Aboriginal Sovereignty versus the Rule of Law in Caledonia

by Gary McHale - The Regional

May 5, 2010

As you read this the Calgary Forum on Aboriginal policies in Canada will just be getting started where Mark Vandermaas and I are allotted 15 minutes each to do a presentation regarding the events in Caledonia.

Not surprisingly the usual people from the pro-Native side attempted to pressure the University to stop Mr. Vandermaas and me from speaking. They created an on-line petition smearing us and attempting to link us to White Supremacy in order to stop free speech. The last thing these protesters want is to have what really happened in Caledonia to be spread across Canada.

Wes Elliott from Six Nations, a member of the Haudenosaunee Men's Fire, has been added to the speaker's list - he will do his presentation right before I do mine. There is little doubt Mr. Elliott is presenting a message that Six Nations people are not Canadian citizens but allies and thus not subject to the Criminal Code of Canada. The following is part of my presentation which attempts to show that all people are subject to the law and that only through the Rule of Law can people live in peace.

On Jan. 30, 1649 Oliver Cromwell had King Charles beheaded thus proving a fundamental legal point which is that no one is above the law. Gone are the days when people were not subject to the law because of their blood line or station within society. No longer did the McHale clan battle with the McGreggor clan and force their view of crime and punishment on each other.

Today, whether you are the Prime Minister of Canada or the person on the street, Rule of Law means you are Equally subject to the law and also Equally protected by the law.

The United Nations states, "Promoting the rule of law at the national and international levels is at the heart of the United Nations’ mission.  Establishing respect for the rule of law is fundamental to achieving a durable peace in the aftermath of conflict, to the effective protection of human rights, and to sustained economic progress and development. "

Equality is at the heart of the Rule of Law where no one is above the law. The 2007 United Nations Declaration on the Rights of Indigenous Peoples states, "[We] affirm that indigenous peoples are equal to all other peoples... [We] affirm further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust."

Any view that presents Aboriginal customs, traditions or spirituality as being superior is denounced by the UN as racist, etc.

The UN affirms that Aboriginals in Canada are citizens of Canada and thereby obligates the Canadian Government to treat them equally within society and before the Law.

The Canadian Constitution supports the UN view of Equality and the importance of the Rule of Law. The preamble to the Constitution states, "Whereas Canada is founded on the principles that recognize the supremacy of God and the rule of law.”

Section 15 of the Charter of Rights and Freedoms guarantees that 'every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination".

Furthermore section 27 states, "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

In every province Aboriginals have told the court they are not subject to the law and every time that argument is rejected by all Courts of Appeals and the Supreme Court of Canada. In the case of R. v. David [2000] the Court stated:

"Mr. David’s claim, essentially a claim for full aboriginal Mohawk sovereignty, is not a novel one.  It is a proposition that has been considered by Canadian courts on numerous occasions.  It has never been accepted and I am certainly bound to reject it as well.  Canadian sovereignty is a legal reality recognized by the “law of nations”.  Claims such as [this which] has been advanced in this case by Mr. David do not make that reality less real."

Even in the Ontario Court of Appeal that overturned Judge Marshall in 2006 it stated, " The Province owns Douglas Creek Estates... If the protesters cause a nuisance or other disturbance affecting neighbouring lands or residents of Caledonia, then action may be required... I accept that negotiations are not a substitute for individual responsibility for criminal acts."

In the Voortman ruling regarding Hagersville the judge stated, "the rule of law means that the Haudenosaunee Men's Fire will be required to obey any court order, just as any person in Canada would be required to obey a court order. The assertion of an aboriginal right does not permit any person, aboriginal or otherwise, to break the law."

The same judge understood clearly that peace exists when the Rule of Law is respected. He stated, "Before I conclude I would like to emphasize the rule of law. All people in Canada are governed by the rule of law as confirmed in the preamble to the Charter of Rights and Freedoms. That is, all people in Canada are required to obey the law. As a corollary, all people in Canada are entitled to know that every other person in Canada will be required to obey the law. If any person in Canada does not obey the law, the courts will enforce the law. In that way the public has some assurance that they can live in peace without fear of those who might choose to disobey the law."

Within my life span we have witnessed civil rights progress that has taken Black people from being lynched to becoming a President of the United States. Malcolm X called for an armed revolution to overthrow the evil white man. Martin Luther King Jr. had a dream of Equality where one day a person would not be judged by the Colour of his Skin but by the content of their character, where  the "truth is self-evident: that all men are created equal."

Six Nations needs to determine which path they are going to take.

The path I choose is the path of Equality where peace comes from respecting the Rule of Law.