No said to workfare

Page 2

Political policy statements were cited alongside legal precedents in a decision rendered Aug. 24 as an Ontario Superior Court justice ruled that provincial legislation cannot be imposed on First Nations without their consent.

The eight James Bay-area First Nations that make up the Mushkegowuk Council filed suit against Ontario and asked the court for an declaration that the Ontario Works Act could not be imposed on their communities. The provincial law, enacted by Premier Mike Harris' government in 1997, instituted "workfare," where welfare recipients must work in order to receive their benefits.

Toronto lawyer Murray Klippenstein, who acted for the First Nations, told Windspeaker that Justice Romaine Pitt cited, not just case law, but "various domestic and international declarations made by the government of Canada [regarding Canada] recognizing and affirming the inherent rights of Aboriginal peoples to self government and self determination."

Justice Pitt, not a judge known for controversial decisions, handed down a ruling that Klippenstein believes advances Aboriginal law in several directions.

"The 'constitutionalization' of Aboriginal and Treaty Rights under s.35(1) of the Constitution Act, 1982 may have been the first explicit legislative recognition of Aboriginal governments as one of three orders of government," reads the decision.

"It was clear that Justice Pitt had not had occasion to become deeply aware of current Aboriginal legal developments prior to this case. He looked at Aboriginal law and 150 years of history, the Indian Act and federal policy statements with a fresh eye and a broad scope," Klippenstein said.

"I think that that wide vision and deep vision allowed him to see the big picture. I think something that was very significant to him was the way in which the reality of Aboriginal self governing communities has been recognized legally and historically for 150 years, even though it has been suppressed in some ways.

"I think that this is a process of gradual recognition of the third order of government," he said. "But this is the first judicial decision outside of Quebec which is starting to come to grips with that reality."

One other case where a court ruled that First Nations are a third order of government was issued by the Quebec Court of Appeal in French only and has not gained wide exposure in English Canada. Klippenstein believes this second decision will add considerable legal momentum to the concept that Indigenous governments are, in Canadian law, legitimate governments that must be treated with respect.

The judge's use of the term "third order of government" puts First Nations in a position that is as equally legitimate as the federal and provincial governments and recognizes that provincial jurisdiction cannot overrule First Nation jurisdiction. This could have far-reaching implications.

"That use of that word is very, very significant," the lawyer said, referring to the power that precedents are given when courts consider legal arguments.

Mushkegowuk Grand Chief Lawrence Martin was very satisfied with the decision.

"We are pleased to see the increasing recognition of the historic rights of Aboriginal government in Canada," he said. "This decision is an important step forward in our struggle for self determination."

The fresh approach applied by the judge is seen by Klippenstein as a vindication of the council's position that existing Canadian law supports its claim for self-determination, whether Canada and Ontario like it or not.

"The Indian Act is a cup that is half full and half empty. So far, people have only noticed the countless ways the Indian Act represses historical Indian rights and have not noticed the way in which it fundamentally accepts the basic idea that Indian communities are self governing and always have been," the lawyer said. "The government, since before the Indian Act and always throughout the Indian Act, sometimes against its will, has had to recognize tat Indian communities are self governing. There's never been any doubt about that. When you look at that half of the glass, as the court did, based on not only the Indian Act but present policy statements and legal precedents, in a sense the judge was stating the obvious."

Premier Mike Harris' Ontario government has a reputation of not being very tolerant of Native rights issues. Klippenstein said the decision should prompt the province to take another look at its approach to those matters.

Harris personally announced his government would appeal. Klippenstein said he hopes the federal government, which appeared in support of the province during the trial, will back away.

"The position the federal government took was a terrible betrayal of its duties and a complete flight from common sense," he said. "The federal government basically was saying that the province can crush Aboriginal self government at will. I hope the federal government comes to its senses and does the honorable thing on the appeal."