Monday, October 23, 2006

Law demands universal respect

letter by Andrew Orkin, barrister and solicitor, Hamilton
to the Hamilton Spectator

(May 12, 2006)

Re: 'Natives are subject to the law' (letter, May 9)

Indeed. But there is much more to "the law" applicable in Caledonia than traffic laws or the terms of an injunction arising out of a one-sided quickie hearing. And while governments know this, it appears they aren't telling people in Caledonia.

The Crown's treaties with the Iroquois, including those of Albany and Montreal in 1701, the Silver Covenant Chain and the Two Row Wampum, are part of applicable law. The Royal Proclamation of 1763 is part of the Canadian Constitution. So is Section 35 of the Constitution Act of 1982, which recognizes and affirms aboriginal and treaty rights.

These laws bind the governments of Canada and Ontario, and the rest of us. Our own Supreme Court repeats that they must be upheld, because "the honour of the Crown is at stake."

The Haldimand Grant is part of this law. Its "surrender" or "sale" in whole or part by the Iroquois may well be non-existent, fraudulent or invalid, even according to non-native Canadian law.

I suspect the federal Crown knows this, but had simply planned over the intervening 160 years that the Iroquois would be assimilated and disappear.

The Iroquois Confederacy is centuries or millennia old. Its leaders, clan mothers and members (all reasserting their nation in Caledonia) are still telling us that in their view their own Iroquois structures and laws have never been legitimately displaced by Euro-Canadian ones.

They are reminding us of solemn nation-to-nation treaties that are no older or less important than the Treaty of Paris between England and France of 1763 (the ongoing basis for Quebec being part of Canada).

It is far from clear that the Iroquois Confederacy members re-occupying their lands are legally in the wrong.

If they are, why has the federal government spent the last 20 years or so frantically evading having to account to the Six Nations Band council in court for the Crown's (mis)handling of the vast Haldimand Grant that it holds in trust for the Iroquois people?

It is time that Canadians remind themselves of all the applicable law, not just the bits that seem to justify our occupation and taking of others' lands.

The only alternative is the use of overwhelming military force against the Iroquois, to conquer them. But Canada's legitimacy and reputation would take a severe beating if the colonial and oppressive nature of its relationship with aboriginal peoples was thus laid bare.

Respect for the law is not a one-way, natives-only street. Non-natives and their governments must respect the law, too, and all of it.

Kate Kempton, Lawyer
Beyond Conflict and Blame ... What is the law?


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