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Government applies Mitchell


Paul Barnsley, Windspeaker Staff Writer, Sault Ste. Marie Ontario







Page 12

After years of allowing Native people to cross the Canada/U.S. border without paying duties and taxes on goods purchased, the government of Canada has now decided Native people do not have any border-crossing tax exemption rights.

"As of right now, there are no exemptions anywhere. And it's duty and taxes from the first dollar, unless of course somebody qualifies under the regular exemptions. They have to report and duties and taxes are payable," said Collette Gentes-Hawn, spokesperson for Canada Customs and Revenue Agency (CCRA).

The United States recognizes the Jay Treaty, which recognizes the right of Native people to move within their traditional territories across the border without paying duties and taxes, but Canada does not. Native people around Sault Ste. Marie have regularly made a point of exercising their Jay Treaty rights by traveling into the U.S. enmasse at regular scheduled times each year and the Canadian government has not forced a showdown over the issue.

Demonstrations, protests and possible court action seem imminent, however, now that Canada is clamping down at the border. But there seems to be confusion as to when that clamp-down will occur.

Grand Chief Chris McCormick of the Association of Iroquois and Allied Indians accompanied several band members across the international bridge at Sault Ste. Marie on Sept. 5 despite being informed that there were to be no more duty and tax exception border crossings as of Aug. 15.

The Native people shopped in the United States and returned home to the Canadian side without paying duty, and since they believed they were doing so in defiance of the new CCRA policy, McCormick was on hand to make sure that the people would not get stuck in a bad situation.

"We were having recognized border crossings each month, but that had been wiped out. They told us there were no more after Aug. 15. We told them we were having one on Sept. 5. We asked what was going to happen," he said. "We needed to advise people that were going to be crossing, because some of them bring their children. It's the time of year to buy school clothes. Some people have medicine, other people have babysitters, so we needed to know in case it took a long time to cross the bridge. I already knew that [Garden River] Chief [Lyle] Sayers had told them in a separate conversation that they'd block the bridge."

Despite assurances from the minister responsible, Elinor Caplan, and her staff that there would not be any problems, there was a bit of friction with Canadian customs officials, he reported.

"It went fairly smooth. I think the people on the bridge were getting mixed messages because I had been talking to the minister's policy advisor and I'd called him because we hadn't heard what was going to be the process at the bridge when we went across. I was advised that there wasn't going to be any problems," he said. "Then he made a remark about personal goods and he used a figure of under $5,000. I asked if I could have that in writing. He said he'd get somebody to call me back. When the guy called back, he had sort of a different tone to his voice; that they were going to be subject to search and things like that. So him and I sort of had a little set-to because that's not the information I'm getting from the minister's office.

"Then the guy called again and said there wasn't going to be any problem. If they're flagged over, even if they don't go over there won't be any police and they won't be stopped but their license number will be taken."

One custom's officer tried to give Chief Sayers a ticket, but he refused to take it.

"But then they picked on two young women," McCormick said. "The women said the border guards said there's no recognition of their rights and told them to pull over. That's what I mean about mixed messages coming from bureaucrats in the ministry."

The chiefs intervened on behalf of the young women and they were able to get through.

That weekend, at an Elders' confernce in Sault Ste. Marie, the grand chief was told that one of the Elders who made the crossing was forced to pay duty on the goods she brought back.

"Usually we set it so the people are coming back between 4 [p.m.] and 5:30 [p.m.]. This time we decided to have everyone come back right at 5:00 because of the uncertainty," he explained. "The Elder came back at 4:15 and was charged duty."

On Sept. 6, Oneida of the Thames Chief Harry Doxtator led a similar crossing at the Sarnia bridge. It went without incident.

McCormick is bothered by the confusion among the government officials.

"The remarks by the bridge officials to those young women, that there's no Jay Treaty rights, we don't recognize your rights here, etc... as far as we're concerned in regards to this border, for us there's no provincial border, state border or United States/Canada border. The way we look at it is that it's a right given by the Creator. It's an existing Aboriginal right," he said. "All that Jay Treaty does is recognize that right. If Canada was honoring its fiduciary obligation, they would be following in the footsteps of the United States and also from the recommendations of the Penner committee and their own Liberal Party convention that the Jay Treaty should be legislated in its full content."

The Canada Customs and Revenue Agency announced this change in policy in response to the Mitchell decision by the Supreme Court of Canada. Former Akwesasne Chief Mike Mitchell deliberately forced the issue of border crossing rights and won at trial and on appeal before being stunned with a loss at the highest court.

"When we met with the justice lawyers and the revenue officials, the justice lawyers agreed that the Mitchell case was specific to the Mohawks of Akwesasne. It was lost on the failure to prove an Aboriginal right of cross border trade," Chris McCormick said.

With conflicting legal decisions on the issue McCormick was able to argue there was no certainty in law on the matter. He sad that seemed to satisfy the minister and her top officials.

Collette Gentes-Hawn said the national chief and the minister met in September to discuss the issue.

"As Minister Caplan explained to Mr. Fontaine, their meeting was certainly not a negotiation. It was a discussion. In time, things might change. Yes, through changes in negotiation or through changes in legislation. But for the time being, the Supreme Court decision of the Mitchell case is what is in effect. As far as the agency's position on protests or demonstrations on the bridges about the issue of duties and taxes and Aboriginal peoples, from now on, and the date was Sept. 15 I'm told, that all who cross the bridge must report and they must pay duties and taxes.

"In Mitchell, the Supreme Court ruling there was that Mitchell did not prove that there were any basic Aboriginal rights to cross, to be able to bring goods into Canada duty and tax free, that that was not a basic Aboriginal right."