Federal Court of Appeal hears Mitchell case

Page 2

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

Last Sept. 25, three months after losing the Mitchell case, 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 of goods across the border into Canada from the United States. McKeown ruled that 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.

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, 991 so far trying to collect that $361.94 bill from Mitchell. The larger figure represents the legal costs the judge ordered Canada to pay after he rendered his decision. Legal costs have increased as federal government lawyers spend time developing arguments that will be aimed at trying to overturn the decision.

Ontario lawyer Paul Williams, a treaty and land claim specialist, is a member of the Mitchell legal team. He told Windspeaker the three judges who heard the case spent a lot of time quizzing the government lawyers about their arguments, but he isn't prepared to speculate on the outcome of the court's deliberations.

"The court is going to think about it for awhile," he said when asked if a decision was expected soon. "I really don't know when we'll hear."

The Crown's argument centred on four main points:

the government objects to what it maintains is a global approach to border crossing rights taken by the trial judge, that is, that rights specifically belonging to the Mohawks of Akwesasne have been extended to all First Nations;

that Canada's sovereignty is threatened by the decision;

that the trial judge overlooked certain evidence;

that the border crossing right was extinguished by the Customs Act.

Sources in Ottawa who followed the trial expect a compromise decision will be handed down by the court, but no one knows exactly what to expect.

Williams, after listening to the government's case, believes it was mostly about limiting the damage done to the government's ideal position by the original decision.

"I see it as an attempt to limit the impact of the judgement," he said.

The judges' questions to both sides explored in-depth the limits of non-commercial trade, which suggests that is an issue the court will focus on.

"The court wanted to know if non-commercial trade means Mike Mitchell can sell cars in the Yukon, or is it limited to trading baskets with other Mohawks," Williams said.

Williams, who lives near Six Nations and has worked as an unofficial legal advisor to chiefs of the Iroquois Confederacy council, admits he's not sure what the government's political motivation for pursuing the appeal may be. He and his colleagues on the Mitchell legal team believe the issue should be negotiated, not litigated.

"Why spend millions on a case involving customs and duties when NAFTA will eliminate all customs and duties within a few years?" he asked. "It doesn't make sense. This is a case crying out for negotiation."

He pointed out that Mitchell wnt out of his way to be reasonable in what he brought across the border to test the Customs Act, and added that the Akwesasne council is more than willing to negotiate a deal that would respect Canada's needs for a secure border. Williams said the government's insistence in pursuing this matter in court is actually making the border less secure.

"Canada doesn't seem to recognize that as long as it refuses to keep the Crown's promises regarding the Jay Treaty and the Treaty of Ghent, the people running cigarettes and things across the border can continue to pretend to be heroes," he said. "Legitimate Indigenous governments can't do anything as long as Canada's not keeping its promises."

A call to the Justice ministry, for the government's point of view of the appeal led to a return call from a senior Department of National Revenue spokesman. Michel Cleroux said the government viewed the Mitchell case as a test case and was only appealing the decision to get it clarified.

"The original case requires clarification," he said. "A lot of questions aren't answered. The appeal is consistent with a test case. Canada's Aboriginal people and all Canadians deserve a certain amount of certainty in this area."

Since the government claims to be using the case to clarify the law for the public good, Cleroux said, the government will pay a portion of Chief Mitchell's legal costs.

"The government has agreed to pay all reasonable legal costs he will incur as a result of the appeal," the Revenue official said.

Cleroux could not say if the legal fees for the original trial would be included in that announcement, suggesting that the government only adopted the test case approach after losing at trial.