She had already been to court. The court did not respond to the motion she filed in 2004. The guards dragged her out of the car. She went limp. They threatened to break her arms, knocked her to the ground and handcuffed her in front of a row of horrified little kids.
Katenies was then taken away to somewhere in Ottawa. She was refused a call to her mother. She was told she could only call a lawyer, someone who had sworn allegiance to the government that had just assaulted and kidnapped her.
If this happened to a Canadian at some foreign port of entry, they could call the Canadian embassy. Someone from the Department of External affairs would pay a visit. They would get protection and information about their legal rights. Katenies had no protection. She was kept incommunicado.
Why? Because Canada does not recognize Katenies’ raditional government. It will only deal with a council elected under the Indian Act passed by Canada’s parliament. What would Canadians say if Mexico refused to recognize the Canadian government and insisted on dealing only with some council set up under Mexican legislation? What a mess!
Katenies was finally released pending a court date set for July 14th, 2008. As almost everybody knows, kidnapping is a crime. Stephen Harper has even apologised for the infamous residential school abductions. Trespassing is also a crime. The Canadian border control facilities were plonked in the middle of Akwesasne without the consent of the people there. Are these trespassers and abductors going to be called to account?
According to the Supreme Court of Canada the Crown has a fiduciary obligation to protect “aboriginal people”. The Crown hasn’t laid any charges for kidnapping or trespassing. The charge to be dealt with on July 14th concerns an allegation that Katenies obstructed the border guards some time back in 2006. There are even rumours that other charges and court dates have been set without serving her.
However, there are signs that the Canadian courts are looking for ways to escape from their embarrassing colonial heritage. On July 7th, 2008, the Ontario Court of Appeal saw it has a problem. Ontario’s Mining Act doesn’t respect the “aboriginal and treaty rights” protected by s.35 of Canada’s Constitution Act, 1982. (See
Frontenac Ventures Corporation v. Ardoch Algonquin First Nation,
2008 ONCA 534
.)
MacPherson, J.A. pointed out that when the court has to balance private interests against “aboriginal rights”, the Supreme Court of Canada has been saying for twenty years: There has to be “consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests”.
He pointed out that the Crown is supposed to act honourably and ruled that imprisoning and sentencing “aboriginal” people for objecting to Canadian ways is not consistent with “conciliatory values”.
Katenies’ case is different from the Frontenac Ventures case. She has not been formally charged with “contempt of court”. There is also no balancing of private interests against “aboriginal rights”. It balances the Canadian state against the “aboriginal rights” that it is constitutionally bound to uphold.
Katenies’ arguments that so infuriated past courts suggest that it is the court itself that is in contempt:
1. for refusing to respect the Two Row Wampum agreement not to impose foreign laws on the people of Akwesasne;
2. for failing to respect international law that requires the informed consent of the majority of a people as expressed in free and fair elections before it can be absorbed by another state;
3. of established rules of procedure that require a court to deal with jurisdictional objections before dealing with substantive issues.
Katenies is a very brave person. Past experience suggests that the Cornwall court will be inclined to ignore her jurisdictional arguments by whatever means it can, by delays, coercion or obstruction. It is unlikely that she will be allowed to present her case in a sane and civilized way. It is unlikely that Canada will deign to present any kind of proof of its jurisdiction other than the reliance on colonial British bullying as it has in the past.
The time has come for a change. The Onkwehonwe have the same right to human equality as everyone else. We have the
same rights to our nationalities, to our property, to freedom of speech, to freedom of movement, to family life and to security of the person. Anyone who stands in the way of our rights is violating the law, even if they are doing so as the agents of a foreign state.
Canadians need to take another look at their history. The British were not always bullies. There was a time when they treated the people of Akwesasne as trading partners and allies.
The basis of good relations is respect. We have seen too little of that in the past couple of centuries. Kidnapping is not conducive to respect. Neither is trespassing. These are criminal acts and should be treated as such. Decolonization may seem difficult, but the recent reasoning of the Ontario Court of Appeal shows that Canada can learn to follow the law and live with its obligations under the Two Row Wampum.
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