Former PM can be called to testify

Page 10

It was a jubilant Chief Victor Buffalo who spoke to Windspeaker on Dec. 3. Less than two hours earlier, lawyers representing his Samson Cree Nation had persuaded the Federal Court of Canada to grant their request to call outgoing prime minister Jean Chretien as a witness in their billion-dollar breach of treaty and trust case against the government.

Mr. Justice Max Teitelbaum had rejected that request in August 2003, citing parliamentary privilege, but, in what a Samson press release called "an unprecedented, historic and courageous decision," the judge revisited his ruling after lawyers James O'Reilly and Ed Molstad said that Parliament was no longer in session and Chretien was about to retire from politics.

"After 281 days of trial to make the federal government accountable as treaty partner and trustee, I am encouraged by this signal that Canadian courts may be prepared to apply principles of equality before the law and fundamental justice to Aboriginal peoples," Buffalo said in his official statement.

Unofficially, he said he was surprised and delighted by the decision.

"When they called me I just about drove off in the ditch," he said. "I've never been this nervous before. It's never been done before. We feel he's going to have all of the necessary information to give to the courts to plug in all the holes that we're missing. Getting the prime minister in there just blew me away. But I've got to see him [in court] before I believe it."

Buffalo said Chretien could appear in court as early as the end of January.

On Dec. 17, Chretien announced he would be appealing the decision.

O'Reilly and Molstad have been meeting with Frank Foran and Michael Marion, lawyers for the now former prime minister, to work out details of his appearance, including security considerations.

In making his argument, O'Reilly reminded the court that Chretien is known to the Samson Cree people as Wapoho Okeymow or Chief White Owl. He is an honorary chief of the Samson Cree Nation.

The lawyer quoted Red Cloud, a leader of the Oglala Lakota people to clarify the Samson plaintiffs' point of view.

"[T]he background is that 'they made us many promises. More than I can remember. But they never kept but one. They promised not to take our land and they took it,'" O'Reilly said.

He talked about Abraham Lincoln's famous statement on democracy, that all men were created equal. "But on this theme of equality, my lord," said O'Reilly addressing Justice Teitelbaum, "if I were before a jury, not you, with great respect, but a jury of 12 men and women, I would not have to speak more than 30 seconds, I respectfully submit, to convince that jury that, of course, the prime minister of Canada, who for 40 years has been at a pivotal place in the history of Canadian Cree, and largely, Indian relations, has relevant evidence to give."

Since all people are created equal, James O'Reilly argued, then treaties-documents important to Native people-should be seen as being just as important as the historic documents that non-Native people view as important.

"Do treaty obligations mean something? We can say that's a relic of history. It means nothing. Yet the American constitution, a written document, a declaration of independence, is also a relic of history. The Bill of Rights of England, that's history. Is history meaningless?" he asked. "If people gave their word, and we've tried to show you what word was given through the Elders, but whether you agree or you disagree, the fact is that some great event happened. There was a relationship. There was an understanding. There was an historical meeting of the minds, which the Indian people considered as well was binding upon them because of the spiritual element, the spiritual participation. At that point in time, there was a pact. Whether it was between members of society . . . or between nations, the fact is that there was a solemn undertaking given. Now, can the courts say, 'We will disregard the agreeents of history?' Why don't we throw out the British North America Act, now the Constitution Act, 1867, or the Americans throw out their Declaration of Independence or their constitution? Those created, in our respectful submission, commitments, obligations. They're being seen now through the eyes of current history, but it is extremely important, in my submission, that the judiciary take cognizance of this and give it effect."

Chretien's lawyer tried to steer the debate away from that question and back to more practical legal matters.

"What the applicants are seeking, your lordship, to direct, are the prime minister's personal views, his interpretations, his experiences, his recollections, his understandings, his opinions on many, many things, and whether any of them are relevant or not is the issue before you," Foran said. "We heard it again this morning when Mr. O'Reilly said to you what he is after. He wants the prime minister's evidence on issues of policy, conduct, behavior, and comportment. Those were his words this morning, and in my respectful submission, that type of evidence in a case like this is simply not admissible and not relevant."

He cited several court rulings where it was decided that government decision-makers did not have to explain the political reasons behind their decisions to the courts.

"So the four principles that I would urge upon you: the courts remain cognizant of the division of powers; the courts aren't to decide on the appropriateness of policies underlying legislative enactments; the courts do not consider the motives that effect not only legislative enactments, but also policy decisions; nor do the courts consider personal opinions of elected officials," he said.

After retiring to chambers to consider the arguments, the judge returned with his decision 20 minutes later.

"I am satisfied that Samson First Nation should be permitted to call the present prime minister as a witness in the present trial, as I am satisfied he mayhave relevant and admissible evidence to give to the court that may help the court decide some of the issues presently before the court," he said. "The prime minister, like all other citizens in Canada, can be called to give evidence in a trial in Canada provided he has relevant and admissible evidence to give. When I say, 'can be called to testify,' like all other citizens of Canada, I am not speaking of the issue of parliamentary privilege that attaches to a member of the Canadian Parliament."

But he cautioned that he would not allow political matters to be re-hashed in court.

"I do wish to add the following: I will not permit questions that indicate that a party is going on a fishing expedition. Any questions put to the witness must be of a nature that can solicit facts relevant to the issues before the court. I will also not permit counsel to engage in a political debate with a witness," the judge said. "Counsel for the Crown can, if he is of the opinion that the questions being put to the present prime minister are illegal or are a political debate, object."