Government tips the scales of justice

Page 7

Many good minds with impressive credentials see the adversarial nature of the Canadian justice system as an amplifier for the cultural tensions that exist between Native and non-Native people in this country.

On issues such as treaty rights, land claims, tax immunity, residential school compensation and others, two very distinct points of view are often set up to collide at full speed as lawyers and bureaucrats on both sides struggle to convince a court that their interpretation of history and the law is correct.

When Native people refuse to quietly accept the authority of the Crown and use the colonizers' own law against the colonizers to assert their legal and human rights, many Canadians react angrily. The daily political exchange between federal and provincial government officials and First Nations leaders is often affected by this anger; the battle for public opinion is an important factor at all times.

But the public's understanding of these complex issues is limited and frequently marred by false assumptions and racism. Indians are seen by many as conquered peoples, although no war of conquest was ever declared or openly conducted in Canada. The colonization of British North America, accomplished in many cases through the blatant disregard of the colonial laws governing how land was to be legally acquired from Indigenous peoples, was fueled by the belief that the European way of life was superior and the Indigenous peoples of this continent were inferior savages. The drive to colonize was made possible by an obviously false doctrine called Terra Nullius, a Latin phrase that means, "empty land." North America, populated by millions of self-governing people at the time of contact, was deemed empty of life so colonial forces could justify the otherwise immoral and illegal act of moving onto someone else's land and claiming it as their own. Canadians don't like to be reminded their country was founded on such dubious acts and Native assertions to that effect are not often met with unemotional, analytical responses.

Many academics who testify in court along these lines on behalf of First Nations say they see the emotional reaction-the anger, resentment and denial-becoming a factor on a regular basis in court. Dr. Dara Culhane, a Simon Fraser University professor of anthropology who has written extensively about these issues, told Windspeaker the rift between Native and non-Native ways of thinking extends into the world of academia.

"The anthropologists and historians who testify on behalf of First Nations get discredited because they're called advocates and it's just, I think, that really old colonial way of thinking," she said. "You know, if you agree with and if your research legitimately supports the position of Aboriginals, well you've 'gone Native.' But if your research supports the Crown, you're a respected scientist."

Culhane said many academics who refuse or are unable to confront uncomfortable facts about Canada's colonial history become expert witnesses for the Crown because their point of view fits the government's side in a legal struggle.

"The original Delgamuukw trial was a quintessential example of that, where the Crown witness-Sheila Robinson, who's still the Crown witness- was exactly that kind of person. She's never had an academic position; she's never done any work that's been peer reviewed. I think that's important," she said. "I mean peer review can be a really conservative thing, too. But it does mean that other people with knowledge in your field can look at your work and see whether it's valid or not."

A chapter of Culhane's book The Pleasure of the Crown was devoted to the Crown tactics during the Delgamuukw trial. The province's expert witness was the subject of close scrutiny.

"I tried to discredit her in my book but I'm not the only person who has raised criticisms of her in that way," Culhane said. "In my book, I showed examples of correspondence between her and the Crown awyers who were sending her report back and saying, 'Can you adjust this and re-frame that?'"

Another case where a well-known academic became involved in a Native rights case recently resulted in a confrontation on campus at Fredericton's St. Thomas University. Dr. Stephen Patterson is one of the few full-tenured professors who has provided expert testimony for the Crown. He is a University of New Brunswick history professor, whose writings and testimony on Native rights in Atlantic Canada, in particular Marshall II, the Supreme Court clarification of Atlantic treaty fishing rights, are universally despised by Native people as incurably Eurocentric. Patterson was invited to speak at St. Thomas. Native studies students at that school passed out handbills protesting his appearance and, later, produced a show on campus radio attacking his point of view.

Sheldon Cardinal, a St. Thomas faculty member, told Patterson what he thought of his take on Native rights issues after the UNB professor's presentation.

"He started off very courteously and said, 'Everything you've said offends me and, I'm sure, every Aboriginal person in this room and every thinking person in this room with a conscience,'" Native Studies department head Andrea Bear Nicholas said.

"He said, 'It's racist. It's offensive.' And he told how it was a racist presentation. He was very polite. The very next day the chair of the history department demanded an apology from Sheldon. This went on for about two weeks and Sheldon answered and said 'no, and I'm not going to apologize and here's why.' Then he got another demand for an apology and they haven't retracted it. It's primarily over this issue: this man is paid by the government -very nicely- to say what he says. We've ended up spending the last three months fighting and the university is now treating us as naughty children-the Native studies department."

University of Lethbridge American Indian Studies professor Tony Hall was an expert witness in te Harley Franks case. Franks was charged with trading across the Alberta/Montana border without paying duties and taxes, and based his defence on a claim that it was his Aboriginal right to conduct such trade. Dr. Alexander von Gernet was the witness for the Crown in the Franks case. A junior faculty member at Erindale College (University of Toronto), he had previously earned the wrath of Native people with his testimony in the Mitchell case, where he argued the Crown's point that Akwesasne Mohawks hadn't established an Aboriginal right to trade across the Canada/United States border. The position has been rejected in the federal and appeals courts, and is still to be determined by the Supreme Court of Canada.

"I experienced this face-to-face in the Harley Franks case where I was his expert witness and went up against the Crown's expert witness. The fellow's name is von Gernet. He seems to embody the phenomenon. He had a part-time teaching position at Erindale, so he wasn't in any way a permanent faculty member. Not having a permanent teaching post he had loads of time," said Hall.

Messages left at Mr. von Gernet's office at Erindale College requesting comment went unanswered.