starts like this, once there is an opening, it can happen very fast. People are starting to get the feeling that the floodgates may be open. We'll be looking forward to that."

The smear campaign was so overt that watching RCMP deny it was surreal. The alleged "ambush" of August 27, '95 in which police officers were reportedly shot in the back has proven to be a story rife with fabrications. The Crown admitted in their summation that it was clear from the videotape Affidavit introduced by Dr. Clark that it was "not until people in the encampment hear chainsaws that they became aware of police presence" immediately on the perimeter of the camp.

The RCMP created the incident because they had yet to receive authorization from the military to use APCs, due to the sensitive political nature of the dispute. The RCMP, determined to assault the camp in the end, needed an incident to show the vulnerability of officers in the suburban vehicles, and framed one up. Montague was instructed to use his "expertise" to "message" the incident as he saw fit, and did so in a way that was "most advantageous" to the RCMP. Of the 1200 continuous hrs of Wescam spy plane video coverage of the seige, this incident is curiously the only absence. How do RCMP get ambushed when they had constant spy plane surveillance, infra-red and heat-seekers which gave them "up to the minute numbers" and locations of camp members? Montague was angry that "terrorist sympathizers" had started a "rumour" that the ambush was a fabrication. One of the officers who alleges he was shot in the back claims he threw the evidence out the window. Cpl. Ward was caught on "training" video admitting that it wasn't the first time RCMP had to take flak jackets to the firing range. The whole story doesn't stand up.

Then there is the alleged incident of Sept. 4 where RCMP once again claimed to come under fire from natives. Their own forensics expert later found the rear view mirror of the suburban was struck by a tree branch and not a bullet. Many may have seen the footage of the September 11th bombing of the red truck, the killing of the "canine early warning device", the shootings at unarmed people as they fled the original attempt to murder them with the massive explosion, and the shooting at the unarmed person inside a "safe-zone" the following day. Dosanjh told the Voice of the Province on September 13 that "all the violence that has emanated so far has emanated from the renegades", a lie so blatant and obvious that one wonders how he expects to get away with it. Perhaps he takes his cue from Goebbels who urged that the bigger the lie the more likely it is to be believed. While Dosanjh stated throughout the seige that it was not a political issue, that it was exclusively a law enforcement issue, he made the mistake of confessing on that same program that "If we handle this in a particular way it may have different impacts on other treaty negotiations" and was echoed by DIA minister Ron Irwin.

The Crown's application to quash the Defense subpoena of AG Dosanjh was granted by Judge Josephson in this case. Dosanjh needed to be shielded from his own forked tongue, and exempted from accounting for his decisions, comments and actions as self-proclaimed "chief law enforcement officer" of the Province of B.C.

The treatment of the dispute is a disgrace from start to finish. The Canadian establishment has said it is OK to bomb, assault, and attempt to murder people, and their right to self-defence is denied. It's OK to trash aboriginal rights law, and steal their land, and they are denied their due process right to third party adjudication. It's OK to process the people through a criminalization campaign in which they are denied the right to a legal defense, the law they stood on in the first place. The Judge, the Crown, and the defence lawyers all participated in the trashing of aboriginal rights.

The defence lawyers themselves undermined aboriginal rights and conducted a virtual no-defense trial. "Defence" lawyer Sheldon Tate did not even present a criminal-style defence - instead he spent virtually all his time attacking the credibility of Jones (Wolverine) Ignace's legal defence, pointing his finger at accused or non-accused whom he would like to see in the clutches of the "just-us" system, doing nothing but attempting to bolster the reputation of the officials, courts and the police who sanctioned the assault of his clients. The Crown's case was so weak that only with the assistance of defense lawyers could the possibility of convictions be rescued. Tate stated recently that his clients no longer wish to "persecute" the Canadian people. Most people appropriately mistook him for a prosecutor or persecutor. His partner Don Campbell called the disgraceful process and the verdict a "good compromise." The lawyers are now steering their clients into what is being styled as a "traditional sentencing circle" in which the Judge and not elders controls the process, in which the beneficiaries of the assault on Natives get to pose as victims, and where those who conducted the assault can sanctimoniously sit in judgement of those they set up for sacrifice with their assault, smear and disinformation operation.

Meanwhile Judge Josephson, who on March 4 claimed that the issue of jurisdiction "is very clearly settled, Mr. Ignace" has yet to produce his reasons for "judgement" on that issue or on the colour of right defence. Crown counsel are seeking lengthy sentences, and proceed on their sleazy course of deception and distortion, citing sentencing precedents of attempted murder - despite the acquittals on those charges - and precedents of terrorist acts, despite the fact allegations of terrorism were merely part of a sleazy smear campaign and were admitted to be such.

Sgt. Montague 'earned' himself a promotion in the end and stated "we'd do 90% all over again." They'd like to spend your money on another "Camp Overtime" (as RCMP t-shirts called it, which featured a dollar sign with two arrows running through it. They spent umpteen million - as Len Olfert stated, "money is not an issue" - taking a blank cheque to continue their colonial and genocidal project against the aboriginal peoples. FBI psychological warfare specialist Mike Webster, a veteran of the Waco massacre, the genocidal operation at Gustafsen Lake, and the slaughter of the Peruvian Tupac Amaru rebels, considers the set-up and the political repression at the Lake something to be proud of, pretending the bombing, snipings and 77,000 rounds weren't intended to kill the camp members, bragging about the skill he displays in using contradiction. That can only be the case, and can only take place when people who have no respect for others and no self-respect are the guardians of the rule of law. Come and show your disgust with what is taking place and your support for the Defenders at their sentencing dates on June 13, 18, 20 and July 10, 11 and 22.

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