Canada appeals border crossing case again

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It's on to the highest court in the land for the parties involved in the Mitchell case.

The federal government has twice failed to convince a court that Canada's border should be a barrier to Indigenous people who carry on small scale trade for personal or community use.

The Federal Court of Appeal spent five days in mid-September 1998 listening to arguments from federal government lawyers who urged the court to set aside the Federal Court decision handed down in June 1997. It stated the Mohawks of Akwesasne have the Aboriginal right to carry non-commercial goods across the border without paying duty.

On Sept. 25, 1997, three months after losing the Mitchell case at trial, 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 Akwesasne Grand Chief Mike Mitchell. The judge ruled on June 27, 1997 that Mitchell did not have to pay the $361.64 in duties that Customs officials had billed him after he carried a load a 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.

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

Prior to the first appeal, a Justice ministry spokesman told Windspeaker the government viewed the case as a test case. The spokesman also said the government was merely looking for clarification of certain details of the decision.

Apparently, Canada didn't get the answer it was looking for. Considering Canada's, at times, heavy-handed history in dealing with Aboriginal rights, observers wonder about Ministry of Justice claims the government is merely looking for guidance from the courts on the issue.

During a phone interview, Grand Chief Mitchell told this paper that he asked government representatives why they were pursuing this latest appeal.

"I asked them that in a meeting last week," Mitchell told Windspeaker on Jan. 20. "They had no answer. They shrugged and they looked at each other and they didn't really come up with an explanation other than to say that this is now going to be an historical, precedent-setting decision, whichever way it goes. They feel restoring trade as an Aboriginal right could have drastic financial implications for Canada - at least it's an unknown what it could mean - and so to them that still deserves further clarification."

Mitchell and his legal team believe the government is acting in a manner that is much too adversarial. The Akwesasne leader has urged the government to negotiate rather than litigate.

"'Why don't you agree to a process where we sit down and allow First Nations to tell you how they see their rights or the exercise of their rights practiced?'" he said he asked the government officials, adding. "They don't want to do that."

Many Native leaders interpret these events as a sign the government is searching for ways to avoid giving up power, even though the courts have told them they must.

"There's no secret. That's exactly what they're afraid of. They're too accustomed to the legislated, delegated rights they confer on us. That's the only world they're comfortable with," he said.

Mitchell has repeatedly told the federal officials that his people are prepared to co-operate with Canada and create a trade economy that respects Canada's sovereignty.

"This is what I explained to them last week. It's not an empty box. It's not going to be vacant. We fully intend to implement strategies, regulation strategies, that we're comfortable to sit down and discuss with them," Mitchell said. "But I think what we're faced with here is they just can't fathom the notion that Aboriginal people could now undertake this task or responsibility. And that in itself is an insult."

The actions of the government are especially onfusing when compared to the words of the Indian affairs minister and the Liberal Party. Minister Jane Stewart has built her government's action plan for dealing with Aboriginal people on concepts such as "partnership" and "capacity building" but Mitchell sees the government tactics in the court case as attempts to maintain paternalism and economic stagnation on First Nations.

"Indian Affairs hasn't said very much," he said. "There's a Liberal Party resolution, passed in March 1998, that committed the Liberal Party of Canada to implement border crossings, including the Jay Treaty, as an Aboriginal right. Then they went further and said we want to implement Aboriginal trade. So everything that I'm fighting with them in court, if they follow through in the Liberal government, we're fighting for the same cause. I asked them about that and they said 'yes, we politically support that.'"

But despite all that, Mitchell is preparing to head back to court. The only consolation for him is that it will be the last time because the Supreme Court of Canada is the final stop in the Canadian judicial system.

"It's nothing too surprising. I'm not going to fall over backwards or cry about it," he said. "We've committed ourselves to see the end of this and we're getting closer and I have found out, as we move on to different levels, that we're getting stronger and Canada's getting weaker. At this point I see going to the Supreme Court as accepting the fact that it's probably the only course left. So one more fight, one more round."