Experts suggest new vision for treaties

Page 15

All sides have to change the way they look at things if treaty talks are to accelerate to an acceptable pace.

That's the message that emerged after two days of high level discussion about ideas that might be able to drive treaty negotiations towards reconciliation of Indigenous and non-Indigenous interests in Canada and around the world.

The Indigenous Bar Association's annual conference provided the opportunity for the discussion. More than 220 students, lawyers, government officials and band officials attended the IBA's annual get together in Vancouver this year on Oct. 19 and 20. Approximately 50 law students were among the delegates-the IBA funds the travel and accommodation costs for Canadian Aboriginal law students to attend its conference each year.

Many speakers talked about adjusting the vision of the treaty relationship.

Former Ontario Ombudsman Roberta Jamieson took time out from her election campaign (she's running for chief of the Six Nations of the Grand River First Nation, her home community) to deliver a much lauded speech during the lunch hour of the first day. She skillfully captured her audience by recalling the optimism and enthusiasm they all have or had in their law school days.

"And we, armed with our law books and degrees, we were the ones who were going to change the world for our people," she said. "We underestimated what we were up against. We underestimated how deeply rooted, how firmly entrenched in modern Canada were the values and attitudes brought here by those who colonized our lands and people."

She said it was time to manage assumptions and re-evaluate the nature of the struggle.

"We assumed that because Canadians generally are generous, fair-minded, accepting of diversity, and that they place a high value on justice and fairness, this would translate into support, even pressure, for changes in unjust, unfair and inequitable government structures, policies and practices which affect our people," she said.

While admitting many of her contemporaries have become tired and frustrated - with, she admitted, good reason- the Mohawk lawyer urged her colleagues to look for creative solutions. Now, more than ever, she said, the Canadian public must be made to see and understand the issues.

"The public is told by the government that it really wants to make things right, but the public is not told that the government is ignoring the recommendations it receives whenever it asks for advice. We ourselves are frustrated that our message doesn't seem to get out; slick communications experts are assisting Indian Affairs to advance a point of view which until recently has appeared only in the realm of the far right. Without any comment to the contrary, we read in the nation's media, calls to do away with reserves. 'Make them move to the city and get jobs!' If leaders weren't so corrupt, there would be no poverty on reserves, it is proclaimed. This is the kind of simplistic, jingoistic thinking that is behind the minister's 'new' governance act. Those of you who have been around a while will recognize much of the act as a rehash of unsuccessful and ill-advised initiatives which have emerged over the last 25 years.

"But the answer is not more legislation cut from the cloth of colonialism put forward by a department itself unwilling to be held accountable or to accept responsibility for the measures it insists our communities adopt, unwilling to adopt for itself the same standards it wishes to impose on us."

She challenged lawyers and law students to fill the policy vacuum created by government dithering and finger pointing by looking at the problems with new eyes. Jamieson advocated new institutions to monitor the federal government's performance as a fiduciary. She urged lawyers to take strategic action in legal matters, work to educate the public and push for better performance on international agreements made by Canada.

Hugh Breaker, a lawyer from the Tseshaht First Nation on Vancouver sland, said the vision that needs to change is the way courts see Native people.

"Courts romanticize us," he said. "They see us the same way as the explorers viewed Aboriginal people when they came here hundreds of years ago. As long as Aboriginal people move within a predictable milieu, the courts will move to protect our rights."

Moving outside the Euro-centric comfort zone changes the game, he said.

"So when we want gambling rights, suddenly the court throws its hands up saying, 'Wait a minute. This isn't the Indian in feathers bounding on his horse through the woods. This is an Indian who wants to control financing, taxation and some of the other parts of capitalism.

"Delgamuukw, in its claims of self government, was sent back for re-trial because it stepped out of the romanticized notion of what we were. It went beyond the boundaries of what the courts think of Aboriginal people."

Jean Teillet, the great grandniece of Louis Riel, is a Metis lawyer with practices in Toronto and Vancouver. She said in strong words that the Crown has to take a close look at its tactics.

"Never underestimate the depths of the dishonor of the Crown," she said.

Teillet said the lawyers on the government side in Powley, the landmark Metis hunting rights case in Ontario which she litigated, called First Nations leaders in the province and told them the case would negatively affect their hunting rights.

"I consider that to be despicable and dishonorable action on behalf of the Crown to sew dissention between us," she said. "I'm outraged by that action."

She also said that the judge ruled Metis people have hunting rights in the province and then suspended the decision for a year so the government could work out an arrangement with the Metis.

"In spite of the court of appeal decision, the Crown went ahead and allocated the entire moose harvest . . . without a single moose for Metis people," she said.

The stay on the decision was put in place by the court so the province and Mets could negotiate. Teillet said the province is using the stay as an excuse not to allocate any harvest rights to Metis people.

"It is short-sighted beyond belief," she said.

The lawyer said Premier Mike Harris played a personal role in the decisions.

"He's just stepped down last week and I won't be sorry to let Premier Harris go," she said, being interrupted with a burst of applause from the audience.

"That's OK, here in B.C. we have his little brother called Campbell who's busy imitating all the havoc that Harris has wreaked in Ontario. We know now of the Dudley George case that Premier Harris was directly involved in the decision that provoked the events at Ipperwash that night. We're told now that the agreements that we could not come to here over the moose in Ontario had to go up to, and I quote our chief negotiator, 'God himself had to look at this one.' And God himself said no. So if you think there is honor in the Crown, disabuse yourself of that right now. And I think the only reason the courts keep talking about it is because it isn't there."

Bernd Christmas, a Mi'kmaq lawyer who works for the Membertou First Nation, told a story of a leader of his people, who was admittedly not a sophisticated man. The leader skewered all the highly technical legal arguments employed by the government against the existence of Aboriginal title with one comment, showing how flimsy arguments based on terra nullius must be.

"I've done my research as best as a lay person can do, but I'm having one problem," the leader said. "I can't find the ship manifest that indicates when the Crown brought all of that land over the water with them."

Assembly of First Nations British Columbia vice chief Herb George recalled the advice of an uncle who told him the most important job of this generation of leadership is to give the young people a sense of confidence and pride.

"Our job here is to put a new memory in the minds of our children," his uncle told him.

"We tell stories of pan, we tell stories of hopelessness, of helplessness, and then we blame somebody else for it," he said. "The point he was making when he said we've got to start putting new memories in the minds of our children is we've got to start telling different stories. We've got to start telling stories for our kids about being successful, about accomplishing something, about being proud of who they are. Putting the belief in their minds that they can strive and they dream to be the best and there's nothing that's going to stand in their way. There's nothing that's going to stop them."