Border crossing decision appealed

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The federal government is not willing to accept a Federal Court decision which recognized the rights of the Mohawks of Akwesasne to cross the Canada-United States border without paying customs duties.

On Sept. 25, lawyers working for the Ministry of National Revenue filed a notice of appeal of Judge William P. McKeown's 105-page decision in favor of Mohawk Chief Mike Mitchell. The judge ruled on June 27 that Mitchell did not have to pay the $361.64 in duty that customs officials had billed him after he carried goods across the border into Canada from the United States. McKeown ruled the Mohawks had a constitutionally-protected Aboriginal right to freely cross a border that was drawn through their traditional territory by the colonial powers.

Mitchell, grand chief of the Mohawk Council of Akwesasne, said the government's decision to appeal was a disappointment.

"It was Canada who challenged us to take the issue to court. Now that their own courts have ruled in our favor, they are appealing the decision," he said. "This does not speak well of Canada's commitment to the position it is advocating for partnership between government and First Nations. This is not a show of good faith on the part of Canada."

The judge's decision limited the constitutional protection for the duty-free importation of goods to those goods used for personal and community use.

"Goods for personal and community use includes goods used for sustenance, household goods and goods used for First Nations' custom," McKeown wrote. "The Aboriginal right includes the right to bring these goods from the United States into Canada for non-commercial scale trade with other First Nations."

Mitchell consulted with chiefs and Elders in his community before deciding on which types of goods he would use to test Section 135 of the Customs Act. No goods that could be considered harmful to the community (such as alcohol, drugs or firearms) were included.

The Ministry of National Revenue has spent at least $293,000 so far trying to collect the $361.64 bill from Mitchell. The larger figure represents the legal costs the judge ordered Canada to pay after he rendered his decision. Legal costs will rise as federal government lawyers develope arguments that will be aimed at trying to overturn the decision.

Graham Garton, the Ministry of Justice lawyer who will prepare the government's appeal, is new to the case. Dogan Akman, the Justice lawyer who handled the case at trial is no longer involved.

Garton said he believes the government feels the need to appeal the decision because there is a fear that other First Nations will begin court action to have their traditional border-crossing rights recognized. He said senior Revenue officials are also worried the wording of the decision may leave the door open for First Nations to challenge the payment of other taxes, such as the Goods and Services Tax and provincial sales taxes.

"I've just received this file, but it's my understanding that there's disagreement that an Aboriginal right was defined in this case," Garton said. "Also, the word 'duty' in the decision doesn't necessarily apply just to Customs duties. There's concern, as I understand it, that it could apply to other taxes as well, such as the GST and the PST."

Asked if the bottom line in government and bureaucratic circles was the fear of a potentially sizable loss of taxation revenue as a result of the Mitchell decision, the government lawyer responded, "I would assume so."

The appeal will be heard by the Federal Court of Appeal. A panel of either three or five judges will scour the judgment, looking for errors in law. No new evidence can be presented. Only if the appeal panel can find a misapplication of a statute will the judgment be overturned. The only other legal avenue for Mitchell should the appeal panel reverse McKeown would be an appeal of that decision to the Supreme Court of Canada.

Akwesasne council sources say the Canadn government should recognize the Mitchell decision and should not prolong the expensive court fight.

"We have told Canada that there's nothing to fear by negotiating with the Mohawks on how we plan to implement the exercise of our Aboriginal border crossing rights and trade with other First Nations," Mitchell said. "We have said all along that we would prefer to negotiate with Canada to develop a protocol for the management of our collective Mohawk Nation rights. Court is a hardship on all of us, it is costly in time and resources and reasonable peoples could arrive at more creative solutions outside the court."

While it is customary for an appeal to the Federal Court of Appeal to take up to two years to complete, the two sides are talking and may be able to get the matter before the court as early as next June.