Friday, May 12, 2006

More From Orkin

And as a follow-up to the op-ed linked in my last post, here is a letter by lawyer Andrew Orkin published in today's Hamilton Spectator on how the law actually applies to the Mohawk reclamation efforts in Caledonia, and how the Canadian settler state is flouting its own laws:

Re: 'Natives are subject to the law' (Letter, Brent Whetstone May 9, 2005).

Indeed. But there is much more to "the law" applicable in Caledonia than traffic laws or the terms of an injunction arising out of a one-sided ("ex parte") quickie hearing. And while governments know this, it appears that they aren't telling people in Caledonia.

The Crown's Treaties with the Iroquois, including those of Albany and Montreal in 1701, the Silver Covenant Chain and the Two Row Wampum are part of applicable Law. The Royal Proclamation of 1763 is part of the Canadian Constitution. So is Section 35 of the Constitution Act of 1982, which recognizes and affirms Aboriginal and Treaty Rights.

These laws bind the governments of Canada and Ontario, and the rest of us. Our own Supreme Court repeats that they MUST be upheld, because "the honour of the Crown is at stake".

The Haldimand Grant is part of this law. Its "surrender" or "sale" in whole or part by the Iroquois may well be non-existent, fraudulent or invalid (even according to non-native Canadian law). I suspect the federal Crown knows this, but had simply planned over the intervening 160 years that the Iroquois would be assimilated and disappear.

The Iroquois Confederacy is centuries or millennia old. Its leaders, clan mothers and members (all reasserting their nation in Caledonia) are still telling us that in their view their own Iroquois structures and laws have never been legitimately displaced by Euro-Canadian ones. They are reminding us of solemn nation-to-nation Treaties that are no older or less important than the Treaty of Paris between England and France of 1763 (the ongoing basis for Quebec being part of Canada).

It is far from clear that the Iroquois Confederacy members re-occupying their lands are legally in the wrong.

If they are, why has the federal government spent the last 20 years or so frantically evading having to account to the Six Nations Band Council in Court for the Crown's (mis)handling of the vast Haldimand Grant that it holds in trust for the Iroquois people?

It is time that Canadians remind themselves of ALL of the applicable law, not just the bits that seem to justify our occupation and takings of others' lands.

The only alternative is the use of overwhelming military force against the Iroquois, to conquer them. But Canada's legitimacy and reputation would take a severe beating if the colonial and oppressive nature of its relationship with aboriginal peoples was thus laid bare.

Respect for the law is not a one-way, natives-only street. Non-natives and their governments must respect the law too, and all of it.

Andrew Orkin

2 comments:

Brent Whetstone said...

Typical nitwit lawyer! Avoid all the valid points and argue something tangential to the actual topic at hand.

Next if you actually read more than just the headline of the comment you are replying to your comment may have some validity.

Scott said...

Yet somehow you have avoided the opportunity to present substance in this space, and resorted to name calling and contempt...do you have anything to add on the subject of the Canadian settler state's refusal to obey even its own colonial laws, and how that is or is not relevant to current conflicts?