Sep 29/97: Ward Churchill testifies for Friends of Lubicon


Daishowa vs. Friends of the Lubicon: Despite objections from the multinational, Professor Ward Churchill takes the stand

Solidarity with Native People
Issue #68-69, November 1997
Published by Regroupement de solidarité avec les Autochtones

Ward Churchill, Keetoowah Cherokee and long-time Native rights activist, is the author of sixteen books and Chair of the Ethnic Studies Department at the University of Colorado at Boulder. We interviewed him in Toronto on September 29, following his testimony at the trial brought by the Daishowa corporation against the Friends of the Lubicon.

[S.I.S.I.S. note: Ellipses in the following interview are as in the original published version.]

Regroupement de solidarité avec les Autochtones (RSA): Could you summarize the substance of the testimony you brought before the court today?

Ward Churchill (WC): I went to the legal definition of the concept of genocide and the meaning of the term in law. The crux of the question before the court was the propriety of the Friends of the Lubicon characterizing the activities of Daishowa on Lubicon land in Alberta as being genocide or having genocidal connotations. Daishowa contends that was a defamatory characterization of its activities and obtained an injunction [in January 1996] to prevent the Friends of the Lubicon from using the word genocide in connection with descriptions of Daishowa's ongoing activities and future activities on Lubicon land. As a corollary to that, the injunction prevents picketing and other concrete activities that have occurred around the concept of the perpetration of genocide.

I addressed the issue of the actual meaning of the term, so that there could be a valid assessment of the propriety of its usage. In the event, I found myself in the position of rebutting a misconstruction of the term that was put forth by Daishowa's counsel to the effect that genocide had to do specifically and indeed solely with the literal physical annihilation of peoples, and that is simply not true. In my experience before courts of law over a thirty-year period of time, I have never had occasion to witness a barrister utilising a Webster's Collegiate dictionary to define points of law, particularly when there is black letter law immediately available that has been incorporated into Canadian law on this matter.

In any event, I took the Court through the meaning of the term genocide, starting with its coinage by Raphael Lemkin in 1944 in a book titled Axis Rule in Occupied Europe. Killing is not even part of the original definition. Genocide, literally, at page 79 of Lemkin is defined as being, first, the suppression and dissolution of the national pattern or culture of a targeted group and, subsequently, the imposition of the national pattern or culture of the targeting group so that the original entity that existed, definable as a people, no longer exists. The individual members may all survive, but they survive in a form of compulsory incorporation into the cultural, political, national structure of the targeting group.

From there we proceeded to the drafting of the United Nations convention on Genocide. We looked at the initial draft that was composed by Lemkin in 1946 in a fairly expansive form, and then we looked at the contracted or truncated version that was ultimately endorsed by the United Nations and ratified by nation-states in 1948 under the formal title of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

We then dealt in detail with the classifications of genocidal conduct through Lemkin's conceptualisation of genocide in 1944, the initial UN draft of 1946 and the final ratified version of the Convention in 1948. In all three of those instances, the situation of the Lubicon Lake Cree and the imposition of policy by the Canadian government, the provincial government of Alberta and the participating corporations, in this particular case Daishowa, fit well within the pattern of genocide.

In the 1948 Convention in particular they would fit within two of the five classifications under Article 2. The second classification deals with the systematic imposition of physical and psychological harm upon members of a targeted group with the intent being that they will ultimately have to separate themselves from the group in order to secure their own physical well-being, thereby causing the group itself to have to go out of existence. And that is the crux of the issue: bringing about the dissolution, the destruction or the disappearance of the identified human group.

The third classification under Article 2 of the 1948 Convention deals with creating other conditions, environmental for example, which bring about group dissolution and destruction. Clearcutting a forest, for example, would fall very well within this third classification insofar as clearcutting would disrupt or destroy the ability of the group to sustain itself economically, culturally, spiritually and otherwise, and thereby lead to its destruction and dissolution [...].

I cannot avoid the conclusion that what is happening to the Lubicon Cree constitutes a crime of genocide as legally defined internationally and in Canada as well, insofar as Canada has ratified the 1948 Genocide Convention in Canadian law. We have a systematic pattern of criminal behaviour on the part of the government of Canada, the provincial government of Alberta and participating corporations, whether Daishowa in this case or Petro-Canada or various other energy corporations that have done business on Lubicon land after more than twenty years.

RSA: Daishowa's lawyers repeatedly attempted to prevent you from testifying on the grounds that only their definition of genocide would be appropriate enough for this trial...

WC: Although they found objectionable the characterization of their client's activities as being genocidal, the definition of genocide itself was not germane to consideration by the Court. They said they understood perfectly well what genocide meant, that their understanding would be the binding understanding and that the Court was stuck with what they meant, or what Websters dictionary meant, rather than what the law actually says at the international level and at the federal level in Canada. Canadian law, therefore, is apparently not particularly relevant to the attorneys representing the Daishowa corporation.

What is relevant to them, apparently, is that they get their own way which is that regardless of what Daishowa does, the general population or anybody who is effective in communicating within the general populace will not be allowed to call genocide by its right name [...]. Basically, no one is to say anything about the Daishowa corporation that is not acceptable to the Daishowa corporation [...]. This is a truncation of rights and freedoms of expression that I understood to be guaranteed in the Canadian Constitution.

While this particular lawsuit devolves from an Aboriginal issue, it is not in itself an Aboriginal issue. This is a matter of civil rights and liberties for the entire population of Canada whether they are aware of it now or not. It may well be one of the five or six most important civil rights and liberties cases to come before the courts in Canada in this decade. And it seems to be getting cut short-shrift amazingly by the so-called free press of Canada whose stock in trade it is to operate on the basis of the guarantees of these sorts of civil rights and liberties that allow them to express opinions at all. These are in jeopardy in this Court and they are paying virtually no attention.

RSA: Do you personally endorse the idea of a boycott of Daishowa products?

WC: I endorse any set of politically effective tactics that works. If a boycott works, as apparently this one did and that's why people are in Court, then by all means I would endorse it [...]. And I would endorse anything else under the principles of international law which state that a denial of self-determining rights to an identified population is to be redressed by whatever means are available to that population and its supporters. Interference with the utilisation of those means to achieve self-determination is a crime in itself. In my view and I think in a construction of international legal terms Daishowa is bordering on criminal behaviour in entering into this SLAPP suit in the first place.

RSA: Then how would you perceive the importance of this boycott with regards to non-Native solidarity to the Lubicon Lake Cree?

WC: First, the boycott had a tangible effect on Daishowa in that it served as a disincentive to just running roughshod over a small group of people. The boycott was costing Daishowa money and in the face of the potential that it would cost them even more money to proceed with logging Lubicon land, they didn't and that is somewhat instructive in terms of political tactics.

Second, the boycott educated a wilfully ignorant populace in some respects as the actual conditions pertaining to Indigenous peoples within its national boundaries, people who are suffering as a direct result of policies which maintain the status quo in Canada [...].

One thing that the Friends of the Lubicon have been instrumental in doing is presenting the case of the Lubicon Cree in such a way as to educate the public about their specific circumstances and, on a second level, in using the Lubicon Cree as a lens by which Aboriginal rights more generally could be understood.

Actual issues brought before the public can be understood in such a way that the public can make informed choices and act accordingly. They can either embrace genocide or they can oppose genocide, but they can't make a choice one way or the other if they're ignorant of the fact that genocide is occurring.

Regroupement de solidarité avec les Autochtones
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