The Case of the Wet'suwet'en Land Defenders
In recent weeks and days I have been reflecting on the deep historical, political and legal implications of the Royal Canadian Mounted Police's raid of Jan. 7, 2019. This RCMP raid was directed at the people and physical obstructions blocking the construction of a pipeline project traversing across some of the most majestic and relatively unspoiled natural geography remaining on this planet.The envisaged Coastal GasLink pipeline is meant to transport natural gas from the Dawson Creek area in northeastern British Columbia to Kitimat on the Pacific coast. The plan is to export natural gas derived from controversial procedures of fracking, a notorious environmental bane that has been banned in a number of countries, US states, as well as in the Canadian province of Quebec.
The raid on Jan. 7 of a heavily armed and militarized unit of the RCMP resulted in fourteen arrests of Land Defenders with many more individuals being roughly manhandled by the special forces unit. The action saw police go over the Aboriginal barricades to which many Land Defenders had attached themselves with a variety of locked mechanisms. Subsequently, registered traplines in the area were vandalized on behalf of so-called private sector interests as well as their government clients and patrons. The inclination on the part of those pushing the agenda of the fast construction of pipelines is to disregard existing rules in order to realize industrial imperatives.
The heart of the GasLink controversy at present is the Aboriginal territory of the Wet'suwet'en people. The Wet'suwet'en language is part of the Athabaskan or Dene linguistic family. To understand the larger context of the present controversy, it is important to note that the envisaged natural gas pipeline crosses the ancestral territory of several First Nations. Those First Nations in northeastern British Columbia, where fracking is taking place, are within Treaty 8. Alternatively, the ancestral lands of the majority of Aboriginal groups affected by the project have never been subject to completed Crown-Aboriginal agreements concerning land title and jurisdiction.
In 1984 the Wet'suwet'en people in partnership with the Gitxsan people injected their convictions and beliefs into Canadian history in ways that were concurrently new yet also very very old. The Gitxsan and Wet'suwet'en asserted in court the sovereignty of their traditional governments as the primary authorities with sole jurisdiction over the full extent of their ancestral lands. These assertions extend far beyond the concept of "Aboriginal title" as currently conceptualized and litigated in the mainstream of the Canadian legal establishment.
The litigious assertions of the Gitxsan and Wet'suwet'en drew some of their interpretive force from the distinctive history of British Columbia, a polity created within the British Empire to prevent a flood of Americans from annexing the territory as they rushed after gold. A separate colony of the British Empire before it entered the Dominion of Canada in 1871, BC was not founded on principles that recognized the prior existence of a shared proprietary interest of Indigenous peoples in their ancestral lands. The result is that, to this day, most BC First Nations do not have treaties with the Crown.
On the other hand, most First Nations throughout Ontario and the West up to the height of land along the Rocky Mountain are parties to Crown-Aboriginal treaties. These treaties are rooted in the constitutional history of British North America, but especially in the Royal Proclamation of 1763. There has been a long and arduous struggle to gain legal recognition of the applicability of the Indian provisions in the Royal Proclamation to British Columbia. The public education aspect of that struggle continues yet.
By putting forward such a clear and sweeping position in court in 1984-85, the original legal stance of the Gitxsan and Wet'suwet'en helped establish some basic frames of reference that have become more relevant than ever in the current clashes over the law and politics of pipeline construction. The Gitxsan and Wet'suwet'en introduced many Canadians to an array of old and contemporary realities that must now be squarely faced to avoid compounding existing fiascos.
Only now are the full implications of these sometimes inconvenient realities starting to come to the surface, as the Tar Sands politics of bitumen production in Alberta meet the politics of uncertainty over the nature of Aboriginal/Crown title throughout much of British Columbia.
The effect of this clash was rendered graphic by the exercise of coercive force by the RCMP when its officers pushed down an Aboriginal barricade and very publicly arrested Land Defenders. The aim of this display was quite literally to push aside, punish and discredit that Aboriginal constituency and their allies who are still not onside with the push to purchase Aboriginal acquiescence to BC pipeline construction.
The response to the police actions quickly ricocheted across the country. One manifestation took the form of demonstrations in several Canadian cities where much support was shown for the stance of the Wet'suwet'en Land Defenders as well as the hereditary leadership. At the densely-populated Six Nations Iroquois Territory near Brantford Ontario, there was an especially strong display of identification with the position of the traditional Wet'suwet'en people.
In 1924 the RCMP mounted a display of coercive force at the Six Nations reserve. The RCMP was ordered by the new Liberal government of Prime Minister Mackenzie King to resort to armed intervention to replace the traditional governing system, one that had played a central role in the history of both New France and British North America. This much-admired and studied governing system was based on the Great Law of Peace at the foundations of the League of the Haudenosaunee (Iroquois Longhouse League). The federal structure of the traditional Longhouse Confederacy, one of the examples drawn upon in constructing US and Canadian federalism, include a strong hereditary element.
The federal police force installed a branch of the Parliament-imposed Indian Act system in the place of the Longhouse government. The League of the Haudenosaunee did not die but went underground after 1924. In the eyes of many Six Nations Iroquois people the Longhouse religion with the Great Law of Peace at its base continued to form the basis of their legitimate government. On the other hand the local branch of the Indian Act system is sometimes viewed as an alien imposition of foreign jurisdiction.
This tension was a significant factor in the outbreak of armed confrontation between the Canadian Armed Forces and the Mohawk Warriors at Oka and Kanewake in the Montreal area in 1990. The sometimes difficult interactions between the traditional and imposed system affect many First Nations including the Wet'suwet'en and Shuswap people in British Columbia.
The police powers of the RCMP have been asserted again and again to colonize and subordinate First Nations. One aspect of this history of subordinating first peoples is the the RCMP's role in imposing a now-notorious system of federally-funded, religiously-run Indian residential schools. The purpose of the residential aspect of this imposed system of mandatory Indian education was to cut Aboriginal youths off from the cultural transfers that would have taken place had the young Native people grown up with their own families and home communities.
When has the RCMP ever made arrests to enforce the constitutional law in Canada that proclaims the existence of Aboriginal and treaty rights? The other side of the bias is reflected in the disproportionately large number of Native people in Canadian prisons. The constitution is very explicit that the rights of First Nations peoples are to be "recognized and affirmed," not denied and negated. What use is Canada's "supreme law" of Aboriginal and treaty rights if those who violate this provision never face consequences? When will the RCMP begin enforcing the laws of Aboriginal and treaty rights?
The image of the Aboriginal Land Defenders being manhandled and arrested by the police arm of the Canadian government presented the domestic population and the world with yet more evidence that, when it comes to First Nations, Canada is a human rights violator. The constitutional responsibility of the federal government to protect Aboriginal people and their collectively-held lands and resources is regularly subordinated to the political quest for power and wealth.
As was demonstrated by the shutting down of the Occupy Movement in 2011 based largely on the police enforcement of mere municipal bylaws, bold constitutional pronouncements affirming liberty and rights and equality and such are regularly violated. Especially after 9/11, the rule of law has pretty much been subordinated to the rule of political expediency as manifest in the extreme politicization of law enforcement agencies throughout the Western world including in Canada.
A good point of comparison is offered by the present situation in France, where police violence and tactics of internal infiltration are being deployed with the goal of taking the steam out of the popular rise of the Yellow Jacket movement. When law enforcement agencies become agencies available for agendas of political spin doctoring for powerful interests, we no longer are governed by democracy and the rule of law.
In conducting arrests in the way it did, the RCMP acted to pre-empt Canada's "supreme law." The police force acted in this coercive manner with nothing more to justify their actions than the flimsy legitimacy of a temporary injunction obtained easily by a government-favoured pipeline company. In spite of the Canadian government's coercive method of opening up industrial access to the contested territory, the lawyer representing the hereditary chiefs negotiated some sort of truce with the Red Coated Mounties.
Was this concession on the part of the hereditary chiefs consistent with understandings that persuaded the Land Defenders to put themselves in harm's way on the front lines of opposition to pipeline construction through Wet'suwet'en Territory? How often does the political leverage developed by activists who put themselves on the line to emphasize points of principle get appropriated by those advancing more self-serving interests?
What is the agenda after the lawyers' made their bargain with the RCMP? Does the imperative continue to be to stop the industrial project or is the goal now to increase the financial and other renumeration to be derived from building this and other pipelines?
Should arms-bearing RCMP officers be entrusted to act as the federal government's prime agents when it comes to Crown-First Nations negotiations on the most sensitive issues of pipeline construction in BC? The Royal Canadian Mounted Police may call itself "royal" but that designation is dubious. The designation is questionable given the longstanding failure of the BC branch of the RCMP to protect Indian people and their collectively-held lands as called for by the Royal Proclamation of 1763.
From the Royal Proclamation of 1763 to the Nisga's Treaty of 2000 to the Contested Wet'suweten Territory in 2019
The Royal Proclamation has played an important role in the complex of constitutional provisions, legislative enactments and policies that touch on the politics of pipeline construction through the Indian Country of BC. The Royal Proclamation established the foundational layer of British imperial law after the British defeat of French imperial forces in the colony of New France. The most famous episode in that military clash between France and Britain in Canada took place on the Plains of Abraham in 1759.
The fur trade history of the British Columbia area was conducted through the medium of the Hudson's Bay Company as well as through the Northwest Company based in Montreal. In the era of the fur trade, the BC area was often described as New Caledonia. The basis of British claims throughout most of northern North America, including BC, go back to the successful British takeover of the canadiens-Aboriginal fur trade that was the economic lifeblood of New France.
The Indian provisions of the Royal Proclamation were an acknowledgement on the part of the British government that its defeat of the French Army in Canada did not extend to the conquest the First Nations. The Royal Proclamation stipulated that Indigenous peoples would retain possession of their own ancestral lands now placed within an enormously expanded British North America that included the former New France.
Henceforth much of the newly annexed lands, including the eastern watershed of the Mississippi Valley, would be treated as "lands reserved for the Indians as their hunting grounds." The Indians on this territory were not to be "molested or disturbed" in their possession and enjoyment of the reserved lands.
The principle was introduced that, before any non-Aboriginal settlement or resource extraction industry was introduced in the protected lands of Canada, some sort of Aboriginal consent would have to be obtained by representatives of the British imperial monarch. This provision of the Royal Proclamation set in motion a series of Crown-Aboriginal negotiations leading to early treaties in Upper Canada, the jurisdictional seed from which the present-day province of Ontario emerged.
The principles of the Royal Proclamation were exported westward along with the westward expansion of Canada. These principles were expressed in the negotiation of the Robinson treaties in 1850, the numbered treaties between 1871 and 1929, the treaty with the James Bay Cree in 1975 and then a broad array of negotiations sometimes referred to as "comprehensive land claims."
The first of the modern-day treaties in BC was with the Nisga'a of the Nass River Valley. The Nisga's Treaty came into force in 2000. Much of the early work leading to the Nisga's Treaty was lawyered by Thomas Berger. In the early days of his involvement in the Nisga's case, Thomas Berger was sponsored by the Church of England. Church of England missionaries in BC tended to take the Indian provisions of the Royal Proclamation very seriously because the British monarch is also the head of the Anglican denomination.
The rules are not stipulated for determining how the Aboriginal consent called for by the Royal Proclamation is to be obtained. Thus the nature of "Indian consent" when it comes to relations with "the Crown" is a work-in-progress. This unresolved issue resides near the core of the present uncertainties about how to proceed with negotiations in Wet'suwet'en Territory, and by implications, in the negotiation of other Canada-First Nations treaties in BC and elsewhere in Canada.
Should the elected officials engaged in the Indian Act system be the sole deciders when it comes to delivering Aboriginal consent in modern-day treaty negotiations? Or must there be some Crown accommodation of traditional systems of Aboriginal governance that have somehow survived the era when these decision-making entities were essentially criminalized by the Canadian state.?
This federal criminalization of Aboriginal traditions took place through amendments to the Indian Act. The legal prohibitions extended, for instance, to potlaching, Indian dancing and the organizing of Indian political lobbies across multiple Aboriginal communities. Memories are still present in the Indian Country of BC of the days when some First Nations people were sent to jail for Indian dancing.
The career of the Squamish jurist, Andy Paull, forms another marker of the extent to which the Canadian Indian Department would go to maintain its control. In the early decades of the twentieth century Andy Paull became legendary for using as a cover his role as coach of the North Sore Indians, a lacrosse team that included many players from Iroquis Country in eastern North America. His job as a lacrosse coach in the Lower Mainland enabled Andy Paull to engage in politically organizing Indian groups across Canada during an era when raising money to advance an Indian claim was outlawed by the Indian Act.
One of Paull's partners in his political work was the Huron leader Jules Sioui, the Quebec-based founder of the League of Indian Nations of North America. This League was founded in 1944 at the same time as the organization that would become the National Indian Brotherhood and then the Assembly of First Nations. While the AFN strand of political organization is rooted in the Indian Act system, the League of Indian Nations was very deliberately developed outside the Indian Act in ways that escaped the control mechanisms of government funding.
More on Aboriginal Consent
Peter Grant is the lead legal representative of the hereditary chiefs. Peter Grant has been the lawyer for the Gitsxan and Wet'suwet'en peoples since the inception of their case in 1984. In recent times Grant has become vocal in media representations, explaining the view that his clients rather than band councils are responsible for negotiations with the federal and provincial governments of Indian title issues off-reserve.
This interpretation fails to address the issue that the unceded Indian title of the Wet'suwt'en people applies equally to lands inside and outside reserves. Indian reserves and Indian bands throughout vast areas of BC not covered by treaties have no solid legal ground beneath them. This problem is many-faceted. Since its inception British Columbia developed in ways the lie outside the rule of law of British North America. Much depends on how this anomaly is addressed and hopefully remedied.
Will the position advanced by Peter Grant establish a precedent throughout the Indian Country of Canada? Will traditional governments become the vehicle for off-reserve negotiations with non-Aboriginal authorities while Indian band councils confine their activities to the delivery of services within reserve communities? How far can and should hereditary principles of governance be stretched in any society in this day and age?
The issue of Indian consent raises other profound issues. What is to be said, for instance, about the propensity of corporate Canada to offer lucrative payoffs to executive figures in Indian Country? As Aboriginal organizations become more and more corporatized, the executives of these entities become accustomed to "signing off" on deals with non-Aboriginals giving the appearance but without the substance of genuine Indian consent?
The phenomenon of secret payments to Aboriginal executives raises issues about the role of Indian consent in the handover of the collectively-held Aboriginal lands and resources for exploitation by corporate Canada? This handover of collectively-held resources and jurisdictions to commercial corporations goes far beyond the realm of Aboriginal Affairs. What is the impact of the surrender of government assets and regulatory responsibilities to neoliberal agendas of privatization?
How is the idea of Indian consent affected by the self-interest of lawyers who sometimes manipulate Aboriginal clients through the control of information flows and legal jargon? What might be the responses on the part of rank-and-file Indians when they realize that their shared collective interest in lands and resources is sometimes being sold out to enrich the private interests of Aboriginal elites and their lawyers? What checks and balances exist, if any, to limit abuses of authority in the present system?
The Aboriginal Rights Industry
The explicit constitutional recognition of Aboriginal and treaty rights was only two years old when, in 1984, the Gitxsan and Wet'suwet'en tested the meaning of the key phrase in section 35 of Canada's newly patriated constitution. Section 35 lies within the Constitution Act, 1982, an important addition to Canada's British-based constitutional inheritance.
Section 35's recognition and affirmation of the existence of Aboriginal and treaty rights has been tested in court but mostly in cases where Aboriginal litigants, including the Gitxsan and Wet'suwet'en, have been granted government funding. How is it determined which Aboriginal groups get access to government funding extending even to the point of allowing them to sue the same governments that are funding them?
At the other end of the spectrum the question is: How is it decided when Aboriginal groups and individuals are to be denied public funding for court actions, even when such actions are to defend themselves from the unwarranted personal predations by the criminal justice system? As already noted, in Canada the criminal justice system is currently caging in jail an obscenely disproportionate number of Native people.
There is a severe lack of transparency in the politics of government funding to finance litigation led by Aboriginal litigants in court. This cloak of obfuscation tends to be impenetrable. It veils the lack of accountability which is often exploited by the main beneficiaries of stunning conflicts of interest in procedures for providing government funds to Aboriginal litigants. The open season on patronage and hidden agendas energizes the often corrupt workings of the Aboriginal Rights Industry in BC.
The Aboriginal Rights Industry has proven to be a great boon for some lawyers, but especially for those with close connections to government insiders. Needless to say, very little of the ample flow of funds through the byzantine networks of legal cronyism gets into the pockets of Native people. Most of the Native population in Canada lives well outside the comfort zone of middle class Canada.
A key facet of the dilemma of Aboriginal leadership has to do with the power of governments to set up hand-picked Aboriginal adversaries compliant with the requirements of government funding. Too often this compliance can be equated with crass manipulation of Aboriginal litigation by public officials that control funding. Governments tend to use their capacity to manipulate supposed Aboriginal adversaries in order to further the agendas of resource extraction industries seeking to constrain judicial interpretations of Aboriginal rights.
Accordingly, Aboriginal cases and those that conduct them in court are often both subjects and objects of skullduggery. Such political skullduggery pressed forward in the name of "the law" is rarely given a sustained public spotlight. One of the main instances when these matters had a chance of becoming public was in 1995 during the Gustafsen Lake conflict involving the Canadian Army, the RCMP and a group calling itself the Ts'peten Defenders, Shuswap Defenders.
The Ts'peten Defenders' lawyer, Dr. Bruce Clark, tried to bring into the light of intelligent scrutiny and discussion some of the corruption entailed in the Aboriginal Rights Industry. The result was that Dr. Clark was smeared in the media, incarcerated, and sent away for a psychological examination. As we shall see, he is not the only lawyer to face such horrendous treatment when trying to expose the skullduggery of the Aboriginal Rights Industry.
Litigation led by Aboriginal litigants only goes back in Canada to the 1960s with the extension of Canadian citizenship to registered Indians. By becoming enfranchised Canadian citizens, Aboriginal groups and individuals could become parties to civil litigation in courts. Before the 1960s Indians in Canada had no recourse to enable them to seek remedies in Canadian courts for their rapid dispossession and disempowerment.
Accordingly, during the century of their most speedy and extensive dispossession and disentitlement, the First Nations were sidelined from seeking remedies both politically and legally for one of the most monumental thefts of land and resources in all of human history. The imposition of the Indian Act transformed registered Indians into wards of the state. It disqualified them from voting in federal or provincial elections, from holding public office, from entering into contracts and from going to court to seek remedies in civil litigation. The treatment of colonized peoples as wards subject to the unaccountable power of colonizing agencies has been one of the primary tactics of empire builders throughout the world, including in the transcontinental expansion of both the United States and Canada.
The aim of the Indian Act system from its inception in the 1850s has been to institutionally assimilate Indian people through the process of municipalizing their reserves. In Canada, municipalities are provincially-chartered corporations with delegated rather than inherent powers of jurisdiction. Municipalities are not sovereign entities. Where the Indian Act system is largely about institutional assimilation, officialdom's main efforts of cultural assimilation found expression in the church-run system of Indian residential schools.
The Indian Act system works to deny and negate rather than recognize and affirm the existence of Aboriginal and treaty rights. This Indian Act system is therefore inconsistent with Canada's constitution. What might replace the Indian Act system? Some have proposed a Section 35 Implementation and Enforcement Act as an alternative.
The Indian Act system is often attacked in organizations like the Assembly of First Nations. Even in the AFN, however, there is, in reality, a strong base of mostly unspoken support for the survival of some version of the Indian Act system. This support is especially strong on the part of those who have gone the farthest in exploiting the Indian Act system for personal gain.
Political support for the Indian Act system is presently dependent on the fact that it continues to be the main channel of transfer payments from the federal government to First Nations communities. These transfer payments have created a culture of haves and have-nots in Indian Country. These funding mechanism have created a environment purposely created to keep Aboriginal communities dependent and divided within themselves.
Many, but not all, of those Wet'suwt'en people engaged in the workings of the Indian Act system are inclined to support pipeline projects. Frequently this group of so-called "progressives" cite the prospect of enhanced economic opportunity, by no means an insignificant consideration given the depressed socio-economic conditions in many Aboriginal communities. Would more pipeline construction in BC as presently conceived lessen or worsen class conflict in Indian Country? Would pipeline construction bring First Nations long term benefits? If so, how?
The Problems with Delgamuukw
Many of the positions originally put forward by the traditional Gitxsan and Wet'suwet'en governments were effectively set aside during the years following 1984. The effect was to transform a case that began as an affirmation of sovereignty by the traditional governments into a case culminating in a ruling about the nature of Aboriginal title within Canadian law. This ruling was written by Chief Justice Antonio Lamer of the Supreme Court of Canada. It is known as the Delgamuukw decision of 1997.
The ruling jumps the gun by making all sorts of pronouncements and declarations that should have been the subject of two-sided Crown-Aboriginal treaty negotiations in British Columbia. Until such negotiations take place, the courts in Canada technically lack legitimate jurisdiction to dictate to treatyless First Nations in BC how their existing Aboriginal rights are to be interpreted and applied in real life situations.
Undoubtedly the current situation requires some pragmatism to deal with problems arising from the large disparities in how BC has actually developed and what the law actually says. At the very least we require at this juncture greater levels of candour from officialdom about the real nature of the challenges before us. This candour must emanate from many responsible parties including from the First Nations own lawyers. Some honest reckoning with the legal facts is a precondition for bringing the Crown law more into line with the still-uncompromised nature of the inherent jurisdiction adhering to many BC First Nations.
"Dr. Bruce Clark, Renate Andres-Auger and myself, Jack Cram, have now all seen the inside of a jail cell for raising these issues."
How did it happen that a Native sovereignty case beginning in 1984 was transformed into a procedure that produced in 1997 the dubious Delgamuukw ruling? Was there Indian consent for scaling back so dramatically the assertions of the Gitxsan and Wet'suwet'en sovereigntists? If so, how was this Indian consent for the transformation obtained? Who benefited? Who was rewarded? How? Who lost out? How were the tracks of various transactions including possible payoffs covered?
Two BC lawyers faced a horrendous onslaught in trying to bring forward evidence they amassed on how the Aboriginal sovereignty case was changed into something very different. Between 1992 and 1994 first one lawyer and then the other were criminalized, jailed, harassed, demeaned, spied upon, and basically driven out of the legal profession. They were thus punished severely for trying to bring forward documentation that they believed chronicled the deep and elaborate corruption attending this matter. One of the lawyers was Renate Andres-Auger. After facing severe recriminations for her attempt at whistle blowing, Ms. Andres-Auger brought the case she was trying to make to a more senior lawyer, Jack Cram.
My primary source for what follows is a xerox copy of a document prepared by Jack Cram dated 30 May, 1994. Its full titled is, In the Supreme Court of British Columbia in the Matter of a Citation-Show-Cause Hearing Against JACK CRAM, where the Said Jack Cram has been Called Upon to Show Why He Should Not be Held in Contempt of Court. Submission of Jack Cram.
Jack Cram apparently refuses to speak about the catastrophic treatment pointed his way in 1994. Much of the story of his trials and tribulations has been scrubbed from the internet. His statement of 30 May, 1994 is in the form of a submission to Mr. Justice H.A. Callaghan. This statement questions the procedures leading to the charge against him for contempt of court for the supposed crime of trying to prove the corruption of that same court. Citing the conflict of interest inherent in the court's position, Jack Cram exclaimed, "His Lordship is trying his own accusation." Cram continued to address Mr. Justice Callaghan as follows:
Surely an allegation of contempt based on allegations that a person has scandalized the court by alleging improper conduct on the part of that Court should not be considered by the Court alleged to have acted improperly. Nor should such an allegation of contempt arising out of the alleged improper conduct be tried before the allegations of improper conduct have been tried.A major theme of Jack Cram's submission has to do with his allegations concerning close, elaborate and improper collaboration between the BC Judiciary and the BC Law Society. This improper collaboration was said to have been directed initially at killing the legal career and destroying the wellbeing of Cree lawyer, Renate Andres-Auger. Her lawyer, Jack Cram, was in early 1994 a well regarded jurist with 26 years of experience in a successful Vancouver law practice. Ms. Andres-Auger shared with Jack Cram revelations that led the senior lawyer to explain,
I am not alone in the expression of the view that there has been a systematic scheme set in motion by the Government of Canada and in this province, by the Government of British Columbia with the cooperation of the Courts and the legal profession and Native collaborators to defraud the Native people of their clearly defined rights to their lands and self-destiny.It seems that Ms. Andres-Auger had been one of Jack Cram's teachers on this subject. He explained to Mr. Justice Callaghan:
It was Renate Andres-Auger's outspoken knowledge of what happened in the Delgamuukw case, that attracted so much attention to her. She had studied under one of the Natives' lawyers, Michael Jackson, and provided opinions supporting the Natives' claims that turned out to be the exact opposite to the positions taken by the lawyers for the Natives. She was trying to tell the world that the lawyers for the Gitxsan and Wet'suwet'en people had sold them down the river. The response from the Judiciary and Law Society was to discredit and destroy her with fabricated complaints arranged by Clarene Ostrowe, who had been one of the lawyers representing the Natives in Delgamuukw, but who was conveniently transferred to the Law Society.Jack Cram asserts in his submission the assertion, "I have instructions from all the Hereditary Chiefs with whom I met to commence an action for fraud and deceit against all the participants in the Delgamuukw case, including the Governments, Chief Justice McEachern and all of the lawyers including the lawyers representing the Gitxsan and Wet'suwet'en people." In trying to sum up what he saw happening in 1994 with the process that was working its way towards the very flawed Delgamuukw ruling in 1997, he wrote,
The simple rhetorical question that must be asked is:
Why in the face of what appears to be clear authority that, in the absence of a treaty the Natives are sovereign in their own territory and the land belongs to them, would the Natives' own lawyers concede sovereignty and title in the lawsuit brought on behalf of the Gitxsan and Wet'suwet'en people with whom there is no treaty?This short account passes over many of the detailed descriptions of the elaborate and incredibly vicious recriminations that Jack Cram claims were visited on both Renate Andres-Auger and him. There is something extremely troubling about even the idea of whistle blowing lawyers in Canada ending up in jail for trying to do their due diligence in fending off corruption in their profession.
When the same arguments have been raised by others, the Courts have reacted violently. Dr. Bruce Clark, Renate Andres-Auger and myself have now all seen the inside of a jail cell for raising these issues.
In the case of Jack Cram, he was taken to jail directly from the court room where he was engaged in doing the work of his profession in a properly scheduled case. He was then assigned lawyers he did not trust and subjected to secret proceedings in a closed court room. Moreover he was picked up by police and brought to an institutional for a mental examination. There he was pumped full of potent drugs with no explanation of what was being injected into him and why.
In the case of Ms. Andres-Auger, she was put in a position of such distress that she not only lost her legal practise but she lost custody of one of her daughters. As Jack Cram told it, she was "subjected to every form of harassment, surveillance and covert activity by the Law Society and the Judiciary."
According to Cram, a controversial figure named Jackie Morris was "at the helm of the Law Society's secret communications with this Court and with the efforts to find reasons to discredit and suspend Renate Andres-Auger." Jackie Morris is quoted as having told Ms. Andres-Auger, "You might as well stay home and teach Cree to your children."
Surely there are no procedures of due process that allow for such draconian suppression of evidence. There are no legal procedures that sanction such extreme sabotaging of professional reputations. Certainly there is no provision for the very officials threatened by such whistle blowing, namely members of the BC Judiciary and BC Law Society, to respond to allegations with such explosive ferocity.
To my knowledge this episode has never been properly investigated by third-party adjudicators. Nor has this episode been given the attention it deserves in historical accounts of Canada's juridical history. If there are other sides to the story, what are they? How can such enormous improprieties in highest echelons of BC's legal establishment simply be ignored as if they never happened?
The drastic nature of the clamp down on Renate Andres-Auger and Jack Cram suggest that some very powerful interests had a lot to lose if the persecuted lawyers been able to bring their information forward into the light of day with proper legal protection. The revelations they tried to share in legal proceedings extended to a range of accusations about the involvement of Law Society officials and members in a variety of serious crimes. They claimed several BC judges were involved in various types of cover-up. Underlying the whole episode is the charge that the conditions of free and independent judiciary have repeated been compromised in British Columbia.
Summing Up
How is the transformation of the Gitxsan and Wet'suwet'en case into the Delgamuukw ruling to be explained? Very serious questions arise from the dramatic nature of the assault on the careers and the persons of Renate Andres-Auger and Jack Cram when they tried to bring to light revelatory information about the corruption they charge was entailed in making this transformation. The severity of the documented crackdown to protect a cover-up attributed to the BC Judiciary and the BC Law Society should not be ignored. The public requires some genuine explanations from the responsible authorities.
Surely more investigation is required to give assurances to the public that the Aboriginal Rights Industry in British Columbia is worthy of public trust and confidence. The questions which touch upon the relationship of Aboriginal and Crown title in the vast lands and abundant natural resources of British Columbia are perhaps the most fraught and difficult legal issues ever faced in Canada.
They are too important to be left under a cloud of suspicion that abuse of authority has prevailed over honest dealings with the First Nations. The intensity of the imperative to build pipelines from landlocked Alberta to the Pacific coast should not become the basis for yet more haste and unsavoury dealings on the treaty frontiers of Canada-First Nations relations. In fact we need to revisit older parts of a very flawed process before jumping into uncertain waters. Such a jump under these circumstances and at this time may in fact extend the same variety of juridical corruption that seems to have prevailed in the genesis of the Delgamuukw ruling.
Questions concerning the nature of the title to the extensive Indian Country of British Columbia capture in a very circumscribed ways some of the core uncertainties concerning the place of Indigenous peoples in a world that has been shaped, and continues to be shaped, by evolving forms of imperial colonization. How can the playing field between colonizers and colonized be made more level? How can the Canadian government and people best respond to our part of a worldwide inheritance from history that has broad implications for the emerging global community of planet Earth.
*(Heavily armed police force their way over a reinforced gate amid screams of protest at the Gidimt’en clan checkpoint. Image credit: Jesse Winter/ StarMetro Vancouver)
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