Wednesday, January 10, 2007

'Marshall Law' in Caledonia
Unfortunately the Ontario Court of Appeal identified Justice Marshall's errors in law too late to prevent the trauma, injury, terror and unfair conviction of 21 peaceful unarmed people sleeping or sitting by by the fire, in a muddy moonscape of a development site with its sacred topsoil scraped off.

Justice T. David Marshall is 'the law' in Haldimand County where the Six Nations Haudenosaunee people are asserting their aboriginal rights. Their claim is for the Haldimand Tract, six miles deep on either side of the Grand River from source (near Orangeville) to mouth (Lake Erie), traditional lands reserved solely for them after the American War of Independence. They are also asserting sovereignty as allies of the Crown, not subjects. They fought with the British against the Americans in 1776, and again in the war of 1812, where they turned them back at the Niagara River. They are allies of the Crown: Allies, and sovereign people.

Jim Prentice, the Minister of Indian and Northern Affairs Canada referred to the Haldimand Tract as
"... the oldest land claim in Canada", so clearly the government has been aware of the issue for a very long time, since 1841 with the first objection to the 1841 'surrender'. With benefit of knowledge of what happens still today, I know that the government and the Confederacy signed an offer, which the government of Canada still today calls "signing a final agreement", just to befuddle the Canadian population. Just like the unions, the offer goes to the people for ratification and it was voted down, in 1841; but our government still "stands by" this 'final agreement', because that is all Canada has.

The federal government has consistently failed to address the issue in any meaningful way despite letters of concern dating back to 1841, and 29 specific land claims submitted since 1979. Six Nations has been led on a merry dance of filing objections and claims, negotiating ad nauseam without result, finally, frustrated, Six Nations Band Council took the government to court ... for a few years ... then "Now ... let's explore this matter instead ... " ... on and on the dance goes, the government's purpose being
to go nowhere.

So ... with the backing of the
Clan Mothers, who hold the aboriginal title to the land, the some seventh generation leaders of the reclamation have reclaimed the land themselves and finally managed to engage the government in real negotiations, so far ... but they are starting to stall. There was an interruption as negotiations were beginning, though, because Justice T. David Marshall granted the 'owners' and developers of the land an ex parte injunction to remove the Six Nations people from the site. Ex Parte is the term used when there is only one party to the injunction, and thus no opportunity for Six Nations to respond. If they were allowed to respond to an ordinary injunction, they would bring up the issue of the Constitution and Aboriginal Rights and the Charter of Rights and Freedoms, the Human Rights Code, and all those interpretive laws of the land.

Justice Marshall lives in the Haldimand Tract. Justice Marshall, in fact, is a 'landowner' in the Haldimand Tract. The Haudenosaunee people know the laws of the land better than he does. They attended the injunction hearing anyway. They spoke anyway. They told the Judge, through a lawyer, that they were claiming the whole Haldimand Tract and since he was a 'landowner', he was in a conflict of interest and should recuse himself (withdraw). He became very upset, excused himself and left the courtroom for a few minutes. Then he returned and granted the injunction. He did not recuse himself. He told the Haudenosaunee people present that the injunction would be enforced, but they would be given a chance to leave the site. If they did not leave, they would be arrested and summarily convicted - convicted on the spot with no opportunity to defend themselves in court, in violation of their fundamental right to fair procedure, the Court of Appeal commented.

The injunction took effect at 2 p.m., March 29, 2006. Haudenosaunee women and children and men lined the entrance to the reclamation site that day, but the police did not come in. For a month, the people on the site were subjected to helicopters and planes flying over the site, a huge buildup of OPP in town in tactical gear, their activity everywhere, news that hospitals were clearing wards in preparation, multiple ambulances parked strategically nearby, more busloads of police officers, repeated warnings from police that they were "coming in tonight", and many many other psychological tactics, but they did not leave the site.
Judge Marshall got impatient and told police that if they did not remove the Haudenosaunee people from the site, he was calling them back to court to explain publicly why the court's order had not been implemented. The 'owners', Henco partners the Henning brothers, also pressured the OPP through the press to act on their injunction. The Mayor always insisted they must be removed (still does). The OPP brought in more officers, more ambulances, more helicopter flights and the tension in the town was palpable.

Later, the police said things had seemed to be 'ratcheting up' on the site. I was there. April 18, sitting in my car listening to the drumming and singing. The only ratcheting up was done by the OPP. Later they also said "there were some New York license plates" as if that was a reason to attack. The Haudenosaunee Confederacy spans the border.

Under pressure, the OPP enforced Judge Marshall's order, implementing the injunction by attacking suddenly with 150 Tactical officers at 4:45 a.m. on April 20, 2006. One youth and 5 white supporters were given a chance to leave the site, in fact chased off by OPP waving guns at them. The other youth there was dumped out of the hammock where he was sleeping, jumped on hard, and handcuffed. 15 Mothers, fathers, brothers, sisters ... young women kicked awake with guns in their faces.

They ran some yelling, "We are supposed to be able to leave ... we are supposed to leave!" They were told by the Confederacy Council to leave the site in case of police approach. They were chased by police in vehicles and on foot, tackled and brought down hard, men tasered, one young man pulling out three tasers and throwing them back before the fourth finally brought him down. They were beaten if they struggled, and they all did, so some officers also sustained injuries but they all did. They were handcuffed and laid out on the ground, "all pretty beaten up" according to an eye witness, one of the 5 white people chased away who stuck around to witness despite OPP threats.

150 officers arrested 16 people, "all pretty beaten up"
, mostly young parents, some pregnant.

Then they were put into police transport vehicles, taken to the station. Four men were left restrained in a closed van for 4 hours in the unseasonally hot sun. All were processed, finger printed and
summarily convicted of contempt of court. One who gave his own name instead of the Canadian name assigned to his family in the residential schools, was held several days, was beaten, and had to spend a few days in hospital before he could be released.

Meanwhile, tactical OPP had control of the site after 5 a.m., with a few Six Nations people gradually appearing here and there to retrieve things, then a few more, then more and more as hundreds came quietly out of the bush from the back of the site,
led by the women who linked arms and walked the OPP back off the land. A grandmother chased a police woman who retaliated, and the grandmother was taken down and badly bruised with blows from five officers. Then her son and other Haudenosaunee men arrived and the officers fled, the police woman redfaced, grabbing and gripping a highpowered rifle in her hands fiercely as they drove away.

By about 8:30 a.m., the Haudenosaunee Confederacy people of Six Nations had retaken the site. Police ran away so quickly they left prisoner transport and other vehicles behind. At that point, the young men came forward and smashed windows, etc, until officers returned to retrieve the vehicles and until they drove them away. The last officer thought he'd try to tell them to stop, and they had to chase him into the vehicle. That got a lot of press. ;)

This is Marshall Law. This is not the law of Canada. Judge Marshall "erred in law", failed to afford "fair procedure" and failed to implement the proper legal solution. He implemented "force of law" when negotiation is always the legal solution, according to the Supreme Court. He violated basic human rights under the Charter of Rights and Freedoms for not affording due process of law, and aboriginal rights to by not acknowledging the government's authority to negotiate as the legal solution.
Unfortunately the Ontario Court of Appeal identified Justice Marshall's errors in law too late to prevent the trauma, injury, terror and conviction of 21 peaceful unarmed people sleeping or sitting by by the fire, in a muddy moonscape of a development site with its sacred topsoil scraped off.

2 Comments:

Anonymous Anonymous said...

I hope the army is sent in soon. Canadians are sick and tired of savages flouting the rule of law.

1:35 AM  
Anonymous Bob Kismet said...

Some of us are confused as to why topsoil is so sacred?

Perhaps less of it would get scraped off if people knew why it is of religious significance to indigigenous folks...

It seems like everything First Nations people want to lay claim to has some kind of sacred value based on what the lives of indigenous people were like 500 years ago.

Sacred burial grounds are located where the government has created a nice provincial park.

Tobacco is sacred because natives want to sell it tax free off reserve.

If everything about life 500 years ago is sacred, then the lack of written language must also be sacred.

So to protect what is sacred to the native way of life, perhaps a good start would be to stop writing this blog, and ask everyone who agrees with you to stop writing stuff too.

Stop using cars, because the lack of cars must have been sacred. Stop using guns to hunt, because the lack of firearms must be sacred. Stop watching TV.

Stop going to university, stop going to the doctor, stop drinking booze, stop wearing stuff that you personally didn't peel off an animal, stop using toothpaste in order to protect your sacred lack of decent teeth.

Stop using computers, stop doing calculus, stop knowing that E=mc2, stop reading Shakespeare, stop knowing the earth is round, and stop playing hockey.

Stop turning on the lights, stop going to the movies, stop having plumbing, stop listening to Mozart and Jimi Hendrix, stop having air conditioning, stop having things that are made out of glass in order to protect your sacred right to drink out of a fucking coconut shell or whatever it is that you would use 500 years ago with absolutely no technology.

What is the point of selectively turning the clock back 500 years. If you want to go back to before the settlers showed up, then really go back.

If you want the land back and all the descendants of settlers to disappear, then renounce everything that the settlers brought.

You have a sacred right to use the forests as you see fit? Then head out there with a tomahawk and cut down whatever you want. The forest had nothing to fear from you until you were given chain saws and trucks.

You have a sacred right to take lobster year round, totally ignoring regulations put in place to conserve their numbers? Then renounce the outboard motor, and head out on the water in a canoe or a kayak or something. You take all the lobsters you want that way. It is more likely that the lobsters will take you.

You have a sacred right to a gravel pit? What good is a gravel pit going to do you without a shovel?

Someone should thank the settlers for making it possible for First Nations people to sit around and protest in their sacred gravel pit, after all, that protest would not be happening without Canadian Tire lawn chairs, and Ontario welfare cheques.

12:12 AM  

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