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Prisoners of democracy : the Lil'wat's right to an impartial tribunal ; an analysis of the Lillooet Lake… Crompton, Lynda Jean 2006

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PRISONERS OF DEMOCRACY: THE LIL'WAT'S RIGHT TO AN IMPARTIAL TRIBUNAL AN ANALYSIS OF THE LILLOOET LAKE ROADBLOCK CASE.  by Lynda Jean Crompton LL.B., The University of British Columbia, 1976  A THESIS SUBMMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS  in The Faculty of Graduate Studies UNIVERSITY OF BRITISH COLUMBIA December, 2006 © Lynda Jean Crompton, 2006  ABSTRACT: This thesis analyzes the response ofthe domestic judiciary to the Lil'wat peoples' assertion of territorial sovereignty as their defense to a charge of criminal contempt of court before the British Columbia Supreme Court. A lack of impartiality within the Canadian legal system is revealed through a critical legal realist examination of a specific encounter between the dominant Canadian society and the traditional Lil'wat peoples. Both overt and subtle colonial attitudes are demonstrated as embedded within the law, its institutions and its accepted practices in the context of Indigenous/Newcomer relations. This case study seeks to make visible a reliance on a series of invalid legal assumptions regarding Indigenous peoples. These assumptions are necessary to support the entrenched institutional biases that favour the self-interest of the Newcomer society. The thesis quotes extensively from the court transcripts of the criminal contempt trial against the Lil'wats. They were criminalized for blocking public access through their reserve in their attempt to prevent the desecration of their ancient burial grounds and pictographs. Interfor, a Provincially licensed logging corporation, was building a road through their sacred territory. The Lil'wats argued that the B.C. Supreme Court is without jurisdiction over unceded territory and therefore the injunctive order was a nullity. The extreme resistance ofthe superior court judiciary to hear or address the law presented in defense ofthe Lil'wat peoples was in breach ofthe rule of law, the principles of constitutional supremacy and the honour ofthe Crown. Following a detailed analysis of the judiciary's lack of impartiality and breaches of the rule of law, the thesis concludes by suggesting Canada submit the issue of Indigenous territorial sovereignty to third party adjudication through the creation of an internationally overseen cross-cultural mediation process.  TABLE OF CONTENTS: Abstract  ii  Table of Contents  iii  Table of Illustrations  vi  Acknowledgements  vii  Introduction  1  1.1  Qwetminak's Speech  1  1.2  Thesis Rational  7  1.3  M e t h o d o l o g y a n d Outline  Chapter Two: Lillooet Lake Roadblock Case: Contextual Information  16  26  2.1  T h e C o u r t P r o c e s s a n d A s s o c i a t e d Applications  26  2.2  T h e R o l e of the Lil'wat Traditional P e o p l e  26  2.3  T h e R o l e of the Mount Currie C h i e f and B a n d C o u n c i l  39  2.4  T h e R o l e of the Attorney G e n e r a l of British C o l u m b i a  40  2.5  T h e R o l e of the R . C . M . P  44  2.6  T h e R o l e of the Attorney G e n e r a l of C a n a d a  54  T h e R o l e of the L a w y e r s  54  T h e J u d i c i a l R o l e : Introduction  56  ,' 2.7 2.8  Chapter Three: The Requirements of Judicial and Institutional Impartiality 3.1  T h e T e s t for A n A p p r e h e n s i o n of B i a s and the Evidentiary T h r e s h o l d for Impartiality  3.2  57  57  Prejudgment: A J u d g e is Not T o H a v e a P r e c o n c e i v e d O p i n i o n on Issues of Fact  58  3.3  A J u d g e is Not T o H a v e a L e a n i n g T o w a r d s O n e Party O v e r the Other....  3.4  70  A J u d g e is Not to M a k e C o m m e n t s that C r e a t e a n A p p r e h e n s i o n of B i a s  83  3.5  Nemo Potent Esse Simul Actor et Judex  91  3.6  Institutional Impartiality is a Requirement  101  3.7  Justice Must B e S e e n To B e Done  110  3.8  L a c k of Impartiality Deprives the Court of Jurisdiction  120  Chapter Four: Judicial Breaches of the Rule of Law 4.1  122  T h e R e f u s a l of the Judiciary to A p p l y G e n e r a l B a s i c P r i n c i p l e s of Criminal L a w  4.2  124  T h e R e f u s a l of the Judiciary to A d d r e s s Substantive L e g a l D e f e n s e s and Relevant Evidence  136  4.3  J u d i c i a l Manipulation of P r o c e s s  141  4.4  Judicial A b u s e of P r o c e s s  145  4.5  Judicial C o n d o n i n g of the C r o w n ' s L a c k of H o n o u r  146  4.6  t h e R e f u s a l of the Judiciary to R e m e d y B r e a c h e s of the  Charter  a n d A p p l i c a b l e International L a w 4.7  154  T h e Judicial C o n d o n i n g of the F e d e r a l G o v e r n m e n t ' s B r e a c h of Fiduciary T r u s t e e Obligations  149  Chapter Five: Colonialism and Legal Education  169  5.1  U n d e r s t a n d i n g the Foundational Myths of C o l o n i a l i s m and C o l o n i a l Institutions  5.2  169  C h a l l e n g e s of L e g a l E d u c a t i o n : Positivism a s Justification, Law S c h o o l Curriculum, and The Colonial Box  176  Chapter Six: Decolonization of the Domestic Judiciary and Legal Practitioner  185  6.1  T h e Critical N e e d to Increase A w a r e n e s s  184  6.2  Suggestions  189  Bibliography  205  Appendices  212  A p p e n d i x I: C h a r t of C h r o n o l o g y o f t h e Lil'wat C a s e and A c c o m p a n y i n g Actions A p p e n d i x II: Lil'wat Declaration  212 of 1911  218  T A B L E  vi  O F ILLUSTRATIONS  1. Q w e t m i n a k O n H e r K n e e s 2. Lil'wat D r a g g e d F r o m His U n c e d e d Territory  1 :  ....3  3. Lil'wat Child W i t n e s s at R o a d b l o c k  4  4. Lil'wat P e o p l e ' s M o v e m e n t Lilooet L a k e R o a d b l o c k 1 9 9 0 / i  7  5. M a p S h o w i n g M o u n t Currie  9  6. M a p of Lillooet R o a d b l o c k 1990/1 and Ure C r e e k  10  7. S a c r e d Lil'wat Territory E a s t S i d e of Lillooet L a k e N e a r Ure C r e e k  10  8. Arnold N e l s o n L e a d i n g the S i n g e r s  14  9. Traditional Lil'wat P e o p l e F a c e the R . C . M . P  28  10. D e s e c r a t i o n of P i c t o g r a p h s A l o n g the S h o r e s of Lillooet L a k e  38  11. R . C . M . P . Dismantling Operation  44  12. R . C . M . P . E x c e s s i v e U s e of F o r c e  46  13. T h e P r a c t i c e of P a s s i v e R e s i s t a n c e  47  14. Lil'wat B e i n g D r a g g e d to B u s  48  15. R . C . M . P . T r e s p a s s e r s o n U n c e d e d L a n d s  49  16. P r i s o n e r of D e m o c r a c y  50  17. U n c o n s c i o u s Lil'wat P h o t o g r a p h e d by R . C . M . P  51  18. N e r v e D a m a g e  52  19. M y Obligation T o T h e C r e a t o r  131  Vll  Acknowledgements  I could not have written this thesis i f I had not been mentored by George Manuel, C M . , Hereditary Chief Robert Satiacum, and John and M a r y Williams. I wish however to dedicate this thesis to the traditional L i l ' w a t peoples whose deep belief in their sovereignty enabled them to stand strong regardless o f the response o f the domestic legal system. I also wish to most sincerely thank Professors Doug Harris and June M c C u e for their support, suggestions and editorial skill that transformed m y work into a readable study. I must also thank J o A n n for believing I could write it, Christi for keeping her promise to provide formatting, and Deborah for searching for a number o f lost references.  1  INTRODUCTION 1.1 Q w e t m i n a k ' s S p e e c h  Figure 1. Q w e t m i n a k O n H e r K n e e s .  2 Qwetminak: 1 am fifty-three years old. I have been educated both i n the English language and in my own L i l ' W a t language. I was teaching in public school for 14 years. 1 feel that i n all o f those years I have done a lot o f things. Raised m y nine children, and now I have grandchildren. I am telling you this just so because I am going to ask you a question at the end. Because at 53 I am beginning to wonder i f there is any justice for native people in this country. I have been involved i n a lot o f political—both political things both i n m y community and outside m y community. That morning that we were picked up we were on our way to work. I can't stand to see this country send i n police like that. Y o u say you are upholding justice, that people have to obey your laws. I believe that we should obey laws. L i k e M r . Tysuk says, we probably aren't criminals. We are probably law-abiding citizens. A n d that's true. But when this country has done the things to my people that it's done, and when a person like myself witnesses and lives with those things we try to find ways to bring [out] our plight. W e try to find justice because we believe that we are not getting it. When I was a little girl I didn't speak any English. I only spoke m y language. I only knew m y o w n world. O n l y in the language—through the language that I have, I knew m y world. I was very, very excited to see m y first white man, as we call h i m our Shama. A n d then when I was taken off to boarding school. The things I suffered in that boarding school I wouldn't wish your children, my children, my grandchildren, any of that on anybody. I graduated from that school. I went on to university. I went back home. The things that happened to people i n m y community, the economic—lack o f it, I guess I should say, o f economy i n m y community where our freedom depends solely on the Welfare system. I hate that Welfare system so badly that I wouldn't even go out here to get a cup o f soup. But I went because those people prepared it for us, even though I didn't want to take it. M y children, I w i l l not allow them to take Welfare. I can go and work. I can work like everybody else because I can teach. But I chose to be with m y children and to teach them how to live off that land because I know. A n d also i f they can learn to work at jobs within that territory, which there are very few of. I can understand the logging and that. I can understand that the people there need those jobs. But when we look at our valley, and they have taken almost all o f it and 1  2  3  4  April 15 , 1991 Transcript, at 17. Qwetminak, a grass roots leader amongst the traditional Lil'wat people, made this speech at her sentencing hearing upon being convicted for criminal contempt of court for blocking the road through their unceded territory. The question of where can the Lil'wat people go to receive justice and have the rule of law obeyed that she repeatedly asks in her address to Mr. Justice MacDonald provides the starting point for the focal question of the thesis. 1  th  Qwetminak taught at public schools both on and off the reserve during the fourteen-year period she refers to.  2  Ibid. It is important to note that when she speaks of being a citizen that she is referring to being a Lil'wat citizen rather than a citizen of Canada as clarified by her comments at 3. 3  This reference is to the non-native Supporters of the Lil'Wat Peoples Movement who had brought food to the courthouse as a gesture of support for the Lil'Wat people's assertion of authority over their lands. 4  3 left nothing for us, I can't understand that. When a man tells me: I've kept the fire going down at the lake because one o f my brothers, actually a sibling is buried across there, how can anybody stand by and say: It's okay, go around that place because it's for the loggers? The social sufferings that go on in my community are the same sufferings that are pushed on people, oppressed people. A n d people say we are not oppressed. Y o u are not half as bad as South Africa. Oppression is oppression. It has no degrees, measurements. A n d the things that we suffer socially cannot be measured in degrees o f the kind o f oppression that we are under in this country.  Figure 2. Lil'wat D r a g g e d From U n c e d e d Territory W e ask ourselves: where is the Redman's space in this world community? I want to know that because I want to bring up my children as good L i l ' w a t u m . Maybe one day I w i l l say as good Canadian. But at this moment I don't want to say that. Culturally, when they took us away to school they made sure they destroyed most o f that. I was fortunate enough to speak my language. I could learn from my elders,  Here she is referring to a Lil'wat member who has a sibling buried on the west side of Anderson Lake. Interfor Logging Corporation has been blasting in this graveyard area, in order to facilitate their construction of a logging road. In keeping with Lil'wat spiritual practices, this relative has kept a fire burning. 5  4 my mom, my dad, my aunts, and my uncles. But there are others that don't have that. A n d they are looking for something. Everywhere else in the world people are allowed those things. Politically, I can't stand the situation that we're in. I suppose that's the reason why I keep doing some o f the things that I do. Because in order for me to say to m y granddaughter: This is the life I want you to have. I want you to be happy. I want you to have a decent living. I want you to have a good house. I don't want you begging for it. I never want m y children to beg for anything. If they have to wear rags on their backs. I would rather they wore those rags on their backs than to beg in their own  Figure 3. Lil'wat Child W i t n e s s at R o a d b l o c k . homeland for their subsistence. H o w can they direct their o w n lives i f politically they can't do that?  5 Every time we move, people are telling them: Y o u have only this to live on. People go in our community from generation now to generation on Welfare. That's a kind o f oppression that I don't want my children to live under. Y o u might say: W e l l , why don't you move? I don't want them to do that either because that is their homeland, that is their home territory. W h y should they move? When a Frenchman wants to stay in his country, he stays there. When a Japanese person wants to stay in his country, he stays there. When Italian people want to stay i n their homeland, they stay there. I want my children to be able to say: This is my homeland. L i l ' w a t is my homeland. So I ask you, before we call this meeting off, where do we go? M r . Tyzuk says the rule o f law must be upheld. There is supposed to be a rule o f law protecting m y people here in this country. A n d i f that rule o f law is not going to be found in these courts, where is it going to be found? That is m y question. I want to know where do we go? Back in '75 when we sat on the road I said I would never do this again. W e occupied the black towers. We went to prison. I didn't want to do that again. But you people are just putting us to court, throw us back i n our community, go back there. Where do we go from there i f you are not going to uphold the rule o f law here. Where do we go? What do we have to do? I witnessed one year, the year m y aunty died, 17 people died. W e were at the graveyard 17 times. Those people died because ofthe alcoholism which is a social problem in my community. But no one could find the answer for that. I don't know how long more we have to do what we do. What do we do? Because it doesn't matter what we do, all the noises we make and the speeches we make, the studies that are done. Satiacum went to his grave. H e ' l l never see the justice i n this country. I am hoping too. A n d that's why I ' m asking you, where do we go? What do we do? H o w do we tell you? H o w do we get the rule o f law followed i n this country? W e are supposed to be protected people. It's your rule o f law. I don't want to come to these courts anymore trying to find justice i f you can't tell me where to find it i n your courts. But one thing I have told m y children, no more children w i l l be registered with the Canadian government or the British Columbia government because they shouldn't be there. They w i l l only be registered with the L i l ' w a t government. A n d i f it doesn't 6  Hereditary Leader of the Puyallup Nation, Chief Robert Satiacum, fled the United States after being convicted of racketeering on the basis of fabricated evidence. After three years and eleven months in custody on a Canadian immigration hold, he was successful in obtaining United Nation Conventional Refugee Status against the United States. The majority of the judges ofthe Immigration Appeal Board on July 10 , 1987 agreed that he was persecuted by the American government for his implementation of Indigenous treaty rights of fishing, free trade and tax exemption. His case was overturned however by the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Satiacum [1989] F.C.J. No. 505 on the basis that his fear for his life if returned to United States and incarcerated was not related to the crimes with which he was charged. The appeal court also held that there was no evidence to support the finding that he would not receive a fair trial in United States. The resulting loss of refugee status along with a finding of guilt in a fabricated case of child molesting returned him to the status of 'a fugitive from the American justice system'. He was captured for the second time and died of heart failure in custody before the Canadian authorities were able to deport him. 6  th  6 exist right now, I w i l l make it exist. Because I w i l l not let that go. W h y should I? N o one else is expected to do that in this world. United States and Canada and everybody else ran to Kuwaits' defense. There has got to be somebody that is going to run to my defense. I am L i l ' w a t u m . I w i l l die a L i l ' w a t u m . A n d i f I can't find justice, then I guess I w i l l have to keep looking. A n d I suppose I w i l l have to spend some more time in j a i l , because that's exactly where you put us when we start acting up, as you call it. W e are called rebels. W e are called renegades. W e are called everything that is not nice. But I want you to know why I do it. If you have to charge me with something else, I guess you have to. But I am going to go home because I have to work to make a living, just like everybody else. I haven't taken an easy route, nor do I plan to. But my grandchildren w i l l grow up knowing who they are. A n d my children have learned to work. But we w i l l never succumb because you want us to, because you force us to. That can only come i f we understand each other. The Court: If I had the answer to your question, I would happily give it to you.  7  The following day: The Court: M a y I say before you say anything more I have asked the court reporter to give me a copy o f what you said. I too have a son. N o t as many as you. I propose to send h i m what you said. One other white man w i l l know what you said. Qwetminak: I hope he can do something about our situation, maybe much more than you and I have done here. A n d I know that you have to sentence us because you think that you have that right. But nothing w i l l make me say that you have jurisdiction because you do not... A n d i f this court is proven unjust in the future that won't be on our conscience. So m y name is M a r y Williams. Y o u may do as you please, but I w i l l not recognize your jurisdiction. M r . Justice MacDonald's response to Qwetminak is where I would like to begin m y analysis o f whether or not the Canadian courts can provide impartial adjudication o f issues such as territorial sovereignty violations by the Canadian state. I have yet to witness justice i n Canada's legal institutions when it comes to Indigenous peoples protecting their lands. The L i l ' w a t people remain surrounded by injustice.  Monture-Okanee states: "The overall perspective of an aboriginal person toward Canadian legal institutions is one of being surrounded by injustice without knowing where justice lies, without knowing whether justice is possible." P. Monture-Okanee and M . Turpel "Aboriginal Peoples and Canadian Criminal Law: Rethinking Justice", (1992) U.B.C. L. Rev. 239-279 at 251. 7  8  April 15 , 1991 Transcript at 46. th  corde creditur ad justitiam...she who believes in the heart will do justice  7 9  Figure 4. Lil'wat P e o p l e s M o v e m e n t Lillooet L a k e R o a d b l o c k 1 9 9 0 / 1 . 1.2 T h e s i s Rational  This thesis emerges as a result of having been legal counsel to members of the traditional Lil'wat people who were arrested because of their blockade in 1990/1 on Lillooet Lake Road. The Crown charged sixty-three Lil'wat individuals with criminal contempt of court 10  for refusing to remove themselves from their blockade of a road that runs through their  L. Mills, A Penchant for Prejudice: Unraveling Bias in Judicial Decision Making (Ann Arbor: University of Michigan, 1999) at 1. 9  The formal title of the case was Attorney General of British Columbia and Her Majesty the Queen in Right of the Province of British Columbia v. Chief Fraser Andrew, as Representative of the Band Council and Members of the Mount Currie Indian Band, and Terri John, Ralph Dan, Ron Dan, Alvin Nelson, Albert Pascal, and John Doe as Individuals and as Representatives of the Persons Blocking a Road known as Lillooet Lake Road. No. A906203. Vancouver (B.C.S.C.) ["A.G. v. Chief Andrew "]. The majority of the transcript references contained within the thesis are excerpts from this criminal contempt trial and will be referred to throughout by date and page. For example: January 8 , 1991 Transcript at 5. 10  th  8 reserve. Their trial took place before the Honorable M r . Justice M a c D o n a l d over a fivemonth period in 1990/1 and involved approximately 33 days o f trial.  11  There were actually several hundred traditional L i l ' w a t people involved in the 116 day roadblock. Aware that the Band Council was part o f the colonial regime, the L i l ' w a t People's Movement was formed to provide a voice for traditional L i l ' w a t members who were intent upon protecting their lands.  12  It was agreed that only a few o f each family would allow  themselves to be arrested, so that the remaining family members would be able to sustain their incarcerated family members, as well as themselves, during this lengthy action.  13  These traditional L i l ' w a t people refuse to recognize the federally imposed Indian Reserve and Band Council system. From their point o f view, the Band Council reserve system is simply an administrative arm o f the foreign Canadian government. The roadblock was a nonviolent assertion o f L i l ' w a t sovereignty, authority, and jurisdiction in their unceded traditional territory; in other words, it was an assertion o f L i l ' w a t territorial sovereignty. It was the L i l ' w a t ' s clear intention from the beginning o f this action to use the Supreme Court of British Columbia proceeding as an opportunity to further the historical record o f their sovereignty. The L i l ' w a t position, set out in the Lil'wat Declaration of 1911, is that they have neither been conquered nor have they or their ancestors entered into a cessation treaty  There were numerous applications before several additional courts that will be detailed in subsequent chapters. 11  The Lil'wat People's Movement consisted of hundreds of traditional Lil'wat people including the representatives of several family clans within their traditional governing system. It did not claim to represent the Lil'wat Nation as that would require a consensus position reached by the Lil'wat family heads. 12  In addition to being present at the roadblock for almost four months, those who were arrested spent 26 days in custody at Oakalla Prison. This was followed by their required attendance at a 33 day trial that extended over a five month period. Each LiPwat member had to travel to and from Mount Currie, as well as obtain food and lodging, so as to respectfully 'meet with' the judge at the Supreme Court of B.C. in Vancouver. 13  9 with the British Monarchs, their successors or heirs.  14  The Lillooet Lake roadblock was an attempt on the part of the Lil'wat people to prevent the destruction of the most sacred area within their unceded traditional territory. They 15  desperately wished to stop the blasting of a logging road through the Ure Creek area that contains their ancestor's gravesites as well as their ancient pictographs.  16  14  See Appendix II at 219.  15  See testimony of Ishmeshkeya Chapter Two at 32-34.  The significance of these ancient rock paintings is elaborated upon by Yahaalquin's testimony included at 37. 16  Figure 7. S a c r e d Lil'wat Territory E a s t S i d e of Lillooet L a k e N e a r U r e C r e e k . This Indigenous assertion o f L i l ' w a t authority to protect their land led to L i l ' w a t charges o f criminal contempt o f court for disobeying the injunction granted to the B . C . Provincial government b y the C h i e f Justice o f the British Columbia Supreme Court on October 3 0 , th  11 1990. Each ofthe L i l ' w a t traditional people arrested and brought before the court were 17  convicted and received criminal records for their attempt to protect their ancestor's graves. The choice to analyze this particular case occurs for several reasons. First, an analysis o f the legal proceedings resulting from the L i l ' w a t Roadblock w i l l illuminate what is meant by traditional people's common reference to themselves as "Prisoners o f Democracy". M a n y traditional Indigenous peoples refuse to vote or participate i n the imposed elected Band Council governing structures. They are aware that Canada created these structures to replace the hereditary governing systems o f the Indigenous Nations. The result is that the majority o f the Indigenous people's voices are unrepresented and unheard. It is through the imposition o f the Band Council system that Canada has implemented its control over most aspects o f Indigenous peoples lives. Being a witness to such subjugation has motivated me to write this thesis. I took an oath many years ago with traditional L i l ' w a t people, to "use my energies to publicize the history of colonialism" that oppresses L i l ' w a t people who continue to live i n their traditional territories today. M y oath to the L i l ' w a t people was the consequence o f gaining an understanding o f the international aspect o f Indigenous issues and m y realization that their Indigenous Nations' territorial sovereignty was being extinguished without their voices being heard. I have been specifically requested by L i l ' w a t traditional grassroots leaders to address m y comments to m y own race regarding their participation i n the continuing oppression o f Indigenous Nations. Second, using the judicial system to record the assertion o f sovereignty b y the traditional L i l ' w a t peoples meets the continuing political, historical and legal objectives o f the  A.G. v. ChiefAndrew, supra note 10. Original Injunctive Application Hearing Oct. 22 , 23 , and 24 , 1990. Injunction Order issued Oct. 30 , 1990. Chief Justice Esson. 17  nd  th  th  rd  12 L i l ' w a t u m . For example, evidence o f the L i l ' w a t sovereignty position, so clearly recorded  18 throughout this action, stands in direct opposition to the Newcomer's  frequent assumption  that Indigenous Nations have acquiesced to the imposition o f Canadian sovereignty. Third, the issue before the court involved a challenge to Newcomer jurisdiction i n Indigenous unceded territory. The transcripts o f the trial provide considerable evidence o f the lack o f impartiality i n the response o f the Canadian court system. Fourth, the analysis o f the domestic trial process reveals the existence o f a link between the unavailability o f an impartial forum to address assertions o f existing Indigenous authority and jurisdiction over unceded lands and the extremely high suicide rates, particularly amongst young, native males.  19  The current denial within Canada o f the international right o f  Indigenous peoples to social, cultural, economic and political self-determination is part o f the explanation for the incredibly high rates o f Indigenous suicide. This needs to be made increasingly visible and addressed by the domestic legal community including the judiciary. For example, Dean Nelson testified that Provincial authorization o f clear-cut logging on unceded territory by Interfor without consulting and obtaining the consent o f the L i l ' w a t people has manifested in tragic suicide rates:  'Newcomer' as it is used in this thesis is meant to refer to all members of the Canadian society with the exception of Indigenous peoples. King writes of the infrequency of suicide in traditional native culture and states: "Our Elders tell us that suicide was not our way, before contact with Europeans." C. King, "Historical Context of Suicide", [unpublished paper, archived with the author] at 1. 19  For example, the Honourable John Reilly of the Alberta Provincial Court held a public inquiry pursuant to the Fatality Inquiries Act in the Town of Cochrane, on Feb 26 , and June 11 , 1999. He forwarded a report to the Minister of Justice and the Attorney General of Canada regarding the suicide of Sherman Laron Labelle, a seventeen year old native male from Stoney Reserve at Morley with recommendations for the prevention of similar deaths. In his report he concludes: "Suicides among aboriginal young people are the result of the history of injustices that they have suffered and continue to suffer...To prevent young aboriginal people from taking their own lives there must be a commitment to end the tyranny that dominates and destroys their lives." 20  th  th  13 Q. Have you anything to tell h i m about your brothers and sisters, what you've witnessed yourself as to their response to the destruction o f your homeland? A . W e l l , no place to turn to show their feelings. M o r e or less turn it to yourself and it just builds up. A n d not knowing when it's gonna come out or i n what way. A lot o f the violence that is shown or who it's taken out on they aren't the people that...are responsible for that. It just comes out. Whether it be on themselves, families. I know some people my same age that aren't here. They believed strongly enough. Maybe too strong... Q. The brothers and sisters that you're speaking of, what would you say caused their death? A . A l l negative things with one positive belief. I'd say seeing our strongest people and looking to them for direction and finding out that they're helpless. Q. A n d the one positive belief that they have that you speak of. A . That some day the wrongs w i l l be righted. They were strong people, it's just the circumstances they were under. If they could hold on just a little bit longer then they would be here instead o f in a graveyard. 21  He continues to explain how he carries the same pain as those who commit suicide do because o f witnessing the way the people and the land are now. H e explains that without being given a chance to live as human beings and for the land to be kept unpolluted, both 22  the land and the people are going to "go under": "Take away hope from the people and. they're not living any more. It's the same that goes for the land, it's not a l i v e " .  23  O f the sixty-three L i l ' w a t accused named in this action, three o f the young males are now deceased, including two o f the strongest young L i l ' w a t traditional male singers. Eugene D i c k  21  December 14 , 1990 Transcript at 8. th  In addition to the theme of the lack of jurisdiction throughout the Lil'wat's testimony there is also frequent reference to their awareness that their survival depends on their ability to maintain the purity of their land. 22  December 14 , 1990 Transcript at 8; see also Ryan and Ominayak's article for a strikingly similar situation, where the loss of subsistence economies due to third party encroachers created dependency and powerlessness. This was reflected in the ever-increasing statistics on suicide amongst many other social ills. Their article explains that loss of viable subsistence economies results from the third party encroachment on Indigenous lands. "As the land base was disrupted human lives were shattered because the relationship with the land was broken. This meant a loss of linkage to the past, to the spirit world, to ancestors, to identity and to affirmation of self." They refers to the collective trauma of having "an important part of their world disappeared without so much as a sound." J. Ryan and B. Ominayak, "The Cultural Effects of Judicial Bias", in Equality and Judicial Neutrality, S. Martin and K. Mahoney, eds. (Calgary: Carswell Legal Publishers, 1987) 346-357 at 346. 23  th  died when the car he was in plunged into the Birkenhead river. Arnold Williams was  14  found dead from hanging the day he was scheduled to appear in Provincial Court in nearby Pemberton on a charge of assault. His belief in sovereign Lil'wat jurisdiction was so uncompromised that I am told that he stated to fellow Lil'watum that "If the R.C.M.P come to take me from my homeland, it will have to be in a body bag."  Figure 8. Arnold N e l s o n L e a d i n g the S i n g e r s .  In October, 2005, another Lil'wat male who was named in this action threw himself in front of the train as it came through the reserve. In March, 2006 Frankie Wells, became the most recent in the community to take his life, by shooting himself. Fifth, a detailed examination of this dispute, where the protection of Lil'wat gravesites is pitted against a Canadian logging company's right to extract resources, will cause further reflection and dialogue on the extreme oppressiveness of the role played by the domestic legal system in such confrontations. A critical analysis of the Canadian system's current usurpation of jurisdiction is necessary to demonstrate the lack of an impartial forum in which  15 to resolve the ongoing jurisdictional disputes relating to traditional Indigenous territory. A sixth reason for the examination o f this case relates to the impact it had on the lawyers who assisted the L i l ' w a t people in their assertion o f territorial sovereignty before the B . C . Supreme Court. The unjust manner in which the domestic justice system responded to the L i l ' w a t ' s position caused me to withdraw from further involvement i n the practice o f law.  2 4  A t the completion o f the case, on A p r i l 16 , 1991,1 found myself advising the court that it th  had meant something to me to be an officer o f the court. I had taken m y obligation as a barrister to act as a minister of justice seriously. I stated on record, that I would not appear before the court again due to the fact that I no longer had respect for Canada's domestic system of justice. I could not continue, i n good conscience, to participate as an officer o f a court that would find an Indigenous person living uninterruptedly i n tribal relations, guilty o f criminal contempt based upon a writ o f conspiracy to commit trespass and public nuisance on their unceded ancient territory, without first requiring the Province to prove title. I resolved 25  to: .. .tell this story, the story that took place in this courtroom but I w i l l do that i n the world... I hope I live long enough to see their nationhood recognized, but I don't intend to do it through these courts. This ended m y approximately fifteen-year long barrister's career.  M y colleague, Bruce Clark stated on record the following day, April 17 ,1991 Transcript at 4 that I had chosen "to maintain my dignity and to move on to other arenas in which the better to fight for justice". I would say, in all honesty, that I could foresee that unless I withdrew from the continuation of the assertion of Lil'wat sovereignty, not only Clark would end up incarcerated, psychiatrically assessed, and ultimately disbarred. 24  A.G. v. Chief Andrew, supra note 10. Statement of Claim of the Provincial Government of B.C. at para. 19: "The defendants, members of the Band and persons unknown have conspired to obstruct the Road and thereby to commit a public nuisance and trespass causing injury, loss and damage to the plaintiffs." 25  26  April 16 , 1991 Transcript at 6. th  The cost of this decision is difficult to express. Whether you are disbarred or choose to leave as I did, suffice is say it has been challenging financially. But the real cost was my loss of faith that 2 7  16 Participation in this case, also brought to an end, the legal career o f m y co-counsel, Dr. Bruce Clark who has since been disbarred from the practice o f law for refusing to retract his characterization o f the judiciary as complicit in treason, fraud and consequentially ethnocide and genocide. H e made these strong accusations as a direct result o f the endless 28  refusal o f the judiciary i n British Columbia to hear the L i l ' w a t ' s substantive legal defense. This thesis is my response to the domestic judiciary's handling o f the territorial dispute. It is meant to illustrate the lack o f impartiality in the domestic Canadian court system where the issue involves the assertion o f Indigenous territorial sovereignty. 1.3  M e t h o d o l o g y a n d Outline  I examine a specific encounter between the dominant Canadian society and traditional L i l ' w a t people. I w i l l identify overt and subtle colonial attitudes embedded within the law, its institutions and its accepted practices in the context o f dominant Newcomer society-  justice could be found in the courts on fundamental Indigenous issues. I had idealistically believed in the definition of jurisdiction as contained in Mozley & Whiteley's Law Dictionary: "A dignity which a man has to be a power to do justice in causes of complaint made before him." To this day I believe in the decision I made in 1991 to withdrawfromparticipating as an officer of the court in which the criminalization of the Lil'wat people was condoned. It remains impossible to obtain an impartial hearing within the Canadian domestic legal system if asserting territorial sovereignty on behalf of an Indigenous client. Clark and I provide examples of two barristers that have paid the price and are in the position to make such a statement. B. Clark, Justice in Paradise (Montreal & Kingston: McGill-Queen's University Press, 1999) at 168; see also at 225 for the contents of Clark's Notice ofDisagreement to the Law Society of Upper Canada regarding their disbarment decision. 28  Mills observes: "Bell and critical race theory more generally recognize and seek to publicize the violence inflicted on people of color through the myth of legal neutrality and abstract law." Mills, supra note 9 at 20; consider also Milde's comment that "law is really best understood as another strand of the political process rather than as something apart from it." M . Milde, "Real Respect for the Rule of Law: A Critical Notice of D. Dyzenhaus, Judging the Judges: Judging Ourselves", (1999) 12 Can. J.L. & Juris. 333-343 at para.28. 29  17 traditional L i l ' w a t people relations.  This case study also seeks to make visible a series o f 31  invalid legal assumptions regarding Indigenous peoples.  It w i l l reveal entrenched  institutional biases that favor the continued self-interest o f the Newcomer society. This thesis examines governmental legal positions, strategies, and practices that were condoned by the Superior court ofthe province when faced with an assertion o f Indigenous territorial sovereignty. It is suggested that several actions o f the government and the superior court judiciary constitute breaches o f the rule o f law, the principles o f constitutional supremacy, and the honour o f the Crown. Although the legal argument in support o f the existence o f Indigenous sovereignty is o f crucial importance, this area has been canvassed in detailed by Dr. Bruce C l a r k .  32  Rather  than providing a comprehensive analysis o f the L i l ' w a t ' s territorial sovereignty defense, I w i l l be focusing on the remarkable history o f the domestic courts' resistance to it through an analysis ofthe court transcripts. In the unraveling o f the myth o f impartiality in the Canadian courts in the context o f Indigenous jurisdiction, I challenge the assumption o f British and Canadian sovereignty over  Richard Shaull's comment that "Thought and study alone did not produce Pedagogy of the Oppressed; it is rooted in concrete situations." is applicable to this Lil'wat case analysis. P. Freire, pedagogy of the oppressed. (New York: Continuum, 1970) at 19. 30  Steven Newcomb's article assists in proving the majority of the assumptions relied upon by the superior court judiciary are remnants of our colonial period. They include the racist assumption originating in 15 Century religious doctrine that classified Indigenous peoples as heathen, savage, primitive and therefore subhuman. S. Newcomb, "The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. Mcintosh, and Plenary Power." Review of Law and Social Change, New York University, Vol. X X . No. 2, 1993, 303-341 ["Christian Nationalism"]. 31  th  See Clark, supra note 28; see also extensive legal arguments by Dr. Bruce Clark filed in numerous domestic court actions. For example see his 18 page pure law argument submitted in International Forest Products Limited and Howe Sound Timber Co. Ltd. v. Harold Pascal, Bernard Dick, Reynold Joe, John Doe, John Doe and John Doe, as representatives of the persons blocking a road known as Ure Creek Mainline. CA 103228 (B.C.C.A.) ["Interfor v. Pascal"]. 32  unceded Indigenous territories through a critical legal realist perspective.  M y goal is to  18  increase awareness through the exposure o f the intricate manner i n which legal reasoning is used to mask judicial political activity. Additionally, the thesis incorporates critical race 34  theory  35  through the inclusion o f insights into the role o f law i n Indigenous oppression,  counter-story telling,  37  36  and reliance on autobiographical information. W i t h a  deconstructionist aim, I hope to reveal unjustifiable legal fictions that underlie the current response o f the Canadian Crown and judiciary to an Indigenous challenge o f British •  sovereignty over unceded territory.  38  Analysis o f the actual legal proceedings provides a first-hand opportunity to observe the  See Mill's explanation that legal realists argue in addition to logic...social context, the facts of the case, judges' ideologies, and professional consensus critically influence individual judgments and patterns of decisions over time. Critical legal studies... further the legal realist project by making explicit the extent to which the classical conception of an objective system of legal rules perpetuate the interests of economic elites and promote class-based privilege Mills, supra note 9 at 16-17; see also R. Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1986). 3  See E. Kwaw. The Guide to Legal Analysis, Legal Methodology and Legal Writing, (Toronto; Emond Montgomery Publications, 1992) at 9. 34  Critical Race Theory (CRT) first emerged as a counter legal scholarship to the positivist and liberal legal discourse of civil rights. It departs from mainstream legal scholarship by sometimes employing storytelling. CRT looks at how citizenship and race might interact. "Critical Race Theory offers a way to understand how ostensibly race-neutral structures in fact help form and police the boundaries of white supremacy and racism... Critical race theory can also be used to provide the theoretical justification for oppositional "counter stories" that challenge assumptions from an outsider's perspective." L. Parker, D. Deyhle, and S. Villenas, eds., Race Is...Race Isn't: Critical Race Theory and Quantitative Studies in Education (Boulder, Colorado: Perseus Books, 1999) at 2. 35  36  "The function of law is to legitimize domination." Kwaw, supra note 34 at 10.  Counter storytelling is a methodology within critical race theory that attempts to rectify the omission, devaluation and misinterpretation of the history, experience and perspective of peoples of color. The inclusion of Lil'wat viva voce statements throughout this paper is meant to assist in filling gaps in western knowledge. 37  John Borrows questions whether the mere assertion of Crown sovereignty is morally and politically defensible: "Sovereignty's incantation is like magic...This mere assertion is said to displace previous Indigenous titles by making them subject to, and a burden on, another's higher legal claims. Contemporary Canadian jurisprudence has been susceptible to this artifice." J. Borrows, "Sovereignty's Alchemy: An analysis of Delgamuukw v. British Columbia" (1999) 37 Osgood Hall L.J. 537 at 562 ["Sovereignty's Alchemy"]. 38  reactions o f both Canada's domestic governments and courts. Made without force or violence, the sovereign position asserted by the L i l ' w a t People's M o v e m e n t throughout the 39  case, was the consensus response o f the traditional L i l ' w a t people to the non-consensual Newcomer assertion of jurisdiction within their territory. The L i l ' w a t explained that they attended court in adherence to the original Indigenous/Newcomer agreement o f Peace, Friendship, and Respect, in which each nation, the Newcomers and each o f the Indigenous Nations, retained their own autonomy or sovereignty. The L i l ' w a t traditional people, on the basis o f their belief that the assertion o f L i l ' w a t territorial sovereignty is an international issue, refused to surrender to the jurisdiction ofthe British Columbia Supreme Court. They did not consider the Provincial superior court to be an authority over them or their unceded territory. From the L i l ' w a t perspective, they attended court out o f respect for the Canadian legal system. They insisted, therefore, that their appearance be referred to on record specifically as "a meeting"  40  so that it could not be  considered as evidence o f their surrender to the jurisdiction ofthe domestic court.  41  The Lil'wat Peoples Movement was formed in 1990 by several traditional families of the Lil'wat peoples due to serious internal conflicts. The conflicts resulted from positions taken by the Chief and Council on behalf of the Lil'wat people that were unsupported by them. These positions were being imposed on them through the Band Council system. The People's Movement included hundreds of individual Lil'wats whose participation in their hereditary governing system enabled them to demonstrate their allegiance and commitment to Lil'wat law. The assertion of territorial sovereignty on behalf of the Lil'wat Nation was evidenced through the strong, non-violent stance taken by the people in protection of their ancestor's resting places. The Lil'wat accused were incarcerated for the first 25 days of the trial because of their refusal to sign a recognizance and thereby recognize the court's jurisdiction over them. The judge on Nov. 20 , 1990 became upset because the time they were serving in custody may already have been longer than if they were sentenced for contempt. The judge specifically requested that I speak to the Lil'wat accused to see if there was an agreement that could be reached that would allow for their release. It was a historic moment when the Lil'wat accused responded though me that they agreed "to meet' with the judge on a specific date for the continuation of the case. The judge agreed that they could use their wording while he would use his so as to enable him to release them without requiring that they sign a recognizance. 40  th  This is of particular importance with regard to the doctrine of prescription that requires acquiescence on the part of the original sovereign. The sovereign assertion by the Lil'wat peoples,  41  20 The thesis w i l l also reveal how the courts have institutionalized their lack o f impartiality and draw on racist paradigms to reach conclusions that deny Indigenous territorial sovereignty. The theory o f the defense presented i n this case is also very much in 42  keeping with the suggestion o f Robert A . Williams, Jr., that the most coherent and compelling strategy o f resistance to colonialism, is to "deny the legitimacy o f and respect for the rule o f law maintained by the racist discourse o f conquest and the doctrine o f discovery."  43  In my view the court in this case has been extremely selective in it's use o f the  rule o f law so as to enable it to enforce the injunction. A s a result o f such arbitrary use o f power, the L i l ' w a t traditional leaders have concluded that without a fundamental change in the current approach o f the Crown and the Canadian judiciary to unceded traditional Indigenous territories, there exists no possibility o f reaching a just resolution. Extensive resort is made throughout this case analysis to the contempt trial before the British Columbia Supreme Court. It is through the statements made by the L i l ' w a t people during this trial that this thesis contributes to the creation o f the L i l ' w a t "counter-reality" o f legal and political history regarding Indigenous/Newcomer relations. Historical knowledge o f this case from the Lilwat defense perspective provides a true accounting o f the events that took place i n 1990/1. Neither the media coverage at the time o f the incident nor the subsequent published case reports o f this jurisdictional legal challenge recognized the historical significance o f this case. The media focused on the economic loss in the tourist  as recorded in this case before the Supreme Court of British Columbia, prevents Canada from arguing that the Lil'wat Nation has acquiesced to the Newcomer's usurpation of jurisdiction over their traditional territory. In Mill's opinion the analysis of a specific case is of significant assistance in positioning the judiciary "squarely within the racist paradigms from which they do their judging." Mills, supra note 9 at 22. 4 2  R.Williams, Jr., The American Indian in Western Legal Thought: Discourses of Conquest (New York: Oxford University Press, 1990) at 325. 4 3  town o f Lillooet, while the published case reports emphasize the legal position and arguments ofthe Band C o u n c i l .  44  21  It is o f particular interest, from a critical legal realist  perspective that within these two reporting systems there is next to no visible record whatsoever o f the territorial sovereignty assertion by the traditional L i l ' w a t people. Equally there is no public historical record o f their criminalization within the Canadian legal system for attempting to protect their ancestor's gravesites within the most sacred part o f their traditional homelands.  45  The L i l ' w a t counter reality as told in the transcripts fills this overt gap in L i l ' w a t Newcomer relations. The use o f the L i l ' w a t traditional people's sworn testimony is one method o f providing a direct voice to the L i l ' w a t people. Their statements provide the dominant society with a continuing record o f the L i l ' w a t assertion o f sovereignty in relation to their homeland. It is this empowering aspect that Professor John Borrows refers to when he states: Situating the interpretations and consequences o f judicial decisions in affected communities gives a voice to people who are disadvantaged by the application o f law. 46  He refers to such accounts as "containing an alternative vision o f law" or "Constitutional L a w from a First Nation Perspective."  47  Not only are transcript excerpts m y preferred method o f giving voice to each ofthe  Legal counsel for the Band Chief and Council confined her arguments to the issue of the constitutionality of the Province's resumptive power vis-a vis Indian reservation lands. When the Lil'wat traditional people first approached me to be legal representative of the Lil'wat People's Movement in this case, I recall naively believing that everyone would be able to empathize with the position of the Lil'wat people in this case given the universal reverence for the resting places of one's relatives. 4 5  J. Borrows, "Constitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation" U.B.C. L. Rev. (1994) Vol. 28: 1-47 at 3 ["Constitutional Law"].  4 6  47  Ibid.  22 accused in the trial, but they also prove an invaluable tool through which to reveal and scrutinize the assumptions embedded in the colonizer's legal system. In order to expose these legal fictions, quotes are relied upon extensively to present the exchange o f legal positions and supporting arguments on behalf of the L i l ' w a t people and opposing counsel, representing the Attorney General o f British Columbia and the Attorney General o f Canada. The transcripts also contain R . C . M . P . testimony that assists i n recreating the role they played in the confrontation. For example, in his testimony before the British Columbia Supreme Court, on December 12 , 1990 Sasquatch describes his participation i n this way: th  We're respecting your guys' law right now... .And like now we're respecting your law by coming in here to your courts out o f respect, not to go blocking that road again just so as you guys can hear us, and yet we're respecting your law and you're not even respecting our territory right now when they're still out there logging, still out there building a highway... Even though our people have been treated badly for all these years, we still have enough respect to sit in here with you guys and listen to what you say, but you got to respect us too for wanting to keep life going on in this w o r l d . 48  John Borrow's comments regarding Indigenous perspectives on constitutional law are applicable: A s this alternative conception is placed beside the dominant discourse, we w i l l see that the form and structure o f First Nations jurisprudence may look very different from that which is commonly understood and is in perspicuous contrast with the dominant legal discourse and challenges many o f its ideas. .. .we see a different vision o f law that emphasizes a nation to nation relationship between First Nations and the Crown. This vision demands the restraint o f legally oppressive power when it mutates or ignores this relationship. 49  5 0  Finally, because it is frequently by way o f a judge's procedural decisions that the alleged abuses o f the rule o f law are committed, a thorough examination o f exchanges between  December 12'", 1990 Transcript at 30-33. Borrows, "Constitutional Law", supra note 46 at 10. Ibid, at 46.  23 counsel and the judiciary with respect to procedural matters are included. The reliance on the record o f proceedings is the only method o f reaching an informed conclusion about the alleged lack o f impartiality in the provincial superior court. In keeping with the intentions o f John Borrows, it is hoped that the thesis "challenges the explanations o f those people and institutions that continue to oppress First Nation governments."  51  A s Linda Tuhiwai Smith states in Decolonizing Methodologies: Research and Indigenous Peoples: "...in law, there is an extensive history o f attempts to legitimize the most dehumanizing o f systems...the challenge is always to demystify, to decolonize." After 52  commenting on some o f the assumptions and biases ofthe legal system she concludes: ".. .taken as a whole system, these ideas determine the wider rules o f practice which ensure that Western interests remain dominant."  53  It is precisely this point that this thesis aims to illustrate. M y hope is that through m y analysis o f the court proceedings, the reader w i l l be able to observe something 'other than' the rule o f law, at work within the domestic legal system. This thesis is an attempt to demonstrate that this 'self-interest phenomenon', rather than the rule o f law, is profoundly present within the positivist system that the judiciary insist they are bound to u p h o l d . The 54  thesis is presented as a legal challenge to the judiciary's current reliance on positivism as the  51  Borrows, "Sovereignty's Alchemy", supra note 38 at 25, fn. 108.  L. Smith, Decolonizing Methodologies: Research and Indigenous Peoples (New York: University of Otago Press, 1999) at 16. 52  53  Ibid, at 45.  Consider Allan's definition: "At its lowest common denominator Hart's positivism makes two claims: 1. that law is best understood as a system of rules, and 2. that 'law as it is' should be kept conceptually distinct from 'law as it ought to be." J. Allan, "Positively Fabulous: Why It Is Good to Be a Legal Positivist" (1997) 10 Can. J.L.& Juris. 231-248 at para. 3; consider also Boyd's explanation of positivism as "The theory that law can be understood as a valid set of rules whose content is to be determined through a logical system of precedents, rather than through the application of moral considerations." N . Boyd, Canadian Law: An Introduction (Toronto: Thomson Canada Limited, 2002) at 351. 5 4  24 justification for their rulings. Such an interpretation o f positivism lacks the fundamental requirement o f a strict separation between the practice o f politics and the practice o f law. The focus throughout the thesis on revealing the self-interest ofthe dominant society embedded in the court process is obviously entwined with the legal requirement o f impartiality. Once might is judicially condoned as right, the essential cornerstone o f the rule of law is non-existent. Impartiality is so fundamental to the functioning ofthe rule o f law that a judgment o f a court that proceeds without it results i n a loss o f jurisdiction rendering its judgments null and void or o f no legal consequence. The second chapter o f the thesis begins with extensive contextual information, so as to place each o f the parties i n the roles they played in this jurisdictional confrontation regarding unceded Indigenous territory. Following a summary o f the various court actions, the legal positions and roles o f the traditional L i l ' w a t people, the Band Council, the Attorney General o f British Columbia, the R . C . M . P . , the Attorney General o f Canada, and legal counsel are outlined. This material, it is argued, is part ofthe information necessary for a reasonable person to be well informed prior to consideration ofthe legal test o f whether there is an apprehension o f bias.  55  The judicial role is developed i n chapter three. It contains a doctrinal summary o f the more important requirements o f judicial and institutional impartiality and includes analysis o f  Consider the Supreme Court of Canada's discussion on the apprehension of bias: "Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. A judge's impartiality is presumed and a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified. The criterion of disqualification is the reasonable apprehension of bias. The question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude. Would he think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?" Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, (2003), 231 D.L.R. (4th) 1.  25 a series o f examples from the trial transcripts that relate to specific impartiality prerequisites. The fourth chapter begins with a brief discussion o f the requirements o f the rule o f law followed by a compilation o f excerpts from the criminal contempt trial relied upon to demonstrate judicial breaches. This material is required to enable the reasonable person to compare the procedural decisions and formal rulings o f the judiciary with the legal requirements o f impartial adjudication, prior to their consideration o f the legal test for bias. Chapter Five contains explicit observations regarding embedded colonialism as the major cause o f the domestic court system's lack o f impartiality. The contribution to the jurisdictional dispute o f a faulty domestic legal education is briefly considered, as well as suggestions relating to the immediate need to transform the Indigenous curriculum in Canadian law schools to an international, rather than a colonial perspective. The sixth chapter addresses the urgent call for the decolonization o f the judiciary and legal practitioners. I urge those o f us involved in the administration o f justice to increase our awareness o f the international human rights o f Indigenous peoples in a timely fashion. This w i l l result in the creation o f an internationally overseen, mutually agreed upon, mediation style resolution process. A mechanism built on a cross cultural foundation would profoundly enhance the impartiality o f the process, something that is essential for the resolution o f outstanding issues between Indigenous nations and the dominant society comprising the Canadian nation.  s  26  CHAPTER TWO Analysis of the Lillooet Lake Roadblock Case: Contextual Information: 2.1 T h e court p r o c e s s a n d a s s o c i a t e d applications: The main trial in which the traditional L i l ' w a t people were involved consisted o f the  criminal contempt o f court hearing. A t that trial they refused to submit to the jurisdiction o f the B . C . Supreme Court. Only counsel for the Mount Currie Chief and Band Council entered an appearance i n that proceeding. While the traditional Lil'wats i n Supreme Court were having no success i n having the law in support o f their sovereignty defense heard, the appeal by the Band Council Chief o f the original injunctive order proceeded without them. Appendix I provides the reader with a chronological delineation o f the criminal contempt hearing as it proceeded through the domestic court process.  56  It w i l l also help bring order to  the numerous applications made on behalf o f the L i l ' w a t traditional people before numerous judges at every level o f the available domestic courts. Prior to m y decision to withdraw from further participation i n this case, I appeared on behalf o f the traditional Lil'wats before thirteen different judges within a five-month period. None o f these members o f the domestic judiciary found themselves w i l l i n g or able to address the substantive defense o f the L i l ' w a t people prior to their criminalization for their assertion of jurisdiction in sacred L i l ' w a t territory. This chapter describes the various parties involved and their roles in the proceedings, beginning with the traditional L i l ' w a t people. 2.2 T h e role of the Lil'wat traditional people: The L i l ' w a t traditional people emphasized several points when they prepared Dr. Bruce Clark and me for the defense o f their criminal contempt o f court charge before the Supreme  See Appendix I at 213-18.  27 Court o f British Columbia. They gave utterly clear instructions that they were L i l ' w a t u m rather than Canadian, as is so often erroneously assumed. They repeatedly explained that they had never been conquered, entered into a treaty with British Monarchs or their successors or heirs, or surrendered their L i l ' w a t sovereignty in any manner whatsoever. They confirmed that their position as contained in The Lil'wat Declaration of 1911 has never changed.  They have no oral history o f ever having ceded their land.  They reiterated that  they were not subject to Canadian jurisdiction because Canada had yet to enter into a treaty with them.  59  O n Dec. 5 , 1990, Clark presented the L i l ' w a t legal position to the court: th  Clark: They are not here to attorn to the jurisdiction o f this court. Rather, they are here to meet with your lordship in order to inform this court o f  See Appendix II at 219 for the Lil'wat Declaration of 1911. Lil'wat leaders delivered the Declaration to the Federal and Provincial governments as well as representatives of the British Crown in 1911. 57  Henderson explains: "The Supreme Court of Canada in Sparrow [1990] 1 S.C.R. 1075, held that the word "existing" means "unextinguished."..."To extinguish Aboriginal rights the Sovereign's written command must be clear and plain." J. Henderson, "Empowering Treaty Federalism", (1994) 58 Sask. L. Rev. 241 at 378 ["Empowering"]. The Supreme Court of Canada decided Sparrow prior to the Lil'wat confrontation and the Crown was unable to provide evidence of extinguishment regarding the land in question. Sparrow v. The Queen [1990] 1 S.C.R. 1075 ["Sparrow"] Why did the court in the interim injunction application refuse to recognize the valid legal assertion that the Lil'wats had authority over their unceded territory?; consider also that the court held: "sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts and indeed all Canadians" is required by the words "recognition and affirmation." Sparrow at para. 83. This particular statement of the Supreme Court of Canada makes the treatment of the Lil'wat people in the 1990/1 criminal contempt case all the more relevant in a discussion on judicial impartiality. Such questions will be elaborated upon in the following chapters however, a hint of the answer, lies in Moodie's conclusion that: "The practical consequence of all this seems to be a position, fixed by the close of the 20 century, whereby the Supreme court determined that it would consider only narrow assertions of specific self-government powers on a case-by-case basis, each time invoking the Van der Peet "distinctive practices test" in assessing the claimed right." D. Moodie, "Thinking Outside the 20 Century Box: Revisiting 'Mitchell'-Some Comments on the Politics of Judicial Law-Making in the Context of Aboriginal Self-Government" (2003-2004) 35 Ottawa L. Rev. 1-41 at21. 58  th  th  See Clark's statement: "So far as the Indians' unpurchased lands were concerned, the only jurisdiction before treaty was the jurisdiction to make the treaty, and the constitutions of both the United States and Canada assigned that jurisdiction to the federal governments. Clark, supra note 28 at 43. 59  28 the reason this court does not have jurisdiction over them. The whole purpose of me addressing this court is to assert my clients' sovereignty and their corresponding constitutionally protected immunity from such contempt proceedings. 0  Instead of referring to their allegiance to Canada, the Lil'wat traditionalists made it exceedingly clear that their allegiance was to their nation and it's laws, which included their obligation to the Creator to protect their traditional territory from destruction. They were adamant that it was obedience of Lil'wat law that they considered paramount. It obliged them to protect both their ancestor's gravesites and their ancient pictographs from the desecration that was taking place at that time. While instructing counsel, several of the traditional people indicated that they were prepared to give their lives, if that was what was it took to stop this sacrilege.  60  61  December 5 , 1990 Transcript at 52. m  Arnold Williams at his sentencing hearing also advised Justice MacDonald: "...some of us said in your own presence in your own court, that we are ready and we are willing to die for the territory that our people spilt their bloods on." April 30 , 1991 Transcript at 14; I had also advised the judge on Jan. 17 , 1991 Transcript at 13, that I had been instructed by my Lil'wat clients that they were prepared to die, if necessary, in order to assert Lil'wat jurisdiction over the land in question. 61  th  th  29 Figure 9. Traditional L i l ' w a t People Face the R . C . M . P .  In order to place this dispute regarding jurisdiction o f the road i n its proper context, negotiations had taken place between the Mount Currie Band Council and the Provincial government over the previous three decades. The representatives o f the L i l ' w a t People's Movement  62  were adamant, however, that neither the Band Council Chief, nor his lawyers  could represent or make agreements on behalf o f the L i l ' w a t N a t i o n .  63  They were  additionally adamant that such negotiations must take place between the L i l ' w a t and the Federal government rather than with the Province. They explained that the Band Council was a foreign governing system, imposed upon them as part ofthe reservation system by Canada. They consider the Band Council as 64  This group of several hundred grassroots Lil'wat people reached decisions regarding their actions and positions through the process of consensus in accordance to Lil'wat governance. They did not claim to speak for the Lil'wat Nation but rather as a group within that nation, who were asserting their internationally protected human rights. Henderson explains the assumption that Indigenous people transfer authority to a centralized ruler or king as do the Europeans is generally absent amongst Indigenous governing systems. "Indeed, a total transfer of Aboriginal authority over the members of First nations is inconsistent with Aboriginal political thought. Such a concept requires a centralized ruler or king, a European tradition that is generally absent among Aboriginal peoples. Only positive law empires created around centralized rulers or aristocratic society can transfer total control to another ruler. ... none of the First Nations had such an idea or structure." "Empowering", supra note 58 at 253. This understanding is of assistance in the realization that the present Canadian Band Council system is legally unable to surrender the rights of the Indigenous nations.; see also Taiaiake's comment that "Non-native structures, values and styles of leadership lead to coercive and compromised forms of government that contradict basic Indigenous values"... "Even if Band Chiefs have good intentions holding non-consensual power over others is contrary to tradition." A. Taiaiake, Peace, Power and Righteousness: An Indigenous Manifesto (Don Mills, Ontario: Oxford University Press, 1999) at 23-26; see also Crompton's paper which focuses on the Canadian creation of the new identity of native politicians, including 'Chiefs' and 'Band Councilors'. L. Crompton, "Without Consent: Technologies of Extinguishment Through Constituted 'Chief and 'Band Council' Agreements." (April 2000) [unpublished paper for Law and Society Seminar with Alan Hunt, U.B.C. School of Law] ["Without Consent"]. 63  The first five Lil'wat reserves, comprised approximately 1200 acres, and were allotted by Commissioner O'Reilly on the 6 of Sept., 1881. On June 15 , 1904 a further 4000 acres were designated reserve lands by Commissioner Vowell. Between then and 1929, four pieces of land totaling 1200 acres were added to existing Lil'wat reserve lands. 64  th  th  30 nothing more than an administrative arm o f a foreign government that has usurped jurisdiction over the 'reserve'.  65  The L i l ' w a t traditional people consider it an illegal remnant  of the colonial period. H o w , they ask, 'could an imposed Band Council C h i e f and Councilors be acceptable as L i l ' w a t Nation representatives when their salaries are paid by the Canadian government?' They insist the Mount Currie Chief and Band Council have neither the legal capacity nor the necessary consent to act as i f they represent the L i l ' w a t Nation. The L i l ' w a t traditionalists also advised me that although the Band Council had been involved in negotiations with the Provincial government over the public's use o f the road through the reserve since at least 1970, no agreement between the two had ever been reached.  66  There was, therefore, no legal basis for access through their territory by either the  Province or the general Canadian public. In fact, the L i l ' w a t people, at a highly attended community meeting shortly preceding the roadblock, overwhelmingly rejected the suggestion by the Band Chief and Council's lawyer that they lease the road to the P r o v i n c e .  67  Consider for example the imposition of a foreign legal concept when the domestic legal system made the elected Indian Chief the legal representative of all persons in his or her Band; see also where Henderson defines the right to self-determination as "the legal right for the capacity of any people or nation to decide how to order its political relations to others and how it shall live." "Empowering", supra note 58, at 298; consider also that to begin to unravel the institutional impartiality myth, one must consider why the Provincial government and the Superior court insist on acknowledgment of the Band Council system rather than the traditional family head governing system of the Lil'wat Nation. The insistence that the Mount Currie Chief and Band Council represents the Lil'wat Nation is particularly questionable, given that it is acknowledged within Canadian case law that the statutorily created Band Council is a federal board, with less power than a provincial municipality.; see also where the Federal Court of Canada held: "The Band Council is a statutory body constituted by Parliament under the Indian Act." Shubenacadie Indian Band v. Canada (Human Rights Commission) (T.D.) [1998] 2 F.C. 198; see as well where the same court ruled that "Band Councils are an arm of the Federal government...a somewhat restricted form of municipal government on federally-controlled Indian reserves." Gabriel v. Canatonquin, [1978] 1 F.C.124 at para.10, aff d [1980] 2 F.C. 792. This fact was acknowledged in a letter dated September 26 , 1990 from D.I.F. MacSween, Chief Property Agent, Ministry of Transportation and Highways written to Ms. Janice Cochrane, Director General of Indian and Northern Affairs Canada. 66  th  A community meeting was held at the Mount Currie gymnasium upon the Band Council receiving a $124,000 cash offer from the Province. The traditional people instructed the Band Chief and 67  31 Meanwhile, as these negotiations wore on without agreement, the provincial Ministry of Forests granted International Forest Products Limited ("Interfor") a Forest License in August o f 1982. The license allegedly conferred the right to harvest 59,300 cubic meters o f Crown timber from the most sacred area within the L i l ' w a t traditional territory each year, for fifteen years, from the date ofthe grant.  68  W i t h their provincial license i n hand, the logging  company continued blasting a road along the east side o f Lillooet Lake, regardless o f having been advised by the L i l ' w a t people o f the desecration o f gravesites and pictograph sites the blasting was causing. The L i l ' w a t people had also made numerous attempts to resolve the issue o f public access with the Federal government, which they consider to be the proper party to deal with such issues. Consider, for example, a letter forwarded to the Prime Minister o f Canada on November 10 , 1989 from the Mount Currie Band Council Chief: th  W e request that you, M r . Prime Minister, meet with us so the L i l ' w a t ' s interpretation o f sovereignty can be properly aired and elaborated. Failure on your part to do so can only be interpreted as an absence o f good faith and a confirmation that your government is committed to a course which we w i l l be compelled to resist at all costs. W i t h your immediate response please contact me. Chief Fraser Andrew. The L i l ' w a t Band received no response to its many attempts to involve the Federal government in its dispute with the Provincial government regarding public access through the reserve. It was Interfor's refusal to halt their blasting o f a road through this sacred area that caused the L i l ' w a t people to block access to this specific area by preventing traffic in general from  Council to advise the Provincial government in writing of their refusal ofthe monetary offer. Ms. Pinder, on behalf of the Chief and Council advised the Province of the refusal in a letter dated Sept. 26 , 1990. th  In excess of 100 logging trucks per day were transporting logs through the village of Mount Currie at the height of logging season in 1990. 6 8  32 passing through their land. What made this most urgent was the sacredness o f this particular area to the L i l ' w a t people, not only as burial grounds but also as spiritual training grounds. Their need o f recognition o f their right o f self-determination or jurisdiction over their homeland is also due to their fundamental belief that their very survival depends upon maintaining the purity o f their l a n d .  69  The L i l ' w a t people have yet to obtain international human right protections including a right to a fair hearing before an impartial t r i b u n a l . A t an international level, a review o f the 70  domestic government actions to criminalize the L i l ' w a t people's efforts to protect their ancestor's graves and sacred sites from desecration could be undertaken. Before an international forum the following L i l ' w a t statement would perhaps be granted more weight: Ishmeshkeya (phonetic): Howe Sound Timber and International forests are trying to take the last old age forest growth in our entire territory. A n d they want to go through our sacred land for i t . 71  While Ismeshkeya summarizes the process by which the Provincial government initially obtained access through their reserve, she stresses that it was without their consent and reveals conflicts o f values between the dominant society and the traditional L i l ' w a t people:  See testimony of Tsemhu7qw on Dec. 11', 1990 Transcript at 32-3. This international human right is contained in Article 10 of the United Nation's Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly Resolution 217A(III) of December 1948 [ UDHR "]; see also International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, both contained in B.A. Res. 2200(XXI), 21 U N GAOR, Supp. (No. 16), U N Doc. A/6316 (1967). Came into force on 3 January 1976 and 23 March 1976 [ ICESCR"] and ["ICCPR. "] respectively. Canada acceded to these covenants on 19 August 1976. The Optional Protocol to the Covenant on Civil and Political Rights, annex to G.A. Res. 2200A, 21 U N GAOP, Supp. No. 16 59, U N Doc. A/6316 (1967), came into force on 23 March 1976, and was acceded to by Canada on 19 August 1976. 7 0  U  U  Howe Sound Timber Company was contracted by Interfor Corporation to build logging roads on their behalf. See April 15 , 1991 Transcript at 30. 71  th  33 In 1949 the P F R F P , the Prairie Farmer's Rehabilitation Farm P r o g r a m came to L i l ' w a t and they asked our people i f they could lower the Lillooet Lake. But in order to lower the lake they had to bring equipment through our land. So they asked our people, m y father was one o f them, i f they could use the land long enough to bring the equipment through and lower the lake. A n d so our people said.... That they were going to allow an agreement for to move fences and fruit trees just to make it wide enough for them to get their equipment through, and that was done. .. .however, there was an illegal transfer o f the agreement to the province. .. .There was never any agreement or consent given from the L i l ' w a t to the province for the use o f this land. W e wanted to sit down and talk about the past use o f this road before we talk about any future use because we feel that's right. Our people were meeting for several months prior to this roadblock out o f frustration because there was no one listening or doing anything about our concerns and that was the total destruction o f our territory. W e could hear the b l a s t i n g . W e knew that there was land being desecrated without our consent. A n d over the total area o f land that we were even forbidden to go to ourselves because o f the sacredness o f this land because this is where our whole history lies. The richness o f our culture is in this area o f land that we are trying to protect. 72  73  When we accepted the European people to live side by side with us, they brought a disease called small pox. A n d there is tens o f thousands o f people, our people, that are buried throughout this whole area o f land which surrounds the Lillooet Lake. A n d our people at that time, this was before they even knew o f the religion called the Roman Catholic, our people had powerful faith and respect for the creator. They used to go this area o f land up to eight years long it took to train. There was two brothers. They were the protectors o f our land. They were chosen b y the people to go train there to become ackwa (phonetic). A n d ackwa means sacred. They didn't take anything with them. They stayed in this area o f land. A n d when they came back they were so powerful that they could even—they could even float down the river on  This association represented the non-native farmers in the Pemberton Valley who were attempting to reduce flooding on their farmland many miles to the west of Lillooet Lake and the Mount Currie reserve by lowering the water level of the lake. The access through the reserve they hoped to obtain was the most convenient way to bring in their heavy equipment. The Provincial government claimed that the negotiations on behalf of the Pemberton farmers relating to access for their irrigation project had resulted in arightof public access that was simply assumed by the Province at a later date. It is important to appreciate that there are two different roads being referred to in the Lil'wats' testimony. One road is being blasted along the east side of Lillooet Lake through their most sacred land and the other road, frequently referred to, is the road on their reserve that they blocked access on. Although throughout the confrontation the government referred to the matter as the Duffy Lake Roadblock, I was instructed by a Lil'wat leader to refer to the matter as the Lillooet Lake Roadblock, as it did not occur near the Duffy Lake but rather near Lillooet Lake on the reserve. In Ishmeshkeya's testimony on April 15 , 1991 at 28, after referring to her concerns about the road being blasted through their hillside of sacred gravesites, she referred to the damage resulting from over 100 logging trucks through their reserve each day: "There were so many people hurt just on that one road. They see people walking down the road. You would think they would slow down? No. They even took one car along with them. And there is one baby still in the hospital from brain damage. People eat their dust all summer long on this road. People have allergies because ofthe dust." 73  th  r  34 a blade o f grass. They could even run and catch up to a deer. A n d even scoop a crow before it could even fly because they were ackwa. They were so sacred. A n d the people were always very busy in sustaining their lives. There was these two people that were selected to be their protectors while the rest o f the people just gathered the different herbs and the different food throughout our territory to survive on. 74  Her testimony supplies the reader with a glimpse into the spiritual significance to the L i l ' w a t people o f the area being desecrated. In the summation o f her testimony she reiterates: "The Provincial government has no legal means on using this l a n d . . . " Her detailed knowledge o f the history and o f the method used by the Province to gain access through the reserve provides insight into the illegality o f the process. The L i l ' w a t people are most aware that they have never given the consent necessary to allow public access through their reserve. This awareness is expressed in the following statement o f another L i l ' w a t accused: " M y name is Lachsha (phonetic). I am the granddaughter o f Miditayash (phonetic). Just because there is a road going through there just doesn't mean it is yours." Her comment strikes at 75  the assumptions underlying the actions o f the Provincial government i n this dispute. Next, a member o f the family that has actually lived on the piece o f land being used for the roadblock for generations: Qual'wa: "When I was at the fire, right where the fire was where the land—where our sacred fire was were our land sits, that's my grandfather's. That land is part o f our family tree. It is ours. What I by mean "ours" is the whole L i l ' w a t . " Important discussions and decisions amongst the participating traditional L i l ' w a t people were made by consensus before this sacred fire that was kept burning throughout the duration o f the roadblock.  74  April 15 , 1991 Transcript at 26.  75  April 15 , 1991 Transcript at 59.  th  th  Dec. 12 , 1990 Transcript at 8. His statement reflects individual possession within a communal stewardship where he refers to the Lil'wat peoples' relationship with their land.  76  th  One o f the L i l ' w a t accused testified that the section o f the road the government  35  allegedly expropriated crossed his family's land: Paul Pierre: That road goes right through the middle o f m y property. A n d I still say that people have no jurisdiction over me. That's all I got to say... The Court: M r . Pierre, I suspend sentence on you. The Speaker: That don't mean anything to m e . 77  His response to the judge reflects the strength o f his belief that the authority o f L i l ' w a t law regarding the land in question is paramount. In keeping with this belief, the traditional L i l ' w a t people expressed during the preparation o f the contempt case their wish for it to be clearly understood that their appearance i n the foreign court was not in any manner a surrender to the jurisdiction o f the court. From their perspective it was simply i n keeping with their side ofthe original 78  Indigenous/Newcomer agreement o f Peace, Friendship and Respect.  It was an act o f respect  to the Canadian legal system, by continuing to 'meet' with the judge regardless ofthe fact that they considered the court to be without jurisdiction. A s further evidence o f the 79  agreement, they maintained what the judge referred to as a respectful manner i n the 77  April 16 , 1991 Transcript at 47. th  Lil'wat people refer to the Guswehenta (Kaswehntha) Two Row Wampum Treaty of Alliance of the Iroquois/Haudenosaunee as evidence of this agreement in which autonomy for the governing systems of both the Newcomers and the Indigenous Nations is confirmed. The Two Row Wampum Belt is summarized by the Iroquois/Haudenosaunee as follows: "This symbolizes the agreement under which the Iroquois/Haudenosaunee welcomed the white peoples to their lands. We will NOT be like father and son, but like brothers. These TWO ROWS will symbolize vessels, traveling down the same river together. One will be for the Original People, their laws, their customs, and the other for the European people and their laws and customs. We will each travel the river together, but each in our own boat. And neither of us will try to steer the other's vessel." The agreement is kept by the Iroquois/ Haudenosaunee to this day. 78  Henderson states: "Without manifested consent by the First Nations to the treaties, no alien conventions and laws applied to them." then adds: "The same principle applies to those First Nations which chose not to enter into a formal treaty relationship. They have delegated nothing to the Imperial Crown" "Empowering", supra note 58 at 250 and fn. 37; he concludes: "Neither the prerogative treaties, instructions, proclamations nor acts ofthe imperial Parliament ever authorized the provinces or the federal government of Canada to enact a comprehensive legislative code for First Nations or their members." Ibid, at 273. 79  36 courtroom, regardless o f the fact they were jailed for twenty-six days and required to appear for a lengthy 33 day trial for their alleged criminal behavior.  In return, however,  they expected similar respect to be shown for their traditional L i l ' w a t governing system and laws. They were, therefore, particularly disturbed not only by the court's refusal to enforce 81  it's own rule o f law that provides protection o f Indigenous land from encroachment,  but  also in it's refusal to recognize L i l ' w a t law as having authority over the territory in question. The following L i l ' w a t member's statements make reference to the lack o f respect they are experiencing in the court process: Sasquatch: ...right now... they're still out there logging, still out building a highway. Eugene Dick: We lost our pictographs. They're still blowing them up today while you guys have us here. A n d that fiduciary trust obligation says supposed to be no production for the white man until we settle things here. Still behind our backs. 83  Mr. Justice MacDonald comments on the peaceful nature of this particular demonstration and "the genuine beliefs evident from what I heard this morning, as well as what I heard last fall, in the righteousness of this cause." April 15 , 1991 Transcript at 31; see also the judge's statement: ".. .your clients have showed what I consider to be a considerable amount of respect for my position and my obligations here..." March 11 , 1991 Transcript at 61. It was most difficult for the Lil'wat people 'to meet with' the judge in Vancouver considering that the majority were unemployed in terms of a paying job. The majority did not own vehicles. In addition to being incarcerated for 26 days each Lil'wat had to provide for their transportation to and from Mount Currie as well as food and lodging in the city during the lengthy trial. th  th  The theme that the rule of law itself was on trial ran throughout this case. An example is where Clark states: "I think its important that message get out to the Indian people of this country, to the aboriginal people, that just because the venal federal, provincial, colonial governments with their rapaciousness have gone about trashing the law and, in effect, committing frauds and abuses contrary to the Imperial scheme that it doesn't mean the law itself is corrupt. Just because the administration of the law is corrupt doesn't mean that the rule of law is fundamentally flawed or that there's something inherently wrong with the concept. And it's in that sense that I'm asking that your lordship vindicate the rule of law. Not vindicate the aboriginal peoples, but to vindicate the rule of law. It's in that sense that when I said the other day the rule of law was on trial that I meant what I said." Dec. 5 , 1990 Transcript at 65. 81  th  Sasquatch in his testimony on December 12 , 1990 Transcript at 31, is referring to the road through their sacred area on the west side of Lillooet Lake. The logging corporation known as Interfor, obtained an interlocutory injunctive order from Mr. Justice Wetmore of the B.C. Supreme Court on February 1 , 1991, (after making a minor detour around a group of visible cache pits) that allowed the corporation to continue to blast a road through this sacred hillside. 82  th  st  83  Dec. 14 , 1990 Transcript at 2. th  37 Yahaalqu: ...they just clear cutted them right through and they went right up into the mountains there right towards the burial grounds...the whole area is sacred. The whole west side o f the lake. A lot o f [pictographs] are very important to us 'cause the trainers always leave their markings there and powerful medicine people always put their markings in the mountains by creeks, by lakes. ...The areas where the burial ground is that the people keep talking about today at the court is—the whole mountain area is, it's like a cemetery to our people. It's from the ancient ones, old ones, people that are buried there and we have to protect them...The people are buried i n platforms in the trees there, and also the twins that died they're put on the branches, just on the branches so the grizzly bear could come and take the twins back. Q. .. .where did the road appear to be going so far as you could tell? A . Right through the spiritual grounds, the burial grounds .. A . They are disturbing the old ones, the people passed on...So the old ones up there, they are angry for what is going on. That's why I say this must stop now. Even as we speak today, you know, they are still working on this road. Each word we speak they take about a foot o f the road. A lot o f the medicine people, they trained along creeks, edges o f lakes where there is pictographs, there are markings, the histories.. .that's where all the power points are from the supernatural, where we get our powers from training before the sun comes 84  85  up. M r . Dick: It's kind o f hard for us to even come here to talk to you because you guys don't seem to hear what we say. We pray for you. We try to tell you—we tell you the truth every time we come here. Still you guys only hear what you want to hear, see what you want to see. It's hard for me to come out to this and look for a ride and have to look for m y meals, and you guys are living really good here, make your money on us, criminalizing us. K i n d o f hard for me to come back and forth. A n d I've got things to do at home. I have to go work in gardens or hunting. That's m y survival. I don't work for money. I work for my - l i v i n g . I don't get paid money. I get paid with food. I make my own drums, do my art. That's my survival. Where I get m y drums comes from the hills. It's kind o f hard for me to sit back and watch you guys blow up our grave sites there and sit back and maintain. I don't know who the real criminals are. I ' m not a criminal. I ain't no roadblocker. I ' m a L i l ' w a t Nation. I ' m a protector o f the land. Thanks for listening 86  Yahaalqu has managed through his testimony to provide a deeper understanding o f why the L i l ' w a t are doing every peaceful thing i n their power to prevent the destruction o f what has profound meaning to them as traditional Indigenous people. The spiritual interference  Ibid, at 21-25. Ibid, at 29. April 30 , 1991 Transcript at 14. th  with their way of life and oneness with their land is extreme. Kasheenuk explains that the area where they are blasting is the area of Lil'wat registered trap-lines: Kasheenuk: And an elderly man has 500 traps in there yet, they are still in there. And also Chief Paul Dick has a trap-line in there.. .That's the only valley in Pemberton that has not been touched. Qwal'wa: We are like the fish or the deer. Lil'wat is our home... We were there before Christianity and our forefathers told me—"Our land, we should never sell our land. That is part of us. 87  88  Figure 10. D e s e c r a t i o n of Pictographs A l o n g the S h o r e s of Lillooet L a k e One further fact of major significance from the Lil'wat perspective was that they made repeated attempts both by phone and in writing to ask the Federal government to enter into negotiation with the Lil'wat Nation so that agreement between the proper parties could be  She explains that the area where they are blasting is the area of Lil'wat registered trap-lines. Dec. 12 , 1990 Transcript at 40. th  88  Ibid, at 9.  39 reached regarding access through their lands. Sasquatch: When we put up that roadblock, we were there because we couldn't get the federal government to come and talk to us when we write to them or give them phone calls.. .to get them to come and talk to us in our lands because they got that fiduciary trust obligation to us. A n d not once did we see them or answer to us to talk with u s . Ishmeshkeya (phonetics): A n d we aim to protect our traditional land because we didn't choose to live in a colonial system that is going to put us on reserves just to shut us up. W e are not going to take it anymore. 89  0  These statements demonstrate the L i l ' w a t ' s belief in their territorial sovereignty. They also represent unquestionable evidence that the days o f acceptance b y Indigenous peoples o f an imposed colonial system are past. O f equal importance however is the evidence o f the L i l ' w a t people's willingness to negotiate access through their territory on behalf o f the Newcomers provided they are met on a nation-to-nation basis by the appropriate party. 2.3 T h e role of the M o u n t Currie C h i e f a n d B a n d C o u n c i l : The Band Chief, on behalf the Band and as legal representative o f all the L i l ' w a t Band members, was served by the Attorney General o f British Columbia with notice o f the injunctive application. Counsel for the Chief and Council, M s . Leslie Pinder, appeared and 91  surrendered to the jurisdiction o f the court. She presented a decidedly different legal position from that o f the sovereign minded L i l ' w a t traditional people when she challenged the  Ibid, at 29; see also Louise Mandell's memorandum of law that relates to the Liberal government's referendum on treaty negotiations held by the Provincial government in 2002. It demonstrates the requirement of the Federal and Provincial governments to participate in negotiations as a result of the principles of fiduciary trust law. L. Mandell, "Recommended Referendum Ballot" (Feb. 2002) [unpublished paper, archived at Union of B.C. Indian Chiefs] at 19. 89  April 15 , 1991 Transcript at 29. This excerpt is one of many references in the transcripts to the non-acceptance of the imposed Band Council and reservation system that considers legal title to all reserve land to be vested in the Queen; see definition of "reserve" in the Indian Act, R.S.C., 1985, c. 1-5 2 at (l)(a.): "means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of the band." 9 0  91  th  At the time of this action, Russell G. Fraser was the Attorney General of British Columbia.  40 constitutionality o f the Provincial resumptive power. B y surrendering to the jurisdiction 92  of the Superior court, the Chief at domestic law is alleged on behalf o f all L i l ' w a t members to have given recognition to the assumption o f British sovereignty. The traditional L i l ' w a t people viewed the Band Council as a colonial imposition rather than a legitimate governing authority within an Indigenous nation. 2.4 T h e role of the Attorney G e n e r a l of British C o l u m b i a : Before the roadblock the British Columbia government had negotiated for more than thirty years with the Mount Currie Band Council, in its attempt to gain public access through the Mount Currie Indian reserve. Nevertheless, on September 28th, 1990 they resorted to expropriation powers as their 'legal' solution to the 116-day roadblock. The expropriation authorization, signed by the Lieutenant Governor and the Provincial Minister o f Highways, was the Provincial government's method o f unilaterally assuring continued public access through L i l ' w a t reserve lands.  93  To facilitate the expropriation o f the land in question, the Province relied on a general right o f resumption, contained in Order-in-Council 1036. This Order-in-Council allegedly 94  allowed the Provincial government to resume up to one-twentieth o f a Federal Indian reserve for a number o f public purposes, including the need for lands to assure access for hydro,  As explained above, hundreds of traditional Lil'wat members participated in the roadblock as a demonstration of their assertion of complete territorial sovereignty. In keeping with this assertion they (unlike the Chief and Band Council) purposely failed to appear before the court conducting the injunction application so as to avoid giving recognition to the jurisdiction of the British Columbia Supreme Court; consider also the comments of Clark on March 11 , 1991 Transcript at 12, where he attempts to clarify the conflict between the two positions: "We have a remarkable instance where the elected chief and council appear to be operating in concert with the timber lawyers acknowledging the jurisdiction of the court, which is to say repeat the exact same mistake in th  Delgamuukw.. 93  Provincial O. I. C. No. 1505/1990. Ordered and Approved September 28 , 1990. th  Provincial O. I. C. No. 1036/1938. Ordered and Approved July 29*, 1938 (in respect of the Pemberton Tribe, Nesuch Reserve No. 3, at 19 of the attached schedule.) 94  41 railways, telephone, or public highways. Once the resumption documents were signed by the Provincial Minister o f Highways, the Attorney General o f B . C . relied on them as the basis upon which to issue a writ suing the L i l ' w a t Chief, Band Council and numerous traditional L i l ' w a t individuals, by arguing that it was in the public interest to do so.  95  The legal base o f the Provincial government's action  against the L i l ' w a t people was a writ o f trespass and nuisance, allegedly committed by blocking public access through their unceded land. The writ provided for the B . C . government's injunctive application, as well as the order to arrest and remove any person involved in 'impeding the flow o f vehicular traffic' on Lillooet Lake Road. Following the Provincial government's expropriation o f the land on September 2 8 , 1990 th  it succeeded in obtaining an interlocutory injunction order from C h i e f Justice Esson on October 24 , 1990. The Attorney General o f B . C . quickly returned to court, twice i n five th  days, to add police powers o f enforcement, to facilitate the dismantling o f the roadblock on the Mount Currie reserve. The Provincial government was successful in this application, 96  enabling the Attorney General to instruct the R . C . M . P . to enforce the Superior court's order disallowing any interference with the flow o f vehicular traffic, including the trucks and road-  Of interest from an impartiality perspective is that "public interest" is tacitly assumed by both Canadian governments as well as the domestic courts, to include all Canadians other than Indigenous peoples. For example, the court considers it to be 'in the public interest' to maintain access through the Lil'wat territory, without recognizing that the vast majority of the public in the area are Lil'watum. The only instance in the case at bar, that the judge included the Lil'wat people within his use of the term 'public', was when he interpreted their sovereign stance as constituting 'a mass public defiance' so as to enable him to categorize their contempt as being criminal, rather than civil, in nature. 95  A.G. v. Chief Andrew, supra note 10. Provincial Government of B.C. Application to Add Police Enforcement Powers, November 2 & 5 , 1990. Chief Justice Esson. The case citation in the injunction application is identical to that of the contempt case. This reminds the reader that although the injunction matter and the criminal contempt charge are being processed through the courts separately they are both based on the government's writ that alleges a Lil'wat conspiracy to commit trespass and public nuisance on the road through their reserve. 96  nd  th  42 building equipment o f the logging corporation, through the L i l ' w a t reserve. M r . Justice Macdonald summarized the Crown's position as follows: Contempt proceedings are enforcement proceedings, limited in scope b y their very nature. Their purpose is not to determine the merits o f the case, especially one such as the sovereignty argument, which would have far reaching effects i f successful.  97  In addition, the Crown argued that: .. .to permit doubt to be cast upon the jurisdiction o f this court to hear these contempt proceedings, they submit, would lead to doubt about the validity o f the injunction and create uncertainty generally about the rule o f law i n this province. 98  The provincial government argued that the rule o f law is imperiled when court orders can be ignored on the basis o f defenses yet to be argued. Moreover, to allow the jurisdictional challenge was to invite the Canadian public to disobey injunctions and to cause confusion as to the authority o f the court and the rule o f law in this province. Crown counsel then suggested to the judge that the evidence he was about to lead would show "a mass disobedience o f a court order'.  99  In his written opening, he argued:  March 18 , 1991 Reasons for Judgment at 7. The Crown's statement reveals a fervent bias in favor of maintaining the Newcomer's status quo. The judge, as an impartial arbitrator, would also have to acknowledge the 'far-reaching effects' to the Lil'wat peoples of being unable to protect their ancestor's gravesites and ancient pictographs from desecration. Additionally, "far-reaching effects" is an invalid reason to refuse to hear the legal defense of an accused facing a criminal charge. 97  th  See February 15 , 1991 Transcript at 3. This does not appear to be sound legal reasoning in a criminal proceeding where an individual's liberty is at stake. This is particularly so, given the unique jurisdictional distinctions between an Indigenous person living in tribal relations and a Canadian citizen who participates in the Canadian democratic process; see where the Law Reform Commission refers to the existence of the potential risk of arbitrariness with contempt charges that can sometimes be used as a tactical or political measure of pressure. The report concluded that "our tradition of moderation, the existence of our democratic system, and the judicial guarantees of the rights of the accused, make it possible to mitigate this danger." The Law Reform Commission, Contempt of Court: Report #17, (Ottawa: The Commission, 1982) at 27. In the prosecution of the Lil'wat peoples for criminal contempt there was exhibited a lack of all three mitigating factors as evidenced by the judicial condoning of the dismantling operation, the imposition of Canadian citizenship and a foreign governing system, and the refusal to provide the accused their constitutional right to fundamental justice. 98  th  Nov. 19 , 1990 Transcript at 17. This interpretation of the Lil'wat's actions is a theme that the Crown returns to throughout the criminal contempt proceedings. For example, on December 10 , 1990 Transcript at 1, Mr. Tyzuk refers to the Lil'wat action as 'a mass public defiance'. 99  th  th  43 Once a court order is made, it is to be obeyed.. .the court made an order prohibiting certain behavior. The arrested.. .did not comply with that order. Therefore, this proceeding is not about sovereignty, nor is it about aboriginal rights, rather it is about the rule o f l a w . 100  The lawyers acting for the Attorney General o f British Columbia made every possible procedural and substantive objection, in the thirteen courts I attended i n this case, to prevent the recognition o f the rights o f Indigenous peoples regarding authority over their land and their resources. This judicially condoned practice on the part ofthe Attorney General o f B . C . must be considered in light o f the fact the Provincial government was simultaneously promoting treaty negotiations with the L i l ' w a t Nation. The Provincial government's purpose i n such negotiations is to extinguish outstanding Indigenous claims o f authority and jurisdiction regarding unceded territories. H o w is it that the domestic Superior court can claim to provide an impartial forum once it accepts the criminalization by the Province o f Indigenous persons who assert their inherent rights? The universal human right to protect an ancestor's gravesite must fall within the Newcomer's definition o f an 'aboriginal right' pursuant to s. 35 o f the  Constitution Act, 1982. Finally counsel for the Attorney General, in his opening, argued the evidence that he was about to lead in the contempt case against the L i l ' w a t accused would provide the judge with the necessary proof that their actions were calculated to bring the administration o f justice into scorn.  101  From the legal perspective o f the traditional L i l ' w a t people the exact reverse  was true. In fact, both the Provincial government and the R . C . M . P . are seen to be the trespassers where unceded Indigenous land is involved.  100  This statement was part of the Crown's opening. November 19 , 1990 Transcript at 2. th  Nov. 19 , 1990 Transcript at 17; the 'administration of justice' includes the provision, maintenance and operation of police forces, criminal investigations, prosecutions, corrections, and the court system. 101  th  44 2.5 The role of the R.C.M.P.:  Figure 11. R.C.M.P. Dismantling Operation. The R . C . M . P . , in their capacity as a Provincial police force, were instructed by the Attorney General o f B . C . to enforce the B . C . Supreme Court order b y taking the necessary steps to dismantle the blockade. Members o f the R . C . M . P . attended at the roadblock to read and provide a copy o f the B . C . Supreme Court injunctive order to the L i l ' w a t people blocking the public from accessing the road through their territory. The R . C . M . P . in attendance were addressed by L i l ' w a t spokespersons as well as by several other traditional L i l ' w a t people present. The police officers were repeatedly informed that they had no  45 jurisdiction on L i l ' w a t territory.  102  The officers eventually left after 'serving' the court  order on the L i l ' w a t people by attaching the documentation to a post near the site; no L i l ' w a t would physically accept receipt o f the document. Following 116 days during which the road was blocked, 75 armed R . C . M . P officers appeared, assisted by several R . C . M . P . helicopters,  103  as well as two buses for the  transportation o f the arrested L i l ' w a t peoples, and several attack dogs. The R . C . M . P . under the command o f senior officer Inspector Byam were to fulfill the instructions contained in an operational plan for the dismantling o f the roadblock. During cross-examination Inspector B y a m denied, and then subsequently agreed, that in addition to the sixty officers brought in to execute the arrests o f the L i l ' w a t people, there was also a fifteen-member Special Emergency Response Team. These officers were armed with or had quick access to A K 42 semi-automatic military assault weapons strategically placed nearby, as Inspector B y a m explained under oath, " i n case the Lil'wats became v i o l e n t " .  104  The heavy-handed approach o f the R . C . M . P . requires being placed i n a more complete context. In cross-examination Inspector B y a m admitted that he was repeatedly informed by the L i l ' w a t protesters o f their commitment to a non-violent, unarmed assertion o f sovereignty over the lands i n question.  Inspector Byam stated that the natives on the roadblock were chanting " R C M P has no jurisdiction" when he approached and that they appeared sincere. Nov. 28 , 1990 Transcript at 62. 102  th  In cross examination Inspector Byam agreed there were approximately five helicopters above the roadblock during the dismantling procedure even though he only recalled ordering one helicopter. November 28 , 1990 Transcript at 15. 103  th  Consider as well the following exchange in which a Lil'wat accused confirmed to the judge both the desire of the Lil'wat peoples to peacefully negotiate the issue and their commitment to an unarmed stance. "The Speaker: And when we did this roadblock stuff, hey, we wanted a nation-tonation negotiation with the Federal Government as we always did right from the beginning. And the darn guys said every time, the first time he said he didn't want to come and negotiate with us because he thought a gun was pointed at his head. When we got arrested, all of us people, did any of us have a gun? Did any of us have a gun when we got arrested? The Court: Not that I'm aware of." April 15 , 1991 Transcript at 20. 104  th  46  Figure 12. R . C . M . P . Excessive Use of Force According to his testimony, he had confirmed this through both R . C . M . P . intelligence and surveillance, including active helicopter scrutiny throughout the roadblock period. Furthermore, he agreed that the L i l ' w a t commitment to non-violence was confirmed during a formal meeting between the R . C . M . P . and the Lil'wat traditional people, which I attended as their defense counsel.  105  Additionally, copies o f three letters to the R . C . M . P . dated Nov. 2 , n d  6' , and 10 , 1990, outlined and confirmed the L i l ' w a t people's commitment to an unarmed, th  non-violent, position. These letters were submitted as defense evidence i n the t r i a l .  106  See A G . v. ChiefAndrew, supra note 10, Exhibit #7: Affidavit of David George Cowley, Superintendent and Commanding Officer of the Vancouver Subdivision of the Royal Canadian Mounted Police, in which he refers to his attendance at this meeting on November 1 , 1990. 105  st  106  Nov. 28 , 1990 Transcript at 42. th  Figure 13 T h e Practice of P a s s i v e R e s i s t a n c e .  Figure 14. Lil'wat Being D r a g g e d T o B u s . O n N o v . 2 7 , 1990 Clark submitted a copy o f a letter to the Commissioner o f the th  R . C . M . P . , dated N o v . 6 , 1990, in which he outlined a legal opinion i n an attempt to prevent th  crimes by the R . C . M . P . against the sovereign L i l ' w a t peoples. H i s letter demonstrated that the Lil'wat peoples fall within the definition o f Internationally protected persons provided for  by the domestic l a w .  107  The letter also informed the R . M . C P . that the British Columbia  Supreme Court injunction order was made per incuriam or 'through inadvertence'. Clark's letter explained that once the applicable British Imperial law was placed before the court, it would demonstrate that the injunctive order was issued without jurisdiction and was therefore a nullity.  Figure 15. R . C . M . P . T r e s p a s s e r s o n U n c e d e d L a n d s Clark attempted on N o v . 2 8 , 1990, to ask Inspector B y a m i n cross-examination i f he had th  obtained a legal opinion in response to receiving counsel's letter that provided the basis to legally validate the L i l ' w a t assertion o f territorial sovereignty. M r . Justice MacDonald was absolutely adamant that he would not entertain any argument on the p o i n t .  108  Inspector  B y a m , resumed his testimony and stated that his squad o f R . C . M . P . officers were instructed  Criminal Code, R.S., 1985, c. C-46, s. 424. This point is elaborated on in Chapter Four including quotes from their exchange.  to use only as much force as necessary to implement the arrests o f the L i l ' w a t people.  50  Figure 16. Prisoner of D e m o c r a c y The following list includes the L i l ' w a t injuries that occurred during the roadblock dismantling operation conducted by the R . C . M . P at the request o f the Attorney General o f the Provincial government: •  109  a young native L i l ' w a t was knocked unconscious and the police were seen standing on his back during his arrest. He was still unconscious when his identification picture  Nov. 27 , 1990 Transcript at 25 and 77-86. th  51 was taken by the R.C.M.P. in which they are shown to be holding his head up by his hair so as the photo can be taken;  Figure 17. U n c o n s c i o u s Lil'wat P h o t o g r a p h e d by the R . C . M . P .  four officers each held a limb while arresting one Lil'wat youth, while a fifth officer grabbed his genitals and did not let go while the youth was carried approximately 100 meters to the bus; a young Lil'wat woman had a knee applied to her back during her arrest with such force that it caused her to lose consciousness;  52 •  several L i l ' w a t individuals had their thumbs and fingers twisted backwards to the point o f excruciating pain that caused subsequent nerve damage to occur;  Figure 18. Nerve D a m a g e • • • • • • • •  a young male L i l ' w a t had his shoulders twisted to the point o f dislocation; one L i l ' w a t male had his head smashed into the side o f the bus during his arrest; a number o f the officers used choke holds during the arrests o f the male L i l ' w a t u m ; a L i l ' w a t male during his arrest is videoed being backhanded with full force; a L i l ' w a t woman's nose is broken during her arrest as a result o f being dragged face down along the ground; one L i l ' w a t member had their breathing cut off as a result o f the R . C . M . P . pulling with such force on her clothes; an officer purposely stepped on the testicles o f one L i l ' w a t male during his arrest; and several L i l ' w a t members reported nerve damage i n their hands as a result o f their plastic handcuffs being kept tied behind their backs during the journey from Pemberton to Whistler.  M u c h further into the case, when one o f the L i l ' w a t Watchmen who would not step aside from his stand at the Ure Creek gravesite area was brought into court so badly beaten that I truly had trouble recognizing him, I recall asking M r . Justice M a c D o n a l d how much longer  53 he going to make me to witness t h i s .  110  Watching such brutality exhibited on the part o f  the R . C . M . P . against the L i l ' w a t people was unbearable. James Louie, a L i l ' w a t Elder nearly four months after his arrest testified: .. .1 told you when I first came up here that I had a grandchild. I have a grandchild. I have a grandson. I can't even hold my grandson for five minutes and my arms just about fall off because o f the way I was arrested. That's it. Thank y o u . 1 1 1  Although the list o f injuries incurred may not immediately be seen as relevant to the topic of judicial impartiality,  112  such details are required to understand the roles and legal positions  of each party appearing before the court at the criminal contempt hearing.  113  It is also  important data to consider when we reach the impartiality principle that requires justice not only to be done, but also to appear to be done, h i response to the injuries sustained by the L i l ' w a t people, Justice MacDonald stated that he could not do anything about: the excessive use o f force because that would take place in another action... it doesn't seem to me that it goes to the issues that I have to decide...whatever sympathy I have with the treatment that these people received at the time o f the arrest after the fact, it's their actions up to that point that are before me in this proceeding.. .It seems to me  The individual before the court was Tsemhu7qw, known in English as Harold James Pascal, Sr. He was a traditional "Watchman" amongst the Lil'wat peoples. It was in keeping with his hereditary governing position (that has some equivalency to a community police person) that he insisted on protecting the graves of the medicine people buried at Ure Creek. Along with Bruce Clark he traveled to Europe and made several unsuccessful attempts to have the Lil'wat jurisdictional argument addressed in the international arena. He passed away on August 23, 2002 and was buried traditionally, according to his wishes, amongst the gravesites at Ure Creek. 110  111  April 15 , 1991 Transcript at 25. th  Mr. Justice MacDonald stated that it would obviously require a separate action, commenced by the Lil'wat people against the R.C.M.P. for assault due to excessive use of force. This judicial advice demonstrates the judge's lack of acceptance that in the eyes of the Lil'wat people the British Columbia Supreme Court does not have jurisdiction over Lil'wat territory where the incident occurred. It would therefore be inconsistent with their sovereignty position to issue a writ in the Canadian court system against the R.C.M.P. 112  It is also important data to consider when we reach the principle relating to impartiality that requires justice is not only to be done, but also to appear to be done. Mr. Justice MacDonald stated early in the proceedings that the underlying matter in this action was civil in nature, a property dispute. The same court is able to condone the use of a military type assault on the non-violent assertions of traditional Lil'wat people while simultaneously claiming the court provides an impartial forum for the resolution of the jurisdiction issue. 113  54 that really has nothing to do with whether a given individual was operating or acting in contempt o f the i n j u n c t i o n . . . 114  2.6 The Role of the Attorney General of Canada: The federal government, or fiduciary trustee in relation to "Indians and Lands reserved for the Indians",  115  chose to ignore entirely the repeated requests o f the L i l ' w a t traditional  people to negotiate a solution with their nation to resolve issues such as public access through their unceded lands by third parties.  116  Nevertheless, the Federal government's first  involvement i n this particular confrontation was when they made application for intervener status before M r . Justice MacDonald to j o i n the contempt action. In complete breach o f their legal obligations they proceeded to align themselves as co-counsel with the Attorney General of British Columbia against the L i l ' w a t people who had by now been arrested, jailed and charged with criminal contempt for disobeying the order o f the provincial Superior court."  7  2.7 The Role of Lawyers: Lawyers must take the positions o f their various clients. Each level o f government in the criminal contempt trial was represented by a number o f counsels.  114  118  Lead counsel for the  November 28 , 1990 Transcript at 4. th  The Supreme Court of Canada prior to this trial had made it clear that the fiduciary legal obligations of the federal government required the government to act with the utmost good faith on behalf of the Indians and in a non-adversarial manner. 115  The Royal Proclamation, 1763 (7 October 1763); Privy Council Register, Geo. Ill, vol. 3 at 102; U . K . Public Record Office, c. 6613683: R.S.C. 1970, app. I required the federal government to prevent encroachment upon unceded territory by third parties unless they have previously purchased the land with the consent of the Indigenous inhabitants. Such a third party reference includes the provincial government and others licensed by same, whether it be logging corporations or the general public. 116  The Attorney General of B.C. is a party to the dispute, the expropriator of the land in question and the prosecutor of the criminal contempt charge. 1,7  These included Mr. J.M. MacKenzie, Ms. D.C. Prowse, Mr. Groberman, Mr. G . Plant, and Mr. Goldie on behalf of the Attorney General of B.C. Mr. Partridge appeared as co-counsel with Mr. Haig, on behalf of the Attorney General of Canada. 118  55 prosecution, on behalf o f the Attorney General o f British Columbia was M r . Tyzuk. Approximately six other lawyers joined h i m at various times throughout the trial. M r . Haig appeared as lead counsel for the Attorney General o f Canada, however the Federal government also brought i n additional counsel for various arguments during the lengthy proceedings. The Band Chief and Council were treated by the domestic legal system as the legal representatives o f all members o f the L i l ' w a t Band and the court recognized their counsel, Leslie Pinder, as representing the L i l ' w a t Band members i n the original injunctive application before M r . Justice Esson. The sixty-three L i l ' w a t accused o f criminal contempt were represented b y D r . Bruce Clark and me, acting as co-counsel. While the thesis focuses on the judiciary, the case analysis also reveals a series o f conflicts and fundamental questions for counsel involved i n such matters. The evident conflict between positions taken by counsel for the Band C h i e f and counsel for the 63 traditional Lil'wats charged i n the case reveals the enormous difficulties that ensue from the clash between the imposed Band Council system and the existing hereditary governing systems o f the Indigenous nations. Additional conflicts that emerge throughout the paper result from the role each lawyer in the case chose to pursue. Such conflicts become apparent when counsel for the Attorney General o f B . C . misrepresent the public interest or counsel for the Attorney General o f Canada act i n a manner that is in direct conflict with the Federal government's fiduciary obligations vis-a-vis Indigenous peoples. The disbarment o f Bruce Clark and m y refusal to continue to participate as a barrister in the Canadian legal system are elaborated upon. In fact, observations regarding the role o f counsel appear throughout the thesis, particularly i n Chapter Six where their role i n the extinguishment o f Indigenous sovereignty is more fully analyzed.  56 2.8 T h e judicial role: introduction The judicial role is obviously o f major significance i n relation to the thesis topic. It is a legal fact that without judicial and institutional impartiality, a court loses jurisdiction. I have devoted the following two chapters to the discussion and analysis o f the judicial role. Chapter Three contains an outline o f the judicial requirements o f impartiality illustrated through numerous transcript references that aim to demonstrate the existence o f bias in the criminal contempt case, as well as in the legal system as a whole. Chapter Four concentrates on judicial breaches o f the rule o f law. These breaches prove that the domestic Canadian judiciary is unable to provide an impartial forum where the dispute involves an Indigenous/Newcomer jurisdictional confrontation.  57 CHAPTER THREE The requirements of judicial and institutional impartiality: In this chapter I argue that neither the judge nor the institution o f the court met the required standards of judicial or institutional impartiality in the L i l ' w a t criminal contempt trial. The chapter begins by introducing the legal test and evidentiary threshold for establishing lack o f impartiality. It then applies each o f the specific prerequisites o f impartiality—no prejudgment, no leaning in favour o f one party, no biased comments, no conflict o f interest, and institutional impartiality or the need for the appearance o f justice to the criminal contempt trial. A t the conclusion o f the examination o f the prerequisites o f impartiality and the court's manner o f handling this criminal contempt case the reader w i l l be in the position to be able to decide whether the Superior court provided an impartial tribunal for the L i l ' w a t accused. 3.1 T h e T e s t for A p p r e h e n s i o n of B i a s a n d T h e Evidentiary T h r e s h o l d for Impartiality: The Supreme Court o f Canada states that: "The courts should be held to the highest standards o f impartiality.. .Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer."  119  The parties are  entitled to expect complete impartiality and a faithful, honest and disinterested decision.  120  According to Grandpre J., in R. v. S. the legal test o f impartiality is to ask "what would an informed person viewing the matter realistically and practically...and having thought the matter through...conclude?"  121  The idea that "justice must be seen to be done" cannot be  119  R. v.S. (R.D.) [1995] N.S. No. 184 (N.S.S.C.) (Q.L.) ["R. v. S."].  120  McCain v. St. John (1964) 50 M.P.R.363 (N.B.C.A.).  121  R. v. S., supra note 119.  58 severed from the standard o f reasonable apprehension o f bias. The relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part o f the judge, but 122  whether a reasonable person properly informed would apprehend that there was.  The  reasonable person, through whose eyes the apprehension of bias is assessed, expects judges to undertake an open-minded, carefully considered, and dispassionately deliberate 123  investigation o f the complicated reality o f each case before them. W o u l d an uninvolved reasonable person with knowledge ofthe relevant circumstances in the Lillooet Lake road dispute conclude that Justice MacDonald's adjudication in the criminal contempt trial created an apprehension o f bias? To reach their conclusion they must address questions of judicial prejudgment on issues o f fact, favoritism towards a party or a particular result, conflict o f interest, institutional impartiality and the appearance o f justice. For each requirement o f impartiality the examiner must conclude that there were no circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind o f a reasonable person a suspicion o f his impartiality. If the examiner is unable to conclude that there was no apprehension o f bias, then the judge and the institution must be disqualified, even i f no bias exists.  124  Automatic disqualification is justified i n cases where a  judge has an interest i n the outcome o f a proceeding.  125  3.2 Prejudgment: A J u d g e M u s t Not H a v e a P r e c o n c e i v e d O p i n i o n o n Issues of Fact: A trier o f fact must not have preconceived opinions on issues o f fact i n matters before the  Wewaykum Indian Band v. Canada [2003] 2 S.C.R. 259; 2003 S C C 45 (CanLII) ["Wewaykum"]. R. v. R.D.S. [1997] 3 S.C.R. 484. Wewaykum, supra note 122 at para.66. Ibid, at para.69-70.  59 court. This is one o f the most basic requirements o f the judiciary i n their duty to maintain procedural and institutional impartiality. Where the judiciary have so firmly made up their mind that they are not amenable to persuasion they have failed i n their duty to provide an impartial f o r u m .  126  In A Penchant for Prejudice, Linda M i l l s defines a lack o f impartiality as  a prejudice that results from "prejudgment or forming o f an opinion without sufficient knowledge or examination".  When adjudicating cases a judge is not to hold an opinion so 128  strongly so as to produce a fixed and unalterable conclusion. Prejudgment appeared frequently in the judiciary's response to the traditional L i l ' w a t peoples' assertion o f a sovereign based legal defense in their contempt trial. In retrospect, reliance on unsubstantiated assumptions regarding essential facts was the most common way that the courts avoided adjudicating on the legal issue o f Indigenous territorial sovereignty. The most significant example was the judge's refusal to allow argument on the preliminary challenge to jurisdiction. Bruce Clark and I attempted on numerous occasions to provide Justice MacDonald with the applicable law to support a jurisdictional challenge premised on the L i l ' w a t s ' history o f never having surrendered their sovereignty. Consider the decision o f the Supreme Court o f United States in Cherokee Nation v. Georgia, where that court concluded that it was not impartial vis-a-vis boundary and jurisdiction disputes between the Native government o f the Cherokees and the Newcomer government o f the State o f  126  Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at 1197.  127  Mills, supra note 9 at 12.  128  Muscillo Transport Ltd. v. Ontario (License Suspension Appeal Board (1997) 149 D.L.R. (4 )  545 (Ont. Gen. Div.), (1997) 32 M . V . R . (3d) 27 (Ont. C.A.); see also where Grange, J. held: "Prejudgment of the issues of fact is a ground for disqualification of a Judge on the basis of bias." The judge also mentioned that prejudice "might operate on his mind completely unconsciously but nevertheless can be termed as bias." Re: Downer and The Queen 35 C.C.C. (2d) 198 (Ont. H.C.) at para.2.  th  60 Georgia.  129  Cherokee Nation was part o f the extensive support for the proposition that a  preliminary challenge regarding Newcomer jurisdiction over unceded territory posed a valid legal position to assert and seek adjudication upon, in defense o f the L i l ' w a t accused. In Re; Sproule the Supreme Court o f Canada held that: .. . i f any necessary link in the chain to constitute jurisdiction be wanting no one can be legally punished.. .If the judge who presides at a criminal trial be without proper authority in regard to such a trial the conviction is a nullity, and so in all other cases where from any cause there was not jurisdiction, and when such want of jurisdiction is made to appear, it must necessarily result i n the discharge o f the convicted party.  130  The majority o f the B . C . Court o f Appeal applied this fundamental principle i n Canada v. Sacks where a non-native foreigner challenged the jurisdiction o f the court. The majority were o f the opinion that the preliminary objection to jurisdiction was "well taken" and, furthermore, "it was an objection that could be taken without notice, and the Court has had to raise it itself. It is a question of jurisdiction."  131  In refusing to hear the L i l ' w a t s ' preliminary objection to jurisdiction, M r . Justice MacDonald provides an example o f prejudgment when he insists on holding that the capacity ofthe Chief Justice to issue the original injunction "is unquestioned."  132  H e dismissed the  threshold jurisdiction argument on the basis that " a court having jurisdiction" means the "capacity" o f the court to make an order such as the one impugned. H e reasoned that given that the British Columbia Supreme Court has the capacity to order injunctive relief there could be no argument made challenging the jurisdiction o f any injunctive order made in a Superior court o f general jurisdiction even if, in the case o f unceded Indigenous territory,  129  Cherokee Nation v. Georgia, (1831) 30 U.S. 1.  130  Re; Sproule (1886) 12 S.C.R. 140.  131  Canada v. Sack [Chin Sack (No. 2J7[1928] B.C.J. No. 56; 50 C.C.C. 137 (B.C.C.A.) at para. 1-2.  A.G. v. Chief Andrew, supra note 10. Reasons for Judgment. Collateral Attack Argument. March 18 , 1991 at 26. Mr. Justice MacDonald.  132  th  61 such an order was a mistake. H e ruled that the only manner to attack the validity o f such an injunction was by appeal o f the original order. M r . Justice M a c D o n a l d became increasingly adamant that he was unable to hear any submission by Clark that contained law, legal precedents or legal argument that challenged his, or the Chief Justice's jurisdiction. He stated: .. .that is why I made my ruling on the second day o f the trial—was that I can't permit you to say to me that the Chief Justice's order is a nullity. I can't permit that in this court. A higher court must do that, and that is where the sovereignty argument has to be made. That is where the jurisdictional argument has to be made, is i n that court. 133  Clark argued repeatedly that the jurisdictional issue before the court could not be answered by the fact that the Superior court is a court o f general jurisdiction. Rather the court needed to address the more specific question o f whether the Superior court o f general jurisdiction is a court o f general jurisdiction regarding unceded territory o f Indigenous peoples. In fact, the first major incident o f prejudgment i n the Lillooet Roadblock case occurred much earlier in the L i l ' w a t criminalization process. Chief Justice Esson, i n response to the Provincial government's application to add police enforcement powers to the injunctive order, held that Indigenous sovereignty and the resulting proposition that Canada and British Columbia are without jurisdiction "is not a position which can be supported at l a w . "  134  At  Feb. 15 1991 Transcript at 5. Further discussion of the ruling by Mr. Justice MacDonald on the jurisdictional challenge is included in Chapter Four however one must keep in mind that it is standard procedure to challenge jurisdiction by way of a preliminary objection prior to the commencement of a criminal trial. In the case of the Lil'wat accused however the British Columbia Court of Appeal refused their application to join the appeal already scheduled before them to be argued by counsel on behalf of the Band Chief and Council. A.G. v. Chief Andrew, supra note 10, November 2 , 1990 Reasons for Judgment. Application by the Attorney General of B.C. for police enforcement powers at 8. Esson, C. J.; consider also C. J. McEachern's classic statement in this regard where he explains: "In their pleadings and argument the plaintiffs admit that the underlying or radical or allodial title to the territory is in the Crown in Right of British Columbia. This reasonable admission was one which the plaintiffs could not avoid. 134  nd  62 this time he also referred to the position being taken by the Mount Currie Band Council to be "the responsible p o s i t i o n " .  135  Chief Justice Esson's per incuriam (through inadvertence)  finding i n relation to both sovereignty and jurisdiction is an example that fits Margo Nightingale's observation that "impartiality is virtually impossible where a judge's personal predispositions (biases) are viewed as objective realities."  136  This initial ruling by Chief Justice Esson is in direct opposition to the statement o f his predecessor, Chief Justice McEachern, who emphasized in the Legal Compendium that: ".. .the first question to be determined in every case is whether the court has jurisdiction to hear and decide the case."  137  Chief Justice Esson's prejudgment in regards to the sovereignty issue became o f even greater significance when M r . Justice MacDonald held that he could not question it in the contempt trial. He flatly refused to allow Clark's extensively researched legal arguments that fundamentally challenged Chief Justice Esson's assumption regarding this most essential legal point. That it was an 'assumption' became clear when C h i e f Justice Esson subsequently admitted that the defense o f sovereignty was not argued during the three day hearing o f the  It sets the legal basis for any discussion of title." Delgamuukw v. British Columbia [1991] B.C.J. No. 525, (1991) 79 D.L.R. (4 ) 185, Part 10 at 79 ["Delgamuukw"]. th  Ibid. This statement by Chief Justice Esson introduces his entwinement with embedded institutional bias. At this early stage in the proceedings only the Band Chief had entered an appearance and had not presented a sovereignty argument. The Chief Justice mentioned reading about the sovereignty position of the Lil'wat traditional peoples in the local newspapers. He lost his neutrality in the dispute once he indicated his strong preference for the appearance by counsel on behalf of the imposed Band Council system versus the 'impossible' sovereignty assertion by the traditional Lil'wat accused. 135  M . Nightingale, "Judicial Attitudes and Differential Treatment: Native Women in Sexual Assault Cases" (1991) 23 Ottawa L. Review 71 at 71; consider also that C. J. Esson was guilty of prejudgment when he referred to the road in the dispute as "an integral part of the Province's highway network." A.G. v. ChiefAndrew, supra note 10, Oct. 30 , 1990. Reasons for Judgment at 5. Injunction Application. Esson, C.J. 136  th  C.J. McEachern, "The Law, the Courts, the Judiciary and the Legal Profession" in Legal Compendium (1999), online: Legal Compendium <http://www.courts.gov.bc.ca (date accessed: 20 December 2000)[Emphasis added]. 137  63 Attorney General's injunctive application.  138  O n the basis o f this admission, it is fair to  conclude that prejudgment occurred in the issuance o f the original injunctive.  139  In fact, it  was Chief Justice's Esson's conjecture on this key point that formed the legal basis for the enforcement order that enabled the Attorney General o f British Columbia to arrest and incarcerate the traditional L i l ' w a t peoples. M r . Justice MacDonald would rely on this prejudgment to find the L i l ' w a t people guilty o f criminal contempt o f court. A s a third example o f prejudgment, consider the following comment by M r . Justice MacDonald early i n the trial. It reveals his resolve that the only matter that concerned h i m was: .. .the conduct o f the individuals who were arrested, not on a group basis but on an individual basis. D i d they know o f the prohibition against blocking the road, and did they, as individuals in fact, participate in conduct contrary to that injunction...? 140  The narrow boundaries set by M r . Justice MacDonald near the outset o f the hearing were based upon a prejudgment or upon the assumption o f a legal fiction on an issue o f fact. Before h i m were a group o f traditional Indigenous persons asserting L i l ' w a t territorial sovereignty. They clearly articulated their non-acceptance o f the imposition o f Canadian  IJS  January 8 , 1991 Transcript at 2. th  For the Lil'wat traditional people to appear and submit to the jurisdiction of the Supreme Court of British Columbia to argue against the Province's injunctive application would have been in direct conflict with the legal position they were intent upon asserting. Only counsel on behalf of the Chief and Band Council entered an appearance and thereby submitted to the jurisdiction of the court. 139  It is important however to note that in MacDonald's Reasons for Judgment dated March 18 , 1991 Transcript at 3 he acknowledged that the Lil'Wat accused before him sought to raise a much more fundamental issue which he outlined as follows: ".. .they say that this court has no jurisdiction to find them in contempt of the injunction in question; that it has no authority over their conduct on unceded Indian lands...the Lil'Wat nation is a sovereign people; one over which this court has no jurisdiction."; see also Clark's statement in his opening in which he explains: "...a group of Indians, whether it's a band, tribe, nation, individuals as a collective entity is under the protection of the Crown under the Royal Proclamation of 1763, and that's the essential point." Nov. 19 , 1990 Transcript Vol. II at 30. 140  th  th  i  64 citizenship.  141  Numerous L i l ' w a t individuals testified under oath that they had no  allegiance whatsoever to the Canadian nation and had not, at any time, consented to being citizens. One traditional person stated: " L i l ' w a t . I am L i l ' w a t , and they called me Canadian, whatever they called m e . "  142  Traditional L i l ' w a t , James Louie, refers to the imposition o f  citizenship by stating: "Canada need not recognize us as a sovereign nation, that still does not make me a member."  143  In the introductory speech, Quetminak stated: " . . .1 want to bring up  my children as good L i l ' w a t u m . Maybe one day I w i l l say as good Canadian. But at this moment I don't want to say that." Regardless o f the L i l ' w a t viva voce evidence o f their allegiance to the L i l ' w a t Nation, M r . Justice MacDonald insisted on proceeding as i f the L i l ' w a t peoples were voluntary citizens o f the Canadian state. Justice MacDonald's prejudgment on the issue o f citizenship was in breach o f the international human right o f peoples not to be arbitrarily deprived o f their nationality as well as in breach o f the right o f all peoples to political self-determination.  144  Judicial reliance on  such an assumption was necessary for the judge to be able to insist that the L i l ' w a t accused were obliged to obey the laws created by the Canadian state, as legislated through its institutions. The judge persisted in upholding the citizenship fiction, regardless o f  Taiaiake explains that the notion of 'citizenship' is a European concept. He warns Indigenous people that to remain native, they must eradicate such concepts and shift to concepts that are grounded in their own culture. Taiaiake, supra note 63 at xiv. 141  1 4 2  Dec. 12 , 1990 Transcript at 8. th  April 15 , 1991 Transcript at 24; see also A . Memmi, The Colonizer and the Colonized (Boston: Beacon Press, 1967) at 96. The following observations of Memmi apply to the situation the Lil'wats find themselves in when he states: "...the colonized enjoys none of the attributes of citizenship; neither his own, which is dependent, contested and smothered, nor that of the colonizer. He can hardly adhere to one or claim the other." 143  th  See U.D.H.R, supra note 70 at Art. 15(1.) Everyone is entitled to a nationality, and Art. 15(2.) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality; see also the Draft Declaration of Indigenous Peoples at Art. 1. Indigenous people have the right to the full and effective enjoyment of all ofthe human rights and fundamental freedoms which are recognized in the Charter of the United Nations and in the human rights law; see also at Art. 5. Every Indigenous person has the right to belong to a nationality. 1 4 4  65 explanations demonstrating the lack o f a consensual relationship between the L i l ' w a t peoples and the Canadian state. Because the L i l ' w a t Nation was not conquered and the L i l ' w a t people have never acquiesced to being subjects o f a foreign state, there exists a lack o f legitimacy in the unilateral imposition o f Newcomer citizenship status.  145  Before an impartial tribunal, the opportunity would exist to consider the legal failure o f the Newcomers to obtain Indigenous consent prior to the substitution o f an alien concept o f citizenship. A neutral adjudicator would allow a legal challenge to a breach o f an order o f an institution which the accused could prove they owed no allegiance to or duty to obey. Youngblood Henderson explains: "In the post-colonial era, Canadians are comfortable in believing Canadian federalism grew out o f mystical democratic traditions, just as they are comfortable in assuming the rule o f law exists. These beliefs are as much a matter o f prejudice as convenience."  146  Michael M i l d e elaborates on this point where he explains that  the legitimacy o f the positivist approach "depends on a democratic theory which says that people speak through their elected parliamentary representatives"  147  Since the theory claims  that people should be represented in institutions that have power over their lives, he argues that once the necessary representation is shown as lacking "the substantive justification for their approach is absent." The judge also insisted on prejudgment on an issue o f fact when he refused the defense  McLachlin, CJ.C. stated "Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered." in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (CanLII) at para.25; consider also that an immigrant, before being granted citizenship, is required to swear their loyalty to Canada, its institutions and its laws. 1 4 6  "Empowering", supra note 58 at 305.  147  Milde, supra note 29 at para. 13.  Ibid. In reaching a similar conclusion, Henderson comments: "Without a proficiency in indigenous world views, languages, rights and treaties, the Canadian legal system cannot equitably talk about authentic democracy." "Empowering", supra note 58 at 245. 148  66 request that the Province be required to provide strict proof o f ownership given that their contempt prosecution was based on a claim o f conspiracy to commit trespass and public nuisance against the L i l ' w a t peoples on their own lands. O n this issue Justice MacDonald insisted on upholding an invalid presumption regarding the highly contested claim to the Province's ownership o f the unceded territory in question.  149  Reliance on unsubstantiated assumptions regarding essential facts is one means o f exercising prejudgment i n a case.  150  The judiciary's insistence on prejudgment o f the issues  of territorial sovereignty, jurisdiction, ownership, authority, nationality and citizenship begin to reveal that something in addition to a strict positivist approach is influencing their exercise of discretion. Another example o f prejudgment, involved Justice MacDonald's declaration that the elementary justification for contempt proceedings was the preservation ofthe court's authority.  151  Although M r . Justice MacDonald was able to agree with the proposition that  having authority over the people i n question is an element ofthe charge o f contempt, he simply refused to accept that before he could convict for contempt he must first establish his authority vis-a-vis the traditional Lil'wats. When challenged on this point, M r . Justice MacDonald's responded tautologically that the Chief Justice's order had issued and he as well had spent considerable time exercising jurisdiction over them by holding this hearing so  This is particularly so in the case at bar, where the Provincial claim to ownership was based on it's recent, constitutionally questionable, expropriation of the land in question. 1  See L Crompton, "Unscrutinized Assumptions in Indigenous Issues", [unpublished paper delivered at the Law Forum, Laval, Quebec, May 27 , 200 Ito the Council ofthe Canadian Law Deans] for further elaboration on this point. 1 5 0  th  A.G. v. ChiefAndrew, supra note 10, March 18th, 1991. Reasons for Judgment at 26. Collateral Attack Argument. On this date Mr. Justice MacDonald delivered written reasons. 151  67 therefore, he must have it.  In his written reasons he concluded: "There can be no  argument that this court has the jurisdiction to defend its own authority. ... Without such a 153  power, the court would have form but would lack substance." The fact o f the matter was that M r . Justice MacDonald had predetermined that Canadian law had authority over the L i l ' w a t territory before considering the applicable British Imperial law and precedents that challenged such an interpretation. In doing so, he avoided the relevant issues, which is evidence o f partiality and shows in this instance a leaning in favor of a particular party as well as a particular result. For those schooled in the British legal tradition, it is difficult to comprehend that Canada might not be the only governing system and source o f laws in the territory i n dispute. Simply because Indigenous systems are not as visible as are Canadian ones, it does not follow that they are non-existent or unsophisticated. A s Monture-Okanee and Turpel explain: The notion o f a written code or law is also foreign to aboriginal cultures. This does not mean that aboriginal systems o f law were not as "advanced" or " c i v i l i z e d " as European-based systems; these are racist stereotypes. It merely means that aboriginal law was conceptualized in different but equally valid ways. Laws were not written because law needs to be accessible to everyone. When an oral system is effective, the law is carried with each individual wherever he or she travels. 154  In his response to the judge's request for him to spell his L i l ' w a t name, James Louie explains to M r . Justice MacDonald that L i l ' w a t law continues in existence: W e usually don't write our names. We don't write our laws. They come from here. From mouth to mouth sort o f thing, from heart to heart...we have lived this way since  Ibid. "While I accept Ms. Crompton's submissions that the court must deal with a challenge to its jurisdiction, and must find jurisdiction as one of the elements necessary to support a conviction for contempt, I consider that I have spent considerable time in doing exactly that." 152  A.G.. v. ChiefAndrew, supra note 10, March 18th, 1991 Reasons for Judgment at 11. Collateral Attack Argument. Mr. Justice MacDonald. 153  154  Monture-Okanee, supra note 7 at 246.  68 time out o f mind. But it is still here. W e don't have to write it. Y o u are brought up with it. Y o u live in i t . 155  To further reveal judicial reliance on embedded assumption, the use o f analogy may assist the reader. Place an American citizen in the situation o f a L i l ' w a t native. Imagine, that the Provincial government o f British Columbia had unilaterally issued a logging license to Interfor to clear-cut an area that an American owner claimed to be just within the territorial limits o f the United States. Due to survey errors made long ago, it has long been assumed by Canada that the land was within its territory. The British Columbia Supreme Court proceeded to grant an injunction on the assumption it had jurisdiction. Similar to the traditional L i l ' w a t accused, the American owner refused to attend the injunction application on the grounds that the British Columbia Superior court did not have jurisdiction over h i m or his American homestead, which had been i n his family for generations. H e took this position on the basis ofthe legal principle that the order o f a court without jurisdiction is a nullity. If the British Columbia Superior court proceeded to issue an enforcement order, erroneously, giving authority to the R . C . M . P . to enter onto lands not validly within the Superior court's jurisdiction to arrest the American owner from his own land, would this individual then be prevented from arguing in a criminal charge o f contempt o f court that the British Columbia Superior court was without jurisdiction over h i m and the land i n question? W o u l d he not be allowed to argue that he owed no allegiance to abide by the foreign court's orders issued without jurisdiction on the basis that such orders amount to a nullity? W o u l d he, following his arrest, be prevented from making an application for habeas corpus on the basis o f a jurisdictional argument that could prove the unlawfulness o f his/her detention? W o u l d he be prevented from seeking a non-suit on the basis ofthe argument that  Dec. 13 ' 1990 Transcript at 1. th  69 the Crown could not possibly prove ownership at trial? W o u l d the court refuse to hear any legal argument regarding his preliminary challenge to jurisdiction and insist that the only manner for the American citizen to have this matter addressed would be to submit to the jurisdiction o f the court for a trial before a court he alleges is without jurisdiction? A n d most importantly, would the British Columbia Superior Court, prior to the trial (which w i l l most likely not take place for at least two years), assume that the balance o f convenience falls sufficiently in the Attorney General o f B . C . ' s favor for the court to make it a precondition o f the release o f the American accused that he swear not to return to his land until the trial is completed? Even more to the point, would the B . C . Superior court be allowed to criminalize the American citizen on the basis o f a prejudgment or assumption regarding the jurisdictional point once the American was prepared to support his preliminary jurisdictional challenge with extensive legal argument based on binding legal precedents? It is submitted that the court would be required to hear the applicable law and case precedents and then adjudicate upon the jurisdictional challenge prior to proceeding to trial, so as to abide by the principles o f a fair trial including due process.  156  To reduce the rights o f the Indigenous peoples to less  than those afforded other members o f the world community is in breach o f international human rights l a w .  157  This analogy reveals that it simply does not make sense that persons living beyond the territorial jurisdiction o f a court are bound by the orders o f a foreign court until the matter  R. v. Suchacki [1924] 1 D.L.R. 971, Gladstone Petroleum Ltd. v. Husky Oil (Alberta) Ltd. 1 D.L.R.(3d) 219 (Sask. C A . ) 156  UDHR , supra note 144; see also ICCPR., supra note 70; consider also where the Federal Court of Appeal states: "Citizenship requires attachment to Canadian laws and institutions and a commitment to the duties that ensue as a Canadian citizen." Lavoie v. Canada [2000] 1 F.C. 3 (F.C.A.)at4. 157  70 has been brought to trial. This is what happened to the L i l ' w a t . 158 A s to the notion that the jurisdictional argument could only be heard at a trial some two years in the future Clark stated: "...it's absolutely preposterous to say that you can't make a fundamental legal argument going to jurisdiction except at a trial. I mean that's absolutely absurd." Although M r . Justice MacDonald refused throughout the contempt case to rely on his inherent jurisdiction to hear the applicable law regarding the L i l ' w a t sovereignty defense, he nevertheless replied to Clark: "I recognize that."  159  The only difference between the American citizen and the L i l ' w a t u m is the existence o f embedded colonial assumptions. Pervasive judicial prejudgment combined with an extraordinary degree o f resistance to hearing applicable legal arguments reveals bias i n the B . C . Supreme Court. 3.3 A J u d g e is Not to H a v e a L e a n i n g to O n e Party O v e r the O t h e r A trial judge must not have an inclination or predisposition towards a particular party or a particular result.  160  According to principles o f impartiality the judge must be indifferent  between the parties before h i m or her, even where one o f those parties is the Q u e e n .  161  In a case involving two distinct peoples , each with their o w n sets o f laws over the land 162  in question, the fact that the domestic judiciary swear that they " w i l l be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according  0 5  159  March 11 , 1991 Transcript at 41. th  Ibid.  Yusufv. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 629, 7 Admin. L.R. (2d) 86, 133 N . R. 391 (C.A.); R. v. Arnold (2000), 2000 CarswellOnt. 1644 (Ont. S.C.J.), aff d (2000). 2000 CarswellOnt 3471 (Ont. C A . ) 160  161  R. v. Drakes (1998) 122 C.C.C. (3d) 498.  Until a treaty between the Newcomers and each Indigenous Nation is mutually agreed upon, the two peoples remain legally autonomous and distinct. 162  71 to law" presents such a circumstance.  163  In fact, the domestic judiciary swears to uphold  the law created and relied upon by the Province, one ofthe parties to the dispute. This is to choose sides i n a dispute over jurisdiction with Indigenous peoples. Such laws are i n direct opposition to the territorial assertion o f sovereignty by the Lilwat people who have been in continuous possession o f their unceded land for many centuries.  164  A more specific example o f a leaning in favor o f one party occurred where the domestic judiciary refused to listen to legal submissions by both parties involved i n the dispute. Interfor applied for a second injunction against the L i l ' w a t people who, following the dismantling ofthe roadblock, continued to interfere with road construction at the gravesite area surrounding Ure Creek. Clark referred to a lack of judicial indifference by M r . Justice Wetmore who heard the application: M r . Justice Wetmore listened only to the law tendered by the logging company... When he refused to listen to the law he necessarily placed himself above the law. H e based his decision upon one side o f the story. That is, he made a nonjudicial decision.. .But the authentic obligation upon every judge is to judge as between contending positions. B y refusing to hear the one side's position at law, M r . Justice Wetmore, in effect, cast off his robes o f office and descended into the dust o f the political arena. 165  A third example demonstrating a leaning in favor o f one o f the parties in this dispute was where M r . Justice MacDonald, without providing reasons or hearing argument, stated emphatically that: "any contempt found in this case w i l l be a criminal contempt and not a civil contempt, and the proceedings w i l l be conducted on that basis."  166  In order to make this  ruling, M r . Justice MacDonald had to determine whether the activities o f the L i l ' w a t  A copy ofthe oath sworn by the B.C. Supreme Court judiciary upon their appointment to the bench on file at the Vancouver Supreme Court Law Library. 163  164  Such laws are also in conflict with applicable international human rights law.  165  Feb, 8 , 1991 Transcript at 20.  166  Nov. 19 , 1990 Transcript at 18.  th  th  72 protestors a m o u n t e d to disobedience directed at the p l a i n t i f f o r w h e t h e r it w a s b e h a v i o r c a l c u l a t e d to b r i n g the a d m i n i s t r a t i o n o f j u s t i c e into scorn. H e r e l i e d o n the c h a r a c t e r i z a t i o n o f c r i m i n a l contempt as a p u b l i c act b y a large n u m b e r o f persons, i n defiance o f an order o f the court, w h i c h has the effect o f c a l l i n g the v e r y authority o f the court into q u e s t i o n , or w h i c h tends to b r i n g the j u s t i c e system i t s e l f into scorn. H e c i t e d  R. v. Bridges No. 2 for the  p r o p o s i t i o n that: In the w h o l e s p e c t r u m o f conduct c l a s s i f i e d as c o n t e m p t u o u s , there c a n be none m o r e sinister o r m o r e threatening than that o f o r g a n i z e d , large scale, deliberate defiance o f an order o f the c o u r t . L o r d S h a w ' s statement i n  1 6 7  Scott v. Scott, where the H o u s e o f L o r d s reversed the C o u r t o f  A p p e a l offers a different v i e w o f i n j u n c t i o n s : C a s e s for b r e a c h o f i n j u n c t i o n are tried every day, but I h a v e n e v e r yet h e a r d that they w e r e a n y t h i n g but subject to trial b y the c i v i l Judges as i n a c i v i l cause o r matter; a n d i n the course o f that trial it is o p e n to the p e r s o n a c c u s e d o f b r e a c h to establish u p o n the facts that w h a t has been done, w a s not a b r e a c h i n fact, but w a s a legitimate and defensible a c t i o n . 1 6 8  T h e superior court o f B . C . c e r t a i n l y d i d not p r o v i d e an o p p o r t u n i t y f o r the L i l ' w a t accused to establish the l e g i t i m a c y o f their acts. C o n s i d e r as w e l l the c a u t i o n expressed i n  Re Clements,  w h e r e S i r G e o r g e Jessel M . R . stated: Therefore, it seems to m e that this j u r i s d i c t i o n o f c o m m i t t i n g for c o n t e m p t b e i n g p r a c t i c a l l y arbitrary a n d u n l i m i t e d s h o u l d be m o s t j e a l o u s l y a n d c a r e f u l l y w a t c h e d , and e x e r c i s e d , i f I m a y say so, w i t h the greatest reluctance a n d the greatest a n x i e t y o n the part o f Judges to see whether there is n o other m o d e w h i c h is not o p e n to the o b j e c t i o n o f arbitrariness a n d w h i c h c a n be brought to bear u p o n the s u b j e c t .  169  Justice M a c D o n a l d seemed d e t e r m i n e d to r e l y o n the c r i m i n a l c o n t e m p t charge against the L i l ' w a t a c c u s e d . H e c e r t a i n l y d i d not e x h i b i t a reluctance to exercise the j u r i s d i c t i o n relating  R.  v.  Bridges  ( N o . 2 ) 61 D . L . R . ( 4 ) 155 ( B . C . S . C . ) at 157-8. th  Scott v. Scott Re Clements  (1913), 82 L.J.P. 74, ( H . L . ) at 110.  ( 1 8 7 7 ) , 4 6 L . J . C h . 375 at 383.  73 to contempt as the precedent suggests. In terms o f considering other modes o f proceeding that could be brought to bear on the dispute, the domestic judiciary was absolutely resolute that there was no alternative in the circumstances but to prosecute the traditional L i l ' w a t people for criminal contempt. M r . Justice MacDonald understood that "these proceedings originate in a c i v i l action for trespass and nuisance on what is alleged to be a public h i g h w a y . "  170  Therefore his  characterization ofthe contempt as criminal i n nature, prior to hearing any evidence or characterization ofthe contempt as criminal by the prosecution, was a ruling that could be interpreted to demonstrate a leaning i n favor ofthe Crown or a particular result. The consequence o f this ruling was that one party to the civil dispute involving land became an accused facing the possibility o f a criminal record, while the opposing party in the property dispute became the prosecutor o f their alleged crime. M r . Justice MacDonald's protection of counsel representing the Crown and his failure to provide Clark with similar assistance provide a fourth example o f his favoritism.  171  Clark  requested on Feb. 1 1 , 1991, that Justice MacDonald recommend to M r . Justice Wallace that th  i f Clark were to be disbarred that he at least be allowed to complete his submissions relating to the sovereignty defense o f the L i l ' w a t peoples facing contempt charges before Justice MacDonald. Clark's possible disbarment arose out o f an appearance in the B . C . Court o f Appeal on February 8 , 1991, before M r . Justice W a l l a c e . th  172  In an affidavit supporting an application  for leave to appeal the recent injunction issued by M r . Justice Wetmore i n relation to Ure  A.G. v. Chief Andrew, supra note 10, March 18 , 1991 Reasons for Judgment at 25. Collateral Attack Argument. Mr. Justice MacDonald. 170  th  171  February 11 , 1991 Transcript at 18.  172  Interfor v. Pascal, supra note 32.  th  74 Creek, Clark included the statement that: " . . . m y clients feared a judicial conspiracy was 173  under way to stonewall the law by simply refusing to allow the law into the court." Because o f the word "conspiracy", M r . Justice Wallace adjourned Clark's leave application while simultaneously recommending that the Attorney General o f British Columbia have the L a w Society investigate the possible disbarment o f Clark for his use o f the word. Clark's explanation for the reaction o f the judge was that it was an attempt to have h i m disbarred due to the fact that his application "disturbed the judges' assumption about their own jurisdiction".  174  Clark also attended at the B . C . Court o f Appeal for the commencement o f the appeal o f the Delgamuukw case where the presiding panel not only refused to hear his submission on the law, but additionally requested that Clark leave when he suggested to them that their assumption of jurisdiction was "treasonable, fraudulent, and genocidal". The judiciary's defensive behavior, coupled with their refusal to hear the law, revealed both a leaning toward one party as well as a leaning to a certain outcome in the case. Clark explained to M r . Justice MacDonald the specific importance o f at least being allowed to pursue the sovereignty argument i n his court: M r . Clark: N o w I am not attempting to pat myself on the back here, but the reality is, I just happen to have spent the last five years doing a doctorate on that very subject. N o one else has done this. So, you know, there really isn't anyone else who can be put i n . . .my place, effectively. A n d any suggestion that someone can, and that the clients are not being denied their fundamental right to counsel o f their choice, in terms o f the Royal Proclamation o f 1763, it would simply constitute yet another fraud and an abuse within the meaning o f that constitutional instrument. 175  The judge simply responded as follows:  Clark,  supra note 28 at 102.  Ibid, at 103. Feb. 11 , 1991 Transcript at 12. th  75 The Court: M r . Clark, i f the L a w Society reaches a decision that you should not be allowed to practice i n this province, there is very little I can do about that, it seems to me. 176  This response indicated reluctance on the part o f the judge to become involved i n assuring that the legal arguments o f Clark on behalf o f the L i l ' w a t people were heard. M r . Justice M a c D o n a l d had stated on record prior to this point i n the case that Clark's arguments were sophisticated and would have a fundamental effect on the rights o f Indigenous peoples i f held to be valid. What prevented h i m from agreeing to inform M r . Justice Wallace o f the particular importance o f allowing Clark to complete his defense submissions i n the contempt hearing? The judge showed a leaning i n favour o f one party over the other when he refused to assist Clark who was being criticized, but would not hear, on the other hand, any criticism directed at counsel for the Crown. M r . Justice MacDonald refused to respond to repeated allegations by defense counsel that Crown counsel, for both the federal and provincial governments, were acting improperly. Consider the following statement by Clark: M r . Clark: Earlier this morning...you w i l l recall .. .that co-counsel, L y n Crompton, made certain comments about the canons o f ethics and the proposition that counsel for the Attorney General is in breach thereof. 1 made comments that we are entrapped i n a process constituting a fraud and abuse under the Royal Proclamation of1763 and criminal offences under Sections 424 and 431 o f the Criminal Code. I have been reported to the L a w Society by M r . Justice Wallace. I am asking that your lordship report to the L a w Society counsel on the other side. I suggest that the more serious offence is being perpetrated by them and not by me and the answer is not silence the truth by shutting up defense counsel. If the L a w Society is going to 177  See Jan. 17 \ 1991 Transcript at 29:1 had referred to the Canons of Legal Ethics that states the primary duty of a prosecutor is not to convict but to present both sides so as to create the appearance that justice is being done. To that end, he is not to withhold any evidence or prevent the admissibility of any evidence that supports the innocence of a party before the court. This was my response to the attempt by the Crown to have all the testimony of the Lil'wat accused excluded on the basis that it was irrelevant to the charge of criminal contempt of court.  76 investigate, I ' m suggesting that it should look into the whole situation, not just going on a witch hunt against defense counsel. 178  The judge responded: The Court: ... .1 have no intention o f reporting counsel for the Attorney General to the L a w Society. There is no conduct before me which—on their part, which would dictate that. Y o u are perfectly free to do that but there is nothing that's been disclosed to me in the conduct o f these counsel here that would justify me in taking that step. M r . Clark: A n d the allegation o f criminal offences and frauds and abuses would not constitute a basis for that? The Court: N o . 1 7 9  The judge took the position that to do so would be exhibiting partiality, which he claimed he was scrupulously attempting to avoid in this case. M r . Justice M a c D o n a l d however was unable to acknowledge the existing disparity between his refusal to protect Clark from allegations o f impropriety while refusing to investigate the defense allegation that the Crown's actions in the matter were in breach o f the rule o f law and the Canon o f Legal Ethics. A n example o f a valid criticism regarding the Crown's position was C l a r k ' s suggestion that counsel for the Attorney General of Canada, when he appeared against the L i l ' w a t people, was not entitled to the presumption and corresponding credibility that results where one appears as a friend o f the court. Clark referred on record to the conflict o f interest the federal government was embroiled in: The Attorney General o f Canada is an interested and compromised party. A s a trustee accountable for a massive and systematic breach o f trust, the federal government appears before this court i f at all with unclean hands. 180  Clark refused to alter his allegation that the two governments had conspired to commit a fraud and abuse as defined within the Royal Proclamation. M r . M a c K e n z i e , counsel for the  Feb. 11 , 1991 Transcript at 2. th  February 11 , 1991 Transcript at 3. th  December 10 , 1990 Transcript at 21. th  Provincial government, had taken objection with Clark's characterization.  181  77 Clark was  quick to respond with the following statement: I want this to be perfectly clear. I don't for one second back off that characterization, because that characterization is the guts and the essence o f what's going on here. This isn't a question o f an old boy's club or some gentleman's arrangement, this is the Crown committing a fraud and an abuse, and unless somebody stands up and says the K i n g has no clothes, this monstrous game w i l l go on forever. M y Lord, I take the position that the most sacrosanct duty your lordship has or any judge would have is your position out o f the Court o f Equity, and when a fundamental fraud and abuse on a massive systematic and methodical scale is alleged, I am saying the court's heckles should rise. They should rise in two senses. If I am wrong, then I should be severely reprimanded, perhaps disbarred, but i f I am right then the court should rise itself in righteous indignation and insist that justice be done and Canada's honor vindicated.  182  Crown Counsel must perform their duties with impartiality and i n a manner that is above reproach.  When acting as counsel on behalf o f the Attorney General o f British Columbia,  183  for example, counsel has a very strict obligation and fiduciary duty towards all aboriginal people to treat them and their rights with the utmost good faith and fairness. In deciding whether to institute or stay proceedings, the Attorney General or his designate, as representatives o f the public interest, must demonstrate absolute independence and arrive at their decisions objectively, impartially, and in an even-handed manner.  184  The following example from the case provides a fifth display o f the lack o f the required  The Lil'wats' application before the Federal Court of Canada alleged "the breach by the Federal government of their fiduciary trust obligations and without restricting the generality of the above ....in particular that the defendants have been engaged in or facilitated an unconstitutional program of cultural genocide and territorial use against the plaintiffs..." and "...the defendants actually constructively have conspired, colluded or connived with the Attorney General for the Province of British Columbia, to commit fraud and an abuse within the meaning of the Royal Proclamation of 1763, by facilitating court proceedings in the B.C.S.C. contrary to the constitution and to s. 2 and 18 181  of the Federal Court Act." Lil'Wat Aboriginal People v. Attorney General of Canada and Her Majesty the Queen in Right of Canada, Action No. T-3005-90 (Fed. Ct. T.D.) Statement of Claim filed Dec. 10 , 1990 at 5. th  182  Dec. 10 , 1990 Transcript at 18.  183  Boucher v. The Queen [1995] S.C.R. 16 at 21.  184  R .vMoscuzza (2001) 54 O.R. (3d) 459 (Ont. S.C.).  th  78 even-handedness by both the judge and M r . M c K e n z i e , i n his capacity as representative o f the Attorney General o f British Columbia. O n December 14 , 1990, M r . M a c K e n z i e th  objected to my use o f the word "expropriation" when characterizing the manner in which the Provincial government responded to the roadblock. H e claimed on record that there was no expropriation order, but rather that there was a resumption under 1036/1938.  Order-in-Council  185  M s . Pinder, counsel for the Band Council and Chief, appeared at the contempt trial to object to a statement made by M r . MacKenzie the previous day where he stated on record that "the road was planned and carried out with the knowledge o f Chief Fraser Andrew." M s . Pinder requested to address the court. She commented: W e were dealing with the constitutional challenge to the Province's expropriation, and I use the word advisedly and with all the legal connotation that it carries, the expropriation o f Lillooet Lake Road. She took most serious exception to the statement o f M r . M a c K e n z i e , i n which he insinuated the government had the consent o f Chief Andrew to build the road through the gravesite area. In response M r . M a c K e n z i e simply retorted: M r . M a c K e n z i e : W e l l , my lord, I have no reply. M s . Crompton: Excuse me, my lord, does that mean he leaves it on the record? The Court: I take that, yes. The judge states a few lines later: " W e l l , M s . Pinder I've heard your request. I've given your friend the opportunity to reply. I can't order him to do that. Y o u ' r e aware o f that." This exchange demonstrates that the highest legal officer in the Province was permitted by the Superior court judge, to leave on record a statement that was simply untrue. The Crown's statement regarded the most sensitive issue in the case: the assumption o f Provincial  15  6  December 14 , 1990 Transcript at 9-10. th  Ibid, at 11.  79 legal authority over the territory and the building o f a logging road through the sacred gravesites o f the L i l ' w a t people. Other than on the basis o f a leaning i n favour o f the Crown, how does one explain the failure o f the judge to request further explanation from the Crown for the discrepancy between his recorded statement and the flat denial o f its truth by legal counsel for the Band Chief? Counsel for the Provincial Attorney General represents the same party that failed to gain access to L i l ' w a t reserve land through negotiation. The independence and impartiality o f the Crown's decisions must be questioned, not only in their instigation o f trespass proceedings relating to the road they had expropriated three days earlier, but also i n the instigation o f the contempt proceeding that followed. Additionally, Crown Counsel representing both the Provincial and Federal governments attempted i n every conceivable way to prevent the evidence and legal arguments i n support of L i l ' w a t sovereignty from being heard before any level o f the domestic courts. For example, M r . M c K e n z i e argued on behalf o f the Province that the testimony o f the accused L i l ' w a t people was irrelevant and inadmissible in their trial for criminal contempt. O n Dec. 10  th  1990, he objected to the L i l ' w a t testimony regarding why they considered themselves to  owe their allegiance to the L i l ' w a t N a t i o n .  187  A l s o when Clark attempted to qualify some o f  the elders as experts on L i l ' w a t oral history and L i l ' w a t law, M r . M a c K e n z i e objected that they 'may not be experts': It w i l l be our position that only experts can give opinion evidence, that lay witnesses cannot give opinion evidence, and that lay witnesses cannot give hearsay evidence except i n certain circumstances under certain exceptions.  18/  1 oo  D e c . 1(T' 1991 Transcript at 14.  Ibid. Although there may be technical merit to the specific evidentiary objections, how can it be explained by the Attorney General of British Columbia as being in the best interest of the Canadian public to prevent such crucial evidence from being heard? 188  80 M r . Justice MacDonald avoided hearing the L i l ' w a t people's evidence by relying on the principle o f collateral attack and b y ruling that criminal contempt did not require proof o f mens rea. Both o f these decisions ignored his own reference i n his judgment to the decisions of the Supreme Court o f Canada that require courts to approach the application o f constitutional rules as well as the common law to Indigenous peoples i n the manner which is 189  most favorable to them. The final example of judicial favoritism involved Justice M a c D o n a l d ' s inconsistency i n his rulings on challenges to court jurisdiction. In A Penchant for Prejudice L i n d a M i l l s identified that while bias can be exhibited in reasoning as well as i n decisions, the former may be difficult to reveal due to the fact that it w i l l usually be accomplished b y way o f an acceptable legal p r i n c i p l e .  190  In the L i l ' w a t criminal contempt case, while the judge insisted  the collateral attack rule prevented his hearing o f the L i l ' w a t jurisdiction argument he had no such difficulty when the Federal government challenged his jurisdiction vis-a-vis the L i l ' w a t juveniles. M r . Justice MacDonald insisted on a full-day o f legal argument on whether the B . C . Supreme Court or the Provincial Family Court had jurisdiction over the juvenile accused.  191  This jurisdictional challenge was fundamentally analogous to the L i l ' w a t preliminary jurisdictional challenge i n that, i f successful, it would nullify the jurisdiction o f the original order ofthe C h i e f Justice i n relation to the juveniles as well as M r . Justice MacDonald's jurisdiction over them for criminal contempt. 189  March 18 , 1991 Reasons for Judgment at 23-4. Mr. Justice MacDonald  190  Mills, supra note 9 at 12.  th  The jurisdictional question was whether the Young Offender's Act had placed exclusive jurisdiction for contempt of court committed by juveniles with the Provincial Family Court of B.C? Pursuant to it's inherent jurisdiction, could the Supreme Court of British Columbia also here such a case? 191  A s to the impossibility o f hearing the L i l ' w a t ' s jurisdictional challenge, the judge was  81  so certain on this point that he interrupted Clark's opening: The Court: I now ask counsel for the Attorney General to proceed with his case for contempt Clark: M y Lord, I am halfway through m y opening statement. The Court: I recognize that. M r . Clark: Y o u are refusing these people the right to have their counsel complete the opening statement? The Court: I am indeed. Clark next stated he intended to cite several cases i n support o f the L i l ' w a t ' s legal defense position and asked specifically whether M r . Justice M a c D o n a l d was also refusing to let h i m cite those cases? The Court: I am indeed. M r . Clark: M y lord, I believe counsel would like to confer for the purpose o f requesting that this court declare a mistrial because o f manifest evidence of judicial bias. The Court: I w i l l be happy to give you the opportunity to develop that argument, M r . Clark 1 9 2  M r . Justice MacDonald added however, that as soon as Clark's argument regarding his lack o f impartiality was completed, he wished to determine when the Attorney General would be in a position to proceed.  193  Clark cited Art. 14(1.) o f the International Covenant on Civil and Political Rights and s. 11 (d.) o f the Canadian Charter of Freedoms and Rights i n support o f the right to an impartial hearing.  194  Clark stated that in light o f the judge's refusal to let h i m complete his  opening statement it was his opinion that an impartial hearing was unlikely due to "the court  192  Nov. 20 , 1990 Transcript at 49. th  Justice MacDonald's comment suggests a preconceived opinion that the application for a mistrial will fail. It is evidence of 'a leaning towards one party over the other' that the only perspective the judge will take of the criminal proceeding before him is that of the enforcement of the Supreme court order. 193  194  See ICCPR., supra note 70 and Canadian Charter ofRights and Freedoms, s. 7, Part I of the  Constitution Act, 1982, being Schedule B to the Canada Act 1982(U.K.), 1982, c. 11 [ "Charter"].  82 having demonstrated the existence o f a prejudgment on a fundamental issue regarding Aboriginal rights."  195  M r . Justice MacDonald simply held against Clark's mistrial application and his focus to completing the Crown's case o f criminal contempt against the L i l ' w a t traditional peoples. The one exception to this focus was where the judge, in complete opposition to his ruling in relation to the Lil'wats, allowed Crown counsel on behalf o f both governments, a full day's argument during which he allowed both his and the Chief Justice's jurisdiction to be legally challenged. In relation to the L i l ' w a t accused he had repeatedly taken the position, that whether he liked it or not, he had absolutely no choice in the matter, whereas when the jurisdictional challenge arose between two courts within the province, he was able to conclude there was a possibility that the original injunction was a nullity. H e was insistent i n response to the government's jurisdictional challenge that " I ' m a creature o f law and bound by it so I ' m going to hear the submissions o f both counsel as to whether or not I can i n fact exercise jurisdiction over those younger people."  196  H e did not once make reference to the collateral  attack rule. Instead, in his M a r c h 15 , 1991 ruling, M r . Justice M a c D o n a l d stated i f the th  Family Court had exclusive jurisdiction over the juveniles then these proceedings i n the B . C . S . C . would be a nullity against them, precisely the finding he insisted he was absolutely precluded from making when the jurisdictional challenge originated with the adult L i l ' w a t accused. Other than a leaning in favor ofthe Crown or a particular outcome, how can the judge's discrepancy in his handling o f the two jurisdiction challenges be reconciled? B y the conclusion o f this case, one is left with a distinct impression that the judiciary had  195  November 20 , 1990 Transcript at 51.  196  Nov. 21 , 1990 Transcript at 81.  th  st  83 a considerable leaning i n favor o f the C r o w n and it's p o s i t i o n  197  as opposed to exhibiting  necessary neutrality. Each o f the incidents i n and o f themselves may not provide a sufficient basis to reach the conclusion there was judicial or institutional bias, however cumulatively these examples should make evident a bias in the judicial conduct o f the proceedings as a whole, as well as demonstrating a repeated favouring ofthe Crown. 3.4 A J u d g e is Not to M a k e C o m m e n t s that C r e a t e a n A p p r e h e n s i o n of B i a s Comments that reflect a lack o f impartiality in the state o f mind or attitude ofthe tribunal may address not only the issues before the court but the parties as w e l l . (Minister of Employment immigration),  1 9 8  In Yusuf v. Canada  the Supreme Court o f Canada held that where "the  judiciary made comments about her that created an impression o f bias" the requirement o f impartiality was not m e t .  199  Consider whether the following comments o f Justice M a c D o n a l d  in the criminal contempt trial create an apprehension o f bias. Throughout the several months of the proceeding, the L i l ' w a t people refused to identify themselves by either their L i l ' w a t name or their English name before a legal system that they claimed had no jurisdiction over them on their unceded territory. M r . Justice M a c D o n a l d was referring to this position when he stated that he "appreciated it.. .you are entitled to be proud of that d e c i s i o n . "  200  H e acknowledged that their refusal to name themselves or to enter into  an undertaking with h i m for their release, were viewed by the L i l ' w a t people as a recognition o f jurisdiction that they believed the court did not have.  A.G. v. Chief Fraser, supra note 10. Statement of Claim of the Attorney General of British Columbia at para.2: "Her Majesty the Queen in right of the Province of British Columbia (the Province) is the owner of public highways within the province of British Columbia." 198  R. v. Valente [1985] 2 S.C.R. 673, [1985] S.C.J. No. 77.  199  Yusuf v. Canada (Minister of Employment & Immigration) [1992] 1. F.C. 629 ( C A . )  2 0 0  April 17 , 1991 Transcript at 6. lh  84 The following exchanges with various traditional L i l ' w a t u m reveal the conflict over  The Speaker: I would just like to know how come you have to know the English names. Explain it more. I didn't really understand why you have to know the English names. The Court: There has to be an order entered as a result o f what I am doing here today, or what I've done so far today...and that order must contain a name i n my language, and that is the only reason I need your name. The Speaker: So i f someone had a French name or Dutch name? The Court: That would be acceptable, yes, i f that was the name— The Speaker: So you're saying a European name? The Court: Y e s . A European name. The Speaker: So is m y language not a language to you? The Court: N o t to me, no. I don't understand it. It's a language to me. I have heard it spoken here. It's a beautiful language. I don't understand it, nor does my system understand it. The Speaker: D o you understand Dutch? The Court: N o . The Speaker: So what's the difference? The Court: I could explain the difference i f you wanted me to. The Speaker: Y e s , please. The Court: The Dutch nation, unlike the L i l ' W a t nation, has a system o f recording which we can trace through our system to that. We can't do that to the L i l ' W a t s . The Speaker: Y o u didn't ask. The Court: That's the reason. That's all. The Speaker: So can you explain it again. I don't quite understand what you're— The Court: N o . I think I have explained it once. The Speaker: I am trying to figure out what you are saying is you are saying the reason that you w i l l accept that is because you can look, read up a history on it? The Court: But the reason I am accepting Dutch or English is that it's a name, a language which m y system recognizes. M y system does not at the moment recognize the L i l ' W a t language. The Speaker: Why? The Court: I don't know w h y . A n d I am not called upon to explain why. I just have to know that that's a fact and that's why I need a name that I can recognize. The Speaker: W e l l , I am not giving m y name out o f w i l l . I am being forced, blackmailed into giving my name. I would just like to say that. 202  The giving of their English name satisfied what Mr. Justice MacDonald insisted was a requirement at law to have them submit to the jurisdiction of his court regardless of the fact that this was in exact opposition to their sovereign position as expressed throughout each appearance of the Lil'wat accused. 201  Perhaps the explanation for the judge not knowing why the Canadian legal system operates as it does, is because as Mills explains: "prejudicial beliefs exist in our psyches, in our unconscious". Mills, supra note 9 at 24. 202  85 The Court: I understand. The judge had the following exchange with Trudy Williams at the same sentencing hearing: The Speaker: But I don't understand why we got to give out English. The Court: Because ofthe system in which I am forced to work, that's w h y .  2 0 4  A short time later at in the hearing another L i l ' w a t accused testified as follows: The Speaker: M y name is Paypadoosh. (phonetic) That's my given name from my grandfather. The Court: What's your English name. The Speaker: That is m y name. The Court: I ' m sorry, i f that goes on again I w i l l have to get the sheriff to take you out o f the room. I ' m sorry. Please, I ' m trying to be respectful. I would like you to be as well. N o w , go ahead. The Speaker: It was given to me at birth by m y grandfather. M y name is Paypadoosh. (phonetic) W e l l , that's all I have to say. The Court: W e l l , are you going to give me your English name, or aren't you? The Speaker: That's my name. The Court: W e l l , then, o f course, you realize that i f you don't, I have got to direct the sheriffs to take you into custody. The Speaker: Might as well take us all. The Court: I may have to. A n d finally, the exchange between Tsemhu7qw, the L i l ' w a t Watchman and M r . Justice MacDonald at the sentencing hearing: The Court: Number 8, the watchman. The Speaker: Sumquash (phonetic) The Court: Before you go, could I have your name, please? The Speaker: (speaking the L i l ' W a t language) The Court: Y o u r English name. The Speaker: (speaking the L i l ' W a t language) The Court: I ' m sorry, I don't understand it that way. C a n I have your English name? The Speaker: (speaking the L i l ' W a t language) The Court: I take it the answer is no? The Speaker: (speaking the L i l ' W a t language) The Court: Y o u understand the position this puts me in, do you? M r . Sheriff, would you take that man into custody, please. I'm s o r r y . 206  86 Following the judge's incarceration o f the Lil'wats, Clark stated to the judge: They say their identity is Indian. Their name is them. A n y insistence that they have to translate in their country their Indian identity into white man's terms is patently and consummately racist, and they prefer that this system convict itself.  207  A n d a few lines later Clark added: "This process o f criminalization is demeaning not only to them, but more demeaning to us who take part in the legal system."  208  Clark explained to the  judge that treating the L i l ' w a t people in this manner is .. .really exerting the power o f our race o f people over their race o f people. A n d there is no way that we can k i d ourselves when we walk out o f this courtroom today because the great white father has suspended sentence that he is somehow a benefactor. A tyrant is a tyrant. A n d one o f the most basic characteristics o f tyranny is that when the underling is brought to heal, the great white father pats h i m or her on the head and sends them away, that....is the most insidious, corrupting, and demeaning aspect o f colonialism. It is the worst aspect o f racism. It reduces proud, dignified human beings to—to a lesser state. A n d by doing that it not only demeans them, but it demeans us. A n d so I am not prepared to give this man's n a m e .  209  The judge responded that he had no intention that his rulings would be seen to have been humbling o f anyone and he claimed that was not what he was about to do " . . .or what I intend to do. It's your c h o i c e . "  210  Even after jailing Tsemhu7qw for his refusal to use his English  name Justice MacDonald stated "I have no intention o f punishing you for that stand on your  April 15 , 1991 Transcript at 57. th  204  Ibid, at 56.  205  April 15 , 1991 Transcript at 37. th  April 15 , 1991 Transcript at 47. As to whether the judge's comments create an apprehension of bias, the reasonable person must also note the frequent judicial use of apology while making rulings, including when Mr. Justice MacDonald incarcerated Tsemhu7qw for persisting in identifying himself in his own language. 206  2 0 7  208  2 0 9  2 , 0  th  April 16 , 1991 Transcript at 5. th  Ibid.  April 15 , 1991 Transcript at 49. th  Ibid.  87 part."  211  To watch as the L i l ' w a t traditional people were jailed for their refusal to name themselves in the Newcomer's language created a strong apprehension o f bias in me. In fact, it was judicial positions such as this that convinced me that I could no longer participate as an officer o f the court. It also indicated how deeply entwined the colonial regime was with the Superior court's process. The next comments for consideration involve Justice MacDonald's response to Clark's submissions during an application for an interim injunction on behalf o f the L i l ' w a t people on December 10 , 1990: th  Clark: M y clients have an honest and legitimate concern that irreparable damage is currently being done to their unceded Indian territory. For example, I should want your lordship immediately to hear their evidence that sacred graveyards are about to be blasted or flooded, and other non-compensable geographical environmental and ecological changes affected. I wish to persuade your lordship that this situation is critical, an interim remedy is absolutely essential pending the Christmas adjournment since it now appears practically impossible to achieve a final disposition before then. 213  The next day, Clark summed up the judicial conduct o f the case as follows: h i a nutshell, the province molests or disturbs and the federal government turns a blind eye. When the Indians turned to the Canadian court system to insist that the rule o f law be obeyed, as they did yesterday when we asked for an interim injunction from your lordship, they learned that the provincial court system is not inclined to react on their behalf promptly to forestall imminent danger and permanent destruction. 214  A g a i n Clark stated that there was a crisis on the land and in these circumstances "your  2 1 1  April 17 , 1991 Transcript at 6. th  The exchanges on names, in addition to providing evidence of comments that create an apprehension of bias, also provide evidence of institutional bias.  2 1 2  December 10 , 1990 Transcript at 11. The Notice of Motion applied for an injunction against the provincial government to prevent the Province and others from transporting trees, chattels or materials used or to be used to alter the geographical, environmental or ecological condition of the traditional territory of the Lil'Wat Peoples of the Stl'atl'imx Nation. 2 1 3  214  th  Dec. 12 , 1991 Transcript at 3. th  88 lordship ought to issue an interim injunction at least to bind and protect the land until we return to court in January.  215  The Court: M r . Clark, I have already told you that I am not going to deal with that motion on an interim basis until the end o f this case. M r . Clark: A n d your lordship understands... .that I have been informed that sacred pictographs are about to be blown up and forever destroyed. The Court: Y e s , I have heard you say that. Where the judge responded to the L i l ' w a t crisis in such a detached manner while having the inherent jurisdiction to prevent the destruction of something so sacred to the L i l ' w a t peoples, he created an apprehension o f bias. A few days later M r . Justice MacDonald complained that he had become impatient with Clark and his: .. .tangents which indirectly are seeking to do the same thing. ... A n d in order to rule on the injunction application, for example, I would have to accept the argument that I am not bound by the order o f the Chief Justice, and I come around to exactly the same issue that I am going to face when I come to the end o f these proceedings, and that's why I won't deal with that application." M r . Clark: Then I must have phrased m y proposition very badly because I suggest, my lord, that it is patently unnecessary for you to go around the order o f the Chief Justice by accepting jurisdiction on the counter-injunction application. The Court: W e l l , I disagree with you and I so ruled yesterday. M r . Clark: W e l l , we haven't argued the point yet, though. The Court: Y o u did yesterday, as far as I am going to permit you to... Clark: Our further submission is that—well, it just seems inconceivable to me— maybe I am wrong, but i f there are actually sacred sites being blown up, doesn't that concern your lordship? The Court: O f course it does. But that's not what I am here to listen to.  216  A few days later the judge again commented on his displeasure at Clark, this time for his attempt to burden h i m with the responsibility for the destruction o f the sacred sites: .. .in fact I did on December 14 come to regret that decision very much, because it was put to me by you on that day that unless I granted the injunction that all would be lost and the terrible onus o f permitting the alleged desecration o f gravesites, etc., was  2 1 5  Dec. 10 , 1990 Transcript at 22.  2 1 6  D e c . 12 , 1990 Transcript at 3-5.  th  th  89 put entirely on m y personal shoulders or a least there was an attempt to do that and I was most upset by the.. . M r . Clark. I make no bones about that. 2 1 7  The judge appeared unwilling or unable to take responsibility for the consequences o f his rulings. H e had by this stage in the trial refused a great number o f valid legal options to prevent the desecration that was occurring. He made evident his displeasure at the interruption o f the criminalization process or being held accountable for the effect o f his decisions. O n January 7 , 1991, M r . Justice MacDonald made specific reference on record to the th  fact that Chief Justice Esson did not want him to hear the L i l ' w a t ' s interim injunction application. The Chief Justice apparently believed that i f Justice M a c D o n a l d dealt with the interim application, it would create a perception o f bias i n respect to the contempt matter. M r . Justice MacDonald stated: " . . .my concern about the injunction matter was that it would telegraph a view, however I tried to disguise it, o f the merits o f this contempt matter."  218  Clark responded to M r . Justice MacDonald that he regarded h i m as: .. .someone who could make an historic difference in Canadian constitutional history.. .and I should be very, very disappointed. .. . i f your lordship is warned off the larger issues and I think that's what is happening. ... we appeared to be entering a era when substance might be granted the ascendancy over form.. .because finally one judge was really going to really look at what's really 219  been happening and get down to brass tacks. When Clark expressed his disappointment Justice M a c D o n a l d stated that he 79fl  "understands.. .but unfortunately I can't do anything about that."  •  The judge's insistence on  his lack o f capacity, coupled with knowledge that he had the inherent power to handle the matter justly, created an apprehension o f bias. 217  January 7 , 1991 Transcript at 9.  218  January 7 , 1991 Transcript at 27.  219  Ibid, at 28-9.  220  Ibid, at 30.  th  th  In the next example consider the judge's comments made in response to Clark's  90  request that the judge take a view o f the area in question and additionally that he agree to hear the evidence o f the L i l ' w a t people in Mount Currie rather than Vancouver: " . . .in an 221  environment that is less spiritually antagonistic, lest they be intimidated." While it is obviously more convenient for the judge, court staff and government counsel to have the L i l ' w a t people testify in Vancouver, the judge's comments gave greater weight to the Newcomer's convenience than to that o f the L i l ' w a t people who have been in possession o f the land without interruption for thousands o f years. This created an apprehension o f bias 999  in the L i l ' w a t accused before the court.  Sharon Thevarge made this point at her sentencing  when she stated: I mean this is ludicrous. W e are sitting here in a white man's room. W e have twenty sheriffs in here. A n d one person said: I am not going to give m y name and, boom, they are all climbing in. It's stupid, stupid. I want you to come to m y court and hear me out in my own court. A n d you cannot say we don't have it because we do.. . Y o u can't tell us what we can and cannot do in our court, in our community. Y o u can't. Those are m y graves over there, m y ancestors. A n d here we have to sit i n a stupid 99 ^  white court and fight for it. Why? Y o u have to come to m y court, you, you. M r . Justice MacDonald repeated his refusal to hear the L i l ' w a t injunction application until the contempt proceedings were 'dealt with' and added: I have no intention o f taking a view in respect o f that application because I have no intention o f dealing with that application. It would be completely impractical to hear the evidence in these proceedings in Mount Currie, and I refuse to do s o . 224  A t this Clark juncture sought an adjournment o f the contempt trial so as to appeal to the  2 2 1  Dec. 12 , 1991 Transcript at 2. th  Needless to say, in terms of an impartial forum, the larger question is why is the Newcomers' legal system considered an acceptable forum for the resolution of the dispute, any more so than would be the Lil'wats' legal system? This will be given further consideration in section 3.6 that addresses institutional bias. 2 2 2  2 2 3  April 15 , 1991 Transcript at 59.  2 2 4  Dec. 12'\ 1990 Transcript at 3.  th  91 British Columbia Court o f Appeal the question o f whether the interim injunction application to prevent the desecration o f the graves and sacred sites was a distinguishable and separate matter, or a collateral attack on Chief Justice Esson's injunctive order. M r . Justice MacDonald refused the adjournment application telling Clark that he could do so next week when he was scheduled to be out o f town on another trial. H e then ordered Clark "to produce his witnesses."  225  The judge's impatience with any legal approach that prevented h i m from completing the criminal trial o f the L i l ' w a t people reveals the degree o f his persistence in pursuing the criminal contempt conviction against the L i l ' w a t traditional peoples. H e would neither hear nor adjourn, so that another judge might hear the application by the L i l ' w a t peoples for an injunction to prevent the imminent desecration o f their ancestor's graves. The determination o f the judge to complete the criminalization o f the L i l ' w a t people leads us into a discussion of whether the judge was influenced by factors other than the evidence before h i m . 3.5 Nemo Potent Esse Simul Actor et Judex: Judges must begin their consideration o f a case from a neutral position, free from alignment with the parties involved in the case. They must not have a distinct, pecuniary, or a personal interest i n the outcome o f the case before t h e m .  226  Without this position o f  disinterest, a judge's ability to resolve the matter is compromised. Judges who continue regardless o f a conflict o f interest open themselves to the charge that the case was decided on grounds other than the evidence or law before them. Kenneth Henley comments in his article "The Impersonal Rule o f L a w " that: "police, prosecutors, and judges offend against the rule  225  Ibid, at 6.  See Pearlman where the SCC states: "...situations where decision makers have or are perceived to have a pecuniary interest in the outcome of the hearing before them could place their impartiality in question." Pearlman v. Manitoba Law Society Judicial Committee [1991] S.C.R. 869. 226  92 o f law i f they are influenced by personal interests, allegiance to class or other group, bias, or whim in the administration and application of l a w . "  227  These principles form the basis o f  the legal maxim Nemo potent esse simul actor et judex: "no one can be at once both suitor and judge." During the L i l ' w a t criminal contempt hearing Clark referred to the Latin maxim and stated: .. .it is not appropriate for the appointees o f one nation and race o f people to sit i n judgment in a civil dispute against an adversary race o f people. .. .it is no more appropriate for your lordship to presume to judge or enforce laws that make.. .my clients trespassers on their own unceded Indian territory than it would be for an 99R  Indian court to presume to unilaterally resolve the dispute. In Justice in Paradise he comments: The genius o f the rule o f law is that, by the simple device o f a third party as 99Q  adjudicator, it removes the corrupting influence o f self-interest. The embedded conflict o f interest for any Newcomer domestic court judge regarding jurisdiction over non-treaty Indigenous territory is immense. A s an integral part o f the system that has usurped Indigenous jurisdiction, complete detachment is unrealistic. Legislatively extending the jurisdiction o f the British Columbia courts was a key manner o f allegedly asserting British sovereignty over Lilwat territory. This one fact makes the domestic judiciary unable to claim they are free o f a distinct and personal interest i n the outcome o f the case. The L i l ' w a t s ' jurisdictional challenge could be perceived as a significant threat to the superior court judiciary given that it affects the majority o f the territory over which they have assumed jurisdiction. The lack o f the court's neutrality was shown near the beginning o f the contempt trial. A n 227  K. Henley, "The Impersonal Rule of Law" (1992) 5 Can. J.L.& Juris. 299-308 at para.20.  228  January 25 , 1991 Transcript at 32.  229  Clark, supra note 28 at 79.  th  93 exchange between M r . Clark and M r . Justice MacDonald while made somewhat i n jest nevertheless contained the essential erroneous assumption that the judge proceeded upon throughout the case. Justice MacDonald was commenting on a photograph o f a sign taken at the site o f the roadblock: The Court: I would guess that that is a portion o f a message that reads " L i l ' W a t Territory Never Has Been Surrendered." M r . Clark: W o u l d it be fair to assume that that is not my lordship's judgment at this point? The Court: I think that's a fair assumption.  230  A second more serious example o f the judiciary as non-neutral occurred when M r . Justice Braidwood o f the British Columbia Court o f Appeal refused to allow Clark to present the legal argument o f the traditional Lil'wats at the appeal o f the injunctive order relating to the 231  Ure Creek protest site.  The judge addressed the L i l ' w a t people with the following  admonishment: .. .what you have done is to deliberately disregard the whole fabric o f a law abiding society and to trample the rights o f others, here loggers and road builders. This is no way to advance the claim you hold here. Y o u r case becomes confused with the necessity to maintain law and order. It is the duty o f this court to act upon and to 9^9  apply the law as it now exists. H i s statements are clear evidence o f his preconceived opinion as to whose rights take precedent between the logging corporation, the Newcomer public, and the original Indigenous peoples ofthe territory. Justice Braidwood began with the assumption that logging was the lawful activity that was being impeded by the unlawful actions ofthe L i l ' w a t " ° Nov. 26 , 1990 Transcript at 18. tn  Interfor v. Pascal, supra note 32. April 15 , 1991 Transcript at 13. The Ure Creek case involved a second stand taken by Lil'wat traditional people closer to the actual gravesite area after the dismantling ofthe roadblock on the reserve. An injunctive order to remove the Lil'wat protestors was granted by Mr. Justice Wetmore to Interfor Logging Corporation. Clark noted that the judge in this injunction application "announced at the outset of the hearing that he would not entertain any objections based on constitutional law." Clark supra note 28 at 109. 231  th  Nightingale identifies that race and gender bias amongst judges affects their perceptions of wrongdoing and injury. Nightingale, supra note 136 at 72. 232  94 protestors.  233  H i s inability to remain neutral while hearing the applicable law according to  each party resulted in the appearance that he was aligned with the suitor i n the case. In order to qualify or be seen as an impartial adjudicator i n this criminal contempt case, the court would have to address the fundamental legal rights o f the Indigenous peoples o f the territory before it ordered their arrest and condoned their criminalization for peacefully asserting authority in their unceded territory. In fact, in order to provide a truly impartial tribunal i n relation to a land dispute between Indigenous peoples and Newcomers, an adjudicator should not have a preference for one legal system over the other. Clark put it this way: In essence, territory is off-limits to newcomers until it has been purchased by the newcomers' governments from the natives. A n d purchase is a question o f mixed fact and law...Since the courts o f the natives and the courts o f the newcomers equally are interested in the answer to the purchase question, each court system, including this court, is equally biased i n addressing and resolving it. For this reason, the law is that this question can only be answered as to any given territory by an outsider-an independent and impartial third party court-one whose jurisdiction does not itself turn upon a prejudgment o f the very issue in contention: which court system, native or newcomer, has jurisdiction? 2 3 4  In Human Rights of Indigenous Peoples, Erica-Irene Daes reveals the inappropriateness of Newcomer's assumption of jurisdiction. She claims the economic agenda o f states is a doctrine o f dispossession that colonists rely on to justify the dispossession o f Indigenous peoples' land by non-Indigenous sovereigns.  235  She observed that this agenda drives  attitudes, doctrines and policies developed to justify the taking o f such lands. Youngblood  Consider Lynch, Michalowski and Groves where they conclude "the more the behavior of the powerless conflicts with the interests of the powerful the more likely it is that this behavior will be defined as crime." M . Lynch, R. Michalowski, and W. Groves, The New Primer in Radical Criminology: Critical Perspectives on Crime, Power & Identity, 3rd ed. (Monsey, New York: Criminal Justice Press, 2000) at 60. 2 3 4  Clark, supra note 28 at 182.  E. Daes, Spec. Rapp. Human Rights of Indigenous Peoples: Indigenous people and their relationship to land. ECOSOC, CHR E/CN/Sub.2/1997/17, 20 June, 1997 at 8. 2 3 5  95 Henderson also comments on the existence o f self-interest and lack o f neutrality i n the courts in "Colonial Biases in Canadian L a w " : Courts need to resist the resilient structures o f colonialism and its self-interest, and perform their new task in the constitutional order by accommodating Aboriginal legal analysis and expanding legal consciousness. .. .To continue to invoke precedents o f a biased colonial legal order in the context o f Aboriginal and treaty rights is rather like suggesting that earlier debates over whether women were persons are still relevant i n litigation respecting gender equality. 236  In the eyes o f the traditional L i l ' w a t peoples, the court's insistence on protecting the economic rights o f the Newcomer public and its logging corporation was blatantly biased. To them, Justice Braidwood had revealed his lack o f neutrality i n the matter by privileging the Province's economic agenda. Sasquatch, one o f the L i l ' w a t accused expressed it as follows: "...I can't make money in my own land, in our own territory, while all the other white corporations are there stripping it clean for their own benefit."  237  Where the economic interests ofthe dominant society sways the exercise o f the discretion o f the judiciary they have lost their neutrality; they are being influenced b y factors other than the evidence and the law. Throughout the contempt case the judiciary and the media focused on the right o f access o f the Newcomer's public, the economic cost o f the interruption to the road building o f the logging corporation, and the effect on non-native summer tourism at Lillooet Lake and the nearby town o f Lillooet, rather than the desecration o f L i l ' w a t graves, pictographs and spiritual sites. In opposition to M r . Justice Braidwood's view o f the superiority o f the rights o f loggers and road builders to those o f the L i l ' w a t people, Youngblood Henderson observes: A n y existing wealth and power within Canada can be attributed to the confiscation o f natural resources from Aboriginal peoples and the maintenance o f a virtual monopoly  J. Henderson, M . Benson & I. Findlay, "Displacing Colonial Discourse" in Aboriginal Tenure in the Constitution of Canada (Scarborough, Ont.: Carswell, 2000) 312-29 at 313-16.  2 3 6  2 3 7  December 12 , 1991 Transcript at 31. th  96 over commercial enterprises. There is no moral superiority in the activities that have imposed domination and poverty on Aboriginal peoples.  238  It is reliance on a similar bias that explains the third example o f a judge identifying himself with the suitor in the case rather than maintaining his neutrality i n the dispute. In the original application Chief Justice Esson found that the balance o f convenience during the interim injunction period was in favor o f public access for Newcomers and the continued operations o f the logging corporation. In his Oral Reasons for Judgment on N o v . 5 , 1990 he th  also relied on 'the public interest' to add the authority for the police to arrest anyone in breach o f his injunctive order, and he stated that "during the interim or interlocutory period .. .the road w i l l be kept open to traffic on the basis that it is a public r o a d . "  239  Chief Justice  Esson assumed that the L i l ' w a t s ' unceded land was part o f the public's Provincial highway system in spite o f the existence o f paramount constitutional law to support the proposition that within the enclave o f a Federal Indian reserve the Provincial government lacks jurisdiction.  240  The logging company's 'rights' originated by way o f license issued by the  Provincial government, that in relation to reserve land, is itself a third party encroacher without a legal presumption o f ownership to rely u p o n .  241  The C r o w n relied on the fact that there is no precedent that holds that the Indigenous peoples are sovereign on their unceded lands. The L i l ' w a t peoples pointed to the mirror image: there is no decision that they are not sovereign. In fact, the point has never been fully argued before the court. Clark submitted that it came down to the question o f which piece o f  "Empowering", supra note 58 at 310. A.G. v. ChiefAndrew, supra note 10. November 5 , 1990. Oral Reasons for Judgment. C. J. Esson. 239  240  th  The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3., ss. 91 and 92.  "Empowering", supra note 58 at 288, fn. 237. In addition to Clark, Henderson makes reference to the traditional legal presumption being against any implied relinquishment of sovereignty. 241  97 legislation was paramount: the Supreme Court A c t or The R o y a l Proclamation? In order to be able to answer that question he proved that colonial governments such as British 242  Columbia are subordinate institutions, as are its courts. Both exercise delimited authority. He demonstrated that the predecessors to the Supreme Court o f British Columbia were only invested with general jurisdiction in relation to territory that had been ceded to or purchased by the Crown from the Indian N a t i o n s .  243  The Royal Proclamation prohibits Crown  governments such as British Columbia from granting to third parties any rights to yet unceded Indian territory: In sum, the significance o f the K i n g ' s Proclamation o f 1763 is that it is the first written constitution relative to all British North America. F r o m this overriding position o f authority and influence, it affirmed the relationship o f respect as the touchstone for the legal validity o f all lesser l a w s . 244  He concluded his submission by stating that breaches ofthe constitution that occur when the Province grants third party rights, cannot amend the constitution.  245  James Youngblood  Henderson articulates a similar view:  See also where Henderson states: "Provincial federalism was never an original legal sovereignty. It was derivative of colonization and conventional English government." "Empowering", supra note 58 at 308; see also November 30 , 1990 Transcript at 23 for Clark's reference to Campbell v. Hall [1558-1774] A l l E.R. Rep. 252, (1774) 1 Cow. 204 (K.B.) where Lord Watson held that between the Indian and provincial government, the Indian interest was independent and paramount; see also Clark's submissions on November 30 , 1990 at 27 where he explains ".. .the Proclamation is an instrument being an Order in Council under the Great Seal like the Royal Commission itself which bears the Great Seal. It is legislation binding upon the colonial government." 242  th  th  Clark elaborates that: "Sublimus Deus, 1537 settles international law and was incorporated into the constitutional common law and confirmed by the written constitution ever since the Royal Proclamation of 1763. To repeal or amend this law the legislation must be of international or constitutional law weight.. .not by ordinary domestic legislation otherwise the Province or Federal government would be above the constitution from which it drives its jurisdiction." Clark, supra note 28 at 42; see also at 79. 243  Jan. 25th, 1991 Transcript at 32.  98 .. .where the First Nations did not exercise their nationality and rights to selfdetermination in federating with the Crown, no authentic foundation or constitutional context existed for colonialism or provincial federalism. .. .In colonial law, the colonialists and their assemblies were inferior to and dependent upon the British Parliament. .. .The federal method o f implementing First Nations treaties was through section 91(24). A t the time o f the treaties, the First nations were foreign countries to the confederating provinces. Thus, an imperial grant o f authority to Canada to make laws in relations to "Indians, and lands reserved for the Indians" does not convey legislative or proprietary rights over First Nations. A s part o f their constitutional obligations to the imperial Sovereign, the federal Parliament was granted authority to carry out the limited delegated authority arising under the prerogative treaties. The main reason for this power was to protect the first Nations from the local colonialist. These are, constitutionally speaking, the federal government's administrative duties to the Crown. Neither the prerogative treaties, instructions, proclamations nor acts o f the imperial Parliament ever authorized the provinces or the federal government o f Canada to enact comprehensive legislative code for First Nations or their members." 246  247  Clark referred to: .. .any attempt to enforce such legislation is a breach o f the rule o f law due to the fact that it places a negative or reverse onus on the Indians, when the R o y a l Proclamation o f 1763 results i n a presumption at law, that the natives should not be molested or disturbed on the unceded lands until they have been purchased b y us at a public assembly. That injunction was an Order-in-Council under the Great Seal. That's the opening premise upon which our society is founded. 249  In terms o f supplying a fourth example from the case o f the judiciary failing to take a legally neutral position it needs to be noted that the Crown relied not upon proof o f jurisdiction, but rather that it was in the public interest to refuse to hear the challenge to jurisdiction over unceded territory. According to the Crown this was due to the "the gravity of the questions posed ... aquestion which challenges the basic constitutional framework o f this country", the "consequences", "confusion", "uncertainty" and the "disruption to the orderly function o f the administration o f justice in this province" that allowing the  "Empowering", supra note 58 at 307. Ibid, at 270-72. Ibid, at 272-73. Dec. 5 , 1990 Transcript at 46. th  jurisdictional challenge would cause.  250  M r Tyzuk noted that it was conceivable that this  99  argument could apply to injunctions throughout the province where natives on unceded territory were involved. Thus the Crown relied on the public's interest i n certainty as the 251  basis for not hearing the law going to the L i l ' w a t peoples' jurisdictional challenge.  On  January 2 5 , 1991, Clark referred to the Crown's "floodgate" argument as a political threat th  rather than a legal point. Clark advised the judge that: "contempt proceedings were designed to preserve the constitutional authority o f this court, not to create a constitutional authority in this court."  252  Once the court condoned the Crown's position that it was i n the public interest to simply assume jurisdiction rather than have the law on the issue placed before the court, they aligned themselves as suitors in the contempt prosecution. This is particularly so where, as here, the liberty o f the individual was at stake. A l s o Clark argued that the court could take judicial notice that no treaty had been entered into regarding the territory in question. The remainder o f the applicable law relating to jurisdiction consisted o f Imperial statues, proclamations and case l a w .  253  The Crown responded by taking great exception to Clark's position that the sovereignty argument before the court was one o f pure law that could be argued summarily. The Crown convinced Justice MacDonald that Chief Justice McEachern's recent decision in Delgamuukw decided conclusively against Indigenous sovereignty:  0  254  Mar. 12 , 1991 Transcript at 5; see also Feb. 15 , 1991 Transcript at 5-10. th  ' Feb. 15 , 1991 Transcript at 5. th  2  Jan. 25th, 1991 Transcript at 17.  3  Mar. 12 , 1991 Transcript at 21.  4  Ibid, at 26.  th  th  100 The Chief Justice has decided that decisively with respect to the entire province and for the entire history o f the province and the colony and it affects everyone i n British Columbia. .. .the Chief Justice has found conclusively that aboriginal ownership and jurisdiction, i f it ever occurred, was extinguished during the colonial period. 255  What the Provincial Crown did not place on record was the fact that absolutely distinguished Delgamuukw. It began by way o f an admission by legal counsel representing the Gitksan and Wet'suwet'en plaintiffs, as outlined in Chief Justice McEachern's Reasons for Judgment: In their pleadings and argument the plaintiffs admit that the underlying or radical or allodial title to the territory is in the Crown in Right o f British Columbia. This reasonable admission was one which the plaintiffs could not avoid. It sets the legal basis for any discussion o f title. The reality o f Crown ownership o f the soil o f all the lands o f the province is not open to question...In my judgment, the foregoing propositions are absolute. 257  To suggest that this approach by the judiciary ofthe B . C . Supreme Court is an impartial stance is simply untrue. The continuation by the judiciary to refuse to actually address the jurisdictional challenge displays a lack o f neutrality through alignment with the Provincial government as a suitor. 3.6 Institutional Impartiality is a R e q u i r e m e n t  255  Ibid, at 30.  256  Delgamuukw v. British Columbia [1991] B.C.J. No. 525 Reasons for Judgment: Part 10 at 79.  Ibid, at 81; see also Nightingale, supra note 136 at 71 where she states: "impartiality is virtually impossible where a judge's personal predispositions (biases) are viewed as objective realities." She identifies "aversive racism" as being acted out by an individual that does not see their beliefs as constituting racism because they are perceived as empirical facts; consider also where Fisher comments that "having the legal system recreate the past in its own image is not good history." R. Fisher and K . Coates, eds. Out of the Background: Readings on Canadian Native History, 2 ed (Toronto: Copp Clark, 1996) at 391. Chief Justice McEachern's position on Indigenous sovereignty is not based on evidence and legal argument as required by the rule of law. It consists of an assertion of 'might' over 'right'. Essentially he ruled that Canada is sovereign because she has dominated the natives for a long period of time and the court will not hear legal argument that suggests anything else. How can this case be relied upon as resolving the issue of Indigenous sovereignty when that point proceeded by way of an admission by the plaintiffs in Delgamuukw! 257  nd  101 The Supreme Court o f Canada in Ruffo held that the right to be tried by an independent and impartial tribunal is an integral part o f the principle o f fundamental justice protected by s. 7 o f the Canadian Charter. The constitutional guarantee includes the concept *  258  of institutional impartiality.  If the system is structured i n such a way as to create a  reasonable apprehension o f bias on an institutional level, the requirement o f impartiality is not met.  The determination must be made having regard to a number o f factors, including  but not limited to, the potential for conflict between the interests o f tribunal members and those o f the parties who appear before t h e m .  260  There can be no doubt that the bias i n this  case is institutional. The majority o f the territorial jurisdiction o f the court has been usurped from the Indigenous nations and the court refuses to allow the legal basis for this jurisdictional assumption to be questioned. Clark refers to this conflict when the courts refused to hear the law regarding the jurisdictional challenge: "Part o f the reason for their resistance, I suppose, is the immensity o f the consequences. The unceded Indian territory in Canada is, by some estimates, 80 percent o f the country's land mass, i f arguably invalid Indian treaties are included."  261  The assumption o f jurisdiction is not only a problem i n the operation o f the courts but it also permeates the domestic legal system as a whole. The Provincial government participated in the assumption o f jurisdiction by the laying o f charges in relation to unceded territory. The R . C . M . P . unquestioningly participated in the enforcement operation on the unceded land o f Ruffo v. Conseil de la magistrature [1995] 4 S.C.R. 267; [1995] S . C J . No.100. The other similar point in this case is the impression left by the judiciary that they had made up their mind on significant points before hearing all of the evidence. 258  259  R. v. Lippe [1991] 2 S.C.R. 114.  260  Matsqui Indian Band v. Canadian Pacific Limited and Unitel Communications Inc. [1995] 1  S.C.R. 3. Consider Clark's reference to the legal implication that in relation to unceded Indian territory there is no constitutional jurisdiction to tax. Clark, supra note 28 at 32. 261  102 the L i l ' w a t peoples. The validity o f legislation over Indians on unceded territory is additionally assumed. Both the Federal and Provincial governments are engaged in legislating on the basis o f legal fictions. Reliance upon such legislation to dispossess the Indigenous peoples o f their authority over their territories results in institutional bias. For instance, in the L i l ' w a t dispute over the public highway through unceded territory, the judiciary upheld the Provincial government's legislation granting the right to the Province to expropriate l / 2 0  th  o f reserve land where it serves the Newcomer's public interest.  Linda G . M i l l s referred to this aspect o f institutional partiality where she stated i n A Penchant for Prejudice: " . . .the rules themselves are often biased."  262  Perhaps her comment  helps to explain Justice MacDonald's apology made at the sentencing hearing o f the L i l ' w a t people: I recognize the fact that the legal system does not appear to be able to give you people the answer that you think you are entitled to get. I feel, and so do, I am sure, some o f the other judges o f this bench, although I have not talked about it to them in any detail, that there has got to be a political solution to these problems that you people face and that it is not within m y power, not in these proceedings, to help you. I am sorry for that, but I have had to come to that conclusion. I have done it i n what I consider to be all good faith, and I have apologized to others for that. I apologize to you.  263  The fact that the judiciary plays a central role in the assumption o f Indigenous jurisdiction appears to be the only explanation for their insistence on assuming that which an impartial tribunal is required to deduce. In Law, Politics and the Judicial Process, F. Morton suggests that: Disputes are a fact o f life in political communities.. .typically neither party is willing to allow the other to unilaterally answer these questions, for fear that an adversary w i l l exploit any ambiguity o f fact or law to his or her own advantage. The selfinterest o f both parties prevents either from serving as arbiter o f the dispute. What is  Mills, supra note 9 at 5. April 15 , 1991 Transcript at 15. th  103 needed is an outside t h i r d party w h o is independent o f b o t h disputants a n d thus c a n be expected to render a n i m p a r t i a l i n q u i r y a n d r e s o l u t i o n o f the d i s p u t e . . . T h e authority o f c o n t e m p o r a r y C a n a d i a n courts s t i l l rest o n the ancient r e q u i r e m e n t o f impartiality.  264  T h e L i l ' w a t people m a d e m a n y references to i n s t i t u t i o n a l i m p a r t i a l i t y . O n e o f the c o n v i c t e d t r a d i t i o n a l L i l ' w a t w o m e n , s p e a k i n g at her sentencing h e a r i n g after h a v i n g been f o u n d g u i l t y o f c r i m i n a l contempt o f court, offered her interpretation o f the court process: I s h m e s h k e y a : .. . w h e n y o u r e a l l y l o o k at o u r l i v e s , h o w w e fit into this C a n a d i a n system is not g o i n g to w o r k . Y o u c a n ' t just keep p u t t i n g it b a c k a n d h i d i n g it a w a y .  2 6 5  It is also a l a c k o f institutional i m p a r t i a l i t y that James L o u i e , a L i l ' w a t elder, w a s r e f e r r i n g to w h e n h e stated at h i s sentencing h e a r i n g : W e thought w e w o u l d l i v e i n peace a n d h a r m o n y w i t h C a n a d a as w e d i d w i t h other nations, n e i g h b o r i n g nations a r o u n d the L i l ' w a t n a t i o n . B u t it seems to m e f r o m what I h a v e l i v e d , f r o m what I have heard, that it is not g o i n g to b e so because there is pressure, f o r e i g n pressure w i t h self-serving l a w s , rules that are i m p o s e d u p o n us, c o n d i t i o n s that are i m p o s e d o n us. A l l it says to m e is that w h a t C a n a d a is d o i n g to the L i l ' w a t n a t i o n , to m y f a m i l y , is m i g h t is r i g h t . 2 6 6  H e c o n t i n u e d b y stating: " . . . i f I have to go d o w n , I ' l l go d o w n . . . " T h e j u d g e responded that he h o p e d it is not h i m "that does i t . "  2 6 7  James L o u i e : W e l l , o k a y , y o u ' r e part o f the a c t i o n . T h e w h o l e C a n a d i a n system, j u d i c i a l system is a piece o f the action. Y o u c a n ' t get a w a y f r o m that. Y o u ' r e sitting there. The Court: I know. James L o u i e : A n d y o u are t r y i n g to say y o u have j u r i s d i c t i o n o v e r m e . Y o u are t r y i n g to say that t h r o u g h c o l o n i a l i s m that y o u have done a w a y w i t h the sovereignty. That is s o m e t h i n g the w o r l d is g o i n g to f i n d that out. ...through the i n j u n c t i o n i n the court, o k a y , y o u are p a s s i n g the b u c k  y o u k n o w what c o l o n i a l i s m is?  T h e C o u r t : I t h i n k so. James L o u i e : Y o u are part o f t h e action. W i t h w h a t they are d o i n g to us, C a n a d a is a m o d e r n d a y c o l o n i a l p o w e r . T h e w o r l d is g o i n g to f i n d that o u t . . . A n d C a n a d a is  F. Morton, "Judicial Independence, Ethics, and Discipline" in Law, Politics and the Judicial Process in Canada, 2 ed., (Calgary: University of Calgary Press, 1992) at 123. 264  nd  265  Ishmeshkeya: April 15 , 1991 Transcript at 28.  266  April 15 , 1991 Transcript at 24.  267  Ibid, at 39.  th  th  104 saying: We can't afford to have the world know what Canada is doing because it w i l l deteriorate the image of Canada. It is going to find out. ... Y o u can do whatever you want with me. That's not going to change the picture. Y o u ' r e doing it...We have basic fundamental human rights. Y o u know the Charter o f Rights. Y o u know the B i l l o f Human R i g h t s . Y o u know all o f these rights. Y o u r people i n the United Nation sign these things for an image, not for justice, and do whatever you want. U n t i l your system can admit in your hearts and in your minds that you have done wrong to the native peoples o f this country, there w i l l be no justice. 268  960  M y fate right now is in your hands. D o as you please. Another L i l ' w a t accused, M r . Dick, testified on A p r i l 3 0 , 1991, following his conviction th  and right after the judge had made another apology: M r . D i c k "...What we're doing is taking our beatings, getting criminalized, and you're ripping my ancestors out o f this earth. It's like me walking into your house, slapping your mother in the face, What you're doing, ripping my elders right out there just for your money, it's like me walking into your house, taking what I want and slapping you i n the face and walking out. That's what—that's the way I feel. The Court: Yes, I understand that. M r . Dick: Sorry, but that's the way I feel. The Court: Thank y o u . 270  Clark referred to institutional bias when he spoke o f the effect o f the Canadian legal system on the Indigenous peoples in Justice in Paradise where he stated: " . . . it is the institutionalized, implacable, complacent, and artful injustice o f the white man that is killing  268  A reference to U.D.H.R., supra note 70.  April 1 5 , 1991 Transcript at 40; see also where Henderson supports Louie's perspective when he states: "Canadian rules...were imposed by arrogance, trickery and force, not by Aboriginal choice. Canadian rules have always been unconstitutional and undemocratic." "Empowering", supra note 58 at 307; see also where Henderson speaks of the pervasive contradiction in the rule of law of Canada: "...the colonizers' habits and the deep structure of these habits were informed by racist beliefs and practices over centuries. Once legal authority rests on habitual obedience to racism the legitimacy of any legislative act or judicial decision is assumed. In this context, Canada has a difficult time asserting itself as a non-colonial state" "Empowering", supra note 58 at 65; see also Rsoenberg where he refers to the dilemma caused by the fact that our "historical selves" are defined by our families and environments. This he argues obliges us to those who constitute our "historical s e l f generating duties of loyalty toward the families, groups, and nations that enter into our selfdefinition. While these loyalties require us to act with partiality, the liberal political theory requires impartiality. He notes that Fletcher's contention is that duties of loyalty already inform legal doctrines to an extent that has not been previously appreciated. B . Rosenberg, "Quando fidelis? Drawing the Line Between Loyalty and Impartiality." Cai. L . Rev. (1994) V o l . 82 717-739 at 72026 ["Quando fidelis?"]. 2 6 9  2 7 0  th  April 15 , 1991 Transcript at 15. th  105 the native people from w i t h i n . "  271  The judge did not seem to be able to appreciate that his choice o f which laws to enforce versus which to ignore, had already exercised a strong bias i n favour ofthe B . C . Provincial government over the rights o f the original inhabitants o f the land i n question.  272  A revealing case for consideration on whether the domestic court is able to provide thirdparty adjudication is the judgment o f Judge Janice M . Stewart i n United States v. 273  Pitawanakwat.  It is, i n and o f itself, ' a third party' adjudication that finds political  partiality i n the Canadian judicial system regarding the territorial land dispute. In this instance, a foreign judge recognized the applicability o f the political offence exception. She refused Canada's request to extradite an offender convicted o f mischief causing actual danger to life and possession o f a weapon for a purpose dangerous to the public peace i n the Gustafsen Lake armed standoff o f 1995. Judge Stewart found the so-called 'crime' was politically motivated and she held that extradition would amount to unjust persecution for Pitawanakwat's political belief in Indigenous sovereignty. She held his offences rather than being criminal were " o f a political character." Compare her analysis to the positions taken by the British Columbia superior court on the writ o f trespass against the original inhabitants o f the territory. The B . C . S . C . ordered police enforcement o f a removal order, refused to question the contempt prosecution by the Provincial government and characterized the contempt as criminal rather than civil. These rulings reveal no similarity to the third party adjudication o f Judge Stewart. What prevented the B . C . superior court from similarly 271  Clark, supra note 28 at 14.  F o r instance, why does the judge focus only on the protection ofthe authority o f the court and the enforcement o f his brother judge's orders, rather than on the binding Imperial constitutional law or International covenants? 2 7 2  273  United States v. Pitawanakwat, No.00-M-489 ST, U . S . Dist. Court o f Oregon, Lexus 16984,  N o v . 15 , 2000. th  106 recognizing the political nature o f the L i l ' w a t s ' sovereignty assertion and the injustice o f allowing the Provincial government's prosecution o f the L i l ' w a t peoples for trespass on their traditional unceded lands? There exists an insurmountable institutional bias where the judge has sworn to uphold the legislation created by one o f the parties to the dispute, i f the parties do not originate from the same nation. In order to illustrate this problem, on December 14 , 1990, Clark referred M r . th  Justice M a c D o n a l d to a memorandum o f Prime Minister Sir John A . MacDonald dated January 3 , 1887 that stated: rd  The great aim o f our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants o f the dominion as speedily as they are fit to change. "Our legislation" refers to primarily to the Indian Act. Where the case involves an Indigenous person and the Canadian government, the judge o f the B . C . Supreme Court has sworn to uphold the laws o f the Queen and her heirs, who in this case is the Crown i n Right of the Province o f British Columbia, that has recently expropriated the road from beneath the L i l ' w a t peoples. The Provincial government claims its Order in Council and s. 35 o f the Indian Act allows for such actions. Where the judge upholds the validity o f the expropriation on the basis o f such legislation he is party to institutional bias. To be impartial in a case involving two distinct nations, a judge must not owe obedience to the legislation created by either o f the legal systems o f the parties i n dispute. Once a tribunal has agreed otherwise it can no longer claim impartiality. Consider for example the fact that the Supreme Court o f Canada in Sparrow held that the C r o w n had the power to unilaterally extinguish aboriginal rights or title without consent, prior to the Constitution A c t ,  107 19 8 2 .  274  Such a finding by the highest court o f the land placed the domestic judiciary in  the position o f being a party to the unilaterally extinguishment o f the rights o f the Indigenous peoples. The judiciary's resistance to hearing legal submissions in support o f Indigenous sovereignty were frequently delivered with an apology for the restrictions i n the system that they claimed to be unable to overcome. This frequent reliance on judicial apology is further indication o f the existence o f institutional bias within the criminal contempt hearing. M r . Justice MacDonald made frequent reference to 'his duty', ' o f being obliged' or as 'being bound' to make his rulings as he put it "whether I like them or not."  275  H e claimed his rulings 276  were due to the requirements o f the system o f law that he had sworn to uphold.  He stated  that in contempt cases "the court tends to get involved, in the sense o f upholding its own authority and enforcing its position i n the community."  277  H e stated that he had a 278  responsibility to see that the administration of justice was adequately "looked after".  In  addition to the embedded restrictions that he repeatedly apologized for, it must be remembered that the extension o f the jurisdiction o f the court was involved i n the unilateral  Sparrow, supra note 58 at 1099. 275  Dec. 14, 1990 Transcript at 31.  Ibid.; see also where Hairing states: "Even more fundamental than this, how is it that a superior court judge of the province of British Columbia can claim impartiality when the Provincial government in it's confederation agreement expressly rejected the validity of any Indian title?" S. Harring, "The Liberal Treatment of Indians: Native People in Nineteenth Century Ontario Law" (1992) 56 Sask. L. Rev. 297-364; consider also that the foundational cases that the judge considered himself bound by were decided during a period in which it was a criminal offence for natives to raise money for land claims. In fact, many cases on Indigenous rights that bind the domestic judiciary were argued between two nation states or settler parties without the Indigenous peoples as parties or legally represented. The result is the formation of case law that excludes the legal position of the original peoples of the territory in question. 276  277  Nov. 19 , 1990 Transcript at 11.  278  Nov. 19 , 1990 Transcript at 10.  th  th  assertion of British sovereignty over the territory of British Columbia.  108  Each time the judge apologized for upholding what he claimed he was bound to do, it appeared to be an indication that the system is guilty of institutional bias. If there was not something unfair embedded in the process, why did the judiciary constantly make apologies to the Indigenous accused before them, rather than simply adjudicating according to law? Mr. Justice MacDonald's principle concern throughout the five months of appearances was to enforce the jurisdiction of the B.C. Supreme Court, rather than to protect the rights of both parties, while the law applicable to the issues was addressed. Early in the contempt proceeding, having stopped Clark in the middle of his opening defense submission on behalf of the jailed Lil'wat people, Mr. Justice MacDonald apologized if his ruling had created the impression that he was attempting to silence counsel: I had no intention of creating that impression, and if I did so I apologize .. .1 feel that any other judge put into my shoes will be forced to operate under the same restrictions that I am facing, and I think I am the one that has to bear the brunt of the problems that are raised by this case, and I intend to do so. 280  I pointed out to the judge on March 12 , 1991, that rather than insisting on maintaining th  the authority of the court, he must consider whether or not he was engaged in the enforcement of a nullity. The distinction was explained to the judge between having jurisdiction that you exercise incorrectly versus exercising a jurisdiction that you fundamentally do not have. The first may be valid until appeal, however the later is a nullity at law. I also pointed out that it was difficult to imagine how the invalid assumption of jurisdiction could be said ultimately to maintain respect for the 'authority' of the court. A series of apologies coupled with denials from Mr. Justice MacDonald that there existed  See An Act for Extending the Jurisdiction of the Courts, 1803, 43 Geo. Ill, C. 138. November 20 , 1990 Transcript at 6. th  109 any inherent or intentional bias in his role is of assistance i n accessing the legal system's impartiality. In this vein, at the L i l ' w a t criminal contempt sentencing hearing, Gualish (phonetic) spoke to the judge: The Speaker: Y o u sit up there i n your position as an honest position in your mind. Y o u say you are not humbling, but i f we don't give our name we go to jail. The Court: I hope you don't interpret it that way. The Speaker: That's the way it is. The Court: I ' m sorry. The Speaker: Y o u ' r e not being truthful. Y o u are humbling us. The Court: If I am it is not what I intend to do. Each time MacDonald claimed 'he is obliged', he 'has a job to do', he does not 'intend to', he 'is bound by' the system to, 'he has no choice' but to protect and maintain the authority o f the court, he provided evidence o f institutional partiality. Clark urged Justice MacDonald to rely on the inherent jurisdiction o f a superior court judge to overcome this institutional conflict when he stated: " . . . I have faith that your lordship's love of justice constitutes a force greater than racial self-interest."  281  The role played by the judge in maintaining the status quo has the additional difficulty that by this point in the proceedings he had full knowledge that the L i l ' w a t accused had been refused an appeal before any higher court.  To this end, the following exchange between  M r . Clark and M r . Justice MacDonald puts his above statement regarding his obligation and duty to enforce the order o f the Chief Justice "against anyone, native on unceded territory or otherwise" in a more complete context. Clark reminded the judge that he had previously made an 'even i f arrangement: .. .that being, even i f the collateral attack rule precluded your decision on the sovereignty point, you were nevertheless going to hear the sovereignty point argued,  2 8 1  December 10 , 1990 Transcript at 12. th  Ms. Crompton: "...we also know that they have been blocked from putting forward their position at an appeal level. So the avenues for them to state their defense are very narrow and it adds importance ...to your finding on this jurisdictional issue." March 11 , 1991 Transcript at 55.  2 8 2  th  110 make a decision so that that decision would be available for appeal purposes, that is, that m y clients then for appeal purposes would be i n the position o f having a chance to get the sovereignty issue dealt with in the Court o f Appeal, it having been already dealt with at the trial l e v e l . 283  Clark informed M r . Justice MacDonald in detail o f the refusal o f several other judges to hear the legal argument i n support o f the jurisdictional challenge so as to make clear to the judge, the tremendous practical consequences o f his reneging on this agreement. ...several other cases in which I attempted to raise the same jurisdictional point and the judges have all declined to deal with it. ... Six months we've been here. 285  The judge simply refused to alter his ruling or to hear further submissions i n this regard. Once he claimed he was unable to hear the law because o f his obligations as a judge within the domestic legal system and enforced the original injunction on the basis o f an assumption of the jurisdictional issue he was being asked to deduce,  286  he had more than provided the  necessary evidence to support a reasonable apprehension o f institutional bias.  3.7 Justice Must Be Seen To Be Done Justice must not only be done, but must also appear to be done. The test involves asking  April 30 , 1991 Transcript at 6. Clark was referring to the comments made on December 5'' 1990 Transcript at 31 where the judge mused on record about the necessity for Mr. Clark to be allowed to intervene on the appeal of the Chief Justice's initial injunction order. Mr. Justice MacDonald worried that if he did not let Clark include the sovereignty argument at the trial level, that he would be met at the Court of Appeal with their refusal to raise the sovereignty argument there either. Justice MacDonald had expressed his concern that in a constitutional case it is necessary to insure that there is evidence upon which the B.C. Court of Appeal and the Supreme Court of Canada can decide the issue. 283  th  April 30 , 1991 Transcript at 9. The argument on behalf of the Attorney General of British Columbia at the B.C. Court of Appeal level was that the jurisdictional issue was not before the judge who issued the original injunction and therefore could not properly be added at the appeal level. By the completion of this matter, Clark had knocked on forty-one tribunal's doors in his attempt to have the sovereignty argument adjudicated upon. It is reported by Clark that his legal argument in support of Indigenous sovereignty was never heard. Clark, supra note 28 at 212. 284  285  th  April 30 , 1991 Transcript at 7. th  286 «jfo facile assumption is that the newcomers' laws and courts were drawn into a jurisdictional vacuum. Underlying this questionable premise is the unspoken and unacknowledged racist attitude that the natives were truly savages, without laws or courts of their own." Clark, supra note 28, at 35. e  whether there were mistakes o f law or irregularities in the conduct o f the trial that render it unfair or create the appearance o f unfairness for the accused. offend society's sense of justice?  288  111  Does the prosecution  The circumstances must be considered on a case-by-case  basis to see i f the error o f law or irregularity played a significant role i n the legal validity o f the verdict or rendered the trial unfair in reality or appearance.  289  There was no appearance of justice in the criminal contempt trial because the court would not allow the law to be placed before it. O n March 11 , 1991, Clark suggested that an abuse th  o f process would occur i f the courts refused to hear the defense o f the L i l ' w a t accused: .. .we have gone through several different proceedings: an application to strike, an application for an injunction, application for leave to appeal, application i n the Federal Court at the appeal level....but the point is made that M s . Crompton and my clients have knocked on several doors. A n d ever time we go to a door we are accompanied by the Attorney General. A n d when the door opens a little bit every time the Attorney General says, "Don't let them in through this door. There is another more appropriate door down the hall." So the judge closes that door and says, " G o to the other door." W e l l , when we go to the other door the Attorney General gets the foot in first and says again, " O h , this is the wrong door. G o to another door down the hall." A n d they have the effrontery when doing this to say, to pontificate that they want the Indians to have their day in court. They want sovereignty to be decided. W e l l it just ain't so, my lord. They are doing everything in the lawyer's trickster file to prevent that issue from coming o n . 2 9 0  Rather than remaining neutral and inquiring into the allegations made by Clark, the judge proceeded to interrupt him and told h i m to try "to behave himself, even i f it is against his nature".  291  Clark responded:  .. .what the defendants are saying here is that the legal process is being manipulated by the Attorney General in the interests o f the government o f British Columbia whose interest is on behalf o f a different race and nation o f people, unless we blind ourselves  R. v. Khan [2001] 3 S.C.R. 823 ["Khan"].  Canada (Minister of Citizenship and Immigration) v. Tobiass [1997] 3 S.C.R 391. Khan, supra note 288. Mar. 11 , 1991 Transcript at 60. th  112 to that and unless we blind ourselves to the phrase frauds and abuse, then calling a spade a spade is the point. It's not a question o f me not behaving myself when I say the lawyer's trickster file. That is simply the truth. A n d unless we can have that point understood then we never get to the understanding that what's happening here is a manipulation that is resulting in a fraud and an abuse o f process within the meaning o f the Royal Proclamation. 292  Clark explained that in order for justice to appear to be done, M r . Justice M a c D o n a l d must agree to hear the jurisdictional argument o f the accused L i l ' w a t traditional people. The alternative would be to criminalize them without any court hearing their legal defense o f territorial sovereignty.  293  M r . Justice MacDonald had ruled on M a r c h 18 , 1991, that the only exception to the th  collateral attack rule was fraud on the part ofthe Attorney General i f they were using the court system to "get around" their constitutional obligations to the persons Clark and I represented. This description by the judge was precisely the legal position we were attempting to present and prove at law. However, as soon as Clark attempted to argue that the fraud was the result o f the failure o f the Attorney General o f British Columbia to present Chief Justice Esson, who ordered the injunction, with the applicable law, Justice MacDonald stated: "I would not expect that disclosure obligation to extend to legal principles, particularly to as novel and sophisticated an argument, as was outlined for m e . "  294  What is so revealing about Justice MacDonald's choice o f descriptive words 'novel and sophisticated' is that Clark had argued nothing more novel than the principle that constitutional law is paramount, including the Royal Proclamation ofI763, which promises that the C r o w n shall not molest or disturb the natives on their unceded territory until it has  292  293  Ibid. Ibid, at 63.  The judge is referring to the argument made the previous day by Clark. Nov. 20 ' 1990 Transcript at 48. 2 9 4  th  113 purchased that territory. The description of Clark's argument as novel demonstrates the degree to which the judiciary have swayed from a neutral perspective in their application o f the rule o f law to an interpretation that supports the status quo. Clark argued that the Provincial government o f British Columbia had misled the Court in order to obtain the injunction in that it neglected to inform the court o f the constitutional law that expressly protects the Indians. He demonstrated that it was an "existing aboriginal right" not to be "molested or disturbed' in relation to unceded Indian territory, within the meaning o f those phrases in s. 35 o f the Constitution Act, 1982 and the Royal Proclamation of 1763 respectively. He spoke o f the obligation on the Attorney General in the public interest to inform the court o f the basic law that applies. Clark claimed that b y framing the question in trespass, the Attorney General had raised the pretense that what we were dealing with was an issue under s. 92(13) property and c i v i l rights, a legitimate provincial jurisdiction, when in reality what we were enmeshed in was an aboriginal rights issue.  295  When Clark attempted to explain that the Provincial government's refusal to provide the applicable constitutional law had also misled Chief Justice McEachern i n Delgamuukw, Justice M a c D o n a l d concluded that Clark was attempting to circumvent his earlier ruling on collateral attack by alleging fraud, and refused to hear the argument: .. .disguising by the badge o f fraud... the allegations that the Attorney General has made the court an unwitting accomplice to "unconstitutional proceedings" amount to a collateral attack o f the injunction in issue here . I have concluded that I should hear no further argument on the validity o f that injunction. 296  Clark responded that it was his considered opinion that an impartial hearing before this tribunal "is unlikely." In support o f his statement, he cited the refusal o f the judge to hear the  Nov. 19 , 1990 Transcript Vol. II at 23. th  Nov. 20 ' 1990 Transcript, at 49-51. th  114 opening statement o f defense counsel: .. .the court has demonstrated the existence o f a prejudgment on a fundamental issue regarding aboriginal rights. In effect, the court has treated counsel's suggestion yesterday that M r . Justice McEachern in another case may not have been adequately informed as in some fashion an attack upon either M r . Justice McEachern or the system and on that completely untenable basis the court has concluded that counsel's position is without credibility, prima facie without credibility. M y lord, let me assure you I sincerely do not want to enter into a case as important as this where the judge has prejudged the issue o f counsel's credibility on perhaps the single most important issue. I am suggesting, m y lord that the appearance o f justice must be evidenced none the less than justice itself. I am suggesting that what has happened here is that the court has indicated, has given advance warning that it does not like the message and 297  is therefore silencing the messenger on this pretext o f no credibility.  Clark repeated to M r . Justice MacDonald the legal position o f the L i l ' w a t people regarding the issuance o f the injunction order when he states: .. .something so important being made on a per incuriam basis for want o f information, for lack o f care. ... the judge simply didn't hear the law that is necessary to his decision and I'm taking upon myself that risk and making that statement on the basis o f the last five years o f my life looking at that law and identifying it. I know, and I ' m advising the court as an officer o f the court, the judge didn't have that information. A n d I'm suggesting that that's crucial to the whole administration o f  Clark placed on record that he had specialized in aboriginal law for nineteen years and had spent the past five years obtaining a doctorate on the very issue of Indigenous sovereignty from the College of Oxford, England. He stated that he "...finds it hard to comprehend how in twenty minutes his learned friend can decide that counsel has no credibility on this issue, and for that reason I say even were justice to be done here it is manifest at the outset that it does not seem that it will be done." Nov. 20 , 1990 at 51. Clark was mentored by Professor and Dean of Law, Dr. Geofffrey MacCormack, while researching the law with respect to the issue of Indigenous sovereignty. Such credentials did not mean that Clark's legal opinions were beyond question, however they strongly suggested his arguments were worthy of judicial consideration; see also the following quote by David C. Hawkes, School of Public Administration, Carleton University where he comments on Clark's academic work: "The research is exhaustive, the sources comprehensive, and the reasoning and scholarship sound."; consider also where Clark outlined that although the Law Society of Ontario ultimately disbarred him, it acknowledged that his attempted submission on behalf of Indigenous sovereignty was a serious constitutionally critical argument on an issue of public importance, that it was not frivolous but rather the result of extensive study, and that the genocide Clark complained of was real. "We do not find his letters abusive or offensive. Nor do we find his statements intemperate or unsupported by the facts to sustain the argument. Indeed, throughout he has begged to be allowed to develop facts to sustain the argument. It is impossible to say there was no reasonable basis in evidence for the legal positions he asserted; he has always been prepared to make a thorough and comprehensive argument in each case." The review panel also noted "he has never been disciplined in 25 years of practice. The allegation of'ungovernable' was due to his refusal to agree to refrain from asserting this same legal argument and the panel found this to be unsubstantiated." Clark, supra note 28 at 212. 2 9 7  th  115 justice i n this country for this reason. A n impression is being created i n the minds o f a substantial minority o f this country that they can't get justice at the hands o f another race o f people. That the white people are judges and suitors i n their own cause, that they are both litigants and judge. A n d as one who believes i n the rule o f law, as I know your lordship does, and as I do, and as Crown counsel does, I ' m suggesting that it's...one o f those questions o f transcending importance that should be sent back to the original judge and to let h i m decide whether or not he would have done the same thing had he been adequately informed. .. .the judge has an inherent jurisdiction to remedy a fundamental breach o f fundamental justice.. .what the words inherent jurisdiction o f this court really mean is that the judges have the capacity to....get to the real justice o f the matter. Clark explained that "it is imperative to point out to the Chief Justice that he is mistaken in his belief that the Province's power to resume reserve land is the issue at bar."  299  After suggesting Chief Justice Esson was functus, M r . Justice M a c D o n a l d adjourned. H e returned shortly to announce that the Chief Justice sent his regrets but that he considered there is: .. .nothing he can do about his order now  he asked me to tell you that he could  see no point in meeting with counsel because his answer was as I have indicated. So he w i l l not entertain an application. 300  It is this procedural catch twenty-two that provides a most obvious example o f a lack o f an appearance o f justice. With Chief Justice Esson's insistence that he was functus we turned our focus to joining the Band Chief and Council's appeal o f his injunctive order. When we attempted to seek leave to j o i n their appeal o f the injunctive order, the Court o f Appeal refused our application on the basis that only the groundwork to enable argument on the  Ibid, at 60. Clark pointed to a number of well-known legal statements confirming the fact that Mr. Justice MacDonald had the inherent power to surmount hurdles to prevent injustice from being done including the Sproule case at the Supreme Court of Canada, in which Taschereau, J., stated: "... every superior court, which this court unquestionably is, has incident to its jurisdiction, an inherent right to inquire into and judge of the regularity or abuse of its process 298  299  Ibid, at 61. Nov. 20 , 1990 Transcript at 64. th  116 resumption question had been laid at the injunctive application.  301  This left the only  legal representation o f the sovereign L i l ' w a t traditionalists as that submitted by legal counsel on behalf o f the Band Council. M r Justice MacDonald's ruling that the injunction was not ordered ex-parte also had enormous consequences. If he had simply held that i n relation to these traditional L i l ' w a t people the matter had proceeded ex-parte, the collateral attack rule would not have applied. The acceptance by the judiciary ofthe legal position ofthe Band Chief and Council while refusing to hear the submissions on behalf of the traditional L i l ' w a t governing system, was a position that did not have the required appearance o f justice.  302  M r . Justice MacDonald had  been made aware and had acknowledged on record that the traditional people before h i m took a fundamentally different legal position to that o f the Band C o u n c i l .  303  The act o f  recognizing an imposed structure rather than the L i l ' w a t traditional governing system embroiled Justice MacDonald in institutional bias. Such a finding cannot be avoided once  In fact, Clark and I had appeared before at least thirteen superior courts, none of which would hear our jurisdictional challenge. On each occasion counsel for both governments opposed the Lil'wat sovereignty argument being heard at either the trial or the appeal level of the proceedings. Both governments took the position that Clark's application for a stay on the grounds that the writ of trespass against the Lil'wats was not capable of proof was irrelevant to the contempt proceedings. The Provincial government also argued that the Lil'wat's application for a counter-injunction was completely irrelevant to the contempt proceedings. They also participated, at the judiciary's request, in having the Law Society of B.C. investigate the possibility of disbarment proceedings in relation to Dr. Bruce Clark. 3 0 1  The Band Council system, simply put, is a creation of the Canadian government or 'white system' as Taiaiake refers to it. The court in Muchalaht Indian Band v. Canada [1990] 1 F.C. 275 acknowledged that a Band Council is "a creature of the Indian Act" and furthermore in Norway 3 0 2  House Indian Band (Applicant) v. George N. Bass, Q. C. and Florence Jean Duncan (Respondents) and Assembly of Manitoba Chiefs-Secretariat Inc. (Intervenor) [1994] 3 F.C. 376, [1994] F.C.J. No. 328 that "the creation of Indian bands, councils, and their workings, do constitute a federal work, undertaking or business."; consider also that evidence was placed before Mr. Justice MacDonald to prove that the legal position on the part of the Band Chief was in contravention of the sovereignty instructions provided to the Band Council at a large community meeting, held approximately a week prior to the Provincial government's expropriation of the road. A.G. v. Chief Andrew, supra note 10. March 18 , 1991 Reasons For Judgment at 2. Mr. Justice MacDonald acknowledged that the Lil'wat accused wished to raise a far more fundamental issue than was raised by counsel for the Band Council Chief. 303  th  117 Youngblood Henderson explains that "the First Nations' source o f authority was and remains the consent o f the people through federated governments or councils o f extended families."  304  Even after five months o f trying, the key defense argument o f the traditional L i l ' w a t peoples was never allowed to be placed before a court i n British Columbia. M r . Justice MacDonald, on A p r i l 15 , 1991 in making his finding o f guilt had this to say: " A s much as I th  might like to accept the invitation to sidestep the somewhat unpleasant task that is before me, it is simply not open to me to do so at this stage o f the proceedings."  305  A s the L i l ' w a t ' s  contempt trial progressed it had became abundantly clear that M r . Justice M a c D o n a l d was not going to make use o f his inherent jurisdictional power to remedy the per incuriam basis upon which Clark alleged that the injunction had been granted.  306  The L i l ' w a t people did not believe that the court process was f a i r .  307  Ronald Dan, the son  "Empowering", supra note 58 at 255; see also where Taiaiake refers to the fact that the federally created Band Council structure is inappropriate as a substitute for an Indigenous governing system because "leadership in an indigenous system focuses on a person's ability to adhere to the values of patience, courage, fairness and generosity which differs radically from the power-wielding model which encourages the fundamentally immoral pursuit of self-interest and the acquisition of resources to secure a strategic advantage over others...the traditional system is diametrically opposed to the possessive individualism that is central to the white system. Taiaiake, supra note 63 at 88. 305  April 15 , 1991 Transcript at 3. th  Waluchow comments: "Judges must realize that they are sometimes free, indeed required, to decide the case before them rationally in light of other considerations (e.g., the rule's purpose, general legal principles, or commonly accepted beliefs about justice). To do otherwise would be to abdicate the responsibility they, as judges, are required to exercise." W. Waluchow, "Indeterminacy: A Critical Notice of Brian Bix, Law, Language and Legal Determinacy" (1996) 9 Can. J.L. & Juris. 397-409 at 407. 3 0 6  On March 1 , 2002 The Right Honourable Beverley McLachlin, C.J.C., presented a seminar to the U.B.C. Faculty of Law and Graduate Students titled "Impartiality and Neutrality in the Process of Judging." She referred to the increase of awareness in the judiciary of the Supreme Court of Canada that an appearance of justice should exist from the perspective of the parties before the court. In the discussion that followed I questioned this interpretation of impartiality principles as they relate to Indigenous peoples. Her response was that she obviously could not comment on the issue but that "the impartiality issue is a question that should be brought before the court". 3 0 7  st  118 of the spiritual leader o f the L i l ' w a t People's Movement, made this point as follows: This beautiful feather came from my brother eagle. This is created by God. These came from the law o f God. This ugly looking eagle feather is how much you destroyed our laws. This is a facade, all o f this ugliness in here and crookedness o f the justice system. I am going to put these side by side to remind me ofthe two differences. That's all I got to s a y . 308  Another o f the L i l ' w a t protestors told M r . Justice MacDonald: " . . .that statue out there is scales of justice that are supposed to be equal, I guess you proved, you and your system proved that it is not e q u a l . "  309  Ishmeshkeya, made a similar point:  .. ..it seems that everything that has happened so far is that they are being protected. I can't believe the biased system we live in in this court system... Every judge that I have looked at since we started to put across our words, I can't believe it. I can't believe how they are just so biased. 310  The following exchange between Justice MacDonald and one o f the L i l ' w a t accused, who was being forced to provide an English name as a precondition to his release, leaves a lasting impression regarding the lack o f an appearance of justice: The Court: .. .Number five. Anything you'd like to say to me? The Speaker: If I sign m y name, would it help to obey your law? The Court: I can't tell you that. The Speaker: There is these people across the lake already drilling holes, blasting. Is that going to stop them? The Court: I don't think so. The Speaker: What can we do to stop them? The Court: W e l l , as I've said, that's not a matter that I can deal with here. The Speaker: Very confusing, you k n o w . 311  The following excerpts are further examples, from the L i l ' w a t peoples' perspective, o f whether the need for an appearance of justice was met: The Speaker:—you only have one power in this room, hey. So like why? W h y must only your kind o f people have that kind o f power? ...We respected you enough to  308  April 15 , 1991 Transcript at 39.  309  Ibid, at 41.  310  April 15 , 1991 Transcript at 30.  th  th  April 16 , 1991 Transcript at 2. th  119 accept you in this country without doing you in because we are not that kind o f people. A n d you want to send us to j a i l because we are fighting for our rights. W e are nothing in this court. 312  C a l v i n Nelson: ... W e are sitting here in the courts. They [the logging company] are out there blasting away at our sacred ground. They say here i n the courts as long as 313  you got evidence to show like burial ground ishkins and what not. W e have got it. W e showed her. Last I heard they said: W e w i l l stop as long as you got something to show. A n d just over the rock they are drilling and blasting. There was ishkins and graves there. Two hours later after everybody left, right back to work. That's one thing I can't really understand. Nobody's just not listening out there. W e are in jail. Everything goes right on. Logging, blasting, that's all I got to say. I hope somebody hears. 314  Susan Nelson: I just want to say that the system is not going to work for anybody, really, when you take a good look at it. Greed ruins everything. 315  Matthew Pierre: I just want to say I was not guilty o f anything i n m y mind, my heart, my whole being. This was L i l ' w a t territory all the time, always w i l l be. Y o u have no legal title, you have no legal documents to say it's yours. It's still L i l ' w a t territory. Y o u couldn't buy it so, you had to expropriate it. It's still stealing, no matter what legal term you use. Canada prides itself on being a democratic, peace loving country and you go in there and ...arrest the L i l ' w a t people for defending their own rights and territory. Y o u put them in jail, you humiliate them, you degrade them for defending their rights. What is the reasoning in this? Y o u ' r e making a mockery o f your own system as far as I can see. 316  The demonstration i n the L i l ' w a t contempt trial o f the court's unwillingness to rely on its inherent jurisdiction to correct mistakes o f law and prevent procedural irregularities should offend society's sense of justice as much as it disturbed the L i l ' w a t traditionalists who experienced it.  3 1 2  April 15 , 1991 Transcript at 22-3. th  'Ishkins' were the underground winter homes of the Lil'wat people however during the smallpox epidemic they were used as family burial sites because of the extremely high percentage of Lil'wat people dying from the disease. 3 1 3  314  Ibid, at 51.  315  Ibid, at 55.  3 1 6  April 16 , 1991 Transcript at 2. th  120 3.8 L a c k of Impartiality D e p r i v e s the Court of Jurisdiction In Making all the Difference, Martha M i n o w suggests "impartiality is the guise that partiality takes to seal bias against exposure".  317  B y destroying the image o f judicial  impartiality, the Court is deprived o f jurisdiction.  318  This is due to the fact that a finding o f an  apprehension o f bias vitiates the constitutional right to a fair hearing.  A s P. A . Monture-  Okanee, and M . E . Turpel state: "This so-called "impartiality" is the basis for the institutional 320  authority o f criminal justice officials acting on behalf o f the Canadian system." A s revealed in the criminal contempt proceeding there can be no question that the domestic judiciary held a preconceived opinion regarding jurisdiction over unceded territory in British Columbia. Preconception was demonstrated to exist i n regard to issues o f L i l ' w a t citizenship, allegiance, governing structure and territorial authority over traditional land. The judiciary also revealed a definite leaning in favour o f the Crown's positions throughout the trial. The judicial comments threatening incarceration as a response to the L i l ' w a t peoples' refusal to use foreign names were sufficient i n themselves to create an apprehension o f bias. The numerous rulings made to protect both the public access and the logging operations o f the Newcomers left a distinct impression o f the judiciary as a suitor rather than as neutral adjudicator. In fact, the judiciary condoned the Provincial government's expropriation o f the land i n question through their acceptance o f the contempt prosecution o f the L i l ' w a t people for conspiracy to trespass. It was the judiciary that issued the order authorizing the L i l ' w a t s ' M . Minow, Making all the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1990) at 3. 3 1 7  318  Griffin v. Murnaghan ( 1994), 70 O.A.C. 236, 113 D.L.R.(4 ) 63 (Ont. C.A.). lh  Bell Canada v. C. TEA., 10 Admin. L.R. (3d) 116; consider also that the Supreme Court of United States in re Murchison, 349 U.S. 133, 136 (1955) has defined fairness as "an absence of actual bias." 319  3 2 0  Monture-Okanee, supra, note 7 at 247.  121 arrest as well as deciding to proceed criminally. Through co-operation in the handling of this dispute, the Provincial government, the R.C.M.P. and the domestic judiciary succeeded in maintaining public access through traditional Lil'wat lands. Simultaneously, their actions made evident an embedded institutional bias within the domestic legal system. It is ironic, in the context of the Lillooet Lake Roadblock contempt case, that the legal remedy for lack of judicial or institutional impartiality is loss of jurisdiction over the matter before the court. "If actual or apprehended bias arises from a judge's words or conduct, the judge has exceeded his jurisdiction." This illustrates the degree to which impartiality is the 321  cornerstone of justice. Benjamin Rosenberg similarly reflects the point in his review of Loyalty: An Essay on the Morality of Relationships where he states: ".. .the primary goal of politics is to achieve a society in which disputes are resolved impartially."  322  A finding in the Lil'wats' criminal contempt case of an apprehension of bias results in a lack of jurisdiction in Justice MacDonald. However the bias this thesis is intended to expose extends far beyond his handling of this dispute. Through the analysis of the arbitrary actions on behalf of the domestic judiciary, the police and the Provincial government they have shown themselves to be participants in a legal system that acting as a whole lacks impartiality. From the Lil'wat perspective the resulting loss of jurisdiction in the superior court of the Province is therefore two-fold. The court simply does not have jurisdiction over Indigenous unceded territory until it obtains informed consent by way of a treaty with the original Indigenous inhabitants and additionally, due to acting as if it were impartial when it was not, the court lost any jurisdiction that it had erroneously assumed.  1  R. v. R.D.S. [1997] 3 S.C.R. 484 ["R.D.S."].  2  "Quando Fidelis?", supra note 270 at 719.  122 "Not to reach the merits, of course, is not to disturb the status q u o . "  323  CHAPTER FOUR Judicial Breaches of the Rule of Law The superior court judiciary participated in and condoned breaches o f the principles o f the rule o f law, o f constitutional supremacy, and ofthe honour ofthe C r o w n in finding that the L i l ' w a t traditionalists were guilty o f criminal contempt o f court. The preamble o f the Constitution Act, 1982 refers to the rule o f law as being foundational. This inclusion indicates society's agreement to be governed by clear legal rules rather than by the arbitrary wishes and desires o f any individual or group. A s C o l i n G o f f states: "according to the rule o f law in our system of justice there is a sense o f orderliness, o f subjection to know legal rules and o f executive accountability to legal authority.  324  To protect  our society from individual or group self-interest, the rule o f law ensures that laws are created, administered, and enforced on the basis o f acceptable procedures that promote fairness and equality.  325  The Supreme Court o f Canada in Quebec Succession Reference referred to the rule o f law, constitutional supremacy, and the honour o f the Crown as principles that provide the key protection for individuals from arbitrary state a c t i o n .  326  The court succinctly states: "In our  constitutional tradition, legality and legitimacy are l i n k e d . "  327  h i Manitoba Language  Rights  the court continues:  E. Gordon, "Observations on the Independence and Impartiality of the Members of the International Court of Justice" Conn. J. of Int'l L. [1987] Vol. 2: 396-426 at 419. 3 2 3  C. Goff, Criminal Justice in Canada, 3 ed., (Scarborough, Ontario: Thomson Nelson, 2004) at 34.  3 2 4  325  rd  Ibid.  326 327  Reference re: Succession of Quebec [1998] 2 S.C.R. 217, 161 D.L.R. (4 ) 385. tn  Ibid, atpara.33.  123 The rule o f law, a fundamental principle o f our Constitution, must mean at least two things. First, that the law is supreme over officials o f the government as well as private individuals, and thereby preclusive o f the influence o f arbitrary power. .. .The principle o f the rule o f law, recognized i n the Constitution Acts o f 1867 and 1982, has always been a fundamental principle o f the Canadian constitutional order and requires that all government action must find its authority i n positive law or a legal rule, including the constitution and thereby preclude the influence o f arbitrary power. The principle o f constitutional supremacy requires that all government action be consistent with the constitution. The honour o f the Crown exists as a legal principle specifically i n relation to Indigenous peoples as a result o f the assertion o f British sovereignty over Indigenous lands. delegated.  331  It is to be understood generously.  It cannot be  The Supreme Court made it clear that these principles were beyond the reach o f  simple majority rule and political or governmental interference. It also specifically referred to the Constitution Act, 1982 as re-affirming Canada's commitment to the protection o f aboriginals as set out i n s. 3 5 .  332  Kenneth Henley claims: "The best interpretation o f the rule o f law must distinguish between rule o f and rule through l a w . "  333  The following analysis o f judicial rulings,  comments and decisions i n the L i l ' w a t s ' criminal contempt case w i l l reveal arbitrary decisions that are in breach o f principles within the rule o f law. The examples include  3 2 8  Reference re: Manitoba Language Rights (Man.) [1985] 1 S.C.R. 721.  "The duty of honour derives from the Crown's assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated 3 2 9  by s. 35(1)." Taku River Tlingit First Nation v. British Columbia [2004] 3 S.C.R. 550 at para.24. 3 3 0  Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511.  R.D.S., supra, note 321 at para.46. Henley, supra note 227 at para.30.  124 judicial refusal to abide by the rule o f constitutional supremacy, to address or apply domestic and international law, as well as reliance on procedural manipulation and improper application o f case precedent. Together these resulted i n the judicial condoning o f arbitrary actions on behalf o f both domestic governments vis-a-vis the L i l ' w a t peoples. The purpose o f considering each breach o f the rule o f law is to prepare the reader to answer the question o f whether the Superior courts ofthe province provide an impartial forum for the adjudication o f Indigenous territorial sovereignty or has the judiciary lost it's alleged right to adjudicate as a result o f it's arbitrary rulings. 4.1 T h e R e f u s a l of the Judiciary to A p p l y B a s i c Principles of C r i m i n a l L a w : According to s. 7 o f the Constitution Act, 1982, an accused is not to be deprived o f their liberty except i n accordance with the rules o f fundamental justice. To qualify as a principle o f fundamental justice for the purposes o f s. 7, there must exist a significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate. Such principles may be substantive or procedural and include the right o f an accused to have their defense adjudicated upon according to law before an impartial court. The first example o f a breach ofthe rule o f law by the judiciary in the L i l ' w a t criminal contempt case was the refusal o f the judge to hear a preliminary or threshold jurisdictional challenge on behalf o f incarcerated L i l ' w a t individuals prior to proceeding with their criminal t r i a l .  334  O n January  18 , 1990, M r . Justice MacDonald issued a written judgment in response to the L i l ' w a t th  preliminary jurisdictional challenge in which he reneged on his earlier promise to allow the law going to court jurisdiction to be placed on record, for appeal purposes at least. M r .  According to the Supreme Court of Canada, "Imprisonment is the most severe sentence imposed by law, apart from death, and is generally reserved as a last resort for occasions when other sanctions cannot achieve the objectives of the system." Reference Re S. 94(2) Motor Vehicle Act [1985] 2 S.C.R. 486. 3 3 4  125 Justice MacDonald acknowledged that there was a difference between attacking the jurisdiction o f the Chief Justice's order and the argument that he was without jurisdiction to hear the present contempt proceeding when he stated: Y o u don't have to go back - while the indirect effect o f convincing me that I don't have jurisdiction to find these people in contempt, might be also to say that the Chief Justice didn't have jurisdiction to grant the injunction which he granted. Y o u don't have to go back there to make the argument, necessarily. In other words, you can say to me that as a judge o f the Supreme Court, I don't have jurisdiction over these people i n respect o f acts on unceded Indian l a n d . 335  While this statement by M r . Justice MacDonald fully acknowledged the L i l ' w a t defense position,  the judge changed his mind when he stated:  336  The Court: I'm faced with an order o f a brother judge, that the law tells me I cannot question, that I must take as is until a higher court does something to it, varies it or sets it aside, that I am bound by that pronouncement. M r . Clark: .. .1 suppose what it boils down to from our perspective is on the fraud issue. Y o u are cutting me off. The Court: Yes M r . Clark: Y o u have only heard half o f it. The Court: Y e s , I have. M r . Clark: .. .how do you know that what I am going to say next isn't going to satisfy you on the fraud? The Court: W e l l . . . M r . Clark: Isn't that a classic case of prejudge? The Court: I have concluded that wherever you go, whatever you have to say, it cannot take away from the basic position that I am bound by the C h i e f Justice's order and the fraud you have outlined it for me is not a fraud which I can recognize as the kind o f a fraud which would undermine the Chief Justice's order. In other words, the lack o f adequate legal argument, .. .is a matter that has to be dealt with by the Court o f Appeal, not by a judge o f the same court as the judge who issued the order. Clark reminded M r . Justice MacDonald that the Chief Justice's original injunctive order was tantamount to an ex parte order vis-a-vis these traditional L i l ' w a t accused, given that the Band C h i e f was the only person legally represented at the injunction application. M r . Justice  3 3 5  Feb 11 , 1991 Transcript at 6. th  Ms. Crompton: "...but...you can't find that you have jurisdiction from what happened before Chief Justice Esson. You have to find it right here with us." January 15 , 1991 Transcript at 15. 3 3 6  th  3 3 7  November 20 , 1990 Transcript at 54-55. th  126 MacDonald stated nevertheless: M y problem is it having issued-not m y problem. M y obligation is that it having issued, I am bound by my oath to recognize it as binding upon me and it's for that reason that I chose to cut you off, i f I can put it i n the vernacular, because I could not see how you could get me around that conceptual difficulty. To assist the judge with what he claimed to be his dilemma, I reminded h i m that his inherent jurisdiction to guard against abuse o f process was one manner o f overriding the collateral attack r u l e .  339  For instance, I suggested to him that he could take note o f the fact  that the Province would be unable to prove ownership or possession o f the land i n dispute. They would therefore be unable to succeed on their writ that alleged the L i l ' w a t traditional people had conspired to commit trespass and public nuisance. I also urged the judge to hear the threshold jurisdictional argument so that he did not find himself in the position o f enforcing a nullity. In Justice in Paradise, Clark provided his interpretation o f the judge's refusal to hear the law: Subsequently, the judge reneged on his word. Once he saw the law that proved that the natives were right, he reverted to his opening position and held, at the end ofthe trial, that he would not, after all, be dealing with the law they had put before him. ...The point, clearly and plainly made by the judges, was that the law is inadmissible when it indicts the judges themselves, as a c l a s s . (  340  Regardless o f our protestations M r . Justice MacDonald extended his ruling on collateral attack to apply to the cross-examination by Clark o f Inspector B y a m , the Head Supervisor o f the R . C . M . P dismantling operation. The judge stopped Clark when he began to question whether the R . C . M . P . , acting in the capacity o f a Provincial police force, had obtained a legal  338  Ibid.  March 11 , 1991 Transcript at 42. To insist that the surrender to the court's jurisdiction by the imposed Band Council structure rendered him unable to consider the sovereign legal position of the Lil'wat accused was an injustice that the judge had the inherent power to avoid. 3 3 9  3 4 0  th  Clark supra note 28 at 107.  127 opinion as to whether or not they had jurisdiction on unceded Indigenous territory. When Clark attempted to explain the legal basis for the question relating to jurisdiction, the judge prevented Clark from pursuing this line o f inquiry with the following exchange: The Court: W e l l I'm not entertaining any argument on that point. M r . Clark: That is part o f it, not all o f it as I say. The Court: I ' m sorry, the second part o f it.. .1 refused to hear on the ruling o f the second day o f this proceeding. M r . Clark: W e l l , with respect, since this is so crucial to the theory ofthe defense, may I pursue it a little by showing you more o f the theory o f the defense on the board? If you don't allow this, you are in effect denying the theory. The Court: That may well be, but that's my ruling, M r . Clark. M r . Clark: W e l l , I am only asking at this time to present the rest o f the theory o f the defense. The Court: I am denying you that opportunity. What's your next point...?  3 4 1  Precisely at this juncture the judge breached the constitutional right not to be deprived o f your liberty except in accordance with the principles o f fundamental justice.  Clark had  only begun to outline a legal argument that would provide law that demonstrates the jurisdiction ofthe superior court o f the province is both delimited and subordinate. After acknowledgment that "the potential consequences o f the Indian sovereignty argument are serious indeed" M r . Justice MacDonald refused to hear the sovereignty and threshold jurisdictional arguments by simply ruling: "I have concluded that the jurisdiction o f this court to try them for contempt is not an issue which they are entitled to raise."  343  Given that the court's lack of jurisdiction over L i l ' w a t unceded territory was the substantive defense to the criminal charges, the right to full answer and defense as specified within ss. 7 and 1 l(d.) ofthe Charter of Freedoms and Rights does not allow a judge to  341  Nov 28 ' 1990 Transcript at 2. th  A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice. Reference Re s. 94(2) Motor Vehicle Act [1985] 2 S.C.R. 486. 3 4 2  March 18 , 1991 Reasons for Judgment at 28. This is yet further evidence of colonial selfinterest rather than equally considering the immediate consequences of such a ruling to the Lil'wat people. 3 4 3  th  128 refuse to hear constitutional and international law that arguably provides a valid legal defense.  344  This is especially so given M r . Justice MacDonald's awareness that refusals b y  other Supreme Court justices as well as by the B . C . Court o f Appeal to hear L i l ' w a t applications had placed the them i n the position o f being denied an opportunity to offer their defense to the charge o f contempt at any level o f the Canadian domestic court system. Instead o f hearing the constitutional law relevant to jurisdictional authority over the land in question, Justice MacDonald insisted on returning to his single-minded focus o f enforcing L i l ' w a t obedience to his brother judge's injunctive order that prevented them from blocking public access on a road that passed through their unceded territory without their consent.  345  He insisted that he was unable to question the validity o f Chief Justice Esson's injunctive order. The consequence o f his ruling was to place C.J. Esson's order above the supremacy o f the constitution. H i s refusal to hear the L i l ' w a t s ' defense submission while upholding the injunctive order resulted i n his breach o f the principle o f constitutional supremacy as well as the Charter guarantee to not be deprived o f one's liberty except i n accordance with the rules o f fundamental justice. Clark summarized the situation in Justice in Paradise b y writing: N o w i n the end, it all seems so simple in terms o f the principles ultimately involved. The natives were here first. The newcomers undertook legally to respect them and did not. A n d now the newcomers' courts are negating the rule o f law by refusing publicly to address their ongoing role i n the process. 346  344 "The right to make full answer and defense is itself a principle of fundamental justice protected by ss. 7 and 1 l(d.) of the Charter." R. v. Mills [1999] 3 S.C.R. 668. To be fair, the B.C. judiciary held that Clark's arguments would be allowed before the court but only by submitting to the jurisdiction of the court to participate in a trial of the sovereignty issue in approximately two years time. 3 4 5  Clark, supra note 28 at 40; see also Milde, supra note 29 at para.24 where he quotes Dyzenhaus as stating: "When recognizably commendable legal professionals insinuate, by their actions, that the rule of law is being respected, then the lay public has little incentive to believe otherwise."; consider also Moodie's statement where he reflects generally on the court's refusal: "Judicial consideration 3 4 6  129 There were many refusals by the superior court judiciary to hear the law applicable to this dispute however another prominent example occurred on February 1 , 1991, when st  Clark attempted to file documents outlining the constitutional law in defense o f the second stance o f the L i l ' w a t people at the gravesite area at Ure Creek. So as to continue to build their logging road, Interfor Logging Corporation made application to the B . C . Supreme Court for a second injunction at which the following exchange between M r . Justice Wetmore and M r . Clark occurred: The Court: W e l l , you need not file them. M r . Clark: M y lord, as I understand your instruction, it is that I not refer to constitutional law and I not lead evidence the relevance o f which would depend upon constitutional law submissions. The Court: R i g h t . 347  In addition to demonstrating partiality by only hearing the law from the perspective o f the logging corporation, the judge also breached the rule o f law b y refusing to consider the paramount constitutional law i n support o f the L i l ' w a t s ' sovereignty assertion. In a similar exercise o f judicial discretion Justice MacDonald breached the rule o f law by ruling that mens rea was not a requirement o f the crime o f contempt. The Supreme Court o f Canada stated in Reference Re S. 94(2) Motor Vehicle Act that "It may well be that, as a general rule, the principles o f fundamental justice require proof o f a subjective mens rea with respect to the prohibited act, in order to avoid punishing the morally innocent." The case acknowledged that: .. .whenever the state resorts to the restriction o f liberty, such as imprisonment, to assist in the enforcement o f a law, there is, as a principle o f fundamental justice, a  of Aboriginal sovereignty and self-government issues has never even gotten its engine started!" Moodie, "Thinking Outside" supra note 58 at 37. Interfor v. Pascal, supra note 32. Feb. 1 , 1991. Injunction application by Interfor before Mr. Justice Wetmore regarding the Ure Creek site. 347  st  130 minimum mental state which is an essential element o f the offence. It thus •  348  elevated mens rea from a presumed element to a constitutionally required element. B y ruling that he was concerned not on a group basis but rather on whether individuals knew of the court's injunctive order and participated in conduct contrary to it, Justice MacDonald disregarded the sworn testimony o f the traditional L i l ' w a t people that their actions o f blocking the road were as a result o f their allegiance to L i l ' w a t law that had authority in their traditional territory.  349  The testimony o f Sasquatch before M r . Justice MacDonald is representative o f the state of mind o f the traditional L i l ' w a t people involved in the blockade. H i s testimony also makes references to the lack o f honour o f the Crown: I know I ' m not breaking any law because I know the federal government's got a fiduciary trust obligation to us. I can't be trespassing on my o w n land because I got a fiduciary trust obligation with the federal government, protects us from third party encroachments. L i k e i f it means anything to anybody, we were going to negotiate with that federal government because we asked them all that summer, and they still never honored that. A n d they're the ones that have the first bid on what goes on .. .in negotiations with us... N o one else has a right to offer us money for that road that they wanted the right o f way on, and they have no right to say they can expropriate i t . because we didn't accept the offer because we knew we had that fiduciary trust obligation with the federal government first, and they're the ones that should have been out there talking with us, but it never happens. We're honorable enough to be in here. Where's your guys' honour? It's pretty hard when you see they built airports on our graveyards, sacred burial grounds, go logging i n the mountains and blow up pictographs just so they can make their money. They don't realize what they're destroying because they're so darn greedy. When we put that blockade up, it was so as that we h a d — w e wanted that federal government to meet with us nation to nation negotiations honorable. ... A n d still we were there waiting to meet with them. So m y obligation to the Creator was to protect • our lands, territory. 350  34S  Reference Re S. 94(2) Motor Vehicle Act [1985] 2 S.C.R. 486.  3 4 9  Nov.28 , 1990 Transcript at 3. lh  Sasquatch: December 12 , 1991 Transcript at 34-5; see also Henderson where he speaks ofthe essence of the Indigenous people's relationship with the land as involving "...covenants with other life forms and their keepers. These spiritual and ecological worldviews created the context for customary management of the sacred place under Aboriginal peoples' care." "Empowering", supra note 57 at 263. It is respectfully suggested that the majority of Newcomers have yet to appreciate the spiritual sophistication of traditional Indigenous governing systems. As such awareness is 3 5 0  th  131  Figure 19. M y Obligation to the C r e a t o r Additional excerpts from the testimony o f L i l ' w a t accused demonstrate the honesty o f their belief that the Provincial government was guilty o f theft in relation to the road in question: Ishmeshkeya (phonetics): I just want to explain to you the reasons w h y we have to take the action we took because we really believe, you know, that there .. .is a theft o f land involved in what is happening with us. ...The road that we stood on has been illegally in use for 42 years by the province o f British C o l u m b i a . 351  Sasquatch: I understand that I put that roadblock up there. I helped them out to stop that logging that's going on in our territory, illegally done. Stop making highways through our lands when they haven't even been properly negotiated. They're supposed to come to the people.  acquired it will add weight to the realization that the present Band Council structure is an inadequate device through which to obtain consent in relation to the surrender of Indigenous territorial sovereignty. It may also add to the realization that Indigenous jurisdiction on unceded territory is not for sale. 3 5 1  April 15 , 1991 Transcript at 25. th  132 ... A n d m y — i n my heart I believe I wasn't breaking the province law they say they have because I know that the federal government have that fiduciary trust obligation to us, and they wouldn't have had to incarcerate us all i f the federal government was honourable enough to negotiate with us as we were asking all that summertime we were out there at that roadblock. A n d that's all they had to do, was come and negotiate, and never once did we see them do that. 352  Another traditional L i l ' w a t accused attempted to assist the judge in understanding that it is not the L i l ' w a t people who are in breach o f their obligations. One after another they remarked on their state o f mind at the time o f the offence and the lack o f honour o f the Crown: Matthew Pierre: I just want to say I was not guilty o f anything in m y mind, m y heart, m y whole being. This was L i l ' w a t territory all the time, always w i l l be, Y o u have no legal title, you have no legal documents to say it's yours. It's still L i l ' w a t territory. Y o u couldn't buy it so you had to expropriate. It's still stealing, no matter what legal term you use.  353  M r . Pierre's comment directed at counsel for the Provincial government reflects the Supreme Court o f Canada's statement that legality and legitimacy are entwined i n addition to revealing that subjectively the L i l ' w a t people saw themselves as morally innocent. Rather than providing proof o f the necessary mens rea for criminal contempt, the testimony o f the L i l ' w a t accused repeatedly expressed their adherence to L i l ' w a t law. They spoke o f the obligations and responsibilities they carry in relation to their territory when explaining their actions rather than a motivation to act in defiance o f Canadian law. From their perspective it is non-existent because o f its lack o f jurisdiction in unceded territory.  354  In addition to Justice MacDonald's insistence on the assumption o f court jurisdiction, he also found it necessary to infer defiance into the minds o f the L i l ' w a t people. Their sworn  3 5 2  Dec. 12 , 1990 Transcript at 31-2.  3 5 3  April 16 , 1991 Transcript at 2.  th  th  Inspector Byam of the R.C.M.P., in charge of dismantling the roadblock agreed in crossexamination that the natives on the roadblock appeared sincere when they were chanting " R C M P has no jurisdiction". November 27 , 1990 Transcript at 63. 354  th  133 testimony had provided ample evidence that L i l ' w a t law obliged them to protect the resting places o f their ancestors.  355  If he had considered British Imperial constitutional law,  Justice MacDonald would have found that without purchase through nation-to-nation negotiation, the court had no jurisdiction vis-a-vis unceded territory. From the L i l ' w a t perspective the only law with legitimacy in unceded L i l ' w a t territory is their own. Immediately prior to convicting them, Justice MacDonald commented that he accepted the righteousness o f their cause and the genuineness o f their beliefs.  356  Whereas the general  principle o f criminal law requires a finding o f a guilty intention in regards to the actus reus o f a crime, M r . Justice MacDonald relied upon Toth to hold that he required only notice o f the Chief Justice's injunctive order and an action contrary to i t .  357  H i s earlier characterization  o f the contempt as criminal had the consequence o f creating the necessary inference that the L i l ' w a t peoples' actions were sinister and threatening vis-a-vis the administration o f justice. Only by assuming jurisdiction, inferring an intention contrary to the L i l ' w a t s ' sworn testimony, and applying case precedents relating to Canadian citizens on ceded territory was Justice MacDonald able to find the L i l ' w a t people guilty as charged. A s to whether the judge was in breach o f the rule o f law that insists on constitutional supremacy, consider the following explanation by Youngblood Henderson in "Empowering Treaty Federalism":  Justice MacDonald in his Reasons for Judgment issued on March 18 , 1991 relied upon Bridges for it's description of contempt which he applied to the Lil'wat assertion of sovereignty: "In the whole spectrum of conduct classified as contemptuous, there can be none more sinister or more threatening than that of organized, large scale, deliberate defiance of an order of the court." R. v. Bridges (No. 2) 61 D.L.R.(4 ) 155 (B.C.S.C.). 3i;>  th  th  3 5 6  April 15 , 1991 Transcript at 31. th  R. v. Toth, 1991 CanLll 184 (B.C.C.A.) March 12 , 1990 Transcript at 22. The Crown suggested the Lil'wat people were motivated to block the road by their obligation to the Creator and by their belief in Indian sovereignty however this spoke only to motive and was legally irrelevant to criminal responsibility. 357  th  134 Indian country in the West was under the general protection o f the Crown pursuant to the Royal Proclamation and the Rupert's Land and North-Western Territory Order. Under these prerogative documents the First Nations were protected against encroachments from the colonial governments and the settlers, but the First  *  358  Nations had no consensual relationship with the Crown. .. .Under treaty federalism, any Aboriginal right not delegated to the Crown is retained by the First Nations... A l l legitimate British authority in North America is derived from the compacts and treaties with First Nations. A n y C r o w n authority over First Nations is limited to the actual scope o f their treaty delegations. If no authority or power is delegated to the Crown, this power must be interpreted as reserved to First Nations, respectively, and are protected by prerogative rights and the common law since neither can extinguish a foreign legal system. The ability ofthe First Nations to delegate authority to the imperial Crown does not by itself affect First Nations' territorial authority. Other than personal or institutional bias, what explains the inability o f M r . Justice MacDonald to accept the blockade as a justifiable act based on L i l ' w a t territorial sovereignty in relation to unceded territory? Correspondingly, what prevented h i m from viewing the traditional native accused as acting in obedience o f L i l ' w a t law rather than i n defiance ofthe Newcomer's foreign law? Justice MacDonald's rulings were also inconsistent with the principle that requires the Crown to be held to a high standard o f honourable dealing with Indigenous peoples.  360  Clark  summarized the situation by writing: .. .the judges' assumption that they had jurisdiction to shift the legal burden o f proof onto the Indians by requiring them to make a land claim which the judges could then judge the validity of, was not merely illegal, but treasonably, fraudulently, and genocidally so; and the Indians are entitled to third-party adjudication and do not have to prove anything before this judge. The judiciary also breached the constitutional guarantees relating to the presumption o f innocence and the right to full answer and defense. Justice M a c D o n a l d refused to require  "Empowering", supra note 57 at 259. 9  Ibid, at 24.  0  Guerin v. The Queen [1984] 2 S.C.R. 378 [Hereinafter 'Guerin"].  1  Clark, supra note 28 at 104.  proof o f each element o f the offence o f contempt. A s an element o f the crime o f  135  contempt I requested that the Crown be put to strict proof o f whether or not the court was an authority over these accused. For the Crown to prove the court was an authority over the L i l ' w a t accused on unceded territory M r . Justice MacDonald needed to hear the jurisdictional argument. A challenge o f whether the court was such an authority at law was a valid legal issue requiring argument and adjudication. Logic speaks to the difficulty o f being found guilty o f disobeying a court order the authority o f which has not been established. I urged the judge on M a r c h 2 2 , 1991 that by hearing the jurisdictional argument as an element o f the nd  offence, he had an alternative to breaching the collateral attack rule that he considered himself bound b y .  3 6 2  The simple fact that the L i l ' w a t people have lived in and been i n continuous possession o f the land i n question for several thousands o f years ought to have been a sufficient basis for the judge to accept this basic request by the defense. In this regard, consider the Dyzenhaus' statement that the legitimacy o f the positivist approach depends on a democratic theory that says the people speak through their elected parliamentary representatives.  Only as a result  o f this feature o f democracy do judges have the authority to apply the statues enacted so as to best approximate what these representatives actually intended. G i v e n that the vast majority o f Indigenous peoples refuse to participate in any manner whatsoever within the foreign Canadian parliamentary system, their challenge as to whether the court was a valid legal authority over them was a legitimate argument according to basic democratic theory. Justice MacDonald responded:  March 22 , 1991 Transcript at 4. nd  Milde, supra note 29 at para. 13.  136 .. .it is my view that I have indirectly, i f not directly, concluded that I have authority that i n this narrow context o f contempt proceedings. Having ruled that the sovereignty issue cannot be put before me, I have indirectly, i f not directly, concluded that I have the authority to deal with the contempt proceedings. 364  The judge's refusal to hear the constitutional law affecting his jurisdiction, to additionally consider whether he was an authority over the L i l ' w a t accused and his ignoring o f the L i l ' w a t testimony that explained their allegiance to L i l ' w a t laws in their territory, are three discretionary judicial decisions that lead one to question whether the judge was being affected b y a reason other than a given reason i n the exercise o f his discretion. A s D . Patterson writes in Epistemology of Judging: .. .there is an important distinction between the factors that effect judicial reasoning and the reasons that are used by Judges to justify their decisions. ...the fear is that within the range o f defensible strategies, judges may effect and justify almost any outcome. 365  The judge was in breach o f the rule o f law b y predetermining that he would not adjudicate upon the Indigenous sovereignty defense and was engaged i n whatever decisions were necessary to uphold this position. 4.2 T h e R e f u s a l of the Judiciary to A d d r e s s S u b s t a n t i v e Lil'wat D e f e n s e s a n d Relevant Evidence: Qwetminak repeatedly referred to the rule o f law at her sentencing hearing for criminal contempt: .. . i f that rule o f law is not going to be found i n these courts, where is it going to be found? That is m y question. I want to know where do we go? ...How do we get the rule o f law followed in this country? ...We are supposed to be protected people. It's your rule o f law. The following submission made to M r . Justice MacDonald b y Bruce Clark, was one o f  April 15 , 1991 Transcript at 4. D. Patterson, Epistemology ofJudging (Boulder: Westview Press, 1992) at fn.16.  137 several attempts to convince the superior courts o f British Columbia to hear legal argument addressing the L i l ' w a t sovereignty defense: ...the Indians are seeking justice only, not generosity,...the whole essence o f our position is that the rule o f law technically...in a black letter law sense is on their side. W e are not asking for your lordship to listen on the contempt proceeding to sovereignty evidence as a way o f doing some kind o f favor. W e are not asking for a favour. W e say that your lordship should listen to that evidence because that is your duty...And i f we can't persuade you that it's your duty, we say don't do us any favours. A n d the reasons that is, m y lord, is because it's important, there are political overtones to this case. 366  Clark and I tried a number o f approaches to having the jurisdictional argument i n support o f Indigenous sovereignty heard. These included an application for habeas corpus, an application for a non-suit, an application for a counter injunction against the logging company, an application to appear before the judge who issued the injunction on the basis that it was issued per incuriam, an application for leave to j o i n the appeal o f the original injunctive order, and a declaration from the Federal Court that the Federal government was i n breach o f it's fiduciary obligations. The judiciary denied each o f these motions without hearing the constitutional legal argument ofthe Lilwat accused. Clark writes o f his astonishment in Justice in Paradise: To me, it was inconceivable that, i n a matter o f such obvious importance and notoriety, the judge could simply state that he was not prepared to listen to the law going to jurisdiction. But it was that simple. .. .Accordingly, I applied to the Chief Justice o f British Columbia for a review.. .of the first judge's injunction and his refusal to reconsider in light o f law that previously had not been presented. That  Consider in this regard Henderson's comment in where he states: "Colonial values informed the rule of law only so long as Treaty First Nations and Aboriginal people were not permitted to complain to the courts. First Nations' resistance to those who act in the name of the Crown revealed constitutional contradictions. They forced these governments to justify the exercise of public power over Aboriginal peoples." "Empowering", supra note 57 at 298; consider also that for decades the natives were forbidden by law to raise funds for land claims therefore they did not participate in the development of the case law that is binding on the domestic judiciary who claim to have authority over them. 3 6 6  138 application, too, was blankly and flatly refused. I attempted to appeal these arbitrary refusals to listen to law to the British Columbia Court o f A p p e a l .  367  In fact, Clark continued i n his pursuit to have the jurisdictional argument heard and 368  appeared on more than 41 occasions "without it ever being determined by any court."  He  was intent upon having the legal argument adjudicated upon b y the Supreme Court o f Canada. After more than twenty refusals he obtained leave to appear before Chief Justice Lamer. There he was advised that his suggestion that the judiciary's insistence on its refusal to hear the law rendered them complicit i n genocide, was the most preposterous submission the Chief Judge had ever heard and that Clark was a disgrace to the bar for making such a remark.  369  A s to the domestic court's refusal to hear the L i l ' w a t defense arguments, it should be noted that i n addition to refusing the L i l ' w a t accused the opportunity to make the jurisdictional argument, M r . Justice MacDonald also refused arguments regarding the defense o f necessity and the Supremacy o f God as contained i n the preamble to the Constitution. When Clark began to outline the latter argument M r . Tyzuk responded that R. v. Bridges No. 2 was a precedent that prevented i t .  370  This case involved a protest at an  abortion clinic where those who breached the injunction order not to interfere with the operation o f the clinic relied on their belief in God's law as their defense. Justice MacDonald  Clark, supra note 28 at 102; see also at 132 where Clark refers to his unsuccessfully pursuit of hearings on the jurisdictional argument before the United Nations Human Rights Committee as well the International Court of Justice. He concluded that: "politics, not law, also governed in the international arena, and the United States and Canada had the politics and diplomacy in their pocket."; see also where Henderson refers to the difficulty with applications by Indigenous peoples to the International Court of Justice: "There is little opportunity to establish self-determination for Aboriginal peoples in international jurisprudence because only states have standing at the International Court of Justice." "Empowering", supra note 58 at 298. 368  Ibid, at 212.  369  Ibid, at 222. Mar. 12 , 1991 Transcript at 20. th  139 agreed with the Crown's submission and responded to Clark: "I have to tell you that I 371  can't entertain that argument. I ' m sorry but I can't." To prevent having to address the argument, the judiciary again refused to distinguish the legal position o f traditional L i l ' w a t peoples on unceded land from that o f other Canadian citizens.  372  To have any validity or authority in relation to non-treaty Indigenous peoples the  Canadian legal system must first be grounded in the notion o f a social contract. MontureOkanee and Turpel in "Aboriginal Peoples and Canadian Criminal L a w : Rethinking Justice" remind Newcomers that: W e are not necessarily culturally, linguistically, or historically part o f Canada or Canadian legal and political institutions. W e are different and separate, set apart by our cultures, languages, distance and histories. 373  O n the basis ofthe legal assumption that the imposition o f Canadian citizenship was valid, M r . Tyzuk reduced the L i l ' w a t assertion o f sovereignty to an attempt on their part to argue that they, like the abortion clinic protestors, preferred the law o f G o d above the law o f the state. M r . Tyzuk misrepresented the point. It is not that the L i l ' W a t traditional peoples preferred the rule o f God to the rule o f the state but rather that they owed allegiance to L i l ' W a t law. Accordingly their obligation to the Creator was to protect the land and the graves o f their ancestors. When the L i l ' w a t accused were refused the opportunity to make submissions relating to the principle o f the Supremacy o f God, Clark responded by stating once again "our client's s. 7 rights are being denied .. .that we have not been granted the opportunity to adequately state  3 7 1  Nov. 28 , 1990 Transcript at 8. th  If, as the Supreme Court of Canada states, aboriginal rights are sui generis why does the judiciary condone the Provincial government's reliance on cases relating to non-Indigenous persons?  3 7 2  3 7 3  Monture-Okanee, supra, note 7 at 259.  140 our case in a situation where the clients' liberty is at stake."  374  In addition to the court's refusal to hear defense arguments, as soon as we began calling the L i l ' w a t accused as defense witnesses, evidentiary objections to both relevancy and admissibility were made by counsel on behalf o f both governments.  The L i l ' w a t accused  were attempting to explain their sovereignty as the basis for blocking the road through their unceded territory as well as to clarify that their only purpose before the foreign court was to continue to create a historical record o f their sovereign p o s i t i o n .  376  W h i l e M r . Tyzuk argued their evidence regarding sovereignty amounted to a collateral attack on the Chief Justice's order and was irrelevant as it went to motive rather than intent, M r . M a c K e n z i e objected that the L i l ' w a t s ' viva voce evidence should not be heard on the basis o f lack o f relevancy as well as arguments regarding: .. .oral evidence, the admissibility o f Indian law and legends and the admissibility o f evidence as to reputation, irrelevancy, speculative evidence, general hearsay evidence and evidence that really consists o f argument rather than factual evidence. Not only did the court rule in favour of the Crown's opposition to our making arguments on substantive issues, but also the Crown's objections to the admission o f the L i l ' w a t viva voce testimony were ultimately upheld.  3 / 4  November \9,  1990 Transcript at 12.  January 7 , 1991 Transcript at 2-3. Clark was able to convince the judge to allow the evidence be admitted for the purpose of creating a complete record for appeal purposes but not in support of any Lil'wat defense to the charge of contempt.  375  th  Such traditional assertions of Indigenous sovereignty are in keeping with the comment by Christie, where he states: "It must be kept in mind, however, that it is not judicial recognition that validates this notion of sovereignty." G. Christie, "Justifying Principles of Treaty Interpretation" (2000) 26 (1) Queen's Law Journal 143 at fn. 22. 3 7 6  Jan. 7 , 1991 Transcript at 25. Clark responded by reminding the judge that Indian cases are sui generis and it is not a question of applying standard evidentiary rules. He therefore suggested the judge approach the admissibility issue in a unified manner rather than compartmentalized as suggested by Mackenzie. 3 7 7  th  141 4.3  Judicial Manipulation of P r o c e s s A s one o f many attempts to have the law placed before the court, we made a request for  M r . Justice MacDonald to hear argument as to the lawfulness o f the L i l ' w a t s ' detention by way o f a habeas corpus application. He responded: " I ' l l certainly hear from you in the appropriate time for that to be raised. So the answer is a qualified yes, I w i l l hear that but not at this t i m e . "  378  A few moments later for clarity I confirmed with h i m "...you have made it  clear on the record today that you w i l l listen to an argument as to lawfulness o f the detention," to which he responded: " Y e s . "  3 7 9  However, Justice MacDonald continued to refuse to allow us to bring the application even though the B . C . Court o f Appeal had made it clear that the habeas corpus rested solely with him. I continued to pursue a hearing o f the application: .. .so there's no other viable.. .available place for us to take the habeas corpus argument but to you and as I understand the record right now, you are denying us that application. The Court: A t this time in this trial, y e s . 380  The judge's position on this specific application had changed within a few days. Whereas on November 2 0 ' 1990, he mentioned that in the circumstances we may wish to open our th  defense with the habeas corpus application, by November 2 8 , 1990, he stated: th  .. .you do not have the right to interrupt these kind o f proceedings by habeas corpus, that you must exhaust your other remedies first, i.e. adduce the defense which you have here. 381  The right to challenge the lawfulness o f the detention o f an accused through a habeas corpus application is a constitutional right available to anyone being detained or incarcerated by the  8  November 20 , 1990 Transcript at 56. th  9  Ibid, at 67.  0  November 21 , 1990 Transcript at 110.  1  Nov. 28 , 1990 Transcript at 6.  st  th  142 authorities.  382  Additionally in the context o f this case, justice delayed was justice denied.  The original inhabitants o f the territory remained incarcerated while the provincially licensed logging corporation continued to blast a road through the L i l ' w a t peoples' burial grounds. There is a point at which the manipulation o f procedure so as to avoid hearing argument as to the lawfulness o f their detention became an abuse o f process. I reminded M r . Justice MacDonald o f this on M a r c h 12 , 1991, in m y threshold jurisdictional argument where I th  383  referred to his inherent jurisdiction to avoid irregularities that result i n injustice. M r . M a c D o n a l d also ruled that he did not consider himself seized o f the habeas corpus application. However, he refused our application to adjourn so that Clark and I could argue it before another Supreme Court judge. A t this point Clark stated on record: Y o u r lordship has said that you w i l l entertain a habeas corpus application i n these proceedings. Having said that, in your next breath you take it away and you say you won't listen to the theory o f the defense on that subject, and you have foreclosed the possibility o f the defense putting onto the record its evidence which is absolutely 384  essential to the habeas corpus application. Due to what we concluded was a manipulation o f process we sought an adjournment to discuss with our clients whether there was any point i n proceeding with the defense o f the action, since it would appear that the habeas corpus application was effectively being forestalled.  From the perspective o f the traditional L i l ' w a t people, i f their defense was not  385  going to be heard, it became questionable whether or not they should continue to participate Charter, supra note 194 at s. 10. Everyone has the right on arrest or detention (c.) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 382  March 12 , 1991 Transcript at 2; Clark was still beseeching the judge on April 17 , 1991 to "Stay the blasting and clear cutting of the sacred valley until the Court of Appeal will at least listen to the law upon which my clients rely. ...Tell Crompton her faith in you was not in the end misplaced." 3 8 3  th  th  3 8 4  November 28 , 1990 Transcript at 6.  385  Nov. 28 , 1990 Transcript at 5.  th  th  143 in what had become a criminalization process. Another example o f manipulation o f process occurred on M a r c h 15 , 1991, when M r . th  Justice M a c D o n a l d stated: .. .simply because I have characterized these as criminal proceedings because really the underlying issue here is the action for trespass and nuisance, a c i v i l action. That admittedly these proceedings have a criminal flavor, i f I can call it that, because o f the consequences that could flow from it, but that doesn't take away from the underlying basis on which the Attorney General's action is originally brought...the fact the constitutional argument proceeds on the basis that these are "criminal proceedings" is not going to flow over into the argument on the threshold jurisdiction issue. B y holding that i n respect o f the threshold challenge to jurisdiction the matter was civil in nature, M r . Justice MacDonald was able to lessen his obligation to hear the challenge from that required in a criminal proceeding. Here the L i l ' w a t accused were incarcerated and faced criminal records i f convicted because Justice MacDonald himself had characterized the contempt as criminal. W h y did he insist that their preliminary challenge to jurisdiction was to proceed on a c i v i l basis? What purpose did it serve i n this one instance to insist on viewing the matter as a c i v i l writ o f conspiracy to commit trespass and public nuisance, while i n all o f our other attempts to present the jurisdictional argument to insist that the matter before h i m could only proceed as a criminal enforcement matter? Another example o f manipulation o f process occurred when Clark attempted to file a notice o f motion to strike the writ o f summons as frivolous, vexatious and disclosing no reasonable cause o f action. The judge was quick to respond: The Court: N o w , I'm going to react to the third document immediately without hearing from your friends. ... I view the motion to strike out the Writ as simply another way o f phrasing the argument or the position that because o f the sovereign status o f the L i l ' W a t people this court has no jurisdiction over it. In other words, it becomes a question o f semantics. Either this court can deal or it can't with these people in this situation. 386  Dec. 10 , 1990 Transcript at 6. th  144 When the judge indicated his awareness that the motion may be an alternative ground o f attacking the allegations against the arrested persons Clark answered: Y o u r second conclusion might then be to strike the Writ and thus remove the scandal o f prosecuting people for breaching an interim injunction where there is no action with reference to which the injunction is capable o f being interim. Clark set out the grounds for striking the writ as follows: 1. A s a matter o f fact "no purchase" by the Crown within the meaning o f the Royal Proclamation has been pleaded by the plaintiff in their writ o f summons. 2. A s a matter o f law it is impossible for the defendants to be liable in trespass on their own unceded Indian territory until they have indicated that they are "inclined to dispose" o f their land and a "purchase" by the Crown has been concluded. 3. The Supreme Court o f British Columbia has no jurisdiction over the territory in question since that territory prima facie is unceded Indian territory for constitutional law purposes. 4. If any non-native court has jurisdiction, which is not admitted but denied, i n virtue o f ss. 2 and 18 o f the Federal Court Act it can only be the Federal Court o f Canada. The judge refused to hear the motion to strike on the basis that he perceived it to be a collateral attack on the Chief Justice's order. Although he had suggested he would hear the motion during argument on the merits o f the case, he had once again changed his mind by the time we reached that point i n the trial process. Such procedural manipulation must be confronted i n our consideration o f whether the court in the L i l ' w a t criminal contempt trial was acting arbitrarily or i n accordance with the rule o f law. The domestic judiciary insisted on relying on legal fictions, adamantly refused to allow substantive legal arguments or to consider relevant evidence. These judicial actions in combination with judicial manipulation o f process amounted cumulatively to a breach o f  Dec. 10 , 1990 Transcript at 7. th  145 natural justice that consists o f procedural fair play and due process. 4.4  3  Judicial a b u s e of p r o c e s s : From the defense perspective the domestic court's repeated refused to hear valid defense  arguments, relevant evidence and associated applications had reached the point o f constituting an abuse o f process. Clark asked on February 8 , 1991: th  H o w can the Provincial government get away with stealing their [Lil'wat ] lands when the constitution in very straightforward terms expressly prohibits this? The white society is evading the rule o f law. It is achieving this i n virtue o f its control o f the legal process. That is the white judges are stonewalling the simple legal question, and thus preventing the rule o f law from functioning. 389  The court reacted vehemently to this suggestion by Clark. The more stridently Clark objected to the court's insistence on the assumption of j u r i s d i c t i o n  390  the more vehement  became the reaction o f the bench to him. What began with the judiciary asking counsel for the Attorney General o f British Columbia to have the L a w Society consider disbarment proceedings against him, escalated eventually to a B . C . Provincial Court Judge ordering Clark held for thirty days i n a psychiatric institute for examination o f whether his mental state was such that he was fit to practice.  391  In the end, Clark's insistence that the courts  address the law resulted i n his disbarment as a member o f the L a w Society o f the Province o f  The judge included as an example of procedural fair play, that all parties are to be given the opportunity of being heard. Salem v. Air Canada [1999] N.S.J. No. 13; Doc. S.H. 1498/10 (N.S.S.C.) 3 8 8  3 8 9  Feb. 8 , 1991 Transcript at 23. th  December 10 , 1990 Transcript at 18. In answer to a request from the Crown for particulars of which specific pieces of legislation Clark was calling into question, he responded: "...what would be the point of me listing every single Statute and every single Section? The point is far more basic than that. What's necessary is to stand back and in order to see the forest through the trees realize that what we are saying is, this is sovereign Lil'wat territory protected as unceded Indian Territory for constitutional purposes. That simple point drives everything else. It's not necessary to list sections. Take it as a given, that all Federal and Provincial legislation that molests or disturbs within the meaning of the Royal Proclamation is inapplicable." 3 9 0  3 9 1  th  Clark, supra note 28 at 167-68.  146 Ontario. A s identified in the following comment by Doug Moodie, it was not the lack o f a legitimate legal argument that prevented the L i l ' w a t sovereignty position from being heard, but rather, the judicial insistence on particular assumptions or myths regarding the legal relationship between the Newcomer state and Indigenous nations. M o o d i e concluded in his article that: ...the supremacy o f the Crown is not up for debate. The judiciary for almost two centuries has shown unquestioning allegiance to the concept o f Crown sovereignty. ...notwithstanding the existence o f persuasive legal arguments i n support o f the concepts o f Aboriginal sovereignty and inherent self-government, the judiciary has traditionally adhered to certain entrenched "legal fictions". 393  The unconstitutional refusals to hear applicable law and relevant evidence, the manipulation o f process to avert defense opportunities and the inexplicable favoritism shown to the Crown in the exercise o f Justice MacDonald's discretion amounted to an abuse o f process by the domestic judiciary.  4.5 Judicial C o n d o n i n g of the C r o w n ' s L a c k of H o n o u r  O n December 10 , 1990, Clark was finally in the process o f filing five legal instruments as part o f the habeas corpus application, when, without notice, M r . Goldie appeared on behalf o f the Provincial government.  394  H e rose and objected to the court proceeding any further  Clark, supra note 28 at 218-24. The Report recommending his disbarment is dated Dec. 17 , 1998.  iVZ  th  Moodie, supra note 58 at para.6; see also Hunter's statement that: "While on a normative level it is fair to question whether the Crown's assertion of sovereignty was legitimate, it seems clear that the mainstream legal system views it as such." C. Hunter, "New Justification for an Old Approach: In Defense of Characterizing First Nations Treaties as Contracts" (2000) 62 U.T. Fac. L. Rev. 61-83 at 74. 393  Mr. Goldie was lead counsel for the Provincial government in the Delgamuukw trial that was about to be decided by Chief Justice McEachern of the British Columbia Supreme Court. 3 9 4  147 with the hearing o f the L i l ' w a t application on the basis that Chief Justice McEachern i n Delgamuukw had heard much more extensive argument on the same points that Clark was trying to argue. M r . Goldie advised Justice MacDonald that he should therefore adjourn the L i l ' w a t case and await Chief Justice McEachern's decision, which was expected shortly. He was also insistent that the Supreme Court o f Canada in Sparrow had decided against the native's sovereignty argument and that it was not open to the court to decide that Sparrow was wrongly decided.  395  The Court: "What you are attempting to demonstrate, as I understand it, is that the issues which M r . Clark wishes to raise before me i n these proceedings are before, squarely before the Chief Justice i n the Gitksan case. M r . Goldie: That is correct. 396  Clark responded by advising Justice MacDonald that M r . Goldie was attempting to prevent Indian sovereignty, for the first time in history, from having its day i n court.  397  At  that point M r . M c K e n z i e , also appearing on behalf o f the Provincial government, added: .. .counsel do have a responsibility to object to my friend's characterization o f the Chief Justice's judgment, even before its come down or even after its come down, as  being per incuriam?  9%  Clark was quick to respond that the native's position in Delgamuukw and Sparrow was totally distinguishable from the present L i l ' w a t peoples' p o s i t i o n ,  399  and that Sparrow most  Mr. Goldie in Dec. 5 \ 1990 Transcript at 9 outlines the infringement principle recently enunciated by the Supreme Court of Canada in "Sparrow" supra note 58: "First, is the limitation within the legislation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the rights of their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation... If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of a constitutional aboriginal right." 396  397  398  Dec. 5 , 1990 Transcript at 26. th  Ibid, at 48-51. Dec. 10 , 1990 Transcript at 11. th  See Sparrow, supra note 58, in which the natives attorned to the jurisdiction of the court and argued that the Federal fishing regulations did not apply due to their constitutionally protected 399  148 certainly did not decide the question o f sovereignty: The parties assumed without the issue being argued that the court did have jurisdiction and the court went on in the absence o f all the necessary precedents and legislation as a reconciled entity. Having started with the opening assumption that the federal and provincial governments had jurisdiction, the court pre-judged the whole sovereignty issue without addressing i t . What's really needed is for the judges to step back and to put themselves in the seat o f the Imperial government, to go across that ocean and to see a continent, to see British North America from an Imperial perspective because that's where the law is made. W e are reaching to a more basic, a more basic and underlying question that has not yet been addressed. ...this case here before your lordship is about the jurisdiction o f the court. This case is not about a specific piece o f legislation like a provincial enactment. 400  401  402  Regarding the Gitskan case Clark stated: I've tried to get the information out to prevent a horrible miscarriage of justice and it's just fallen on deaf ears. The only way that justice can be done, I ' m suggesting, is that for your lordship to come in and save the day, and I ' m beseeching you to do that. 403  Unlike the L i l ' w a t accused before M r . Justice MacDonald, the Musqueum, Gitksan and Wet'suwet'en had attorned to the jurisdiction o f the court and, and by doing so conceded that Provincial and federal laws applied to them. The L i l ' w a t people emphatically asserted that the federal and provincial legislation molested and disturbed them on their unceded territory. In a detailed submission Clark demonstrated the fundamental difference between the L i l ' w a t s ' argument and those made to date on behalf o f Indigenous peoples. Clark also  aboriginal right to fish. This case resulted in the infringement principle that allows 'significant interests' of the Canadian public to be considered paramount on unceded territory. Henderson refers to this infringement test as "the judicially created interference standard." "Empowering", supra note 58 at 281. This decision of the Supreme Court of Canada provides support for the Lil'wat traditional people's belief that self-interest is exhibited not only through the abuse of procedure within Canadian courts but also by their final judgments. 4 0 0  Dec. 5 , 1990 Transcript at 40-42.  401  Ibid, at 73.  402  Ibid, at 44.  th  Ibid, at 50-1.  repeatedly stated that aboriginal title is not "a matter o f federal common law",  149  identifying this legal fact as "perhaps the most important perception in aboriginal rights  Clark insisted that: .. .counsel for the natives i n Delgamuukw was dead wrong when he argued that it was. ... When he made that statement... Indian sovereignty was... doomed. A n d the reason for that is locked in the word "federal". ...Aboriginal rights are not a matter o f federal common law. They are a matter o f Imperial common law and legislation. That makes all the difference in the w o r l d . .. .They were relying on colonial government law, not relying upon the law that restricts the colonial government. 405  406  Clark explained to the judge that the position taken by counsel for the natives in Delgamuukw allowed for the federal government to simply legislate pursuant to s. 88 o f the Indian Act, which provides for the application o f Provincial law o f general application to Indians. This meant you could simply legislate over the common law o f aboriginal rights. Clark concluded bluntly: "The Gitksan case w i l l solve nothing about Indian sovereignty except attend to the b u r i a l . "  407  He concluded by submitting that provincial governments are  unable to give themselves a jurisdiction over Indians i n relation to unceded territory, which the constitution denies them  4 0 8  He singled out the telling phrase i n the Sparrow judgment  that Goldie relied upon:  «*Ibid. at 51. 405  Ibid.  406  Ibid, at 57.  407  Ibid, at 58.  It is interesting therefore to see the following statement by Mr. Justice MacDonald: "Whether or not this is a court of general jurisdiction in relation to 'unceded Indian territory" remains to be determined in this action, although the outcome of that question appears hardly in doubt unless and until Delgamuukw is reversed on appeal." Reasons for Judgment: March 18 , 1991 at 32. The insistence by the judiciary in the misuse of case precedent is unexplainable given the lengthy education process during the five-month contempt trial in which the distinguishing factors between Delgamuukw and the Lil'wats' position were clearly set out before Justice MacDonald. 4 0 8  th  150 It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation o f 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the C r o w n . 409  Clark viewed this judicial statement as an accurate assessment o f policy, however he wished to place the law on the issue before the court. Clark continued to advise the court, in increasingly frank language, that it was about to decide the issue o f sovereignty without having addressed the law and therefore it was crucial to the existence o f the rule o f the law that the L i l ' w a t challenge to jurisdiction be argued before the court.  410  For example, consider the following Clark submissions: Indian sovereignty depends upon letting the record now show the truth before, not after the Gitksan case is decided. I am saying that Indian sovereignty was not adequately defended in that case. I am saying that Indian sovereignty was not-even placed before the court in that case. To the contrary, the plaintiffs i n that case were the aboriginal people. B y taking that position, they attorned to the jurisdiction o f the court o f British Columbia. They were not there to dispute the jurisdiction o f the court. These defendants are here for that purpose. .. .the system.. .the rule o f law.. .doesn't have to be conned, that your lordship can blow the whistle on this game. This is a fraud and an abuse o f the most heinous kind because it is a fraud and abuse that results in the tyranny o f one race over another race, and with all its smugness in our white faces we sit back and we talk about points o f procedure when the issue is justice 411  4 1 2  See "Sparrow", supra note 58; see also Foster's comment on the Sparrow quote where he states: ".. .in law the claim that there was never any doubt is often a sign of distant rumblings. ...We are never told what 'from the outset 'means, nor are we told how sovereignty and title could, without conquest ...be unilaterally transferred." H. Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases." (1992) 21 Man. L J . 343-389 at 344-46. See where Moodie outlines the history to date of the Canadian court's unquestioning acceptance of absolute and exclusive sovereignty in the British Crown. Moodie, supra note 58 at 1-41.  410  Dec. 5 , 1990 Transcript at 39-40. The legal maxim that a decision only has implications for cases which conform precisely with the facts which gave rise to the action, is simply ignored by the judiciary; see also where Harring illustrates that the misuse of precedent in the judge's legal reasoning appears to be a common occurrence in the foundational Ontario cases involving assertions of Native title and rights. He also confirms that in the majority of cases affecting Indigenous law, the native parties were either not present or present without legal counsel. Harring, supra note 277 at 36. 411  412  th  Ibid, at 76-7.  151 Clark again demonstrated to the court the fundamental difference in the L i l ' w a t s ' legal position when he stated: .. .rather than the onus being on the Indians to demonstrate infringement o f an aboriginal right in a habeas corpus motion the onus is on the C r o w n to establish that the detention is l a w f u l . 413  The judge responded that he would not accept that there was an onus on the Attorney General to prove the court has jurisdiction,  414  to which Clark countered: "When the court's  jurisdiction is questioned, there's no onus on anyone, o f course. The court has to satisfy itself that it has jurisdiction."  415  Clark suggested that without hearing the law, there was every chance that the sovereignty of the Indians may well slip through the cracks. A g a i n Clark stated the reason M r . Goldie was present was to ensure that it does happen and in effect, to insure that a fraud and an abuse within the meaning o f the Royal Proclamation, 1763 occurred. A t this point a third Crown counsel for the Province jumped to his feet and objected indignantly to the Court: M r . Prowse: M y Lord, I think this language is uncalled for, and I object to it being presented to you. The Court: It's pretty strong stuff. Y o u can use that to me, M r . Clark, but I don't think it's fair to use it to your friends. M r . Clark: M y lord, thank you for allowing me to use it to you, and I use it advisedly, and I use it because it is the truth, and it is time for the truth, whether it hurts or not, to be told. The Court: The truth can be stated in a much more polite form than that, M r . Clark. I ' l l thank you not to use those terms referring to your friends. 416  This exchange between counsel for the Province, counsel for the L i l ' w a t accused and the  4 1 3  414  Dec. 5 , 1990 Transcript at 45. th  Ibid, at 46.  See also submissions by Ms. Crompton to which the judge responded: "What your saying is that in each of those cases relied upon [by the Crown] there is an express finding of jurisdiction. The very point that you're making to me is I don't have it. And it's a hurdle I've go to get over to deal with this matter." March 11 , 1991 Transcript at 68-70. 4 1 5  th  4 1 6  Dec. 5 , 1990 Transcript at 43. th  judge illustrates the judicial condoning o f the Crown's misapplication o f case precedent  152  to prevent the sovereignty argument from occurring. Justice M a c D o n a l d had previously refused to hear the Imperial constitutional law that would prove the Provincial government was a third party encroacher on unceded land. Here he refused to provide Clark with an opportunity to prove that his use o f the words 'fraud and abuse' were legally valid. If, as Clark argued, a fraud and abuse were about to occur, the acceptance by Justice MacDonald of Goldie's reliance on fundamentally distinguishable precedents, resulted in the judiciary becoming complicit in a lack o f honour being demonstrated on the part o f the Crown. A similar example arises out o f the L i l ' w a t traditional peoples' application for a counterinjunction to prevent the destruction o f their sacred gravesites and pictographs. Crown counsel, representing both the Provincial and Federal governments, had objected to the admissibility o f the testimony o f the L i l ' w a t people as being irrelevant to the contempt case.  417  In fact, on January 7 , 1991, M r . Haig, counsel for the Attorney General o f Canada, th  advised the court that the Federal government took the same position as the Attorney General o f the Province in that it wished to recall all defense witnesses for the purpose o f crossexamination. He then stated that".. .his government and he is sure the Provincial government, consider their application to challenge the admissibility and relevance with respect to sovereignty very seriously."  418  The Supreme Court o f Canada had held i n Sparrow that: ...the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-  See January 7 , 1991 Transcript at 2 for an example of the Federal government doing everything possible to prevent the admission of the sworn statements of the Lil'wat accused. Both the Federal and Provincial Crown took adversarial positions. They argued that Lil'wat testimony referring to their allegiance to Lil'Wat law was irrelevant. From the Crown's perspective, the Lil'wat law that insists on the protection of the graves of their ancestors was irrelevant to the contempt proceedings.  4 1 7  4 1 8  th  January 7 , 1991 Transcript at 3. th  153 like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship. 419  Why does the court condone the adversarial attempt to have the Lil'wats' testimony held to be irrelevant and inadmissible when the Federal government's relationship with the Indigenous peoples is to be "trust-like"? Justice MacDonald had before him evidence of the repeated refusal ofthe Federal government to enter into negotiations with the Lil'wat people regarding this dispute over public access through their lands. He also ignored our repeated requests that counsel for the Federal government as fiduciary join Mr. Clark and I in defending Lil'wat lands from third party encroachment. Consider the federal government's obligation at law that results from the statement in Guerin: Where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary's strict standard of conduct. 420  Claire E Hunter in "New Justification for an Old Approach: In Defense of Characterizing First Nations Treaties as Contracts", suggests that "in its holding in Guerin, the SCC did not create a fiduciary duty that would be owed in the future, but rather declared that such a duty had always been owed."  421  When Clark wished to rely on the Lil'wat viva voce testimony to support the Lil'wat's injunction application the Provincial government argued that additional affidavits must be filed. Next they required that the logging company be joined and served with the application. Clark complained that if Mr. MacKenzie's position were accepted, procedure would be  419  Sparrow, supra note 57 at 1108.  420  Guerin, supra note 357 at 384  4 2 1  Hunter, supra note 393 at 70.  allowed to defeat substance. From the L i l ' w a t perspective, given that the blasting o f the  154  graveyards o f their ancestors was continuing while they were i n court, they could not understand what prevented the court from simply instructing lawyers for Interfor to attend and allow viva voce testimony in open court rather than the cumbersome process o f requiring affidavits to be served.  Clark stated on record:  .. .to some extent there is an illusion here. What we really have are two sides o f the story. There is the Indian side and the white side, and lined up on white society there is the Crown represented by the federal government, the provincial government and International Forest Products Limited... [who] purports to have rights in the area .. .on the basis o f an authority granted via [the] Crown. I suggest what is really happening is an attempt to gain time to avoid the interim injunction application coming on and being dealt with in a most expeditious way, the proceedings being manipulated to give those adverse in interest two.. .or three bites at the apple. 423  Regardless o f the time sensitive situation facing the L i l ' w a t people the court agreed with the Provincial government and held that there was a necessity to j o i n Interfor and proceed by way o f filing and serving affidavits. The judicial insistence on participating in an adversarial criminal enforcement process rather than hearing the law and expediently serving justice is revealing. Rather than administering justice in an effective manner the judge continued to allow, condone and participate i n the government's abuse o f process. B y doing so, the judge thereby joined the Province i n its breach o f the principle o f the honour o f the Crown and became a party to the use o f coercion against the L i l ' w a t peoples.  4.6  The Refusal of the Judiciary to Remedy Breaches of the Charter and  Applicable International Law  January 7 ,1991 Transcript at 6.  Ibid, at 7.  155 Simultaneously with the court's refusal to hear submissions regarding domestic law, it denied defense counsel the opportunity to make submissions regarding the breaches o f international human rights law that were occurring as a result o f the criminalization o f the L i l ' w a t peoples.  424  Consider the following comments by Monture-Okanee and Turpel:  It is our firm belief that the Canadian criminal law cannot be unilaterally imposed upon aboriginal peoples prior to a formal and complete definition o f their pre-existing and inherent aboriginal rights, treaty rights, without regard to Canada's international human rights obligations. International law requires the protection o f group rights and the promotion o f the rights o f all people to self-determination 4 2 5  Youngblood Henderson suggests: N o valid justification exists for the federal government to refuse to apply the Human Rights Covenants to Aboriginal peoples, especially those living on lands reserved for Indians and federal territories 4 2 6  Included with a L i l ' w a t application for a mistrial were allegations o f breaches o f the Canadian Charter and International covenants. I expanded our earlier list o f breaches o f the International 15.  427  Covenant on Civil and Political Rights to include Articles 1, 2, 7, 12, 14, and  A s well I made reference to breaches o f sections 2, 7, 9, 10(c), 1 l(d.), 1 l(e.), 1 l(g.),  See M a r c h 2 2 , 1991 Transcript at 5 and M a r c h 11 , 1991 Transcript at 50 for defense requests to call evidence and submit legal argument on breaches international law, including the right to nationality, the right to subsistence, and the right o f self-determination i n addition to evidence o f genocide and ethnocide. 4 2 4  4 2 5  4 2 6  nd  th  Monture-Okanee, supra note 7 at 257. "Empowering" supra note 57 at 301.  N o v . 2 0 , 1990 Transcript at 66; see also ICCPR., supra note 70, at Art. 1(1.) A l l peoples have the right o f self-determination. B y virtue o f that right they freely determine their political status and freely pursue their economic, social and cultural development. 1(2.) ...In no case may a people be deprived o f its own means o f subsistence. A r t . 7. N o one shall be subjected to ...degrading treatment or punishment. A r t . 12(1.) Everyone lawfully within the territory o f a State shall, within that territory, have the right to liberty o f movement... Article 14(1.). ...everyone shall be entitled to a fair and public hearing b y a competent, independent and impartial tribunal established by law. 14(2.) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. A r t . 15(1.) N o one shall be held guilty o f any criminal offence on account o f any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. 4 2 7  th  12, 14 and 25 o f the Charter of Freedoms and Rights.  156  428  1 also submitted that because o f  Canada's ratification o f the International Covenant the superior court o f the Province was an appropriate tribunal through which the Lil'wats were entitled to seek effective remedies. Additionally, pursuant to s. 24 o f the Constitution Act, 1982, the B . C . Supreme Court was a court o f competent jurisdiction to hear the Charter arguments. The judge interrupted m y submission to ask what did these breaches have to do with the application for a mistrial. I responded that s. 7 o f the Charter guarantees the right not to be denied your liberty except in accordance with the principles o f fundamental justice, which incorporates the opportunity to adequately state your case. I also made reference to s. 9 ofthe Charter and argued that because o f the judge's prejudgment i n this case, the L i l ' w a t traditionalists were being arbitrarily detained. I next included reference to the right to the presumption o f innocence until proven guilty according to law i n a fair and public hearing by an independent and impartial tribunal. Justice MacDonald simply denied the L i l ' w a t application for a mistrial and concluded the day's hearing by advising counsel for the Provincial Attorney General that he should be ready to complete his proof o f the criminal  Charter, supra note 194 at s. 2. Everyone has the following freedoms: (a.) freedom of...religion. s.7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, s.9. Everyone has the right not to be arbitrarily detained or imprisoned, s.10 Everyone has the right upon arrest or detention: (c.) to have the validity of the detention determined by way of habeas corpus and to be released i f the detention is not lawful, s.l 1 Any person charged with an offence has the right (d.) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, (e.) not to be denied bail without just cause, s.l 2. Everyone has the right not to be subjected to cruel and unusual treatment or punishment, s.14. A party or a witness in any proceeding who does not understand or speak the language in which the proceedings are conducted... has the right to the assistance of an interpreter. s.24(l.) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances, s.25. The guarantees in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal or treaty right, or other rights that may pertain to the aboriginal peoples of Canada. Including (a.) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b.) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.  157 contempt the following d a y .  429  A g a i n on M a r c h 2 2 , 1991,1 asked the judge: nd  .. .to consider whether or not you w i l l hear evidence and legal argument as to the international breaches under the International Covenant on Civil and Political Rights and I w i l l refer you to Part II, Article 2 and you w i l l see there that each State party, that being Canada, is obliged to provide a judicial remedy.. . 4 3 0  I outlined that the L i l ' w a t peoples alleged that their right to a nationality and their right to subsistence were being breached as well as their right to self-determination.  431  I specified that  their right to self-determination included economic, political, social and cultural aspects. W e also advised M r . Justice MacDonald that we wished to call evidence in support o f allegations of ethnocide and genocide as defined by International law that was binding on C a n a d a .  432  The judge promised that he would consider my request on behalf o f the L i l ' w a t traditionalists the next time we met in court. A p r i l 5 , 1991,1 requested that the judge address the outstanding issue ofthe breaches o f th  binding international covenants. He simply noted at that time that these international covenants: " . . .may have to be dealt with in some w a y . "  433  On A p r i l 15 , 1991 I referred the judge to the fact that earlier i n the proceedings I had th  4 2 9  Nov. 20 , 1990 Transcript at 72.  430  March 22 , 1991 Transcript at 5.  th  nd  Henderson notes that the International Court of Justice has stated that "the right of selfdetermination is recognized as a legal right in the Charter of the United Nations... and that this right is the basis for the process of decolonization." "Empowering", supra note 58 at 299; he continues: "Without explicit terms in a treaty, the Human Rights Covenants should be the minimum standards used to scrutinize inherent Aboriginal rights. These standards have already been ratified by the federal government. ...The Human Rights Covenants are another source of proper conduct toward Aboriginal peoples in Canada, still neglected by Canadian leaders and lawyers." "Empowering", supra note 58 at 304. 431  The imposition and encroachment of an imposed governing system by way of the Band Chief and Council in opposition to the self-determination of traditional Indigenous governing systems causes extreme mental anguish to a significant proportion of Indigenous people as well as playing a central role in causing Indigenous suicide.  4 3 2  433  April 5 , 1991 Transcript at 2. th  158 requested him: .. .to consider whether or not he would hear any [evidence] or make any decisions regarding the international breaches that we have been alleging since our opening argument.... including imposing nationality, denying subsistence,.. .theft o f their unceded territories and the resources on those unceded territories. It includes the denial o f their self-determination in all four ways listed: that is economically, politically, culturally and socially. A n d the final breach is, o f course, that all o f this constitutes genocide. ...actually.. .you had agreed that you would advise me .. .as to whether or not you would make findings in relation to these issues. Has your lordship concluded in his own mind what his position would b e ? 434  Not surprisingly the judge refused the L i l ' w a t peoples the opportunity to make submissions regarding any o f the above arguments: The Court: ... .the very narrow scope, as I have so defined them, o f these contempt proceedings bars me from a consideration o f those sort[s] o f thing...these contempt proceedings are not the event at which those sort o f arguments can be put before the court. M i s s Crompton: Even i f the original order is a breach o f international law? The Court: Yes. Even i f that is the case. M i s s Crompton: It seems to me we end up with procedure overriding substance and a lack o f justice resulting. The Court: That may well b e . 435  H o w does one explain the judiciary's involvement in enforcing the court's original injunctive order while persistently refusing to hear defense submissions as to the applicability o f international law that Canada has voluntarily ratified? Youngblood Henderson's comments help to place the judge's refusal in legal perspective: The Aboriginal peoples' choice o f self-determination is no longer abstract; it is a matter o f existing positive law. It is an integral part o f their constitutionalized Aboriginal and treaty rights, and it is also an explicitly recognized human right that the federal government affirmed when it ratified the U N Human Rights Covenants  4 3 6  4 3 4  April 15 , 1991 Transcript at 5.  435  Ibid, at 6.  th  "Empowering", supra note 58 at 304; see also fn. 179 where Henderson comments: "Under the Charter of the United Nations, self-determination became one of the controlling purposes of the international order."  4 3 6  159 International law and domestic law are independent domains, and the fictions or operations o f domestic law cannot affect the validity or meaning o f international obligations. 437  When the judge placed the Chief Justice's injunctive order above guaranteed Charter rights that would have protected the L i l ' w a t peoples, he was in breach o f the rule o f constitutional supremacy. When he additionally refused to hear or grant effective remedies for breaches o f binding international law he breached the rule o f law. Justice MacDonald's insistence on enforcement o f the removal order o f his brother judge through coercion was arbitrary. It became impossible to characterize his rulings as neutral judicial behaviour i n accordance with the principles o f the rule o f law, o f constitutional supremacy, and the honour ofthe Crown. 4.7  J u d i c i a l C o n d o n i n g of F e d e r a l G o v e r n m e n t ' s B r e a c h of its Fiduciary T r u s t e e  Obligations. Deborah A . Demott, in Beyond Metaphor: An Analysis of Fiduciary  Obligation, refers to  ...the requirement o f the fiduciary to be loyal to the interests ofthe beneficiary. The fiduciary's duties go beyond mere fairness and honest; they oblige h i m to act to further the beneficiary's best interests. The fiduciary must avoid acts that put his interests in conflict with the beneficiary's. ...In transactions between the fiduciary and the beneficiary, therefore, the fiduciary must be candid and must evince utmost good faith. 438  Additionally she outlines that the fiduciary's duty o f loyalty to the interests o f the ward requires an accounting o f any profits made through the use o f the ward's property.  439  She  explains that this is required due to the fact that a fiduciary's position o f power enables them  Ibid, at 21, fh. 21; see also Electtronica Sicula S.P.S (ELSI), (United States ofAmerica v. Italy), [1989] LC.J.Rep. 15 at 50-51. D. Demott, "Beyond Metaphor: Analysis of Fiduciary Obligation" (1988) Duke L.J. 879-917 at 882.  4 3 8  439  Ibid, at 891.  160 to indulge their own interest and injure the beneficiary.  440  Compare this description o f  the law with the position taken by the Federal government throughout this dispute, first in their refusal to negotiate public access with the L i l ' w a t peoples and then i n their alignment with the adversarial approach o f the Provincial government throughout the contempt trial. According to Leonard Rotman, the duty o f a fiduciary trustee requires: ...a higher standard o f morality than the ordinary contractual standard o f good faith. ...nobler and subtler qualities: loyalty, fidelity, integrity, respect for confidentiality and beneficiary. While acting in a fiduciary capacity, fiduciaries may not place their personal interests, or those o f third parties, ahead o f or on par with their beneficiaries' interests.  441  Here the Federal government aligned with the Provincial government. It is not possible to reconcile the positions taken by legal counsel on behalf o f the Attorney General o f Canada with the fiduciary trust obligations that exist in relation to Indigenous peoples and their lands. Fundamental fiduciary trust law provided the basis for Justice M a c D o n a l d to appreciate the validity o f the L i l ' w a t peoples' challenge to the Federal government acting i n opposition to, rather than as a protector of, the L i l ' w a t interest in the land. It w i l l come as no surprise at this  440  Ibid, at 895.  L . Rotman, Hunting for Answers in a Strange Kettle of Fish: Unilateralism, Paternalism and Fiduciary Rhetoric in Badger and Van der Peet" (1997) 8 Const. Forum Const. 40, at para.20. ["Hunting"]; see also evidence of conflict with the legal obligations of a fiduciary in the Federal Government 1995 Policy Statement: Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal SelfGovernment (Ottawa: Minister of Public Works and Government Services Canada, 1995) referred to in the R.C.A.P. Report, vol. 2 pt. 1, at 205 (Ottawa: Canada Communication Group, 1996) In this document the Federal government sets out it's parameters on the policy for self-government. The document states which jurisdictions in Canada's opinion can or cannot fall within Aboriginal jurisdictional power and has suggested when, and to what degree, Federal or Provincial laws could override Aboriginal jurisdictional power; consider also Moodie's conclusion that it is: "Absolutely fundamental to this federal parameter-setting process is the ideological position that Aboriginal selfgovernment does not include a right of sovereignty in the international law sense, and will not result in sovereign independent Aboriginal nation states" and that Aboriginal self-government must exist "within the framework of the Canadian Constitution." He continues: "Many Aboriginal groups and individuals have a starkly different view of the nature of Aboriginal sovereignty." Moodie, supra note 58 at 9. How is the Federal government able to claim it is acting in their beneficiary's best interest when it is intent upon limiting Indigenous sovereign rights in such a self-serving fashion? 441  161 point in the analysis, that M r . Justice MacDonald refused to address the concern o f the L i l ' w a t peoples regarding the legality o f the federal government's adversarial actions against it's beneficiary. The traditionalist L i l ' w a t people repeatedly advised M r . Clark and me that the current interpretation o f this fiduciary/ward relationship by the Federal government is an illegal one. Consider Youngblood Henderson's comment where he states: .. .the Court has been clear that the "protectorate relationship" did not extinguish Aboriginal sovereignty, or abolish their governmental powers or make them dependent upon federal law. Treaties o f protection have been judicially construed as an Aboriginal nation claiming and receiving the protection o f one more powerful; not that o f individuals abandoning their national character, and submitting, as subjects, to the laws o f a master. 442  The original protective relationship has been transformed over time into an invalid basis for present day federal legislation with the aim o f complete domination over Indigenous territory and peoples regardless ofthe whether there is a treaty i n existence or not. Henderson quoted a passage from Worcester v. Georgia to increase the understanding that: .. .the taking o f protection was perceived by the Indians to be only what was beneficial to themselves...an engagement to punish aggressions on them...it merely bound the nation to the British Crown, as a dependent ally.. .without involving the surrender o f their national character. 443  The traditional Lil'wats were insistent that they do not consider themselves as wards but rather as the L i l ' w a t peoples o f the sovereign L i l ' w a t Nation. They refuse to have surrendered their L i l ' w a t national character through the unilateral acts o f a foreign power without it first having obtaining their informed consent through their hereditary governing  "Empowering", supra note 58 at 284. Ibid, at 44; consider also submission by Ms. Crompton: "And you've heard from these people .. .that their traditional government has survived and their fundamental law that they have spoken very clearly to you of is their obligation to the Creator and to everything in creation. Now, that's law over that territory. And there is nothing that this court and more pointedly nothing that the Province as a plaintiff using this court can do to surrender their nationhood." March 11 , 1991 Transcript at 21. 443  th  162 structure. This case analysis has shown in detail how both domestic governments continued to treat the L i l ' w a t people as surrendered wards legally bound by the positions taken by the imposed Band Council system. The L i l ' w a t accused attempted on numerous occasions to bring to the court's attention that according to the domestic rule o f the law, the Federal government was legally their protector and guardian. To illustrate the entrenched view within the domestic court o f the Federal government as adversary, consider Clark's comments made before M r . Justice MacDonald on December 13 , 1990: th  M y lord, I might, for the record, advise m y friend M r . Partridge, who is appearing here for the Federal government, and who is sitting with the provincial government lawyers, that there is room on the Indian side o f the counsel table i f he would prefer to be on the appropriate s i d e . 444  O n January 7 , 1991,1 also placed on record my difficulty with the federal government's th  alliance with the position o f the provincial government. I questioned w h y they were not appearing on our side, calling witnesses to assist the L i l ' w a t peoples' position, as their legal duty obliged them to do: .. .it just shocks me every time they stand up and take the position that they are going to cross-examine the Indians, i n other words be on the wrong side o f the table. I put that on the record and I continue to do so. Thank you 4 4 5  In fact, the proper role for the Federal government, according to both British and international law, originates in their role as a protector o f a weaker nation and the intention to prevent the encroachment by settlers o f the colony into unceded native territory  446  O n Dec. 10 , 1990, when Clark attempted to file a copy o f the L i l ' w a t peoples' th  Statement o f C l a i m in an action commenced in Federal Court that sought a declaration that  4 4 4  Dec. 13 , 1990 Transcript at 28. .  4 4 5  Jan. 7 , 1991 Transcript at 18-19.  446  Royal Proclamation, 1763 (7 October 1763), Privy Council Register, Geo. Ill, vol. 3, at 102.  th  th  163 the F e d e r a l g o v e r n m e n t w a s acting i n b r e a c h o f its f i d u c i a r y trustee o b l i g a t i o n i n the c r i m i n a l contempt case, b o t h c o u n s e l for the P r o v i n c i a l and the F e d e r a l governments objected to i t ' s r e l e v a n c y to the contempt proceedings. O n c e a g a i n s u c h p o s i t i o n s o n the part o f b o t h governments stand i n direct o p p o s i t i o n to the S u p r e m e C o u r t ' s statement i n Sparrow that "the relationship b e t w e e n the government and a b o r i g i n a l s is t r u s t - l i k e , rather than adversarial."  447  M r . Justice I a c o b u c c i o f the S u p r e m e C o u r t o f C a n a d a i n Osoyoos Indian  Band v. Oliver m a d e it clear that the C r o w n c o u l d not cite c o m p e t i n g considerations s u c h as p u b i c access as a defense to its failure to f u l f i l l its f i d u c i a r y d u t y to A b o r i g i n a l p e o p l e s .  448  H e r e , the P r o v i n c e i s a t h i r d party encroacher o n what d o m e s t i c l a w considers a federal enclave or reserve. B y c o n d o n i n g the a l i g n m e n t o f the F e d e r a l g o v e r n m e n t w i t h the P r o v i n c i a l g o v e r n m e n t ' s e x p r o p r i a t i o n o f L i l ' w a t l a n d that is b o t h a federal reserve and u n c e d e d t r a d i t i o n a l L i l ' w a t territory, the domestic j u d i c i a r y rendered t h e m s e l v e s c o m p l i c i t i n the g o v e r n m e n t ' s b r e a c h o f f i d u c i a r y obligations. H o w e v e r the j u d i c i a r y refused to question the c o n s t i t u t i o n a l i t y o f l e g i s l a t i o n that i s i n b r e a c h o f b o t h a b o r i g i n a l rights and f i d u c i a r y o b l i g a t i o n s s u c h as the Order-in-Council  1036/1938. T h e P r o v i n c i a l government alleges that it a l l o w e d for the surrender o f P r o v i n c i a l lands to b e h e l d i n trust b y the F e d e r a l government for the Indians, p r o v i d i n g up to l / 2 0 o f t h  s u c h lands c o u l d b e r e s u m e d for a p u b l i c interest. In support o f the L i l ' w a t s ' c o m p l a i n t o f f i d u c i a r y breach o f trust L e o n a r d R o t m a n points out: O n c e a p r i m a facie inference o f a f i d u c i a r y d u t y and its b r e a c h are p r o p e r l y demonstrated i n light o f the facts o f a particular interaction b e t w e e n the A b o r i g i n a l c l a i m a n t and the C r o w n , a rebuttable p r e s u m p t i o n is thereby created w h i c h the C r o w n  Sparrow, supra note 58. Osoyoos Indian Band v. Oliver [2001] 3 S.C.R. 746.  164 has the onus to refute, either by demonstrating that no such duty exists or that the duty does exist, but was not breached. 449  Rather than placing an onus on the Federal government to demonstrate that it was acting according to the obligations o f a fiduciary trustee Justice M a c D o n a l d would not question either the Federal government's refusal to negotiate the issue o f Provincial access through the L i l ' w a t land or it's alignment with the Provincial government's expropriation and adversarial approach.  450  The judge's refusal was in breach o f fiduciary trust law that allows a beneficiary  to question positions taken by their trustee that are adverse to their interest. One cannot help but agree with Leonard I. Rotman, where he states: "The use o f fiduciary rhetoric by the judiciary is rendered meaningless without a commitment to enforce its application i n practice." Rotman continues: In defining the "fiduciary duty" of the Crown, the Supreme Court restored the concept o f holding ministers to a standard o f fairness that demands forethought as to what conduct lends credibility and honor to the Crown, instead o f what conduct can be technically justified under the current l a w . 451  W i t h the breach o f the federal government's fiduciary obligations in mind, on what legitimate basis did Justice MacDonald refused to question the propriety o f the federal  L. Rotman, "Case Comment: Wewaykum: A new Spin on the Crown's Fiduciary Obligations to Aboriginal Peoples?" (2004) 37 U.B.C. L . Rev. 219-258, at fn.10; see also Wewaykem Indian Band v. Canada (2002), 220 D.L.R. (4 ) 1, [2002] 4 S.C.R. 245. th  Evidence submitted by the Lil'wat accused showed that the federal government refused to respond to their repeated pleas, made verbally and in written correspondence, that indicated their desire to negotiate a peaceful resolution to the Lil'wat jurisdictional land dispute. The Lil'wat people refused to accept a cash offer of $124,000 for the surrender of the land required to complete the Provincial "public highway" through the Mount Currie Indian Reserve. The offer was made by D. I. F. MacSween, Chief Property Agent, on behalf of the Provincial Ministry of Transportation and Highways, on Sept. 10*, 1990. Their refusal resulted in the expropriation of the road. Given the fundamental believe within traditional governing systems of an inalienable relationship with the land, the concept amongst the traditional people that they would relinquish the land for monetary reward was non-existent. The Lil'wat people were at all times willing to negotiate access for the Canadian public however not on the basis of extinguishment of their title to the land in question. The expropriation and use of force by the Provincial government was ultimately condoned through the criminalization of the Lil'wat peoples by the domestic judiciary. 4 5 0  451  "Hunting", supra note 441 at 44-5.  165 government's participation in the criminalization ofthe L i l ' w a t people? If the judge was not yet convinced that the federal government was in breach o f it's fiduciary trust obligations by it's alignment with the Provincial Crown in the criminal contempt o f court proceeding, then the following exchange with M r . M c K e n z i e on March 11 , 1991, should have finalized the court's conclusion in this regard. M r . M c K e n z i e th  attended to advise the court that there had been a judgment handed down in Delgamuukw that held that the Royal Proclamation did not apply to British C o l u m b i a .  452  M r . M c K e n z i e had  earlier characterized Clark's argument as relying for its foundation on the Royal Proclamation of1763 where he stated: M r . M c K e n z i e : ...it's clear from...Mr. Clark's argument, that his sole basis for his jurisdiction argument is the Royal Proclamation.'" The Court: " O r i f I may put it in these words: that is the foundation on which his argument is built and from which his argument flows." M r . M c K e n z i e : Yes, that's correct, my lord. The Court: ... .if the Royal Proclamation does not run i n this province, then M r . Clark's argument must, o f necessity, fall. M r . M c K e n z i e : Yes, yes, m y l o r d . 453  He attended on M a r c h 12 , 1991, to advise M r . Justice MacDonald that he was bound on this th  point by the recent Delgamuukw d e c i s i o n  454  and therefore it would be 'academic' to hear the  The Lil'wat people suggest that whether the Royal Proclamation applies to B.C. is of little importance since it is not from the Proclamation that their sovereignty originates.  4 5 2  4 5 3  March 12 , 1991 Transcript at 27. th  A further concern of the Lil'wat traditional people was their knowledge that a number of Provincial government counsel in the Delgamuukw case were law partners of Chief Justice McEachern prior to his appointment to the bench. When his former partners appeared before him in a trial as prominent as Delgamuukw, the Chief Justice should have recused himself so as to assure the appearance of justice. Margo Nightingale claims that "judicial bias is ever present but invariably unacknowledged." Nightingale, supra note 136 at 74; see also the Supreme Court of Canada decision in Catcheway where the trial judge's previous law firm had acted for certain groups within a native reserve. This fact alone was sufficient for Mr. Justice Iacobucci in an oral judgment to order a new trial before a different judge. ..."we find that the trial judge's prior involvement raised a reasonable apprehension of bias in accordance with the well-established jurisprudence on the issue." R. v. Catcheway [2000] 1 S.C.R. 838 4 5 4  166 threshold jurisdiction argument or the collateral attack argument.  455  H e added that the  Federal government i n the Delgamuukw case had adopted the arguments o f the Provincial government relating to the non-applicability o f the Royal Proclamation to the territory o f British Columbia. Once the Attorney General o f Canada on behalf o f Federal government is allowed to proceed i n an adversarial manner against it's beneficiary,  456  and take legal positions in breach  of it's fiduciary trust obligations, the judiciary itself has breached the rule o f law. They have lost the necessary neutrality to maintain the right to adjudicate regarding Indigenous unceded territorial disputes  4 5 7  One o f the L i l ' w a t accused puts it succinctly at her sentencing hearing where she states: Ishmeshkeya: I can't believe the biased system we live i n i n this court system. Every judge that I have looked at since we started to put across our words, I can't believe it. I can't believe how they are just so biased. I think that the Federal Government should be forced through this court i f not—if this court is going to do anything, to meet with us, to come out with some agreement.  Transcript: March 11', 1991 at 8. He then urged the judge "to carry on with the substantive part of the criminal contempt proceedings, apart from these issues which have been raised by the defense counsel." Clark responded: "this point is for too crucial to be finessed, as my learned friend would have it." See March 11 , 1991 Transcript at 3 where the judge followed the procedure suggested by the Crown. 455  th  How is it in keeping with the honor of the Crown to argue against the applicability of the Royal Proclamation in light of Guerin where the Supreme Court of Canada held that the land rights of the natives are a pre-existing right not created by the Royal Proclamation, by s. 18(1) of the Indian Act or by any other executive order or legislative provision. Guerin, supra note 357 at 379. From the Lil'wats' perspective the Royal Proclamation represents British recognition of their autonomy as well as a promise to protect their lands from encroachment by British subjects. The reasonable person must ask themselves why is it that Guerin alone was not a sufficient basis for the judiciary to hold the injunctive balance of convenience in favour of the original and continuous inhabitants rather than the logging corporation and the Canadian public. Henderson provides one explanation: "Where the Indians make significant legal victories ...the common response of the Department of Justice to Guerin .. .was an attempt to minimize and ignore the decisive terms of the government's obligations, arguing that the decisions only had implications for cases which conform precisely with the facts which gave rise to the action." "Empowering", supra note 58 at 70. 456  March 12 , 1991 Transcript at 21.1 argued if the judiciary condoned the Province's characterization of the case as "an attack of the jurisdiction of the Province and on the R C M P " the court would lose its neutrality.  457  4 5 8  th  April 15 , 1991 Transcript at 30. th  167 It is important to conclude this Chapter by clarifying the Lil'wat peoples position regarding the non-applicability of Canadian domestic law to the dispute involving unceded territory. They instructed me that they would remain sovereign until, according to their Lil'wat law, their people reached a consensual agreement to enter into a nation-to-nation treaty with Canada. They do ask, however, in the meantime, that Canadians obey their own rule of law including their fiduciary trust obligation. Although the reason for their refusal to accept Canadian jurisdiction is founded upon their unsurrendered sovereignty, they see the additional wisdom of this stance due their observations of embedded bias in the judicially developed case law. An example of this is that even where the court upholds the fiduciary obligations of the federal government towards the natives it ultimately interprets the principle so that it favours the Canadian public interest over the Indigenous interest in the unceded lands. On the one hand, the Supreme Court of Canada confirmed that the fiduciary duty extended to the expropriation of native land and rejected the Crown's argument that it owes no fiduciary duty where such a duty conflicts with the Crown's public law duties. On the other hand, in Osoyoos Indian Band v. Oliver, the Supreme Court of Canada held that the expropriation of unceded Indigenous land by the government to build an irrigation canal for agricultural development in Southern British Columbia was not a breach of fiduciary trust. It simply 459  insisted that a minimal amount of land be taken so as to impair the rights of the Band as little as possible. The constant acceptance by the courts of both Provincial and Federal government infringement of unceded territory is now, unfortunately, embedded in the case law of the  459  Osoyoos Indian Band v. Oliver (Town of) [2001] 3 S.C.R. 746.  168 Canadian legal system. The assumption o f jurisdiction is perpetuated by reliance on undemocratically passed legislation and the application o f unrelated case law. In the case at bar, the enforcement by the judiciary ofthe status quo that allowed for public access through unceded L i l ' w a t lands revealed Newcomer self-interest and should create an apprehension o f bias in a reasonable, uninvolved person. From the traditional L i l ' w a t s ' perspective, the domestic Canadian courts have proven themselves unable to provide an impartial forum in which to settle Indigenous territorial disputes.  169 CHAPTER FIVE: Colonialism and legal education 5.1  U n d e r s t a n d i n g the Foundational Myths of C o l o n i a l i s m a n d C o l o n i a l Institutions: Albert M e m m i , in his famed book The Colonizer and the Colonized, argued that the core  purpose o f colonialism is to profit from the land and the resources o f the colony. "Accepting the reality o f being a colonizer" he wrote "means agreeing to be a non-legitimate, privileged person, that is, a usurper." role as dominator,  461  460  The colonizer w i l l construct myths i n order to continue i n their  and "no matter what happens he [the colonizer] justifies everything—  the system and the officials i n i t . "  462  H e endeavors to falsify history, he rewrites laws, he  would extinguish memories—anything to succeed in transforming his usurpation into legitimacy.  463  The Lilwat criminal contempt trial reveals that in order to accomplish this transformation, the institutions o f the Newcomer race rely upon a number o f colonial myths. The first o f these relates to the fiction that in fundamental Indigenous issues, law and politics operate autonomously. In this regard Joel Bakan, in Just Words comments: Internal law is rigorous, and elegant on occasion, but it implicitly defends a method that presumes, rather than questions, law's autonomy from politics and society. 464  The L i l ' w a t trial provides evidence that both the provincial and federal governments, in conjunction with the superior court judiciary, were engaged i n political acts to sustain their legitimacy in the name o f the 'public interest' and the 'authority o f the court'.  4 6 0  Memmi, supra note 143 at 52.  461  Ibid, at 32.  462  Ibid, at 46.  463  Ibid, at 52.  4 6 4  J. Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto  Press, 1997) at 6.  170 Representatives o f all three institutions sought to perpetuate the fiction that Canadian sovereignty and the accompanying jurisdiction o f the domestic courts extend over unceded Indigenous territory. O n the basis o f this assumption o f sovereignty, the courts ruled that L i l ' w a t peoples' interference with the Canadian public's right o f access through unceded territory or the logging corporation's right to construct roads for the purpose o f extracting resources from L i l ' w a t territory, was a criminal act, rather than an assertion o f L i l ' w a t authority. The courts were not neutral arbiters, but the Attorney Generals o f both the provincial and federal governments and the judiciary o f the superior court o f the province participated i n upholding the myth that the domestic court is able to provide an impartial forum for the resolution o f such territorial disputes between Indigenous peoples and the dominant Newcomer society. The pretence o f the existence o f legitimate constitutional authority in Canada emerges as a consequence. A s Indigenous scholar, James Youngblood Henderson explains: Modern legal consciousness is tormented by a set o f interlocking contradictions derived from the colonial legal regime. Those legal thinkers, who identify constitutional law in Canada only with the appearance o f prerogative or parliamentary delegations to the colonialists, face a dilemma with legitimate constitutional authority in a patriated Canada.. . B y ignoring Aboriginal and treaty rights, these thinkers have unjustly bestowed power, wealth and privilege onto themselves. In the process, they made the First Nations their political hostages, depriving them o f the right to selfdetermination and human rights under their treaties. 465  When Bruce Clark attempted to prove this point at law, the most telling evidence o f the court's reliance on fiction was demonstrated by the reaction o f the judiciary. Clark insisted  "Empowering", supra note 57 at 65. The fact that the Lil'wats are pre-Treaty serves to emphasize their sovereign status. Whereas many Indigenous nations argue that their treaties were peace alliances rather than a surrender of sovereignty, the Lil'wat Nation has yet to enter into treaty negotiations in their history with the dominant society. At present they stand by their LU 'wat Declaration of 1911 contained in Appendix II at 219.  171 that the domestic Canadian courts recognize the existence o f Indigenous sovereignty by acknowledging the provision for its protection within British Imperial l a w .  4 6 6  B y the end o f  his determined attempt, the judiciary ofthe British Columbia courts had h i m shackled, handcuffed, incarcerated, and ordered examined in a psychiatric hospital for the criminally insane.  467  This behavior on the part o f the judiciary speaks volumes on the matter o f whether  law and politics are autonomous.  468  The truth is the domestic judiciary refused to hear the  legal argument in support o f Indigenous sovereignty because to do so would result in a collision with the fictions that underlie Canada's claim to both sovereignty and jurisdiction over unceded Indian country.  469  That Clark was ultimately disbarred for his attempt to assert Indigenous sovereignty in the colonial court system would not come as a surprise to M e m m i , who cautions the colonial: Having discovered the economic, political and moral scandal o f colonization, he can no longer agree to become what his fellow citizens have become; he decides to remain, vowing not to accept colonization. 4 7 0  In Clark's case his extremely well researched legal argument struck at the legitimacy o f constitutional authority i n Canada over Indigenous peoples and their lands. M e m m i warns such an individual that:  See where Anthony Hall quotes Ramsay Clark, former Attorney General of the United States, as "characterized this decision as a very deliberate attempt to falsely brand as potentially "crazy" an erudite, if slightly eccentric formulator and messenger of a very important legal argument." A . Hall, The Bowl With One Spoon: The American Empire and the Fourth World (Montreal: M c G i l l Queens University Press, 2003) at 6. 4  4 6 7  Clark, supra note 28 at 167-8.  According to the judge the purpose of this order was so as to establish whether or not Clark was suffering from a mental disorder before allowing him to proceed further in his arguments.  468  See McCue's doctrinal analysis of Canada's reliance on dispossession theories where she convincingly deconstructs their legitimacy. J. McCue, Treaty Making From an Indigenous Perspective: A Ned 'u 'ten-Canadian Treaty Model ( L L . M . Thesis, Faculty of Law, University of British Columbia, 1998) at 50-120. 469  4 7 0  Memmi, supra note 143 at 21.  172 .. .it is not easy to escape mentally from a concrete situation, to refuse its ideology while continuing to live with its actual relationships. ... If he persists, he w i l l learn that he is launching into an undeclared conflict with his own people which w i l l always remain alive, unless he returns to the colonialist fold or is defeated. Wonder has been expressed at the vehemence o f colonizers against any among them who put colonization in jeopardy. It is clear that such a colonizer is nothing but a traitor. 471  M e m m i must have had someone like Clark in mind where he continues: "Otherwise, he must not expect to continue to harass them undisturbed. They w i l l take the offensive and return blow for b l o w . "  472  Clark's aim was focused at the judiciary for their refusal to hear the  law while continuing to participate in a process o f criminalization that was clearly an abuse of fundamental justice. The blow dealt Clark in return resulted in the termination o f his relationship with the legal profession. Herein lies the point. If, as an officer o f the court, you threaten the legal base o f colonial privilege it w i l l take whatever steps necessary to silence you. James Youngblood Henderson mirrors M e m m i ' s point regarding the key aim o f colonialism, where he speaks o f the implicit rule o f 'the colonial promise o f abundance to the individual colonizers'. He concludes: If such an implicit rule can extinguish the rule o f law, then the rule o f law is questionable. In such a situation, the generic legitimacy o f legal authority is shifted to  471  Ibid, at 21-22.  Consider in relation to Bruce Clark's disbarment the recent article by Richard Foot, "Criticizing the Judges" The Globe and Mail Saturday, (17 Jan 2005) A.12. It involved a prominent Newfoundland defense lawyer, Jerome Kennedy, facing a disciplinary hearing before the Law Society of Newfoundland for publicly stating that some trial judges are biased or incompetent, partly because they owe their jobs to political patronage. The comment resulted from the refusal of an inquiry to consider the role of the judiciary in the occurrence of wrongful convictions in Canada during the period 1989-1995. Peter Russell, a political scientist at the University of Toronto and a leading constitutional scholar, expressed outrage that any lawyer in Canada might be sanctioned for criticizing judges. " A l l around the democratic world now lawyers are free to criticize the judiciary. If Mr. Kennedy is punished, they would be acting in a very reactionary way."; see also Richard Blackwell, "Nfld. Lawyer cleared of charge" The Globe and Mail, (13 Dec 2005) A.9: "The Law Society of Newfoundland and Labrador has dropped a complaint against a lawyer who said unqualified judges are one of the causes of wrongful convictions." 472  173 the purposes o f colonization-to manifest the colonizers' needs, self-interests and abundance... 473  The analysis ofthe participation o f the judiciary in this case demonstrated such a shift. A t all times it was the need o f the colonizers' need for public access and to extract resources that the court protected. In terms o f the refusal for the domestic judiciary to abide by the rule o f law and adjudicate upon a challenge to jurisdictional legitimacy there is truth in M e m m i ' s observation that "it is too much to ask one's imagination to visualize one's own end, even i f it be in order to be reborn another; especially if, like the colonizer, one can hardly evaluate such a rebirth."  474  A n examination o f this case has demonstrated the degree to which the  domestic court is a partial and therefore inappropriate forum for evaluation o f the Newcomer/Indigenous relationship. The display o f embedded self-interest by the colonizer's court when forced to address it's own usurpation was shocking. A s to an additional fiction that allows for the denial o f Indigenous human rights one must confront another myth that lies hidden and invisible to most who take part i n it. It has been meticulously demonstrated by Steven Newcomb and provides a significant key to understanding Newcomer/Indigenous relations. It involves the fact that European settlers as Christians were considered full human beings with legal capacity while Indigenous peoples as non-Christians were categorized as heathens or infidels and thus subject to subjugation and appropriation o f their lands.  475  It is this fundamentally racist distinction that lies  underneath the Newcomer's present day insistence on holding Indigenous lands in trust i n the name o f the Queen, while constructing the Indigenous peoples who inhabit those lands as  4  "Empowering", supra note 58 at 69.  474  Memmi, supra note 143 at 40.  "Christian Nationalism", supra note 31 at 314; see also S. Newcomb "pagans in the promised land: a primer on religious freedom" © 1992, 1995 Eugene, Oregon at 1.  475  174 wards o f the state. Steven Newcomb refers to the "age old proposition that Christian nations had the divine right to take possession o f and to assume dominion over non-Christian lands" as "the Christian/heathen distinction from which the discovery doctrine originated."  476  477  He concludes that Chief Justice Marshall's judgment in Johnson v. Mcintosh (1823) 'quietly adopted' this archaic, Judeo-Christian religious doctrine, now known as the doctrine of discovery, that assumes Christian dominion based upon the distinction between the paramount rights o f Christian people and the subordinate rights o f heathens or nonChristians  4 7 8  He demonstrates that this principle "constitutes the tacit, underlying basis o f all  subsequent determinations o f Indians rights."  479  In a short article, "Papal Bulls Burning! Five  Hundred Years o f Injustice: The Legacy o f Fifteenth Century Religions Prejudice", Newcomb claims: Thus, the ancient doctrine o f Christian discovery and its subjugation o f "heathen" Indians were extended by the federal government into a mythical doctrine that the U . S . Constitution allows for governmental authority over Indian nations and their lands. 480  While there were differences between the American and Canadian relationships with Indigenous nations, the same Christian/savage distinction is the foundation for the Newcomer's claim to sovereignty over discovered lands within both states. In Canada, the federal government, due largely to the dramatic increase i n the presence o f settlers, has been able over time to unilaterally transform the duty o f a stronger nation to protect it's weaker  4 7 6  "Christian Nationalism", supra note 31 at 304.  477  Johnson v. Mcintosh 8 Wheat.543 (1823).  See also B. Trigger, Natives and Newcomers: Canada's "Heroic Age" Reconsidered. (Montreal: McGill-Queen's University Press, 1985) 3-49 for a summation of the image of the 'Indian' in nineteenth century social thought. 4 7 8  4 7 9  "Christian Nationalism", supra note 31 at 304.  S. Newcomb, "Papal Bulls Burning! Five Hundred Years of Injustice: the Legacy of Fifteenth Century Religious Prejudice", online: <http://ili.nativeweb.org/index.html > (1992) at 3. ["Papal"]  4 8 0  175 ally into full plenary power over Indians lands and resources as set out in federal legislation.  481  It is upon this most iniquitous myth o f human/subhuman differentiation  grounded in religious doctrine, that the current assertion o f the federal government's plenary power is based. James Youngblood Henderson suggests that: "The basic idea was that Aboriginal peoples were at various stages in their evolution from "savages" to "civilization." Under the concept o f historical process, the Europeans were civilized, the Indians were not. These false ideas were mutually reinforcing false ideas that were hopelessly intertwined i n the federal administration. They not only began the devastating movement o f cognitive assimilation, they also 482  justified systematic political and cultural subjugation o f Aboriginal peoples. The analysis o f the L i l ' w a t contempt case entitles one to add 'legal' to 'political and cultural subjugation o f Aboriginal peoples'. The Federal government's reliance on the fiction o f Indigenous peoples as not fully developed humans is reflected through it's unilateral incorporation o f such notions as ward and continued insistence on posing as a fiduciary trustee. It is this Christian/savage myth that provided the original justification for constructing a legal system that remains imbued to the present with the assumption o f European/Christian superiority. are by nature superior to others".  The embedded racist notion is " a belief that some races 484  This is the only basis, other than eventual might, that can  possibly explain the unilateral assertion o f Canadian sovereignty over distinct territories  It should also be noted that it is from this illegitimate base that the federal government through s. 88 of the Indian Act, attempts to subject all "Indians" to provincial laws of general application.  481  4 8 2  "Empowering", supra note 58 at 275.  "Papal", supra note 480 at 4 refers to " ...the underlying, hidden rationale of "Christian discovery" - a rationale which holds that the "heathen" indigenous peoples of the Americas are "subordinate to the first Christian discoverer," or its successor." Newcomb focuses on the unconstitutionality of the lack of separation of church and state and penalizing native people on the basis of their non-Christian religious beliefs and ceremonial practices. Concluding that it upon this basis that the native people were stripped of most of their lands and most of their sovereignty, he refers to "the monumental violation of the "natural rights' of humankind, as well as the most fundamental human rights of indigenous people." 483  4 8 4  Merriam-Webster Dictionary, (New York: Gulf and Western Corporation, 1974), s.v. "racist".  176 inhabited and governed by Indigenous peoples at the time o f their supposed 'European discovery'.  5.2  485  C h a l l e n g e s Inherent in Current Legal E d u c a t i o n : Positivism a s Justification,  L a w S c h o o l Curriculum a n d T h e Colonial B o x :  Given that colonialism is embedded in the domestic legal system it makes sense to consider legal education as the source o f its perpetuation. Paul H a m l i n suggests that".. .law is a function ofthe ideas held by those who practice it and their ideas are very largely governed by the quality o f their education."  486  A s a result o f this case study, one can safely presume that the legal education ofthe judiciary who actively participated in the denial o f the L i l ' w a t people's human rights, is faulty. The fault results largely as a consequence o f the existence o f this sixth myth o f Christian superiority embedded in colonial i d e o l o g y .  487  Linda M i l l s , building on Joseph  Singer's work, reveals that a judge's ideology critically influences both his or her individual  "Christian Nationalism", supra note 31; consider also conclusions of bev long where she states: ".. .none of the acquisition doctrines (or colonial rationalizations) are sufficient in themselves to actually support the asserted legitimacy ofthe sovereignty of the C a n a d i a n state. Consequently, racist ideologies of justification based on the racialization of indigenous peoples as "uncivilized" and "inferior" emerged to supplement the doctrines in an effort to rationalize and legitimate the process of colonization. These racist ideologies were then incorporated into colonial law through the doctrine of discovery." b. long, "when injustice becomes law: indigenous sovereignty and C a n a d i a n jurisdiction" (April, 1999) [unpublished, archived at the Faculty of Law, University of B.C.] at 6. 485  486  P. Hamlin, Legal Education in Colonial New York (New York: Da Capo Press, 1970) at xvii.  See Smith's explanation of his work as "an effort to elaborate on the textual strategies employed by judges to bolster the legitimacy of their decisions, ofthe legal system and, ultimately, of the existing matrix of unequal power relations...Ultimately, this comment represents part of a much broader struggle currently being conducted at the cultural level—in the mass media, within state and social institutions, and in the interactive practices of everyday life—to disrupt, and begin to displace, the taken-for-granted meanings and common-sensical assumptions that inform human behavior in a "society structured in dominance." M . Smith "Language, Law and Social Power: Seaboyer; Gayme v. R. and A Critical Theory of Ideology" (1993) Univ. of Toronto Law Review Vol. 51, 118-155 at 154. 487  177 judgments, as well as patterns o f decisions.  488  This must be what accounts for the  judicial position that Clark refers to i n Justice in Paradise where he comments: The trial judge declined to address the law going to jurisdiction, but he did make a finding on jurisdiction. H e found that he did have jurisdiction because he had been exercising it for some time, and therefore it was ridiculous to allege that he did not have it. He held that it would be a waste o f the court's time to listen to my argument. 489  Other judges found the suggestion that they were without jurisdiction 'ridiculous' and even 'preposterous'. It was this same base o f colonial superiority that prevented the courts from considering the actions o f the Federal government as being in breach o f their fiduciary trustee obligations when they joined with the Provincial government's criminal case against its wards. It was also this embedded colonial superiority complex that lay behind the court's insistence that the accused provide Christian names or be incarcerated. The difficulties o f the domestic Canadian judiciary are linked directly to the domestic Canadian law school curriculum from which the judiciary emerge. Traditional curriculum holds consistently to the proposition in its basic legal training that all possible jurisdiction in the territory known as Canada is exhaustively divided between the Federal and Provincial governments by the British North America A c t o f 1 8 6 7 .  490  Clark summarized the  consequences o f such preconditioning on the minds o f the vast majority o f participants in the domestic legal system:  488  Mills, supra note 9 at 16.  Clark, supra note 28 at 157. It will also be recalled that Mr. Justice MacDonald took a similar position in the contempt trial. 489  The key assumption that all authority has been divided between the Federal and Provincial governments of Canada is prominent in the judgments of McEachern, C.J in Delgamuuk as well as in the appeal of the contempt conviction before Mr. Justice MacFarlane, J.A. Both judges relied on this basic proposition for their finding that the existence of Indigenous sovereignty is impossible; 490  compare A . Hall, The Bowl With One Spoon: The American Empire and the Fourth World (Montreal: M c G i l l Queens University Press, 2003) where he elaborates on the military alliances between the British Crown and the Indigenous Nations and the British Imperial constitutional promises made to facilitate the settlement of the colonies.  178 If and when the natives complain, the mass of complaints fall upon the lawyers' psychologically pre-programmed ears. If and when the natives turn to the common law remedy o f self-help, they are arrested as troublemakers, and taken before judges who are in a profound conflict o f interest. They end up stigmatized, trivialized, and discredited as criminals. 491  4 9 2  He also expressed the additional complication that each time domestically trained lawyers surrender to the jurisdiction o f the Newcomer's courts while acting on behalf o f Indigenous people i n relation to their traditional territory, they are bolstering the erroneous assumption that the laws o f the Canadian governments have jurisdiction over unceded Indigenous lands. The judiciary considered themselves bound by a positivist system to apply the law as stated in legislation or as interpreted in supporting case law. In this positivist system, M r . Justice MacDonald attempted to justify his adherence to an extremely narrow enforcement approach o f an individual judge's order. His claim that it was his duty to protect the court's authority at all costs appeared to be an attempt by him to severely limit the law he was required to confront, address or uphold. H i s misapplication o f case law supports this view. Others such as Chief Justice Esson or M r . Justice MacFarland, demonstrated their prejudgment o f the issue o f Indigenous sovereignty through their assumption o f the validity o f a Provincial Order-in-Council  that they relied upon as having extinguished unsurrendered  Indigenous rights. What the judiciary demonstrated as a whole was its willingness to manipulate the rule o f law to ignore paramount British Imperial constitutional legislation and precedents, domestic constitutional and fiduciary trustee law, as well as International  491  Clark, supra note 28 at 81.  Ibid, at 185. For example, the Sundancers, the self-declared defenders of the Shuswap Nation, asserted sovereignty on their unceded territory and armed themselves to defend their lands. The Attorney General of British Columbia referred to them publicly as "terrorists". See A . Hall, "The Making of an Indian fighter and a Canadian Premier" (March, 2000). [unpublished, archived at the Department of Native Studies, University of Lethbridge]. 492  179 covenants and optional protocols voluntarily ratified by the Canadian nation. Furthermore, the reliance by the judiciary on the doctrine o f positivism as justification for their role in the L i l ' w a t criminal contempt case is mistaken as it ignores the fundamental premise that "the underlying aim o f positivism is to be morally and politically neutral..."  493  Neither the application o f legislation issuing from the imposition o f a non-consensual foreign parliamentary system, nor Canadian case law, created largely without legal representation o f the Indigenous peoples, can be relied upon by the Canadian judiciary as neutral. This is due to the principle that "law gains a moral legitimacy by coming from a source that has political legitimacy."  494  H o w can it be argued that in relation to traditional Indigenous peoples there is  either neutrality or legitimacy in the domestic judiciary's application o f legislation or domestic case law? Upon reflection, W i l l i a m Hughes' comment from his critique o f Hard Cases in Wicked Legal Systems by D a v i d Dyzenhaus, is applicable to the case at bar: The fact that judges always view their decisions, even i n hard cases, as being legally grounded, exemplifies the distortion o f the reality o f judicial reasoning as it appears to those engaged i n it.. . 4 9 5  The distortion o f reality i n the case at bar reached such lengths that the traditional Indigenous peoples were found criminally guilty on the basis o f a writ o f trespass on their ancient unceded lands. In Hughes' discussion o f approaches to the exercise of judicial  See where Hughes distinguishes between the plain fact approach and the common law approach to judicial discretion. In the Lil'wat contempt case, Justice MacDonald, claims to be bound by the former, described by him as his duty of fidelity to the law. Analysis of his rulings throughout the contempt hearing provides evidence of the degree of distance he maintained from the common law approach that Hughes describes as having the aim of screening out interpretations of legislation that violate the principles of reasonableness, justice and fairness embedded in the common law. W Hughes, "Conscience and the Law: A Critical Notice of David Dyzenhaus" (1992) 5 Can. L.J. & Juris. 369-381. Book review of David Dyzenhaus' Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Clarendon Press, 1991) at para. 19. 494  Ibid, at para. 1.  495  Ibid, atpara.22.  180 discretion, he mentions the superiority o f the common law approach versus the plain fact approach due to the fact that: Plain fact judges are predisposed by their view o f judicial obligation to accord legal status to the immoral policies o f an evil government. This means that they give such regimes the imprimatur o f abiding by the ideal ofthe rule o f law. Plain fact judges, therefore, play into the hands o f evil governments who wish to present themselves to the world as a government that abides by the rule o f law while at the same time seeking to destroy many o f the moral values that are embedded in the common l a w .  496  Perhaps this explains why M r . Justice MacDonald used the following words, when he convicted the L i l ' w a t people for contempt o f court: "The Court: I find myself obliged to find those persons before me in contempt o f court."  497  The wording chosen, indicates a striking similarity o f thought between h i m and Chief Justice McEachern o f the B . C . Supreme Court, who stated in Western Forest Products v.  Dempsey Collision, Chief of the Skidegate Indian Band: It is further obvious that the court has been placed in the invidious position o f dealing with a specific problem arising in a much larger dispute. The Haidas particularly, based almost all o f their arguments i n submission i n these proceedings, on the assumption that their claims justify their actions, when they know that that is something I cannot take into account. I hope everyone i n the Province o f British Columbia w i l l understand that the Court's responsibility is to uphold, protect and defend the rule o f law and that the parties to this dispute leave the Court no choice as to what must be done. The court has no choice however, but to respond to breaches o f the law.. . 4 9 8  496  Ibid, at para.22-24.  April 15™, 1991 Transcript at 6. The difficulty, as noted by Dyzenhaus is that "...the legitimacy of an approach which requires judges to ignore in their interpretation of the law their substantive convictions about what the law should be, requires a substantive commitment at a deeper level to the intrinsic legitimacy of that law." D. Dyzenhaus in Judging Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Hart Publishing, 2003) at para. 166. This applies to the Lil'Wat situation given that natural, international, British and domestic constitutional law point to the fact that prior to having legitimate legislative power over unceded Indigenous territory, it must first be purchased or ceded by way of a treaty. Any other approach... .such as a reliance on discovery and occupation plus an imposition of citizenship, does not provide the justification required by democratic theory. 4 9 7  498  Western Forest Products v. Dempsey Collision, Chief of the Skidegate Indian Band (unreported)  Vancouver C854987, Nov. 29, 1985 (B.C.S.C.). McEachern, C.J.  181 The lack o f 'even-handedness' in the exercise of judicial discretion is displayed by judicial prejudgment o f the Indigenous issues in both cases. The judges are able to decide the outcome o f a dispute through their choices as to which rule or law, they w i l l , or w i l l not, uphold. The statements of justification by the judiciary, only serve to confirm the lack o f neutrality in their view o f the issue, where it involves the assertion o f Indigenous sovereignty on traditional territories in the Province o f British Columbia. The judge's colonial legal education, with its embedded ideology o f superiority has preconditioned the judiciary. The result is a bench that is lacking the capacity for neutrality that is a requirement o f an impartial forum, both individually as well as institutionally. It is such embedded superiority, that Alfred Taiaiake, a M o h a w k scholar writing about Indigenous governance, refers to in Peace, Power and Righteousness. H e concludes: "questions of justice-social, political, and environmental, are best considered outside the framework o f classical European thought and legal traditions."  499  A s to the future o f the domestic legal system in relation to assertions o f Indigenous sovereignty, we are at a turning point. A t present we are proceeding as if 'the rule o f law is being followed. The institutions o f the dominant society are obviously hoping that they do not have to confront the assertion of jurisdiction o f Indigenous peoples. Those members o f the legal community involved in assuring the maintenance o f the status quo hope the Supreme Court o f Canada's enunciation o f consultation and justification o f infringement principles w i l l enable them to circumvent the jurisdictional issue. Most fortunately, during the fifteen year period since the L i l ' w a t assertion o f sovereignty i n the colonist's courts, several scholars have convincingly demonstrated that the authority o f the Canadian legal system is founded upon fictions and faulty assumptions regarding Indigenous peoples on  499  Taiaiake, supra note 63 at 21.  182 unceded territory. Their research has proven that such fictions form an invalid base for any acceptable mode o f acquisition from an international legal perspective.  500  Due to the lack o f an international perspective i n their legal education, the Canadian judiciary does not hesitate to rely on an assumption o f British sovereignty and title over any Indigenous territory i n question. It is through their acceptance and ultimate enforcement o f such invalid assumptions that the judiciary are participating i n the fraud that Canada has validly extinguished Indigenous territorial sovereignty. A s Clark expressed, i n Justice in  Paradise: Once the law was addressed, it would be obvious to everyone that the constitutionally responsible rulers and public officials, including the judges o f British Columbia, had endemically broken the law for a long t i m e . 501  bev long's study o f domestic jurisdiction displays that not only Clark sees through the thin fiction covering the Canadian court's assertion that British sovereignty over unceded Indigenous territory is beyond question. She states: ...Canadian sovereignty is not rooted i n any legitimate moral, political or legal foundation, and therefore a new relationship must be sought between indigenous peoples and colonizing peoples. 502  W e are at a crossroads i n Indigenous/Newcomer relations. I f the domestic legal institutions are to retain any legitimacy, the Canadian judiciary needs to confront the myths and assumptions underlying its biased approach to Indigenous issues. A l l domestically trained judges should at this point simply admit that colonial assumptions remain so deeply embedded i n the ideology, curriculum, legislation, case law and legal doctrines that form the base o f their legal training that they are unable, either personally or institutionally, to provide  See McCue, supra note 469 at 50-120. 1  Clark, supra note 28 at 110.  2  long, supra note 485 at 8.  183 an impartial forum for the resolution o f the Indigenous/Newcomer territorial sovereignty dispute. It is as Ishmeshkeya and James Louie described in the previous Chapter. It w i l l be through those who value international law that the world w i l l ultimately come to know the truth o f the continuing subjugation o f the international human rights o f the Indigenous peoples by the legal institutions o f the Canadian state. For the survival o f any respect in the notion that the Canadian government or its domestic 'legal' institutions are true expressions o f democracy, it is incumbent for Canada at this stage, to surrender the Indigenous territorial sovereignty challenge to a mutually agreed upon, impartial forum.  184 C H A P T E R SIX  Decolonization ofthe Domestic Judiciary and Legal Practitioners 6.1  T h e Critical N e e d to Increase A w a r e n e s s  There is an urgent need for increased awareness that the domestic legal establishment is engaged in a process that extinguishes the territorial sovereignty of Indigenous nations, without their consent. On November 20 , 1990, Mr. Justice MacDonald expressed his concern that the th  incarcerated Lil'wat people were "languishing in jail."  503  As a result of their refusal to  recognize his authority over them on their unceded territory, they had served 25 days in custody. According to the judge, this was in excess ofthe time he would have incarcerated them, had he found them guilty and sentenced them for the crime. At this juncture in the contempt trial, we had just applied for an adjournment to allow us to research the case law in support of an application, simultaneously before the Federal Court of Canada, for a declaration regarding the Federal government's fiduciary trustee obligations. It was our hope, this declaration would operate so as to force the Federal government to assist, rather than oppose, the Lil'wat people in preventing the British Columbia Supreme Court from proceeding with the current criminalization process. In refusing the adjournment, Justice MacDonald repeated that he was "most disturbed"  504  regarding their length of incarceration. He added that it was as a result of the Lil'wats' refusal to accept his jurisdiction that they might be held in jail longer than if sentenced for the crime. Clark suggested that the court had the inherent jurisdiction to release them at any  503  504  Nov. 20 , 1990 Transcript at 57. th  Ibid.  185 time. The judge, after complimenting the L i l ' w a t traditional people on their good demeanor and thanking them for that, responded to Clark: "But I have a task to perform and it does not accord directly with the wishes o f the people who are here before me. But I can't help that."  505  James Louie's concluding remarks records his disagreement with the judge's view o f his role. A t his sentencing hearing for criminal contempt, speaking as the head o f his family within the hereditary L i l ' w a t governing system, he again refers M r . Justice MacDonald to the domestic legal system's lack o f recognition o f his human rights and resulting jurisdiction i n his homeland: James Louie: The system that is there is what I think was recognized as colonialism. A n d as living colonial rule relating to discovery, the judicial system, the Indian Act to civilize us and to keep us in line to supercede our claims as being people i n our own right. .. .1 am here as one person on behalf o f my family, but Canada doesn't recognize m e . It doesn't want to recognize me because we have what Canada wants and that is jurisdiction. A n d I w i l l say for evidence Canada has no j u r i s d i c t i o n . 506  507  M r . Justice MacDonald certainly did not view his participation i n the case as biased, and in fact indicated that he had been scrupulous so as to maintain the court's impartiality. He was unable to appreciate his role in the criminalization process, a role that clearly  505  Nov. 20 , 1990 Transcript, at 59.  How do the judiciary of the Canadian courts continue their refusal to recognize the human rights of Indigenous peoples given that from a domestic judge's perspective, the Charter, supra note 194, applies to aboriginal people, and the highest court of the land interprets the s.15 equality section as follows: "The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration." Andrew v. Law Society of British Columbia [1989] 1 S.C.R. 141 at 175. Mr. Justice Mclntyre; consider also Smith's statement: "To consider indigenous peoples as not fully human enabled distance to be maintained and justified various polices of either extermination or domestication." Smith, supra note 52 at 26. 506  April 15 , 1991 Transcript at 24. The writer has in her possession a resolution signed by James Louie in which he states that "as a citizen of the Stl'atl'imx Nation I subscribe to the Lil'wat nation's laws, values and traditional systems of government to the exclusion of all other jurisdictions which seek to impose alien, and assimilative regimes." 507  th  186 demonstrated his favour for the protection ofthe status quo and thereby condoned theft o f Indigenous land and resources. If we wish for the law to play a role i n the inevitable decolonization process, each participant i n the Canadian legal system must confront his or her contribution to sustaining colonialism. Practitioners and judiciary alike must undertake to increase their awareness o f the breach o f both domestic and international law that flows from their non-consensual usurpation o f the jurisdiction o f the original inhabitants over their territory. In looking for a solution to the self-interest o f the domestic courts, Clark pointed to the decision o f the Judicial Committee ofthe Privy Council in Mohegan Indians v. Connecticut. The court concluded that i n controversies with Indian tribes they were neither controlled b y the laws o f England nor by the colonial laws but rather by "a law equal to both parties, which is the law o f nature and o f nations." The court recognized the lack o f impartiality in the Connecticut court and held: "The Indians, though living amongst the K i n g ' s subjects i n these countries, are a separate and distinct people from them, they are treated with as such, they have a polity o f their own, they peace and war with any nation o f Indians when they think fit, without control from the English. It is apparent the Crown looks upon them not as subjects, but as a distinct people, for they are mentioned as such throughout Queen Anne's and his present Majesty's Commission by which we now sit. ...And it is as plain.. .that their lands are not, by his Majesty's grant o f particular limits o f them for a colony, thereby impropriated i n his subjects till they have made fair and honest purchases o f the natives." 508  Clark refers to the resulting Order-In-Council (Great Britain) of March 9 , 1704 and th  comments: B y never mentioning the order, the judges and lawyers o f the domestic legal establishment have managed to oversee the greatest land theft i n human history, all the while pretending to be serving a rule o f law society. Under the Proclamation, that  Mohegan Indians v. Connecticut, in Smith, J.H., Appeals to the Privy Council, 422-42. Case quotes from the Certified Copy Book of Proceedings Before Commission of Review 1743 (1769) at 191-192, confirmed by the Privy Council in 1771.  187 theft constitutes treason and fraud. But there has never been a prosecution, precisely because the criminals have also achieved a monopoly over the legal process. It is the perfect crime, precisely because the crime is master-minded b y the legal establishment. The consequence o f the crime has been the genocide o f a race and culture. 509  A s Clark explains, this case confirmed the legal recognition o f the Indigenous nations' right o f self-determination as culturally separate peoples and as subjects o f international legal rights and duties rather than as mere "objects" of domestic law. Regarding the role o f the judiciary in the L i l ' W a t contempt trial, Bruce Clark on numerous occasions, identified that their participation in the refusal to hear the applicable law rendered them guilty o f fraud and treason and complicit i n genocide. H e argued that the death o f a people is the inevitable outcome o f the extinguishment and domestication policy currently i n place in the Canadian legal system. The domestic judiciary has condoned the theft o f Indigenous land and resources. The bench has been oblivious to the invalidation and superceding o f Indigenous governing structures by the Canadian Band Council system. The judges have participated in the criminalization o f Indigenous spiritual practices and participated in the denial o f the existence o f authority in Indigenous nations' law and jurisdiction over their territories, resources and people. H o w can the final consequences o f such judicial acceptance be referred to as less than the condoning o f genocide?  510  Participation in this colonial legal system perpetuates the subjugation o f the original peoples  Clark, supra note 28 at 90-2; consider also that the Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the U N General Assembly on 9 December 1948 makes it a crime against 'humanity" to create conditions leading to mental harm or destruction of an identifiable human group, as such; see also D . Stannard, American Holocaust: Columbus and The Conquest of the New World. (New York, Oxford University Press, 1992). See M . Turpel and C. Tennant, "The Application of International Human Rights Norms and Procedures to Indigenous Peoples: A Case Study in Genocide" (1990) 59 Nordic J. of International L . 287 and R. Strickland, "Genocide-at-Law: A Historic and Contemporary View of the Native American Experience^ 1086) 34 U . Kan. L. Rev. 713. 510  188 within the territory referred to as British Columbia, and is legally, morally, and politically unjustifiable. Michael M i l d e , in addressing the role o f the individuals in apartheid i n South Africa, commented specifically on the role o f the judiciary: .. .the role o f all the relevant players needs to be reviewed including advocates, Attorney Generals (prosecutors), bar associations, legal teachers and academics.. .there are important reasons why more attention would inevitable be focused on the judges o f South A f r i c a . . . given that judges had both the capacity and the opportunity to resist the injustice, except in a few notable instances, why did they fail to do s o ? 511  A similar question must be asked here given the inherit jurisdiction o f the superior court judiciary to see that justice is both done and seen to be done. M i l d e offers the additional fitting observation that: "Answers to these kinds o f questions are bound to be complex since they are liable to unite institutional, conceptual, social and personal elements."  512  A l l participants in the domestic legal establishment must confront the profound relationship between one ofthe highest suicide rates in the world amongst young Indigenous males and the judicially condoned lack o f self-determination within the so-called 'Canadian democracy' for Indigenous peoples.  513  Once this is understood, the legal community carries the obligation from legal, political and justice perspectives, to ask how to bring an end to its present role. What is it that actually prevents each domestic judge from acknowledging the existence o f a conflict o f interest  5 1 1  Milde, supra note 29 at para.5.  Ibid, at para.6; see also Bakan's statement: "As social theorists of law have long insisted, strictly internal legal analysis cannot lead to an understanding of how law actually works." Bakan, supra note 464 at 5. 5 1 2  513  Royal Commission on Aboriginal Peoples, Special Report on Suicide Among Aboriginal People  at 10-18. "Commissioners regard suicide, and self-destructive behavior generally, as an index of personal and collective despair; see also Preface, at ix. "It is hard to imagine a public responsibility more pressing than to stop them."  189 when their assumption of jurisdiction is challenged by the Indigenous people, as it relates to unceded territory? Other than an embedded colonial mentality within the institution he has sworn to uphold, what prevented M r . Justice MacDonald from acknowledging that it was legitimate to argue that the onus o f proof o f ownership and title rested with the Province i n an allegation o f trespass against the original peoples in their uninterrupted possession o f their traditional territories? In fact, what prevents the domestic judiciary from fulfilling the Newcomer's original agreement o f Peace, Friendship and Respect by simply recusing themselves from further adjudication o f foundational Indigenous cases now that they can no longer claim they are unaware o f the profound depth o f the conflict o f interest in which they are embroiled. What prevents the judiciary's voluntary relinquishment o f their alleged jurisdiction into the hands o f an impartial, mutually created, internationally overseen, cross-cultural tribunal so that principles o f fundamental justice may once again be present i n the forum involved in the resolution o f Newcomer/Indigenous relations? 6.2  Suggestions A forum o f cross-cultural mediators would assist lawyers in creating a process free from  the unenviable position o f acting i n opposition to the sovereignty instructions o f their Indigenous clients. Advocates on behalf o f Indigenous peoples would be able to form their arguments free from the restrictions resulting from colonial ideology. They would not have to contend with what Doug Moodie refers to where he states: "It is curious to see how entrenched and unwavering remains the "conqueror" mentality i n many segments o f  190 Canadian society."  514  A t present, the majority o f counsel, as a result o f the limits o f their legal education and the colonial embedded bias in the domestic law and institutions, surrender Indigenous disputes regarding unceded territory to the domestic forum and a partial j u d i c i a r y .  515  With  rare exceptions where counsel acting on behalf o f Indigenous peoples are able and allowed status to assert Indigenous rights through international forums, the vast majority o f foundational Indigenous cases are domestically decided. Canadian trained lawyers appearing on behalf o f Indigenous peoples regarding issues relating to their unceded traditional territory believe they have little option but to surrender to the jurisdiction o f the domestic legal system. Bruce Clark spoke o f the dilemma lawyers find themselves i n when faced with attempting to represent Indigenous clients i n accordance with their instructions: I knew that i f I were to file papers in the court system in which I worked, I would automatically be relinquishing the very sovereignty they had retained me to assert. The more I pondered the dilemma, the clearer it became that I could not simultaneously relay their assertion o f sovereignty, which supposedly gave them exclusive jurisdiction over their homeland, and at the same time file papers which, by  He makes this comment in reference to Chief Justice McEachern's trial judgment in Delgamuukw v. British Columbia (1991) 79 D.L.R.(4 ) 185, [1991] 3 W.W.R. 97 (B.C.S.C.). 5 1 4  th  Mar. 15 , 1991 Transcript at 5. Bruce Clark submitted as an academic that British criminal law extended itself into native territory by virtue of legislation in 1803 and 1821 however on record he stated that "he is under some certain pressure as a lawyer, that perhaps I wouldn't be under if I was an academic, to really examine whether my own proposition on the extension of the criminal jurisdiction is valid." Shortly thereafter, I made an intervening statement regarding my sovereignty instructions. Crompton: "....behind all of that, and this always needs to be said ...behind all of that, that being the British position, the Indian position behind all of that, is they have surrendered nothing, nothing of their criminal jurisdiction, and nothing molests or disturbs [them] more than the encroachment in the criminal jurisdiction ...and so often in court the Indian legal—the Indian law position gets lost behind arguing about the British one. Thank you." Mar. 15 , 1991 Transcript at 8; see also April 5 , 1991 Transcript at 3 where I state: "I act exclusively for 13 of the people. I also act for everyone. I have never at any time received instructions from any of them to surrender their criminal jurisdiction. I think I've made that clear on the record throughout but that is a contrary position to what Mr. Clark took. I have been informed repeatedly since court broke to emphasize that on behalf of all of my clients. ...Because it's something of tremendous concern in the presentation of their sovereignty that it be complete. The Court: Yes. I understand. 515  th  th  th  191 the very fact o f being filed, acknowledged that the invaders' court system had acquired jurisdiction. 516  The one lawyer who relentlessly refused to accept this misrepresentation o f the rule o f law was disbarred for his attempt to have it otherwise. Clark was intent upon having both British and international law on the issue o f Indigenous territorial sovereignty addressed b y the court. In Justice in Paradise Clark wrote that he was w i l l i n g to apologize for his unprofessional comment that the court was a kangaroo court,  517  but was not prepared to  withdraw his opinion that the judge's assumption of jurisdiction is treasonable, fraudulent, and genocidal.  518  The legal principle that must be considered in relation to Clark's contempt and disbarment is set out by the Supreme Court o f Canada. R. v. Duncan confirmed that "that Judges and Courts are alike open to criticism, and i f reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt o f C o u r t . "  519  A s to the reasonableness o f Clark's legal argument against the judiciary's assumption o f jurisdiction over unceded Indigenous territory, there are several legal scholars i n basic  5 1 6  Clark, supra note 28 at 25.  For a more complete version of Clark's disbarment for what he describes as "his attempt to have the rule of law obeyed", see Clark, supra note 28 at 210-25. It was for his refusal to withdraw his legal opinion rather than his 'unprofessional remarks' about the court that Clark was sentence to three months imprisonment for contempt. In the Gustafsen Lake case he eventually appeared as an expert witness rather than as counsel in the case. After giving evidence as an legal expert on British and domestic constitutional law as it relates to Indigenous peoples, the trial judge instructed the jury that it was settled law that Clark's theory was invalid. The jury was further instructed not to accept that Clark's clients believed what Clark told them about the law either. 517  5 1 8  Clark, supra note 28 at 210.  Re: Duncan, (1957) 11 D.L.R. (2d) 616 (S.C.C.) Kerwin C.J.C., Taschereau, Rand, Kellock, Cartwright, Fauteux and Abbott JJ. concurring on the point. 519  192 agreement with Clark's p o s i t i o n .  520  They place similar reliance on British Imperial  constitutional legal arguments as well as making frequent reference to breaches o f applicable international human rights l a w .  521  One is left with serious questions regarding the actual 522  motivation behind the disbarment o f Bruce Clark from continuing the practice o f law. The scrutiny that Clark received should also be focused on the professional conduct o f counsel who appear for the Provincial and Federal governments who allegedly act on behalf o f the public interest. Legal counsel representing the Attorney General o f British Columbia and the Attorney General o f Canada asserted positions throughout the contempt hearing, as well as in each o f the associated applications, that were both procedurally and substantively aimed to deny the adjudication o f the law regarding the existence o f territorial Indigenous sovereignty. Other than an indication o f further institutional Newcomer self-interest, why is it that the court allowed these adversarial legal positions to be taken i n the name ofthe highest governmental authority on behalf o f the public interest? This point may be considered from within the perspective o f Canadian domestic law, which insists on assuming Indigenous persons are Canadian citizens with constitutionally protected Aboriginal rights. A further conflict exists for the majority o f lawyers as well as the judiciary, in their acceptance o f the imposed Band Council structure as having the legal capacity to represent an Indigenous nation. The condoning o f the imposed foreign governing system is only exacerbated by the fact that the only available funding for legal representation o f Indigenous  Youngblood Henderson, Alfred Taiaiake, Anthony Hall, Patricia Monture-Okanee, and John Borrows to name a few. 5 2 0  It is also relevant that an official statement issued by Mr. Greenwood, while acting as a representative of the Ontario Law Society, confirmed the sincerity of Clark's belief in the validity of his legal argument and the sincerity of his belief in the rule of law. 521  A complete analysis of the Clark disbarment process is the subject of another detailed study; one that I highly recommend be undertaken in order to further consider the reactionary response ofthe domestic judiciary. 522  193 issues is, in the vast majority o f cases, through the Band Council system. This colonial system has been extremely successful in preventing the traditional peoples' voice and legal position from being asserted within the established Canadian legal system. This is a serious problem given that the sovereignty position represents the understanding and belief o f most Indigenous persons living within the territory known as Canada. In addition there exists the impossibility o f providing a truly impartial hearing where some parties have unlimited resources (the Provincial government and the logging corporation) and others (the traditional Indigenous peoples) are without funds or access to funding other than Provincial legal aid funds which in keeping with their sovereign position they requested that I not accept. What prevents the Federal government, as fiduciary trustee on behalf o f Indigenous peoples, from being held by the courts to be obliged to co-operate in an internationally overseen nation-to-nation dispute resolution process? If the court i n Mohegan was able to acknowledge that a concern over impartiality required that the territorial boundary issue must be heard by a third party, w h y is it impossible for the same order today? Such an internationally overseen forum provides the only possible resolution o f outstanding Indigenous territorial sovereignty given the existence o f the conflicts that the legal establishment and the domestic governments are embroiled in. During the exact time frame o f the Lillooet Lake roadblock, the Canadian Human Rights Commission expressed the 'urgency' for reform i n Aboriginal affairs. They concluded that we needed to: "apply ourselves to the long-neglected task o f redesigning the aboriginal and  M y work in the contempt trial was done on a pro bono basis as the traditional community leaders wished me not to accept funds from the Legal Aid Society of British Columbia. To have their opponent in the case provide legal fees for their counsel was from their perspective, in conflict with their assertion of sovereignty.  194 non-aboriginal relationship in a spirit o f collaboration and good faith. This process should get under way immediately and should tackle the fundamental questions in a thorough and innovative w a y . "  524  Sixteen years later little has come o f this 'urgent' finding on the part o f the Commission. In fact within the past few months, the N'Quatqua people erected a roadblock in Darcy, approximately 20 miles to the north of the L i l ' w a t territory, because o f unauthorized logging within their traditional territory. The sophistication ofthe extinguishment methods within the domestic legal system that are relied upon to allegedly obtain authority over unceded land appear to be all that has changed significantly.  525  The colonial regime in many situations has  now been able to recruit Indigenous people themselves to participate i n the frauds that are perpetrated to obtain Indigenous consent.  526  The divisions within Indigenous communities  that this creates cannot be overstated. It is one level o f oppression to be subjugated by a foreign power, yet another to be exposed to the insult o f subjugation imposed by your own people.  527  Other than self-interest, what prevents the creation o f an internationally overseen crosscultural mediation process so as to address the obvious co-existing claims o f sovereignty over unceded territory and engage in "redesigning the aboriginal and non-aboriginal relationship i n a spirit o f collaboration and good faith" as suggested by the Canadian Human  " A New Commitment: Statement of the Canadian Human Rights Commission of Federal Aboriginal Policy" (Nov. 21 , 1990) at 2.  524  st  In this instance the Chief of the Band Council is also a Director of the logging company that failed to adequately consult with the N'Quatqua people regarding the current logging operation on their traditional territory within the St'at'imc Nation. 5 2 5  "Without Consent", supra note 63. The methods employed are constantly changing and require continuing study so as to be able to discern them as they manifest. 5 2 6  Consider Taiaiake's observation: "The co-optation of our political leadership is a subtle, insidious undeniable fact and it has resulted in the loss of ability to confront the daily injustices of native life." Taiaiake, supra note 63 at 70-5. 5 2 7  195 Rights Commission? Martin Wright's comments regarding the process involved i n mediation are applicable to the Indigenous/Newcomer territorial sovereignty issue. H e claims that conflicts arising from certain relationships are simply too complex to be justiciable: L a w is a structure, in which a set o f norms is defined; mediation is a process, commonly directed, not towards achieving conformity to norms, but toward the creation o f the relevant norms themselves. 528  He demonstrates how, since mediators claim no authority, they can empower people to regain control over their own relationships, rather than assume that all social order must be imposed by some kind o f "authority". Mediation's central quality is it's capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception o f their relationship, a perception that w i l l redirect their attitudes and dispositions toward one another. 529  The mutual involvement in the creation o f the mediation process, rather than the imposition o f one, may be o f assistance in providing the necessary respect for both Indigenous and non-Indigenous paradigms, as well as allowing for the vision o f each other's future to be heard and considered. Out o f this comes the possibility o f a mutually created solution. In conjunction, law schools must be required to revamp their curriculum so as to replace the current domestic colonial approach to that o f an international perspective, in recognition o f the inherent right o f Indigenous nations to self-determination on their traditional lands. A s Henderson explains:  M . Wright, Justice for Victims and Offenders: A Restorative Response to Crime (Philadelphia: Open University Press, 1991) at 49. 5 2 8  529  Ibid.  196 Aboriginal self-determination is a constitutional reality that must be respected. Colonial and racial thought has to be eliminated i n Canada and replaced with legal relationships. Existing federal and provincial laws cannot be perceived as impersonal or neutral public rules, for these are the exclusive voice o f the colonialist. Treaty First Nations have never formally participated as equals i n the implementation o f these federal laws nor have they consented to them. These laws, like most provincial laws, are seen as embodying only the goals and values o f the colonialists. This is a major problem. The validity o f federal laws, such as the Indian A c t and the Criminal code, [are] challenged by Aboriginal treaty rights. When the relations between the Crown and First Nations are not covered by the treaty obligations, they ought not to be governed by Canadian law. U n t i l authentic federalism and democracy is created in Canada, treaty federalism should be governed by general principles o f international human rights law, a law equal to their mutual consent. 530  531  It may be that some o f the judiciary's resistance to the existence o f Indigenous jurisdiction over unceded territory is unconscious. Although providing no excuse, it appears that colonialism frequently hides its effect from the participants engaged i n the domestic legal system.  532  Rupert Ross, in Dances With a Ghost, explained that until we realize that we see another culture "through our own", there is no chance to see the other c l e a r l y .  533  In order to move  past this stage o f misinterpretation, we must first become aware o f the conditioning through which we see. W e can then understand that it is through this filter, based on invalid assumptions, that we often erroneously interpret the behavior o f the other. Ross enhances our understanding, by adding the insight that reliance on mistaken assumption is accentuated by  530  "Empowering", supra note 58 at 318.  531  Ibid, at 296.  It is apparent that a lack of awareness does not excuse colonial oppression. In fact, when I discussed this point with my Lil'wat mentor she stated that she was not so quick to believe a claim by the colonizer of lack of awareness for, as she put it: "It has been five hundred years." 532  R. Ross, Dancing With a Ghost: Exploring Indian Reality (Markham, Ontario: Octopus Books, 1992) at 4.  533  197 cultural difference. In his book published in 1992, Ross explained that we were at the beginning of an understanding of how far apart the Indigenous and settler realities really are.  He discussed  the fact that while we may see their lack of progress as limiting he suspected: .. .that they had no such sense of limits. In fact, they may have perceived their lives as holding a virtually limitless scope for challenge and accomplishment. We don't see this, if only because we don't share the same definition of accomplishment. As I suggested in an earlier chapter, their lives did not centre on building things but upon discerning things. Life's challenge lay in observing and understanding the workings of the dynamic equilibrium of which they were a part, then acting so as to sustain a harmony within it rather than a mastery over it. One aspired to wisdom in accommodating oneself to that equilibrium, and that pursuit quite clearly promised unlimited scope for exploration and self-development...In short, although Natives' physical lives may well have fallen within Hobbes's vision of life in nature, it is just as likely that their mental, emotional and spiritual lives permitted challenges and rewards that were richer than those most of us know in our late twentieth century lives." 536  A cross-cultural process is an absolute necessity. The retraining ofthe domestic judiciary so as to transform their thinking from a Eurocentric or colonial perspective to that of a crosscultural, international, and impartial perspective would be lengthy. The deprogramming of their embedded colonial thinking may not be fully possible. This realization lends much support to the requirement that persons involved in resolving the outstanding jurisdictional issues between the two races should at this point be cross-cultural. One other alternative that has potential is team mediation where both cultures are represented within a group of mediators. If there was truly no self-interest operating within the Canadian legal system regarding Indigenous sovereignty claims, why is there such resistance to allowing a neutral outsider or  Ibid, at 5. Ibid, at 94. Ibid, at 92.  198 an impartial third party tribunal sit i n it's place?  If, as it is argued, the Canadian  domestic adjudication system is truly impartial and abides b y the rule o f law, then would the resolution or outcome o f the jurisdictional land dispute by a different impartial tribunal not be similar? The degree o f Canadian resistance to placing the matter before a third party tribunal appears, i n and o f itself, to lend support to the Indigenous allegation o f the existence o f bias in the domestic legal system. In 1995 the only request o f the Ts'peten Defenders in the Gustafsen Lake standoff was for an impartial tribunal. Clark attempted to follow i n the legal footsteps o f Mohegans and petitioned Queen Elisabeth II directly for access to a third-party court outside the domestic legal system: .. .that the petition dated January 3rd, 1995 be addressed publicly by an independent and impartial third party tribunal, one that is neither Canadian nor Indian, such as the special constitutional court established by Queen A n n at the request o f the Mohegan Indians to which court the petition is addressed: (a.) Is the popular assumption, that the Canadian courts and police have jurisdiction, legal? (b.) O r is that assumption criminally treasonable, fraudulent and complicitous in the genocide o f the Aboriginal peoples o f Canada as alleged i n the petition? The domestic Canadian courts once again refused to allow the Gustafsen sovereignty defense to be argued or to consider the breach o f the federal government's fiduciary trust obligation when it employed the National A r m y against the traditional Ts'peten peoples, i n the largest Canadian military operation on land since the Korean War. In his video Above the Law, created from R . C . M . P . training footage filmed at the Gustafsen Lake standoff, M e r v i n  For further evidence and analysis of the Provincial government's self-interest see Hall's study of Attorney General, Ujjal Dosanjh's handling of the Gustafsen Lake Standoff as the main episode that launched him towards the premiership of British Columbia. A . Hall, "The Making of an Indian Fighter and Canadian Premier", (March, 2000) [unpublished, archived at Department of Native Studies, University of Lethbridge] at 1-3. 5 3 7  5 3 8  Clark, supra note 28 at 165.  199 B r o w n alleges that in excess o f 77,000 rounds o f ammunition, as w e l l as land mines, were used i n the Canadian military assault on the seventeen Indigenous people, including traditional Elders, women, children, and young men that asserted the legal paramouncy o f unceded Indigenous territorial sovereignty. This brings to mind the comments o f Michael M i l d e , in his "Critical Notice of Judging the Judges, Judging Ourselves" where he states: What is particularly striking is that gross human rights violations were permitted, even approved, by legal institutions that appeared to respect such fundamental legitimacy-conferring principles as the rule o f law and judicial independence...staffed by functionaries many o f whom had unimpeachable credentials as advocates o f human rights. So how could this justice system have produced such iniquitous results? 540  The answer may partially lie i n his further statement that: Once even the liberal judges act as though an unjust law is legitimate, the general (white) public can avoid confronting the iniquities o f the system. W h e n recognizably commendable legal professionals insinuate, by their actions, that the rule o f law is being respected, then the lay public has little incentive to believe o t h e r w i s e . 541  For instance, the Attorney General o f British Columbia justified the military assault at Gustafsen Lake as necessary to maintain law and order in the province. bev long, in referring to the Gustafsen Lake case concludes: .. .for asserting their rights and beliefs the Ts'pet'en Defenders were subjected to a campaign o f inflammatory and derisive rhetoric and violence orchestrated by the provincial and federal governments, the largest police operation i n R . C . M . P . history, the Canadian military, and a ruthless and racist media campaign. Finally, against such relentless forces, the Defenders were eventually forced to abandon their stand, whereupon they were met with extensive criminal charges. M a n y were held in custody though the pre-trial period. Through such tactics, the legitimate assertion o f sovereignty on the part o f the Defenders was delegitimized and ultimately criminalized by the Canadian system. It is only at this point-in a long line o f highly developed repressive state tactics-that the  y  Brown, M . "Above the Law, Part 2. The Other Side ". (Video).  0  Milde, supra note 29 at para.3.  1  Ibid, at para.24.  200 judicial system takes over to perform its unique role i n the suppression o f the dissent o f indigenous peoples. Such is the full power o f the Canadian colonial establishment to silence (and distort) any challenge to its authority. 542  Finally, to conclude our reflection on the colonial box in which the domestic legal system finds itself when faced with Indigenous challenges to jurisdiction over unceded territory, it may be helpful to consider the results o f the past twenty years o f advancing Indigenous issues through what Canada insists to ha