Compelled & compelling

Page 7

Lawyers for the Samson Cree Nation want to call the prime minister as a

witness in Victor Buffalo versus the Queen. They are betting that Jean Chretien will fight with every means at his disposal to avoid having to testify.

Paul Barnsley, Windspeaker Staff Writer, Montreal

James O'Reilly, a veteran practitioner of Aboriginal law, filed notice in Calgary's Federal Court on March 3 that he will ask for subpoenas summoning Prime Minister Jean Chretien and Minister of Indian Affairs Robert Nault to testify in the landmark $1.5 billion oil and gas trust monies lawsuit filed by the Samson Cree Nation against the federal government.

O'Reilly told Windspeaker that Mr. Justice Max Teitelbaum will hear the legal arguments for and against the motion when court resumes on April 7.

"I expect a fight."

The Montreal-based lawyer said he wouldn't normally need a subpoena to compel a witness to testify, but these witnesses are different.

"You need permission of the court if a witness is to be compelled to appear if that witness lives more than 800 km away as these two do," he said. "Plus, they will likely attempt to invoke parliamentary privilege."

O'Reilly's 32-page notice of motion deals extensively with the limits of parliamentary privilege in an attempt to head off any arguments by the Crown that the minister and prime minister should not have to appear in court.

"The general privilege is that no MP can be summoned before the court while parliament is sitting," O'Reilly explained. "We're saying there isn't a privilege if there's not interference with the business of parliament as such. And to the extent that they just invoke a general immunity, that goes against the Charter, the recognition of Aboriginal and treaty rights and equality before the law. So that's where our whole constitutional challenge comes in. This brings directly into focus the privilege of every sitting member of parliament and every legislature across the land."

Before he filed the motion, O'Reilly was in contact with the minister and the prime minister through official and unofficial channels.

"I had asked would they come voluntarily and wrote a letter to that effect and they came back and said, No, they would not come voluntarily," he said.

But the prime minister is personally named in 484 documents that have been entered into evidence so far at the Samson trial, known at court as Victor Buffalo vs. the Queen. O'Reilly believes Chretien must testify if justice is to be served.

"He's directly, directly, directly involved in a lot of the issues in this lawsuit. As far as we're concerned, if there's anybody who can give the best evidence-you know, you hear about the best evidence rule and direct evidence-he certainly can on these issues," he said. "And Minister Nault, the big issue in this case is what's the policy of the federal government? And they give us this line that there's this inherent right of self-government and, 'Yeah, we want to respect the treaties.' But on the other hand they're applying the Indian Act to the core. That's their whole system for how they handle these trust monies. It's all based on the Indian Act. And now they're going ahead with this so-called self-government bill-Bill C-7-and we're saying that's just the Indian Act under another label."

The trial is massive in scale and is expected to grind on for years. Windspeaker asked O'Reilly if the prime minister's plan to step down in February 2004 will have an effect on the quality of testimony he might provide if he appears at trial after he leaves office.

"Well, that wouldn't matter because what would happen at that point in time is he would say what he did or didn't do as a minister and as a prime minister. And he'd have no immunity," he said.

O'Reilly has been involved in Aboriginal law for almost as long as Chretien has been in politics. He expects to discover some important information if he's allowed to question the 40-year political veteran under oath.

"He is vry partial to Indians. I think that he does want to try to make a difference. I think he's been dead wrong in a lot of his policies, but I don't attack his sincerity and I don't doubt his sincerity. I think he'll say what he truly believes. That might be right. It might be wrong. But I think he'll tell it the way he thinks it was and is," O'Reilly said.

"I do not expect Jean Chretien to lie. I expect him to tell the truth. He'll be sincere. I don't agree with him on a lot of things and a lot of Indian people don't, either. But I think it will be extremely instructive as to why the government has done what it's done in the last 35 years. I think we'll find some real keys as to the policies that they've adopted and why they haven't changed the Indian Act and why they'd have totally contradictory positions-on the one hand keeping the Indian Act and on the other having section 35 of the Constitution Act," he said. "Have you ever thought about that? You see something like Corbiere and somebody says, 'Well, you pass the charter so how can you keep this provision in the Indian Act?' Well, the whole bloody Indian Act is against treaty rights and Aboriginal rights. Yet they don't move on that. They hide behind the fact that they can't get a consensus or they don't want to get a consensus. Back in the '60s, I remember the consultation meetings. People were saying, 'Let's sit down and negotiate suitable legislation that would reflect the treaties and would reflect our basic rights.'"

Samson and its tribal council, Treaty 6, have been among the most vocal opponents of the federal government's proposed suite of legislation dealing with First Nations governance. Since O'Reilly was taking such an aggressive stance against the governance initiative, we felt the need to ask if he had been instructed to support the political position of his clients.

"I haven't been instructed by them at all to bash away at it as a political act. They think that. Politically, I'm not with any pary, never have been. The four nations made a presentation to the [standing] committee and just blasted Bill C-7. They said, 'Where's the mention of the treaty and all the rest?' We talked to a couple of representatives [of the band] and they brought up a couple of points to me. They said, 'Jim, there's nothing in there about the treaty. Where's the treaty?' And I said, 'Jeez, that's right. Where's the treaty,'" he said. "I'm giving you my views. But inside the court proceedings I find it abhorrent. People pan the Indian Act. Minister after minister-we brought former [Indian Affairs] Minister [David] Crombie, former minister Warren Allmand, former minister John Munro. They all raked the Indian Act over the coals."

Even in the speeches Nault has given, the minister has said the Indian Act should be relegated the dustbin as a relic, said O'Reilly.

"So all these people are dumping on the Indian Act, but in my view they're doing worse. From a legal point of view, they're still trying to regulate the lives of Indians through legislation."

After many years fighting federal and provincial governments on a variety of fronts involving Aboriginal issues and seeing the same themes and tactics employed over and over again, O'Reilly said he felt the time had come to speak out.

"After 37 years, I think I've seen a few of these things before. I can tell you I smell a skunk when I see one."

He said self-government, with real power, control over resources and land and basic assets, would put the issue to rest.

"Then, for what [First Nations] do, then they're responsible, then they're accountable. If they do a great job, fine. Everybody shuts up. If they do a bad job, they can't turn to the federal government and say 'It's your fault.' But that's what self-government is. And they haven't been given that yet. So they're still in a state of tutelage, which is what the original design of the Indian Act was. The Indian Act hasn't really changed in a century and a quarter. It was basd on enfranchisement. The whole theory of that Indian Act was to keep them sort of as people who needed to be protected, as children, special attention, until they came of age and became enlightened and enfranchised. That's still the driving force behind this legislation.

"Now when they say we don't want to touch the Indian Act but in the meantime we have to have all these pieces of legislation to fit into the modern, what are they concentrating on? Not what will give the people the resources or the powers to be able to govern more effectively. They're giving themselves the power to go in and make sure they stay in the position of control of what goes on on reserves and with Indian nations. To me, that's hypocrisy."