Stó:lō News: Kwitsel Tatel’s Case

By May 3, 2013Issues

Professor Anthony Hall of the University of Lethbridge, an expert witness in Patricia Kelly’s constitutional challenge of her arrest for fishing, has published his notes for the Expert Opinion Testimony he will be providing at the Chilliwack Courthouse May 9 – 14.

It can be found in full in the comments section of the Chilliwack Today column, “Columns: Treatment Of Patricia Kelly Was Outrageous,” or a full transcript can be found below.

Readers will recall that in August Patricia Kelly was jailed and subjected to two body cavity searches for bringing a ceremonial drum with her to the Chilliwack courthouse where she was about to defend her constitutional right to feed her family by catching and selling fish.

Kwixel Tatel (her indigenous name) and her son Kwees Hamilton were both taken to jail and she was charged with assaulting the seven officers of the court who took her to the ground, ripped her top and sprained her wrist. Her son was not charged but when he attempted to have the police charged with assault he says they laughed at him.

Beyond the ignomy of being assaulted and cavity searched for asserting her rights in a peaceful and traditional manner, Kwitsel Tatel feels the larger issue of her right to support her family through fishing is receiving short shrift both in the courts and political sphere.

As the issue has progressed through the courts there has been controversy as, for instance, the argument by Professor Hall that federal Crown prosecutor Mr. Finn Jensen Q.C. is in a position of conflict – a position rejected by Judge Thomas J. Crabtree.

More recently the two sides have been disputing Hall’s testimony as an expert witness and which documents will be allowed to be produced in court as part of his testimony.

Professor Anthony Hall

Professor Anthony Hall

According to Hall, “The judge’s [latest] ruling was a month late and, there are in my view major irregularities about when Judge Crabtree wrote the ruling and when his staff sent out the ruling to Kiwtsel Tatel. Court records say the item was mailed on April 5 but the envelop was post-marked on April 9 and seems to be a response to her request on April 5 for a postponement seeing as how we didn’t then know the verdict on Finn’s conflict of interest. Thus the following phrase on the cover page should be in italics, “[The hard copy, received by Kwitsel Tatel on April 16, was post-marked April 9]”

In April, Hall wrote, “The case and the published reports have helped draw international attention to the accelerating assault by the government of Canada on Indigenous peoples and their remaining Aboriginal estate.

“The attacks on Indigenous peoples domestically within Canada are quite consistent with the Harper government’s support for all manner of attacks against the Indigenous peoples of Israel/Palestine as well as other zones throughout the world where Aboriginal title to lands and resources is hotly contested. This current round of destruction continues the oldest strain of human rights violation in the Western Hemisphere. Where many would like to present Canada as a champion of human rights in the international arena, the election-fraud government of Stephen Harper in fact betrays this ideal systemically through its abysmal treatment of First Nations domestically.”

For More On The Issue Please See:

A Failure to Recognize and Affirm; A Failure to Protect, Implement, and Enforce

The Honour of the Crown, Section 35, and Government Violations of the Canadian Constitution as Illustrated in the Case of Kwitsel Tatel and Other Litigation Testing the Meanings of Aboriginal and Treaty Rights

Notes for the Expert Opinion Testimony of Professor Anthony J. Hall to Take Place at the Chilliwack Law Courts, May 9,10, 13, 14

“Instead of defending Indian rights or prosecuting incursions on Indian lands [and waters], the Department of Justice has often done nothing, or has actually acted against the First Nation interest. What is the effect of Guerin on my trust responsibilities in regards to legal defense of Indian interests? Is the federal government violating its special obligations by failing to support Indian objections to intrusions?”
The Honourable David Crombie, Minister of Indian Affairs and Northern Development, in Response to the Supreme Court of Canada’s Guerin Decision, 1984

“the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.”
Supreme Court of Canada in the case of Haida Nation versus BC Ministry of Forests, 2004

a legislative objective must be attained in such a way as to uphold the honour of the Crown and be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s Aboriginal peoples.

Supreme Court of Canada in the Sparrow ruling, 1984

From the Sparrow case, to the Marshall case, to the Badger case, to the Haida case, to the Lefthand case, to the Little Salmon/Carmacks case and more, the term, “the Honour of the Crown,” has become a code for many concepts in Canadian jurisprudence pertaining to Aboriginal and treaty rights. The concept of the Honour of the Crown has even been described in the ruling on the Haida case as a “corollary” of section 35. Kwitsel Tatel has alleged that her treatment by the federal Crown prosecutor, Finn Jensen QC, and by the Ministry of Justice more generally, dishonours the Crown. Kwitsel Tatel has attempted to support this allegation by pointing out 35 alleged infringements of section 35, demanding justification for these infringements as the Supreme Court of Canada encourages her to do in the Sparrow ruling.

A key aspect of these 35 allegations flows from Kwitsel Tatel’s contentions that her treatment is illustrative of larger patterns that see the federal government take positions in court whose effect is to deny and negate rather than recognize and affirm the existence of Aboriginal and treaty rights as called for in Section 35 of the Constitution Act, 1982. My intention in my testimony is consider Kwitsel Tatel’s contentions with particular reference to the Sparrow ruling’s instruction, cited above, that the upholding of the Crown’s Honour must be “in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s Aboriginal peoples.” What is this history to which the Supreme Court refers? What are the policies? Moreover, how are we to understand “the Crown” historically, today, and in the process of transition? In the context of Canada is “the Crown” a term that means the same as “the government?” Or does the term continue to have specific associations with that part of the government most closely associated with the institutions of monarchy?

I intend to address these questions, providing in the process an assessment of the background and antecedents to section 35 with reference to Kwitsel Tatel’s allegations concerning Finn Jensen and the Ministry of Justice. I will look more specifically at the collaboration between the Ministry of Justice and the Ministry of Aboriginal Affairs and Northern Development Canada in the Litigation Management and Resolution Branch. I contend that this unit operates according the wrongheaded principle that adhering to section 35 of Canada’s Constitution Act, 1982 entails liabilities rather assets for Canada. I intend to explore some specific examples of malfeasance in the supposedly “expert” representations of the positions of the Queen, the people, and the government of Canada in court cases involving historical interpretations pertaining to section 35.

In the case of Kwitsel Tatel the Ministry of Justice has drawn prodigiously on public resources to do harm to its targeted Aboriginal fisher and her dependent children. Kwitsel Tatel has been, Mr. Jensen’s claims notwithstanding, effectively criminalized in this matter for activities that are the subject of ongoing treaty negotiations between the Crowns of Canada and BC and a portion of the Stó:lō fishing peoples of the Fraser Valley. The aggressiveness of this prosecution and persecution, to the direct financial benefit of a private contractor employed by the Ministry of Justice, runs contrary to the provision in the ruling on the Haida Nation case cited above. That provision stipulates that “the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.”

The federal Crown’s prosecution of Kwitsel Tatel reflects, in part, the unconstitutional content of the federal Fisheries Act and its attending regulations, including section 4 of the Aboriginal Communal Fishing Licenses Regulations. This complex of legislation and regulations is based on the unconstitutional notion that the Aboriginal right to fish flows exclusively from the specific provisions of the few Crown-Aboriginal treaties formalized in British Columbia. Such an approach fails to take into consideration that inherent Aboriginal rights form the basis on which treaty negotiations rest. Treaties are means to recognize and affirm pre-existing Aboriginal rights, not create new rights where no rights existed before.

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